Tuesday, January 09, 2007

admin. law - appeal - timeliness - designation of mailing date

Julia Ribaudo Senior Services v. DPW - Commonwealth Court - January 4, 2007

http://www.courts.state.pa.us/OpPosting/CWealth/out/351CD06_1-4-07.pdf

Where an appeal must be filed within a specified time from the mailing date of a decision, the decision must contain a clearly specified mailing date. There is "no substitute for denominating the date of mailing so as to constitute the starting date for the appeal period. . . . A disembodied date on the notice. . .without any indication that it is the mailing date, is not sufficiently informative."

A date on a letter or a "date final administrative action," without more, are not sufficient. Likewise, testimony on department practice about mailing its decisions is "no substitute for a clearly designated mailing date," without which a notice does "not serve to begin the appeal period."

The following cases were cited in support of the decision: Sheets v. DPW, 479 A.2d 80 (Pa. Cmwlth. 1984); Schmidt v. Commonwealth, 433 A.2d 4546, 458 (Pa. 1981); Mihordin v. UCBR, 471 A.2d 1334, 1336 (1984); Nyhart v. Dept. of Corrections, 721 A.2d 391 (Pa. Cmwlth. 1998).

PFA - right to plenary 10-day hearing

Lanza v. Simconis - Superior Court - December 19, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a29001_06.pdf

Plaintiff/appellant filed a pro se PFA and trial court conducted a hearing under 23 Pa. C.S. 6107(b), at which defendant unexpectedly appeared and denied the allegations of abuse. The trial court denied the temporary order, stating that it was unable to determine credibility. The trial court did not set or conduct a final 10-day hearing on the merits under 23 Pa. C.S 6107(a).

The appellate court held that it was error not to hold a plenary final hearing within 10 days. Such a hearing is required by the statute, 23 Pa. C.S. 6107(a) ("a hearing shall be held") and by a PFA plaintiff's due process right to be heard at a meaningful time and in a meaningful manner, including the right to have counsel, to cross-examine defendant, and to present other witnesses and evidence.

driver's license - suspension - delay

Orloff v. PennDOT - Commonwealth Court - December 18, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/136CD06_12-18-06.pdf

In a 4-3 decision, the court held that a) there was an "unreasonable delay chargeable to PennDOT [which] led the licensee to believe that his operating privilege would not be impaired; and b) "prejudice would result by having his operating privilege suspended after such delay."

The case had been decided in the licensee's favor by the trial court, which had held that DOT had not properly proven its case by use of copies of electronic transmissions from another state, which had reported a DUI conviction to Pennsylvania. DOT appealed and the Commonwealth Court reversed in part, affirmed in part, and remanded the case back to the trial court for consideration of several legal issues. The trial judge died and the case languished there for about 5 years until DOT sent the court a letter asking that the case be be listed for hearing, at which time the licensee raised the issue of delay.

DOT's contention that this was judicial delay for which it was not responsible was rejected. The court said that the "General Assembly placed in PennDOT the responsibility to prosecute licenses suspension cases....[and the] responsibility for moving a case forward under circumstances where it is reasonable for it to be expected to do so," in which event "the delay is attributable to PennDOT....PennDOT was responsible for taking the appropriate action to have the case heard and, absent such action to carry out its responsibility to prosecute the appeal, PennDOT is chargeable with the delay."

The court also held that the licensee had established prejudice from the unreasonable delay in that he was "able to demonstrate that he changed his circumstances to his detriment in reliance on his belief that his operating privileges would not be impaired....[T]he loss of a job or required closing of a business requiring a driver's license constitutes prejudice.....Also prejudice is established when a licensee has changed jobs to a position that requires driving as part of the new job's duties....[or] by showing the an owner changed his job duties so that a license is necessary for the financial well-being of his company."

The dissent argued that the delay was caused by the lower court and should not be attributable to PennDOT, and that the court had created an "unworkable standard for future cases where a licenses suspension is remanded to this Court or to a court of common pleas solely for reconsideration of a legal issue."

UC - vol. quit - racial/ethnic harassment, profanity

The Western & Southern Life Insurance Company - Commomwealth Court - Decembr 18, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1347CD06_12-18-06.pdf

Held, that the UCBR's findings that a) the claimant was subject to racial and ethnic slurs, profanity, and physical threats, and that b) claimant acted with common sense and did all he reasonably could to preserve his job before quitting were supported by substantial evidence, and that the Board did not commit any error in applying the relevant law.

Pennsylvania Bulletin of December 23, 2006

http://www.pabulletin.com/secure/data/vol36/36-51/index.html

court rules - proposed - electronic filing and service of legal papers - comments due 2-16-07 http://www.pabulletin.com/secure/data/vol36/36-51/2503.html

state police - uniform crime reporting act
http://www.pabulletin.com/secure/data/vol36/36-51/2542.html

professional & occupation affairs - schedule of civil penalties http://www.pabulletin.com/secure/data/vol36/36-51/2510.html

crime victims compensation
http://www.pabulletin.com/secure/data/vol36/36-51/2509.html

evidence - child witness - hearsay - child "unavailable"

Commonwealth v. Kriner - Superior Court - January 2, 2007

http://www.courts.state.pa.us/OpPosting/Superior/out/e03003_06.pdf

The hearsay statement of a child victim/witness under 12 years of age is admissible under 42 Pa. C.S. 5985.1 to prove certain criminal offenses if, inter alia, the child is "'unavailable" as a witness.

The statute defines "unavailable" as "serious emotional distress that would substantially impair the child's ability to communicate." This definition is exclusive. There is "no other manner, method, procedure or definition of what constitutes unavailability." Thus, the death of a child witness does not come within this statutory definition of unavailability.

forum selection clause - validity

Patriot Commercial Leasing Company v. Kremer Restaurant Enterprises

http://www.courts.state.pa.us/OpPosting/Superior/out/A24012_06.pdf

In this case involving two commercial entities, the court held that forum selection clauses are presumed to be valid when the parties have freely agreed that litigation shall be conducted in a particular forum and where the agreement is not unreasonable at the time of litigation. Such a clause will be considered unreasonable "only where its enforcement would, under all circumstances existing at the time of litigation, seriously impair a party's ability to pursue his cause of action....Mere inconvenience or additional expense is not the test of unreasonableness." The "modern trend is to uphold the enforceability of forum selection clauses where those clauses are clear and unambiguous."

A "forum selection clause in a commercial contract between business entities is presumptively valid and will be deemed unenforceable only when: 1) the clause itself was inducted by fraud or overreaching; 2) the forum selected in the clause is so unfair or inconvenient that a party, for all practical purposes, will be deprived of an opportunity to be heard; or 3) the clause is found to violate public policy."

landlord-tenant - covenant of quiet enjoyment

Kohl v. PNC Bank Natl. Assn. et al. - Pennsylvania Supreme Court - December 27, 2006 majority http://www.courts.state.pa.us/OpPosting/Supreme/out/J-129-2005mo.pdf

concur/dissent http://www.courts.state.pa.us/OpPosting/Supreme/out/J-129-2005cd.pdf

In a 5-1 decision, the court held that a "suit by a landlord which substantially impairs a tenant's possessory interest in a leasehold, brought in bad faith, maliciously, or otherwise without probable cause and primarily for a purpose unrelated to seeking legal redress, constitutes a breach of the landlord's [implied] covenant of quiet enjoyment," citing the lower court decision in the case, 863 A.2d 23, 31 (Pa. Super. 2004) and Raker v. G.C. Murphy Co., 58 A.2d 18 (Pa. 1948).

The court mentioned the "need to protect a litigant's free access to the courts under Article I, sec. 11, of the Pennsylvania Constitution ("All courts shall be open...") and noted that "that law does not punish parties who avail themselves of the courts except in very limited circumstances manifesting bad faith, in order to avoid the potential chilling effect individuals' willingness to seek legal redress."

In discussing the covenant of quiet enjoyment, the court noted that it is "implied in all leases" and stated that it is "settled in this state that any wrongful act of the landlord which results in an interference of the tenant's possession, in whole or in part, is an eviction for which the landlord is liable in damages to the tenant." The covenant is breached by such acts as threatening eviction if the tenant's boyfriend visited the tenant at the property. On the other hand, there has to be "more than mere infringement of the tenant's rights." The act of the landlord must "substantially impair...a tenant's possessory interest in a leasehold."

employment - civil service - "just cause" for termination - arrest

Woods v. State Civil Service Commission - Pennsylvania Supreme Court - December 27, 2006

majority http://www.courts.state.pa.us/OpPosting/Supreme/out/J-104-2006mo.pdf concur/dissent http://www.courts.state.pa.us/OpPosting/Supreme/out/J-104-2006mo.pdf

In a 5-2 decision, the court held that the arrest of a youth counselor on felony (perjury) and misdemeanor (false swearing) charges did not, by itself, constitute "just cause" for dismissal under the state civil service law, 71 P.S. sec. 741.807.

"Just cause" is not defined by the statute, but it has been held to mean cause that is "merit-related,and the criteria must touch upon competency and ability in some rational and logical manner." Just cause involves considerable discretion on the part of the department head, but "[t]o be sufficient...the cause should be personal to the employee and such as to render him unfit for the position he occupies, thus making his dismissal justifiable and for the good of the service."

The court held that while the arrest "may have warranted suspension, we disagree that his arrest along on perjury and false swearing charges establish just cause for removal." The "arrest alone did not rationally and logically touch upon his competency and ability to perform his job as to warrant dismissal....and therefore did not provide just cause for removal." The "arrest alone, albeit on crimen falsi charges, failed to demonstrate that his trustworthiness or integrity had been compromised." The court "decline[d] to adopt a per se rule that 'the appearance of impropriety' by an employee in 'highly sensitive positions' provides just cause to warrant dismissal."

The court also held that absent some indication that the employee's competence and ability to perform his job had been compromised, the mere fact of student awareness of the arrest and charges was alone insufficient to provide the just cause for removal.

Pennsylvania Bulletin of December 30, 2006

http://www.pabulletin.com/secure/data/vol36/36-52/index.html

local rules - Allegheny County - service of process http://www.pabulletin.com/secure/data/vol36/36-52/2548.html

welfare - subsidized child care regulations
http://www.pabulletin.com/secure/data/vol36/36-52/2554.html

transportation - children - car seats - exemptions - size, weight, medical conditions http://www.pabulletin.com/secure/data/vol36/36-52/2555.html

UC - willful misconduct - giving false information to ER

Downey v. UCBR - Commonwealth Court - December 19, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1050CD06_12-19-06.pdf

Claimant engaged in willful misconduct when he falsely claimed total disability and accepted disability benefits while engaging in activities inconsistent with such claims -- i.e., doing substantial, heavy home repair work. The court said that there were no cases exactly on point, but likened this to theft cases, holding that "dishonesty or misrepresentation can exhibit a disregard of the employer's interests and disregard of standards of behavior that the employer can rightfully expect from its employees."

The fact that the employer allowed claimant to return to light duty work on May 4th before discharging him on July 29th was held not to bring the case within the remoteness doctrine, which holds that an unexplained substantial delay between the alleged misconduct and job termination precludes the employer from relying on such misconduct. Here, the employer was gathering evidence and pursuing an investigation through proper bureaucratic channels.

appeal - matters complained of - Rule 1925(b) statement

Wells v. Cendant Mobility Financial Corp. - Superior Court - December 14, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a32035_06.pdf

Appellants' arguments were held to have been waived, because they filed an "indecipherably vague" statement under Pa. R.A.P. 1925(b) concerning "matters complained of on appeal."
http://www.pacode.com/secure/data/210/chapter19/s1925.html

The Rule 1925(b) statement is "a crucial component in the appellate process" and is "intended to aid trial judges in identifying and focusing upon those issues which the parties plan to raise on appeal." A statement that is "overly broad and vague" or "unfocused and indefinite" or "vague and abstract" forces the trial court to "guess what issues an appellant is appealing." Such an "endless assignment severely taxes the trial court and impedes meaningful appellate review.

Where the Rule 1925(b) statement is inadequate, the trial and appellate courts "may find waiver and disregard any argument" on a point, "even if the trial court guesses correctly and addresses the issue" in a thorough opinion. "[I]ssues not included in a Rule 1925(b) statement are deemed waived on appeal....A Concise Statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no Concise Statement at all."

In the instant case, appellants alleged unspecified "errors of law" which were "extremely vague, encompassing the entire proceedings without providing a hint as to when, where, or how the trial court committed its alleged legal errors."

Pennsylvania Bulletin of December 16, 2006

http://www.pabulletin.com/secure/data/vol36/36-50/index.html

recent statutes - http://www.pabulletin.com/secure/data/vol36/36-50/2443.html
Numerous new statutes, including social security number privacy act; credit reporting agency law; sexual assault and evidence collection act; court interpreter law; plain language consumer contract act; court-apptd. custody health care or behavioral health practitioners; children's trust fund act - These can all be accessed by bill number, key word, etc. at http://www.legis.state.pa.us/cfdocs/legis/home/session.cfm

mortgages - bankers/brokers/consumer equity prot. act statement of policy - first mortgages - http://www.pabulletin.com/secure/data/vol36/36-50/2456.html

health - medical records - charges
http://www.pabulletin.com/secure/data/vol36/36-50/2465.html

welfare - prior authoriz. reqmts. - HCPCS updates - MA fee schedule revisions http://www.pabulletin.com/secure/data/vol36/36-50/2479.html

IRRC - actions taken by Indpt. Reg. Review Commn. http://www.pabulletin.com/secure/data/vol36/36-50/2485.html

custody - relocation - intrastate

Masser v. Miller - Superior Court - December 11, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a25012_06.pdf

The trial court properly denied the mother's petition to relocate the parties' 14 y/o daughter from Schuylkill to Dauphin County where

- both extended families lived in Schuylkill County
- child had daily contact with both families - child was very close to her half-brother in Schuylkill County
- child did not want to move
- the child had significant extracurricular activities in her current location
- there was no particular benefit to the move
- the move would cause a significant disruption in continuity and stability

The court's rejection of the opinion of the court-appointed expert was justified by the facts, which showed that the expert did not have a "sufficient understanding" of the effect that the proposed move would have on the child's contact with the extended families.

The court noted that the use of the Gruber analysis is "not necessarily required in analyzing all intra-state relocation disputes" but rather is "within the discretion of the trial court" which was properly exercised in this case.

The court also approved the modification of the existing order to expand father's partial custody, to reflect the "custody actually being exercised by the parties," as well as the best interests of the child.

custody - criminal convictions - evaluation/counseling - "qualified professional"

Ramer v. Ramer - Superior Court - December 11, 2006 http://www.courts.state.pa.us/OpPosting/Superior/out/a27040_06.pdf

The trial court erred when it failed to appoint a "qualified professional" under 23 Pa. C.S. 5303(b) and (c) to evaluate and counsel father, who had two convictions of crimes listed under sec. 5303(b)(9) and (10) -- indecent assault and indecent exposure.

"qualified professional" -- A licensed psychologist was not a "qualified professional" where the psychologist admitted that he had no special training or expertise concerning sex offenders. "Qualified" requires that the "professional have expertise tied to the particular offense under assessment....[T]he statute attempts to ensure that the court will receive the kind of information necessary to assess whether the offending parents, with his or her unique criminal conviction history, poses a threat of harm to the child...The statute requires a sensitive inquiry aided by a professional whose qualifications allow him or her to assess the offending parents in light of the particular criminal conduct that has triggered the inquiry....[S]exual offenders in particular often present with unique mental health issues."

counseling - Sec. 5303(c) requires the qualified professional to provide "counseling to an offending parent" which "shall include a program of treatment or individual therapy designed to rehabilitate a parent..." A "one-time evaluation....did not...meet the description of 'counseling in section 5303(c)." Moreover counseling from 2000 does not satisfy the statute, which "requires counseling...in the present, i.e., at the time custody is under assessment."

required finding that the parent does not pose a threat - The trial court's reliance on the "absence of evidence that a parent poses a threat to the child...is an improper reading of the rule, which imposes an affirmative duty to determine that the parents 'does not pose a threat of hard to the child. 23 Pa. C.S. sec. 5303(b). This is to be accomplished through the appointment of a qualified professional, the provision of counseling to the offending parent in the present, and the taking of testimony from the qualified professional regarding the same. Such did not occur here, and, thus, we vacate the custody order and remand with instructions to comply with the plain language of 23 Pa. C.S. sections 5303(b)( and (c)."

Pennsylvania Bulletin of December 2, 2006

http://www.pabulletin.com/secure/data/vol36/36-48/index.html

courts - electronic case records - public access policy http://www.pabulletin.com/secure/data/vol36/36-48/2328.html

court rules - proposed - support - contempt http://www.pabulletin.com/secure/data/vol36/36-48/2329.html

court rules - proposed - discovery in domestic relations matters http://www.pabulletin.com/secure/data/vol36/36-48/2330.html

general services - distribution of federally-donated food to needs households http://www.pabulletin.com/secure/data/vol36/36-48/2337.html

health - medical records - charges
http://www.pabulletin.com/secure/data/vol36/36-48/2359.html

school districts - personal income tax
http://www.pabulletin.com/secure/data/vol36/36-48/2344.html

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