Thursday, July 23, 2009

federal courts - attorney fees - effect of negotiations

Lohman v. Duryea Borough - 3d Circuit - July 23, 2009

"Settlement negotiations may be relevant in measuring success, and, if so, are clearly only one factor to be considered in the award of fees." (emphasis in original)

abuse - expungement - recanted allegations

Bucks County CYS v. DPW - Cmwlth. Court - July 23, 2009

Court affirmed the admin. decision to expunge CYS finding of abuse, based mostly on the 14 year-old alleged victim's testimony at the hearing, at which she recanted prior statements alleging sexual abuse by her father..

The court rejected the CYS claims that it was error to credit the recantation of A.G. and ignore the testimony of other witnesses. CYS has the burden of establishing by substantial evidence that an indicated report of child abuse is accurate. Bucks County CYS v. DPW, 808 A.2d 990, 993 (Pa. Cmwlth. 2002). If CYS fails to sustain its burden, the request for expungement will be granted. Id.

When the fact finder has determined the weight and the credibility of evidence, the court will not disturb such determinations on review. S.T. v. DPW, 681 A.2d 853, 856 (Pa. Cmwlth. 1996), appeal denied, 547 Pa. 747, 690 A.2d 1165 (1997).

In this case, the ALJ determined that the testimony of A.G., in which she recanted her previous accusations, was credible. Although CYS argues that A.G. was lying when she recanted the allegations, the ALJ and BHA determined otherwise. The court is bound by such determination.

Having credited the testimony of A.G., only the hearsay testimony of the CYS investigator, the grandmother and another person remained. Hearsay evidence, even if admissible and not objected to, does not alone constitute substantial evidence. A.Y. v. DPW, 537 Pa. 116, 641 A.2d 1148 (1994).