Wednesday, October 28, 2015

custody - pre-trial statement - witness list - Rule 1915.4-4



Explanatory comment  



                                                                     EXPLANATORY COMMENT



In 2013, the Domestic Relations Procedural Rules Committee (the “Committee”) recognized there was a wide disparity in pre-trial procedures in custody cases among

the various judicial districts. By adopting this rule, the Supreme Court established uniform state-wide pre-trial procedures in custody cases. With an eye toward reducing

custody litigation, the rule encourages early preparation and court involvement for purposes of expedited resolutions. The rule was based upon the pre-trial procedures in

divorce cases as set forth in Pa.R.C.P. No. 1920.33(b). The rule does not affect, however, the First Judicial District's practice of conducting a pre-trial conference upon

the filing of a motion for a protracted or semi-protracted trial.


In 2015, the Committee expressed concern the rule as previously adopted by the Supreme Court allowed for an interpretation contrary to the intent of the rule. The

Committee proposed and the Court adopted an amendment to the rule to clarify the rule’s mandate as it relates to witnesses. As a goal of any pre-trial conference is to

settle the case, in whole or in part, the Committee believed a best practice in reaching that goal is having a thorough knowledge of the case, including the substance of

anticipated witness testimony. As amended, the rule plainly states that counsel or a self-represented party is required to discuss with the witness their testimony prior to

including the witness on the pre-trial statement.


Unlike Pa.R.C.P. No. 1920.33(b), the rule does not require inclusion of a summary of the witness’s testimony in the pre-trial statement; but rather, an affirmation

by counsel or self-represented party that there was actual communication with each witness about the witness’s testimony. With the additional information from witnesses,

counsel, self-represented parties and the trial court can better engage in more fruitful settlement discussions at the pre-trial conference.




(b)(2)  Inclusion of a witness on the pre-trial statement constitutes an affirmation that the party’s counsel or the self-represented party has communicated with the

witness about the substance of the witness’s testimony prior to the filing of the pre-trial statement



UC - notice of ineligibility/overpayment - late notice

Grimm v. UCBR – Cmwlth. Court – October 28, 2015 – unreported memorandum decision



Claimant argues that he was prejudiced by the Department’s delay of five months in issuing the notices of determination to inform Claimant that he was ineligible for unemployment compensation benefits and was subject to a fault overpayment and penalty weeks while he continued to receive benefits. However, Claimant did not raise this issue of timeliness of the notices before the referee, and therefore the issue is waived. Grever, 989 A.2d at 402 (“Issues not raised at the earliest possible time during a proceeding are waived.”).


Furthermore, the Law does not impose a deadline on the Department to issue notices of determination; instead, Section 501 of the Law requires that the Department “promptly examine” each claim for benefits and notify the claimant in writing if a claim is determined to be invalid.6 43 P.S. § 821(c)(1), (2). Here, that is exactly what happened: the Service Center collected questionnaires from Employer and Claimant regarding Claimant’s separation and also conducted telephonic interviews with Employer and Claimant prior to issuing the notices of determination.


6 Timely notice is one of the essential elements of due process; however, “timely notice” for the purpose of procedural due process requires that notice “sufficiently precedes a hearing so as to give the accused enough time to prepare a defense.” Howell v. Bureau of Professional and Occupational Affairs, State Board of Psychology, 38 A.3d 1001, 1008 (Pa. Cmwlth. 2011).  



An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a) and Pa. R.A.P.  3716 [45 Pa.B. 3975; Saturday, July 25, 2015]

If the case is old, the link may have become stale and may not work, but you can use the case and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)


admin. law - agency interpretation of statute - level of deference

Lancaster County v. PLRB – Pa. Supreme Court – October 27, 2015
To the extent the issues before us concern statutory interpretation, i.e., a legal standard, we note:
[A]n administrative agency’s interpretation [of a statute] is be to given
‘controlling weight unless clearly erroneous.’ However, when an
administrative agency’s interpretation is inconsistent with the statute itself,
or when the statute is unambiguous, such administrative interpretation
carries little weight. Appreciating the competence and knowledge an
agency possess in its relevant field, our Court [has] opined that an appellate
court ‘will not lightly substitute its judgment for that of a body selected for its
expertise whose experience and expertise make it better qualified than a
court of law to weigh facts within its field.’ Moreover, we have emphasized
that this high level of deference is especially significant in the complex area
of labor relations.  Lancaster County v. PLRB, ___ Pa. ___, 94 A.3d 979, 986 (2014) (quotations and
citations omitted).
Although the Board’s interpretation of the statute is consistent with [the statute], and  thus should be given due deference, the Commonwealth Court effectively substituted, without justification, its own judgment [over that of the agency] .  See Lancaster County, ___ Pa. at ___, 94 A.3d at 986.  The Commonwealth Court’s holding. . . contravenes the plain language of [the statute] , and since there is no indication the Board’s interpretation is clearly erroneous, it should be given controlling weight. See id.
If the case is old, the link may have become stale and may not work, but you can use the case and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

arbitration - NAF designation - severability

Wert v. Manor Care of Carlisle – Pa. Supreme Court – 10-27-15




Golden Living Center - Gettysburg et al. (“Appellants”) appeal the Superior Court’s decision affirming, in relevant part, the trial court’s order overruling Appellants’ preliminary objections seeking to compel arbitration and reserving for trial the underlying

negligence action filed by Evonne K. Wert (“Appellee”), daughter of Anna E. Kepner (“Decedent”) and executrix of Decedent’s estate. For the following reasons, we affirm the order of the Superior Court and remand to the trial court for further proceedings

consistent with this decision.


The following issues of first impression have been presented before this Court:


(a) Whether the Superior Court’s decision in Stewart v.

GGNSC-Canonsburg, L.P., 9 A.3d 215 (Pa. Super. 2010), holding that the

NAF Designation voided an identical Arbitration Agreement, was

incorrectly decided and should be reversed, where there is no evidence

indicating that the NAF designation was integral to the Agreement?


(b) Whether the Court may ignore undisputed testimonial evidence that

the party seeking to void the Agreement did not consider the NAF

Designation to be an “integral part” of the Arbitration Agreement (because

she did not bother to read the agreement)?


Wert v. ManorCare of Carlisle PA, LLC, 95 A.3d 268, 268-69 (Pa. 2014) (per curiam

order) (footnote omitted).


Pursuant to the reasoning of the Stewart court and the majority of our sister jurisdictions, we find that, post-consent decree, Section five of the FAA cannot preserve

NAF-incorporated arbitration agreements unless the parties made the NAF’s availability  non-essential by specifically varying the terms of its procedure.17 Regardless of

whether Section five may apply where there is a lapse in the administrator, by its own rules, the NAF must administer its code unless the parties agree to the contrary. The

parties here agreed that any disputes “shall be resolved exclusively by binding arbitration to be conducted . . . in accordance with the [NAF] Code of Procedure, which is

hereby incorporated into this Agreement[.]” R. 348a (emphasis added).


We therefore find the provision integral and non-severable. Doing otherwise would require this Court to rewrite the Agreement. Underlying FAA policy, as interpreted by the Supreme Courtin Marmet, does not mandate a different result because our conclusion is based on settled Pennsylvania contract law principles that stand independent of arbitration.