Monday, August 28, 2006

state right-to-know law - non-citizen request - privileges and immunities

Lee v. Minner - 3rd Circuit - August 16, 2006

Delaware's freedom of information law -- the equivalent of Pennsylvania's Right to Know Law, 65 P.S. sec. 66.1, et seq. -- was held to violate the privileges and immunities clause of the U.S. Constitution by restricting the right of citizens of other states to access, inspect and copy public documents.

Delaware's attorney general rejected the request of a N.Y. citizen for documents based on Delaware law, which said that "any cititzen of the state" could inspect and copy records. The AG wrote to the requester that his address indicated that he was not a citizen of Delaware and so denied his request.

The court held that the citizens-only provision violated Article IV, sec. 2, of the US Constitution, which provides that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. This provision was "designed to 'fuse into one national a collection of independent sovereign states…and its object was to place the citizens of each state upon the same footing…so far as the advantages resulting from citizenship in those States are concerned….The section, in effect, prevents a State from discriminating against citizens of other states in favor of its own" unless there is a "substantial reasons for the discriminatory pracftice, and the practice bears a substantial relation to the state's objectives."

Pennsylvania's right to know law, 65 P.S., sec. 66.1, similarly defines "requester" as a "person who is a resident of the Commonwealth and requests a record pursuant to this act."

fraud - silence/concealment - duty to disclose

Lutzky v. Petcove - ED Pa - August 21, 2006

Motion to dismiss of third party defendant, a real estate agent, denied. Plaintiff adequately pleaded fraud, predicated on a defendant's having withheld material information about the condition of real property. Concealment or silence may constitute fraud where there is a duty to speak, which exists here under the state real estate disclosure law, 69 P.S. sec. 7310, and case law that makes a seller's agent potentially liable.

FMLA - "eligible employee" - length of employment

Flannery v. Nextgen Healthcare - ED Pa. - August 10, 2006

Plaintiff was not an "eligible employee" under the FMLA, 29 USC 2612(a), since he had not been employed at least 12 months at the time his leave began. "[A]t least one year must span the period between the date when the employee was hired and when the medical leave begins."

FMLA - accrual of benefits

Sommer v. The Vanguard Group - 3d Circuit - August 234, 2006

Plaintiff was entitled only to partial bonus payment, prorated on the basis of the time he was absent on an FMLA leave. Granting prorated rather than full benefits did not violate the FMLA, 29 USC sec. 2601 et seq. Under the terms of the employment agreement, the bonus was a "production" bonus rather than an "absence of occurrence" bonus, i.e., it was based on hours worked, not on the non-occurrence of a specified event. To hold other "would violate the very terms of the FMLA" which states that "the leavetaker shall not be entitled to the "accrual of any seniority or employment benefits during any period of leave" other than one to which he would have been entitled absent the leave.

abuse - contempt - appeal - final order

Takosky v. Henning - Superior Court - August 25, 2006

Defendant's appeal from a finding of contempt was quashed. Although the trial court had found him in contempt, it had not imposed any sanctions or punishment. "It is well settled that unless sanctions or imprisonment is [sic] imposed, an Order declaring a party to be in contempt is held to be interlocutory and not appealable."