Dietrich v. Dietrich - Superior Court - April 20, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/S15041_07.pdf
The court held that, since a trial was not scheduled in this case within 180 days of the date the complaint was filed, as required by Pa. R.C.P 1915.4(b) http://www.pacode.com/secure/data/231/chapter1915/s1915.4.html, the order that resulted from a trial that took place more than 180 days after filing had to be vacated and the case remanded "to restore the immediately-preceding custody order....Either party may then file a petition to modify custody pursuant to Chapter 53" of the state domestic relations act, 23 Pa. CS, and Pa RCP 1915.4. Go figure.
Monday, April 23, 2007
UC - quit v. fire - "park your truck"
Bell v. UCBR - Commonwealth Court - filed 2-20-07, ordered reported 4-20-07
http://www.courts.state.pa.us/OpPosting/CWealth/out/1806CD06_4-20-07.pdf
Journeyman plumber's argument that his supervisor's use of the phrase "park your truck" meant that he had been fired was rejected. Claimant was held to have voluntarily quit when he left the job after a confrontation, during which the supervisor used the phrase.
The UCBR resolved all critical factual issues in favor of the employer, including that the supervisor's statement that "if Claimant did not like working with [the supervisor] or Employer, provided Claimant with the option to continue his employment and did not possess the immediacy and finality of a firing."
There were also findings that the claimant had made numerous prior requests to be laid off, had not questioned the supervisor about the meaning of his statement, and that continuing work was available. Claimant's testimony and argument that "park your truck" had a special meaning in the profession--you're fired--was rejected under the totality of circumstances in the case.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1806CD06_4-20-07.pdf
Journeyman plumber's argument that his supervisor's use of the phrase "park your truck" meant that he had been fired was rejected. Claimant was held to have voluntarily quit when he left the job after a confrontation, during which the supervisor used the phrase.
The UCBR resolved all critical factual issues in favor of the employer, including that the supervisor's statement that "if Claimant did not like working with [the supervisor] or Employer, provided Claimant with the option to continue his employment and did not possess the immediacy and finality of a firing."
There were also findings that the claimant had made numerous prior requests to be laid off, had not questioned the supervisor about the meaning of his statement, and that continuing work was available. Claimant's testimony and argument that "park your truck" had a special meaning in the profession--you're fired--was rejected under the totality of circumstances in the case.
Monday, April 16, 2007
PFA - withdrawal - expungement
Commonwealth v. Charnik - Superior Court - April 3, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/s69024_06.pdf
This case involves a PFA defendant's request for expungement of a) two indirect criminal contempt convictions and b) the underlying PFA order itself. The trial court and Superior Court denied both requests.
Plaintiff got a final PFA order following a contested hearing. Later, Defendant was charged with and found guilty of two (2) instances of indirect criminal contempt, for violating the final PFA order. Plaintiff later filed a petition to withdraw the PFA order, seven months after it had been entered. The trial court granted the petition. Defendant then moved to expunge both the PFA record and the record of his contempt convictions. The trial court denied both requests and the Superior Court affirmed.
conviction records - The Superior Court rejected the request to expunge the contempt convictions, stating that the "Pennsylvania legislature has strictly regulated expungement of records of convicted persons. Conviction records may be expunged only where: 1) the subject of the information reaches the age of seventy and has been free from arrest or prosecution for ten years; or 2) where the individual has been dead for three years. Criminal History Record Information Act, 18 Pa. C.S. sec. 9122(b)." (emphasis in original)
non-conviction records -
The Superior Court termed the issue of the expungement of the underlying PFA "more complicated."
It held (in n. 3) that the trial did not have jurisdiction to set aside the final PFA order seven months after it had entered it, since there had been no appeal or reconsideration of that order. Query: does this mean that a PFA plaintiff does not have the right to withdraw her/his case? See, e.g., 23 Pa. C.S. 6105(e)(2) ("Vacated or expired orders shall be purged from the registry.")
In any event , the court went on to discuss the expungement issue in detail, distinguishing between a case where a final PFA order is entered after a hearing and a case which is discontinued before the entry of a final order, e.g., where it is withdrawn after the entry of a temporary order, without any hearing and before a plaintiff has met her/his burden of proof. "Thus, when a PFA petition...has been dismissed by court order [when neither party appears at the final hearing] or the PFA proceedings never evolve beyond the temporary order stage..., expungement is proper as a matter of law" since the PFA process was "not completed" and therefore lacked the "safeguards of due process."
The court said that expungement was not proper in other circumstances and held that the decision in Carlacci v. Mazaleski, 798 A.2d 186 (Pa. 2002), should be read as "expressly limiting the remedy of expungement of PFA records to those cases where...no facts were brought forth to substantiate a finding of abuse and no final order was entered...."
In the case at bar, the request for expungement was rejected, because the final order was entered after a contested hearing at which "facts were brought forth proving the allegations of abuse by a fair preponderance of the evidence, and [the defendant] has not appealed that determination...."
Query: would the have reached the same result where the final order was entered by agreement, without any admission?
http://www.courts.state.pa.us/OpPosting/Superior/out/s69024_06.pdf
This case involves a PFA defendant's request for expungement of a) two indirect criminal contempt convictions and b) the underlying PFA order itself. The trial court and Superior Court denied both requests.
Plaintiff got a final PFA order following a contested hearing. Later, Defendant was charged with and found guilty of two (2) instances of indirect criminal contempt, for violating the final PFA order. Plaintiff later filed a petition to withdraw the PFA order, seven months after it had been entered. The trial court granted the petition. Defendant then moved to expunge both the PFA record and the record of his contempt convictions. The trial court denied both requests and the Superior Court affirmed.
conviction records - The Superior Court rejected the request to expunge the contempt convictions, stating that the "Pennsylvania legislature has strictly regulated expungement of records of convicted persons. Conviction records may be expunged only where: 1) the subject of the information reaches the age of seventy and has been free from arrest or prosecution for ten years; or 2) where the individual has been dead for three years. Criminal History Record Information Act, 18 Pa. C.S. sec. 9122(b)." (emphasis in original)
non-conviction records -
The Superior Court termed the issue of the expungement of the underlying PFA "more complicated."
It held (in n. 3) that the trial did not have jurisdiction to set aside the final PFA order seven months after it had entered it, since there had been no appeal or reconsideration of that order. Query: does this mean that a PFA plaintiff does not have the right to withdraw her/his case? See, e.g., 23 Pa. C.S. 6105(e)(2) ("Vacated or expired orders shall be purged from the registry.")
In any event , the court went on to discuss the expungement issue in detail, distinguishing between a case where a final PFA order is entered after a hearing and a case which is discontinued before the entry of a final order, e.g., where it is withdrawn after the entry of a temporary order, without any hearing and before a plaintiff has met her/his burden of proof. "Thus, when a PFA petition...has been dismissed by court order [when neither party appears at the final hearing] or the PFA proceedings never evolve beyond the temporary order stage..., expungement is proper as a matter of law" since the PFA process was "not completed" and therefore lacked the "safeguards of due process."
The court said that expungement was not proper in other circumstances and held that the decision in Carlacci v. Mazaleski, 798 A.2d 186 (Pa. 2002), should be read as "expressly limiting the remedy of expungement of PFA records to those cases where...no facts were brought forth to substantiate a finding of abuse and no final order was entered...."
In the case at bar, the request for expungement was rejected, because the final order was entered after a contested hearing at which "facts were brought forth proving the allegations of abuse by a fair preponderance of the evidence, and [the defendant] has not appealed that determination...."
Query: would the have reached the same result where the final order was entered by agreement, without any admission?
Monday, April 09, 2007
UC - hearing - continuance
Skowronek v. UCBR - Commonwealth Court - April 9, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/2150CD06_4-9-07.pdf
The referee's denial of counsel's request for a continuance of the UC hearing was affirmed and no abuse of discretion was found, under the following circumstances:
last-minute request - The request was made just one day prior to the hearing on July 20th. The hearing notice had been sent out on July 7th. The court noted that the request was less the 24 hours prior to the hearing and was faxed when the referee office was closed, at 6:30 p.m. on the last business day before the hearing. It also cited case law saying that "last-minute requests for continuances will not be viewed favorably....."
no contact information supplied - The request did not contain contact information for claimant's counsel. The contact information was at the bottom of the attorney's stationery and did not appear on the fax, having apparently been cut off.
no good cause established - The request was vague and did not establish "good cause" on it face. The attorney said only that "I will be unavailable due to a previously scheduled appointment." The court said that this request was "vague" and similar to another case, where a continuance was requested for "unspecified personal reasons." In this case, the court said that the request did "not provide sufficient information from which the referee could determine proper cause existed to continue the hearing. Given the timing of the requests and its vague nature, no abuse of discretion is apparent."
http://www.courts.state.pa.us/OpPosting/CWealth/out/2150CD06_4-9-07.pdf
The referee's denial of counsel's request for a continuance of the UC hearing was affirmed and no abuse of discretion was found, under the following circumstances:
last-minute request - The request was made just one day prior to the hearing on July 20th. The hearing notice had been sent out on July 7th. The court noted that the request was less the 24 hours prior to the hearing and was faxed when the referee office was closed, at 6:30 p.m. on the last business day before the hearing. It also cited case law saying that "last-minute requests for continuances will not be viewed favorably....."
no contact information supplied - The request did not contain contact information for claimant's counsel. The contact information was at the bottom of the attorney's stationery and did not appear on the fax, having apparently been cut off.
no good cause established - The request was vague and did not establish "good cause" on it face. The attorney said only that "I will be unavailable due to a previously scheduled appointment." The court said that this request was "vague" and similar to another case, where a continuance was requested for "unspecified personal reasons." In this case, the court said that the request did "not provide sufficient information from which the referee could determine proper cause existed to continue the hearing. Given the timing of the requests and its vague nature, no abuse of discretion is apparent."
wages - WPCL - attorney fees
Zdrok v. Main Line Mortgage Co. - Superior Court - April 5, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/a32002_06.pdf
This case was remanded for a calculation and award of attorney fees to the prevailing party below. A fee award is mandatory in an action brought under the Wage Payment and Collection Law, 43 P.S. sec. 260.9a(f), citing Oberneder v. Link Computer Corp, 696 A.2d 148, 151 (Pa. 1997). "This conclusion promotes the statute's purpose to protect employees when employers breach a contractual obligation to pay wages."
http://www.courts.state.pa.us/OpPosting/Superior/out/a32002_06.pdf
This case was remanded for a calculation and award of attorney fees to the prevailing party below. A fee award is mandatory in an action brought under the Wage Payment and Collection Law, 43 P.S. sec. 260.9a(f), citing Oberneder v. Link Computer Corp, 696 A.2d 148, 151 (Pa. 1997). "This conclusion promotes the statute's purpose to protect employees when employers breach a contractual obligation to pay wages."
Friday, April 06, 2007
Pennsylvania Bulletin of April 7, 2007
http://www.pabulletin.com/secure/data/vol37/37-14/index.html
court rules - additional defendants - cross claims - etc.
http://www.pabulletin.com/secure/data/vol37/37-14/591.html
drivers' licenses - physical examination
http://www.pabulletin.com/secure/data/vol37/37-14/594.html
court rules - additional defendants - cross claims - etc.
http://www.pabulletin.com/secure/data/vol37/37-14/591.html
drivers' licenses - physical examination
http://www.pabulletin.com/secure/data/vol37/37-14/594.html
Tuesday, April 03, 2007
disability - determination of another agency - substantial weight
Sell v. Barnhart - ED Pa. - March 28, 2007
http://www.paed.uscourts.gov/documents/opinions/07D0401P.pdf
This case was remanded because the ALJ did not give proper weight to the disability determination of another agency, the Veterans Administration.
The "Third Circuit has held that a determination made by another agency that a person is 'disabled' is entitled to 'substantial weight.' [citing cases.] The ALJ, however only gave the VA's determination 'probative' weight....Moreover, the ALJ did not provide a detailed explanation for rejecting the VA's determination.
The case was remanded "for the sole purpose of giving the Veteran's [sic] Administration's finding that Plaintiff was 100% disabled during the relevant period 'substantial' rather than merely 'probative' weight. If the Commission decides to reject the VA's determination under the 'substantial weight' standard, the Commissioner must give a detailed explanation for rejecting that determination."
http://www.paed.uscourts.gov/documents/opinions/07D0401P.pdf
This case was remanded because the ALJ did not give proper weight to the disability determination of another agency, the Veterans Administration.
The "Third Circuit has held that a determination made by another agency that a person is 'disabled' is entitled to 'substantial weight.' [citing cases.] The ALJ, however only gave the VA's determination 'probative' weight....Moreover, the ALJ did not provide a detailed explanation for rejecting the VA's determination.
The case was remanded "for the sole purpose of giving the Veteran's [sic] Administration's finding that Plaintiff was 100% disabled during the relevant period 'substantial' rather than merely 'probative' weight. If the Commission decides to reject the VA's determination under the 'substantial weight' standard, the Commissioner must give a detailed explanation for rejecting that determination."
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