Here is the link to the Pennsylvania Bulletin of October 22, 2005
http://www.pabulletin.com/secure/data/vol35/35-43/index.html
Items of potential interest include ----
- recent statutes
http://www.pabulletin.com/secure/data/vol35/35-43/1937.html
- appellate rules - criminal - stays in capital cases
http://www.pabulletin.com/secure/data/vol35/35-43/1938.html
- local rules - Lehigh County - juvenile cases
http://www.pabulletin.com/secure/data/vol35/35-43/1941.html
http://www.pabulletin.com/secure/data/vol35/35-43/1942.html
- welfare- payments to nursing facilities - final rates for fiscal 2004-5
http://www.pabulletin.com/secure/data/vol35/35-43/1942.html
- welfare - peer groups, peer group medians, peer group prices for various facilities
http://www.pabulletin.com/secure/data/vol35/35-43/1954.html
- revenue - Jolly Holiday Lottery game
http://www.pabulletin.com/secure/data/vol35/35-43/1915.html
- Dept. of Labor & Industry - reorganization chart
http://www.pabulletin.com/secure/data/vol35/35-43/1947.html
- education - IRRC approval of educ. regs. - student rights and responsibilities
http://www.pabulletin.com/secure/data/vol35/35-43/1957.html
Donald Marritz
MidPenn Legal Services
Friday, October 21, 2005
Wednesday, October 19, 2005
bankruptcy - mobile home - ch. 13 - cram down - realty v. personalty - valuation
Nowlin v. Tammac Corporation - ED Pa. - October 17, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1267P.pdf
Nowlin filed a chapter 13 bankruptcy case and brought an adversary action against the secured holder of her installment loan contract, seeking a cram down its claim to the actual value of her mobile home. The bankruptcy court held that
a) the mobile home was personalty, not realty;
b) the value was $38,000, compared to principal balance at time of trial of $41, 368.28;
c) interest of 8% should apply to the creditor's claim, as opposed to the contract rate of 12.5%.
Nowlin appealed the valuation, which she thought should be lower, as well as the 8% interest rate. The creditor appealed the ruling that the home was personality and not realty.
The district court held that
a) the home was personalty, in the bankruptcy context (detailed discussion of this issue) - This determination allowed the court to bifurcate the creditor's claim into secured and unsecured elements, based on fair market value.
b) the valuation of $38,000 was not clearly erroneous -- somewhere between the $ figures provided by the parties' experts.
c) 8% was the appropriate interest rate to be applied to the crammed down claim, under a
"formula approach" - national prime rate, adjusted according to risk factors.
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1267P.pdf
Nowlin filed a chapter 13 bankruptcy case and brought an adversary action against the secured holder of her installment loan contract, seeking a cram down its claim to the actual value of her mobile home. The bankruptcy court held that
a) the mobile home was personalty, not realty;
b) the value was $38,000, compared to principal balance at time of trial of $41, 368.28;
c) interest of 8% should apply to the creditor's claim, as opposed to the contract rate of 12.5%.
Nowlin appealed the valuation, which she thought should be lower, as well as the 8% interest rate. The creditor appealed the ruling that the home was personality and not realty.
The district court held that
a) the home was personalty, in the bankruptcy context (detailed discussion of this issue) - This determination allowed the court to bifurcate the creditor's claim into secured and unsecured elements, based on fair market value.
b) the valuation of $38,000 was not clearly erroneous -- somewhere between the $ figures provided by the parties' experts.
c) 8% was the appropriate interest rate to be applied to the crammed down claim, under a
"formula approach" - national prime rate, adjusted according to risk factors.
Donald Marritz
MidPenn Legal Services
debt collection - FDCPA - attorney fees
Moyer v. Turnbrook Associates, Inc. -- ED Pa. - October 17, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1270P.pdf
The court rejected all of defendant's arguments and awarded attorney fees to plaintiff's counsel under the Fair Debt Collection Practices Act, 15 USC 1692 et seq.
size of award - Plaintiff's judgment was for $1,000, the statutory maximum. The judgment was based on defendant's failure to comply with the statutory requirements, "suggesting a significant level of non-compliance. Attorney fees are then mandatory under" Graziano v. Harrison, 950 F.2d 107 (3d Cir. 1991).
timing of request for fees -- Defendant said that plaintiff should have made her claim for fees during arbitration. Federal civil rules require plaintiff to request fees no later than 14 days after the entry of judgment. Plaintiff filed w/in that time.
proper party defendant - post-judgment amendment of pleading - Defendant said that the judgment against the corporate entity was unenforceable against the unincorporated Turnbrook Associates. The court allowed a post-judgment amendment of the pleading, under equitable estoppel principles, because defendant "actively misled" plaintiff when it admitted that it was a N.J. corporation.
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1270P.pdf
The court rejected all of defendant's arguments and awarded attorney fees to plaintiff's counsel under the Fair Debt Collection Practices Act, 15 USC 1692 et seq.
size of award - Plaintiff's judgment was for $1,000, the statutory maximum. The judgment was based on defendant's failure to comply with the statutory requirements, "suggesting a significant level of non-compliance. Attorney fees are then mandatory under" Graziano v. Harrison, 950 F.2d 107 (3d Cir. 1991).
timing of request for fees -- Defendant said that plaintiff should have made her claim for fees during arbitration. Federal civil rules require plaintiff to request fees no later than 14 days after the entry of judgment. Plaintiff filed w/in that time.
proper party defendant - post-judgment amendment of pleading - Defendant said that the judgment against the corporate entity was unenforceable against the unincorporated Turnbrook Associates. The court allowed a post-judgment amendment of the pleading, under equitable estoppel principles, because defendant "actively misled" plaintiff when it admitted that it was a N.J. corporation.
Donald Marritz
MidPenn Legal Services
Monday, October 17, 2005
ADA - standing - injury in fact
Kratzer v. Gamma Management - ED Pa. -- October 12, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1259P.pdf
Defendant's motion for summary judgment denied on plaintiffs' ADA claims.
Plaintiffs alleged that they are qualified individuals with disabilities under the Americans with Disabilities Act (ADA), 42 USC sec. 12101 et seq. Defendant corporation is the operator of a Ramada Inn and Conference Center. Plaintiffs said that they visited the Ramada and were denied full, safe and equal access due to barriers and Defendant's lack of compliance with the ADA.
Defendant moved for summary judgment, alleged that plaintiffs do not have standing, because they have never tried to stay at the hotel and have no current plans to hold a conference there. Standing requires an "injury in fact." Plaintiffs did allege that each has personally visited the center, continues to desire to visit, and has attended a conference there. They made very specific allegations about the particular shortcomings of the facility.
The ADA gives remedies to "any person who is being subjected to discrimination on the basis of disability...or who has reasonable grounds for believing that such person is about to be subjected to discrimination" in violation of the ADA, 42 USC sec. 12188(a)(1). The provision also states that "[n]othing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization" covered by the law does not intend to comply with the ADA.
No circuit court appears to have addressed the precise issue here -- whether a plaintiff who has visited a facility and identified alleged compliance problems may, after a new operator has taken over, assert a claim alleging ADA violations that are grounded in a plaintiff's intended future use of the newly operated facility." However, precedent from other circuits has held that the "futility provision" allows a suit so long as the plaintiff establishes knowledge of the barriers and that they would visit the facility but for the barriers. Other circuits have held that a plaintiff who is deterred from patronizing a public accommodation because of defendant's failure to comply with the ADA may be considered to have suffered an injury in fact. Many district courts have held likewise.
Defendant's motion for summary judgment denied.
http://www.paed.uscourts.gov/documents/opinions/05D1259P.pdf
Defendant's motion for summary judgment denied on plaintiffs' ADA claims.
Plaintiffs alleged that they are qualified individuals with disabilities under the Americans with Disabilities Act (ADA), 42 USC sec. 12101 et seq. Defendant corporation is the operator of a Ramada Inn and Conference Center. Plaintiffs said that they visited the Ramada and were denied full, safe and equal access due to barriers and Defendant's lack of compliance with the ADA.
Defendant moved for summary judgment, alleged that plaintiffs do not have standing, because they have never tried to stay at the hotel and have no current plans to hold a conference there. Standing requires an "injury in fact." Plaintiffs did allege that each has personally visited the center, continues to desire to visit, and has attended a conference there. They made very specific allegations about the particular shortcomings of the facility.
The ADA gives remedies to "any person who is being subjected to discrimination on the basis of disability...or who has reasonable grounds for believing that such person is about to be subjected to discrimination" in violation of the ADA, 42 USC sec. 12188(a)(1). The provision also states that "[n]othing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization" covered by the law does not intend to comply with the ADA.
No circuit court appears to have addressed the precise issue here -- whether a plaintiff who has visited a facility and identified alleged compliance problems may, after a new operator has taken over, assert a claim alleging ADA violations that are grounded in a plaintiff's intended future use of the newly operated facility." However, precedent from other circuits has held that the "futility provision" allows a suit so long as the plaintiff establishes knowledge of the barriers and that they would visit the facility but for the barriers. Other circuits have held that a plaintiff who is deterred from patronizing a public accommodation because of defendant's failure to comply with the ADA may be considered to have suffered an injury in fact. Many district courts have held likewise.
Defendant's motion for summary judgment denied.
Sunday, October 16, 2005
disability - MS - Listing 11.09(C) - treating physician - credibility
Fisher v. Barnhart - ED Pa. - October 12, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1250P.pdf
Summary judgment granted to Plaintiff/claimant, a 44 y/o woman with multiple sclerosis (MS). She had a h.s. education, some college, and prior work as accounts payable clerk. She alleged disability as of August 1990 and had date last insured (DLI) of December 1991.
remission/consistency of severe symptoms/ fatigue/listed impairment - The ALJ found that claimant had a period of remission before her DLI, and that she did not have a severe impairment as of that date. The court rejected this, nothing that the 3d Circuit has not addressed MS specifically, but citing precedent from the 6th and 9th Circuits holding that MS "can be disabling notwithstanding normal activity in a period of remission....Although a patient may be in remission, she is not necessary symptom free." (citing an ED Mich case). For instance, Plaintiff's physicians testified that she suffered from fatigue, that her MS was "long standing in nature" and "involved extreme fatiguability which is an intrinsic part of the disease" which made her unable to do basic work activities on a "regular and continuing basis" as defined in SSR 96-8p. The "persistent fatigue" and other factors reported by her doctor supporting a finding that she met listing 11.09(c) from a date prior to her DLI to the present.
treating physician report - The ALJ did not give sufficient weight to the report of claimant's treating physicians. The 3d Circuit has said that such reports should be accorded great weight, especially when they reflect expert judgment which is the product of continuing observation over a long period of time. "In fact, 'absent persuasive contradictory evidence, the validity of the claimant's symptoms can be conclusively established by the opinion of the treating physician." (citing ED Pa. case)
ALJ's lay observation/opinion -- The court found that the "ALJ substituted her own lay understanding of Plaintiff's MS, an entirely improper substitution. The Third Circuit has made clear that 'an ALJ is not free to set his own expertise against that of physicians who present competent medical evidence.'" (citing 3d Cir. cases).
credibility/pain/homemaker & childcare activities -- The ALJ found claimant's complaints of pain to be not credible, because she voluntarily left the labor force in 1986, was a homemaker, and cared for her children. The court found this focus on her homemaker status "misplaced" because when she left the workforce, she had not yet suffered the onset of MS. Moreover, her credible testimony, backed by her physicians, was that "her MS-related fatigue was severe while she raised her children" and that she needed her from both her mother and a part-time nursery school for the children.
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1250P.pdf
Summary judgment granted to Plaintiff/claimant, a 44 y/o woman with multiple sclerosis (MS). She had a h.s. education, some college, and prior work as accounts payable clerk. She alleged disability as of August 1990 and had date last insured (DLI) of December 1991.
remission/consistency of severe symptoms/ fatigue/listed impairment - The ALJ found that claimant had a period of remission before her DLI, and that she did not have a severe impairment as of that date. The court rejected this, nothing that the 3d Circuit has not addressed MS specifically, but citing precedent from the 6th and 9th Circuits holding that MS "can be disabling notwithstanding normal activity in a period of remission....Although a patient may be in remission, she is not necessary symptom free." (citing an ED Mich case). For instance, Plaintiff's physicians testified that she suffered from fatigue, that her MS was "long standing in nature" and "involved extreme fatiguability which is an intrinsic part of the disease" which made her unable to do basic work activities on a "regular and continuing basis" as defined in SSR 96-8p. The "persistent fatigue" and other factors reported by her doctor supporting a finding that she met listing 11.09(c) from a date prior to her DLI to the present.
treating physician report - The ALJ did not give sufficient weight to the report of claimant's treating physicians. The 3d Circuit has said that such reports should be accorded great weight, especially when they reflect expert judgment which is the product of continuing observation over a long period of time. "In fact, 'absent persuasive contradictory evidence, the validity of the claimant's symptoms can be conclusively established by the opinion of the treating physician." (citing ED Pa. case)
ALJ's lay observation/opinion -- The court found that the "ALJ substituted her own lay understanding of Plaintiff's MS, an entirely improper substitution. The Third Circuit has made clear that 'an ALJ is not free to set his own expertise against that of physicians who present competent medical evidence.'" (citing 3d Cir. cases).
credibility/pain/homemaker & childcare activities -- The ALJ found claimant's complaints of pain to be not credible, because she voluntarily left the labor force in 1986, was a homemaker, and cared for her children. The court found this focus on her homemaker status "misplaced" because when she left the workforce, she had not yet suffered the onset of MS. Moreover, her credible testimony, backed by her physicians, was that "her MS-related fatigue was severe while she raised her children" and that she needed her from both her mother and a part-time nursery school for the children.
Donald Marritz
MidPenn Legal Services
Friday, October 14, 2005
child abuse - appeal - timeliness
A.P. v. DPW - Commonwealth Court - October 14, 2005
http://www.courts.state.pa.us/OpPosting/CWealth/out/424CD05_10-14-05.pdf
AP petitioned court for review of DPW order dismissing her request to expunge a report of indicated child abuse on the ground that the request was not timely.
The Court did not affirm the admin. adjudication but rather dismissed the appeal, holding that DPW Secretary was without jurisdiction to consider AP's request that she reconsider an earlier decision. "The Department's…order was not a valid order from which Petitioner could appeal," 1 Pa. Code 34.241(a), because the recon. request was not timely.
A local CYS agency filed the original indicated report in September 1999. Petitioner was given notice at that time and told that she had 45 days in which to file a request to amend or destroy the report. AP took no action until 16 months later, when she sent DPW a letter stating that she had been clearing of related criminal charges.
DPW told AP that she could request a hearing if she believed her case should be considered in spite of the late appeal. She did so and a hearing was held a short time later, resulting in a decision in December 2002 denying the request for a nunc pro tunc appeal and an evidentiary hearing on the merits.
That decision gave AP 15 days to ask for reconsideration, but AP did not act until 21 months later, September 2004. The DPW Secretary granted reconsideration and issued a final order on the merits upholding the December 2002 order dismissing APs appeal as untimely.
As stated above, the Court held that the Secretary didn’t have jurisdiction to grant recon. and so dismissed the appeal with prejudice.
The court refers to its recent opinion in C.S. v. DPW, 879 A.2d 1274 (Pa. Cmwlth. 2005) where it held that a nunc pro tunc appeal filed 6 years late should have been granted, because the appeal information in the administrative determination did not accurately set out the notice of statutory appeal rights. However, the court in A.P. does not mention this aspect of the C.S. case, only that part of C.S. that says that the DPW Secretary has the discretion to amend or expunge a finding of abuse at any time, upon good cause shown.
The notice in A.P. was presumably the same as the one in C.S., where it said that the alleged abuser "may have a right to a hearing." (emphasis in original). By contrast, the statute gives an unequivocal right to a hearing. The court said that the law "mandates that an alleged perpetrator who has made a request for a hearing will receive one, and at this hearing, the agency bears the burden of proving child abuse by the alleged perpetrator. This right is essential. Otherwise, citizens can have their ability to work at a job requiring [a clearance] taken away on the basis of an investigator's report alone and not on the basis of a hearing at which the government agency claiming abuse bears the burden of proof. The equivocal notice given by the Department…did not satisfy the exacting requirements of [the statute] and, thus, this breakdown in the administrative process entitles Petitioner to file a nunc pro tunc request for expungement….." Concerning the length of the delay in appealing, the court said that "[w]hether a delay is one day or six years late….does not change the analysis….."
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/CWealth/out/424CD05_10-14-05.pdf
AP petitioned court for review of DPW order dismissing her request to expunge a report of indicated child abuse on the ground that the request was not timely.
The Court did not affirm the admin. adjudication but rather dismissed the appeal, holding that DPW Secretary was without jurisdiction to consider AP's request that she reconsider an earlier decision. "The Department's…order was not a valid order from which Petitioner could appeal," 1 Pa. Code 34.241(a), because the recon. request was not timely.
A local CYS agency filed the original indicated report in September 1999. Petitioner was given notice at that time and told that she had 45 days in which to file a request to amend or destroy the report. AP took no action until 16 months later, when she sent DPW a letter stating that she had been clearing of related criminal charges.
DPW told AP that she could request a hearing if she believed her case should be considered in spite of the late appeal. She did so and a hearing was held a short time later, resulting in a decision in December 2002 denying the request for a nunc pro tunc appeal and an evidentiary hearing on the merits.
That decision gave AP 15 days to ask for reconsideration, but AP did not act until 21 months later, September 2004. The DPW Secretary granted reconsideration and issued a final order on the merits upholding the December 2002 order dismissing APs appeal as untimely.
As stated above, the Court held that the Secretary didn’t have jurisdiction to grant recon. and so dismissed the appeal with prejudice.
The court refers to its recent opinion in C.S. v. DPW, 879 A.2d 1274 (Pa. Cmwlth. 2005) where it held that a nunc pro tunc appeal filed 6 years late should have been granted, because the appeal information in the administrative determination did not accurately set out the notice of statutory appeal rights. However, the court in A.P. does not mention this aspect of the C.S. case, only that part of C.S. that says that the DPW Secretary has the discretion to amend or expunge a finding of abuse at any time, upon good cause shown.
The notice in A.P. was presumably the same as the one in C.S., where it said that the alleged abuser "may have a right to a hearing." (emphasis in original). By contrast, the statute gives an unequivocal right to a hearing. The court said that the law "mandates that an alleged perpetrator who has made a request for a hearing will receive one, and at this hearing, the agency bears the burden of proving child abuse by the alleged perpetrator. This right is essential. Otherwise, citizens can have their ability to work at a job requiring [a clearance] taken away on the basis of an investigator's report alone and not on the basis of a hearing at which the government agency claiming abuse bears the burden of proof. The equivocal notice given by the Department…did not satisfy the exacting requirements of [the statute] and, thus, this breakdown in the administrative process entitles Petitioner to file a nunc pro tunc request for expungement….." Concerning the length of the delay in appealing, the court said that "[w]hether a delay is one day or six years late….does not change the analysis….."
Donald Marritz
MidPenn Legal Services
Pennsylvania Bulletin of October 15, 2005
Here is the link to the Pennsylvania Bulletin of October 15, 2005
http://www.pabulletin.com/secure/data/vol35/35-42/index.html
Items of potential interest include --
- education - exec. order - Training America's Teachers Commission
http://www.pabulletin.com/secure/data/vol35/35-42/1890.html
- IOLTA - proposed regs - pro haec vice admissions
http://www.pabulletin.com/secure/data/vol35/35-42/1891.html
- minor court rules - proposed rules - subpoenas - issuance of blank subpoenas
http://www.pabulletin.com/secure/data/vol35/35-42/1896.html
- court rules - DR cases - modification/change in circumstances
http://www.pabulletin.com/secure/data/vol35/35-42/1892.html
- court rules - DR cases - more support rules
http://www.pabulletin.com/secure/data/vol35/35-42/1893.html
- community and econ. development - emergency shelter grant program
http://www.pabulletin.com/secure/data/vol35/35-42/1903.html
- health - integrated HIV planning council - public meeting
http://www.pabulletin.com/secure/data/vol35/35-42/1909.html
- human relations commission - public hearing opinions
http://www.pabulletin.com/secure/data/vol35/35-42/1922.html
Donald Marritz, staff attorney
MidPenn Legal Services
http://www.pabulletin.com/secure/data/vol35/35-42/index.html
Items of potential interest include --
- education - exec. order - Training America's Teachers Commission
http://www.pabulletin.com/secure/data/vol35/35-42/1890.html
- IOLTA - proposed regs - pro haec vice admissions
http://www.pabulletin.com/secure/data/vol35/35-42/1891.html
- minor court rules - proposed rules - subpoenas - issuance of blank subpoenas
http://www.pabulletin.com/secure/data/vol35/35-42/1896.html
- court rules - DR cases - modification/change in circumstances
http://www.pabulletin.com/secure/data/vol35/35-42/1892.html
- court rules - DR cases - more support rules
http://www.pabulletin.com/secure/data/vol35/35-42/1893.html
- community and econ. development - emergency shelter grant program
http://www.pabulletin.com/secure/data/vol35/35-42/1903.html
- health - integrated HIV planning council - public meeting
http://www.pabulletin.com/secure/data/vol35/35-42/1909.html
- human relations commission - public hearing opinions
http://www.pabulletin.com/secure/data/vol35/35-42/1922.html
Donald Marritz, staff attorney
MidPenn Legal Services
Wednesday, October 12, 2005
ADA - state employer - 11th Amendment immunity
Benn v. First Judicial District of Philadelphia - 3d Circuit Court of Appeals - October 12, 2005
http://www.ca3.uscourts.gov/opinarch/013769p.pdf
Plaintiff was a probation/parole officer for the 1st Judicial District of Pa. (Philadelphia). He sued his former employer alleging a violation of the Title I of the Americans with Disabilities Act (ADA), 42 USC 12101 et seq.
Held, the judicial district is an instrumentality of the Commonwealth and entitled to immunity under the 11th Amendment of the U.S. Constitution. The court said that it was "too late in the jurisprudence of the Eleventh Amendment for this court (and perhaps even for the Supreme Court) to interpret that Amendment in light of its explicit language as applicable only to suits against a state brought by citizens of another state. The Supreme Court has consistently held that the Eleventh Amendment immunizes an unconsenting state from suits brought in federal court by its own citizens as well as by citizens of another state." So much for "strict construction" and eschewing "judicial activism."
The court said that Congress can abrogate such immunity pursuant to its authority under sec. 5 of the 14th Amendment provided that it "has unequivocally expressed its intent to do so." Even then, however, the Supreme Court can hold that Congress did not act pursuant to a valid grant of constitutional authority," as it did in another ADA case, Board of Trustees v. Garrett, 531 US 356 (2001).
A suit can also be barred by the 11th amendment where the state is not named as a party, so long as the state is deemed the real party in interest. Held here that under the state supreme court's interpretation of the state constitution, a state judicial district is a state entity, therefore it has 11th Amendment immunity.
Donald Marritz
MidPenn Legal Services
http://www.ca3.uscourts.gov/opinarch/013769p.pdf
Plaintiff was a probation/parole officer for the 1st Judicial District of Pa. (Philadelphia). He sued his former employer alleging a violation of the Title I of the Americans with Disabilities Act (ADA), 42 USC 12101 et seq.
Held, the judicial district is an instrumentality of the Commonwealth and entitled to immunity under the 11th Amendment of the U.S. Constitution. The court said that it was "too late in the jurisprudence of the Eleventh Amendment for this court (and perhaps even for the Supreme Court) to interpret that Amendment in light of its explicit language as applicable only to suits against a state brought by citizens of another state. The Supreme Court has consistently held that the Eleventh Amendment immunizes an unconsenting state from suits brought in federal court by its own citizens as well as by citizens of another state." So much for "strict construction" and eschewing "judicial activism."
The court said that Congress can abrogate such immunity pursuant to its authority under sec. 5 of the 14th Amendment provided that it "has unequivocally expressed its intent to do so." Even then, however, the Supreme Court can hold that Congress did not act pursuant to a valid grant of constitutional authority," as it did in another ADA case, Board of Trustees v. Garrett, 531 US 356 (2001).
A suit can also be barred by the 11th amendment where the state is not named as a party, so long as the state is deemed the real party in interest. Held here that under the state supreme court's interpretation of the state constitution, a state judicial district is a state entity, therefore it has 11th Amendment immunity.
Donald Marritz
MidPenn Legal Services
Tuesday, October 11, 2005
abuse - credibility - police report/medical treatment not required to establish credibility
Karch v. Karch - Pa. Superior Court - October 11, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/A13004_05.pdf
Appellate court upheld trial court's grant of a PFA order.
1. medical treatment not required -- PFA plaintiff need not seek medical treatment for her injury. Neither the PFA act nor case law requires that there be medical evidence or that the plaintiff seek medical treatment in order for plaintiff's testimony to be found credible.
2. Police involvement not necessary. It is well-settled that neither the PFA Act not case law requires that a police report be filed in order to obtain a PFA order. "We wish to make it abundantly clear that this Court will not infer that the failure of the police to act on a report of domestic violence means that the victim is not credible, and we will not place the onus on the victim to force police departments to comply with sec. 6105 [responsibilities of law enforcement agencies] as a prerequisite for obtaining a PFA."
3. The correct burden of proof is a preponderance of the evidence.
4. The evidence was sufficient to grant a PFA order. Wife had prior 30-day PFA order a few months earlier, based on husband's having put his hands around his neck and threatened to snap it.. The newest abuse consisted of his holding his hand in the shape of a gun, touching his wife's head with enough force to cause pain, and telling her "there is your future." Wife also testified that the day after the this incident, one of her car tires had a puncture wound and was flat. The evidence also showed that husband previously had guns in the house and that they had been removed over his "strenuous objections." The court said that "this evidence was more than sufficient to sustain the grant of a PFA."
5. standard of review -- When a claim is presented that the evidence was not sufficient to support a PFA order, the court reviews the evidence in the light most favorable to the petitioner and grants her the benefit of all reasonable inferences. The court defers to the credibility determinations of the trial court as to witnesses who appeared before it.
http://www.courts.state.pa.us/OpPosting/Superior/out/A13004_05.pdf
Appellate court upheld trial court's grant of a PFA order.
1. medical treatment not required -- PFA plaintiff need not seek medical treatment for her injury. Neither the PFA act nor case law requires that there be medical evidence or that the plaintiff seek medical treatment in order for plaintiff's testimony to be found credible.
2. Police involvement not necessary. It is well-settled that neither the PFA Act not case law requires that a police report be filed in order to obtain a PFA order. "We wish to make it abundantly clear that this Court will not infer that the failure of the police to act on a report of domestic violence means that the victim is not credible, and we will not place the onus on the victim to force police departments to comply with sec. 6105 [responsibilities of law enforcement agencies] as a prerequisite for obtaining a PFA."
3. The correct burden of proof is a preponderance of the evidence.
4. The evidence was sufficient to grant a PFA order. Wife had prior 30-day PFA order a few months earlier, based on husband's having put his hands around his neck and threatened to snap it.. The newest abuse consisted of his holding his hand in the shape of a gun, touching his wife's head with enough force to cause pain, and telling her "there is your future." Wife also testified that the day after the this incident, one of her car tires had a puncture wound and was flat. The evidence also showed that husband previously had guns in the house and that they had been removed over his "strenuous objections." The court said that "this evidence was more than sufficient to sustain the grant of a PFA."
5. standard of review -- When a claim is presented that the evidence was not sufficient to support a PFA order, the court reviews the evidence in the light most favorable to the petitioner and grants her the benefit of all reasonable inferences. The court defers to the credibility determinations of the trial court as to witnesses who appeared before it.
custody - grandparent rights - Troxel distinguished - Ohio case
Harrold v. Collier - Ohio Supreme Court - October 10, 2005
http://www.sconet.state.oh.us/rod/newpdf/0/2005/2005-ohio-5334.pdf
The Ohio Supreme Court ruled that the grandparents of an 8 year-old girl must be allowed to visit her, even if her father objects, upholding the validity of a state law granting nonparents visitation rights to children. The Court said the Ohio law was narrower than the one struck down in Troxel v. Granville, 530 US 57 (2000) in that, inter alia, it granted right only to parents and other relatives of an unmarried, deceased parent. The Washington law allowed any third party to petition for visitation.
In the Ohio case, the child had lived with her deceased mother and the latter's parents. The mother died when the child was two, and the child continued to live with the maternal grandparents until she was five, when the father was granted primary custody. He refused to allow any contact by the maternal grandparents, who then petition for visitation.
The court said that Ohio courts were obligated to give "special weight" to the wishes of parents when considering visitation for nonparents. Using a strict scrutiny test, the court held that the visitation statute was constitutional and served a compelling governmental interest. The court said that, despite the "special weight" given to a parent's wishes, that Troxel did not require a nonparent to show "overwhelmingly clear circumstances" to support forcing visitation, but rather declined to defined "' the precise scope of the parental due process rights in the visitation context.' "
Unlike the Washington statute, the Ohio law applied only where one parent was deceased and the parents were unmarried; it also gave special consideration to the wishes of the surviving parents. The court said that nothing in Troxel indicated that the presumption that parents act in a child's best interest was irrebuttable that a parent's wishes were to be the sole determinant of a child's best interests, or placed above the child's best interests.
Donald Marritz
MidPenn Legal Services
http://www.sconet.state.oh.us/rod/newpdf/0/2005/2005-ohio-5334.pdf
The Ohio Supreme Court ruled that the grandparents of an 8 year-old girl must be allowed to visit her, even if her father objects, upholding the validity of a state law granting nonparents visitation rights to children. The Court said the Ohio law was narrower than the one struck down in Troxel v. Granville, 530 US 57 (2000) in that, inter alia, it granted right only to parents and other relatives of an unmarried, deceased parent. The Washington law allowed any third party to petition for visitation.
In the Ohio case, the child had lived with her deceased mother and the latter's parents. The mother died when the child was two, and the child continued to live with the maternal grandparents until she was five, when the father was granted primary custody. He refused to allow any contact by the maternal grandparents, who then petition for visitation.
The court said that Ohio courts were obligated to give "special weight" to the wishes of parents when considering visitation for nonparents. Using a strict scrutiny test, the court held that the visitation statute was constitutional and served a compelling governmental interest. The court said that, despite the "special weight" given to a parent's wishes, that Troxel did not require a nonparent to show "overwhelmingly clear circumstances" to support forcing visitation, but rather declined to defined "' the precise scope of the parental due process rights in the visitation context.' "
Unlike the Washington statute, the Ohio law applied only where one parent was deceased and the parents were unmarried; it also gave special consideration to the wishes of the surviving parents. The court said that nothing in Troxel indicated that the presumption that parents act in a child's best interest was irrebuttable that a parent's wishes were to be the sole determinant of a child's best interests, or placed above the child's best interests.
Donald Marritz
MidPenn Legal Services
Friday, October 07, 2005
Pennsylvania Bulletin of October 8, 2005
Here is the link to the Pennsylvania Bulletin of October 8, 2005
http://www.pabulletin.com/secure/data/vol35/35-41/index.html
Items of potential interest include-
- environment- DEP - mercury rule-making public involvement plan
http://www.pabulletin.com/secure/data/vol35/35-41/1851.html
- welfare - DPW - MA preferred drug list
http://www.pabulletin.com/secure/data/vol35/35-41/1863.html
- transportation - DOT - definition of "serious traffic violation"
http://www.pabulletin.com/secure/data/vol35/35-41/1864.html
- IRRC - comments issued - nursing facililties- preadmission reqmts. and civil rights compliance
http://www.pabulletin.com/secure/data/vol35/35-41/1866.html
- PUC - identity theft - order
http://www.pabulletin.com/secure/data/vol35/35-41/1880.html
Donald Marritz
MidPenn Legal Services
http://www.pabulletin.com/secure/data/vol35/35-41/index.html
Items of potential interest include-
- environment- DEP - mercury rule-making public involvement plan
http://www.pabulletin.com/secure/data/vol35/35-41/1851.html
- welfare - DPW - MA preferred drug list
http://www.pabulletin.com/secure/data/vol35/35-41/1863.html
- transportation - DOT - definition of "serious traffic violation"
http://www.pabulletin.com/secure/data/vol35/35-41/1864.html
- IRRC - comments issued - nursing facililties- preadmission reqmts. and civil rights compliance
http://www.pabulletin.com/secure/data/vol35/35-41/1866.html
- PUC - identity theft - order
http://www.pabulletin.com/secure/data/vol35/35-41/1880.html
Donald Marritz
MidPenn Legal Services
Thursday, October 06, 2005
employment discrimination - age/disability - statute of limitations
Heater v. Kidspeace - ED Pa. - October 5, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1227P.pdf
Plaintiff exhausted admin. remedies, then filed complaint in state court for age and disability discrimination. The case was eventually removed to federal court, where defendant moved to dismissed on statute of limitations grounds, based on untimely filing and service of the original case in state court.
Held, any alleged errors with this state court process had to be raised in state court, not on motion to dismiss in federal court on statute of limitations grounds..
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1227P.pdf
Plaintiff exhausted admin. remedies, then filed complaint in state court for age and disability discrimination. The case was eventually removed to federal court, where defendant moved to dismissed on statute of limitations grounds, based on untimely filing and service of the original case in state court.
Held, any alleged errors with this state court process had to be raised in state court, not on motion to dismiss in federal court on statute of limitations grounds..
Donald Marritz
MidPenn Legal Services
Wednesday, October 05, 2005
immigration status not relevant or discoverable in FLSA/AWPA case -
Galaviz-Zamora v. Brady Farms, Inc. -- USDC WD Mich. Southern Div. (September 23, 2005) - 2005 US Dist. LEXIS 22120
The court granted a protective order barring discovery of information (SSN, tax records, etc.) that were "designed to uncover Plaintiffs' immigration status."
The court held that information about that status was not relevant to any of the issues in the case, which involved the Fair Labor Standards Act (FLSA) and the Agricultural Workers Protection Act (AWPA). The court also mentioned the "detrimental impact resulting from irrelevant inquiries into a worker's immigration status."
Donald Marritz
MidPenn Legal Services
The court granted a protective order barring discovery of information (SSN, tax records, etc.) that were "designed to uncover Plaintiffs' immigration status."
The court held that information about that status was not relevant to any of the issues in the case, which involved the Fair Labor Standards Act (FLSA) and the Agricultural Workers Protection Act (AWPA). The court also mentioned the "detrimental impact resulting from irrelevant inquiries into a worker's immigration status."
Donald Marritz
MidPenn Legal Services
admin. law - federal agency interpretation of statute - "Brand X" decision
AARP v. EEOC - ED Pa. - September 27, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1174P.pdf
The Court rejected AARP's challenge to a regulation proposed by the EEOC to implement the Age Discrimination in Employement Act, 29 USC sec. 621 et seq. The regulation would permit employers who provide health care benefits to retired employees to decrease those benefits when the employees become eligible for Medicare.
The case involved the seminal decision in Chevron USA v. Natural Resource Defense Council, 467 US 837 (1984) and the recent decision in Natl. Cable & Telecommunications Assn. v. Brand X Internet Services (Brand X), 125 SCt 2688 (2005). The AARP argued and the court had previously held that a prior Third Circuit decision had interpreted the ADEA to prohibit the practice in the proposed regulation. The court reversed itself, after reconsidering the case in light of Brand X.
Under Brand X, a court interpretation of a statute bars an agency from later interpreting that statute differently from the court only "if the court has the determined the only permissible meaning of the statute." (emphasis in original). "[O]nly a judicial precedent holding that the statute unambiguously forcloses the agency's interpretation and therefore contains no gap for the agency to fill, displaces a conflicting agency construction….Put differently, Brand X states that the only court decision that forecloses a later, contrary interpretation of a statute by an agency is a decision that determines the only permissible reading of the statute, not merely the best of several alternatives." (emphasis in original)
The court held that the prior Third Circuit decision involved only one possible reading of the statute, not the only permissible one, and that the proposed EEOC regulation was not contrary to the federal Administrative Procedure Act or the ADEA.
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1174P.pdf
The Court rejected AARP's challenge to a regulation proposed by the EEOC to implement the Age Discrimination in Employement Act, 29 USC sec. 621 et seq. The regulation would permit employers who provide health care benefits to retired employees to decrease those benefits when the employees become eligible for Medicare.
The case involved the seminal decision in Chevron USA v. Natural Resource Defense Council, 467 US 837 (1984) and the recent decision in Natl. Cable & Telecommunications Assn. v. Brand X Internet Services (Brand X), 125 SCt 2688 (2005). The AARP argued and the court had previously held that a prior Third Circuit decision had interpreted the ADEA to prohibit the practice in the proposed regulation. The court reversed itself, after reconsidering the case in light of Brand X.
Under Brand X, a court interpretation of a statute bars an agency from later interpreting that statute differently from the court only "if the court has the determined the only permissible meaning of the statute." (emphasis in original). "[O]nly a judicial precedent holding that the statute unambiguously forcloses the agency's interpretation and therefore contains no gap for the agency to fill, displaces a conflicting agency construction….Put differently, Brand X states that the only court decision that forecloses a later, contrary interpretation of a statute by an agency is a decision that determines the only permissible reading of the statute, not merely the best of several alternatives." (emphasis in original)
The court held that the prior Third Circuit decision involved only one possible reading of the statute, not the only permissible one, and that the proposed EEOC regulation was not contrary to the federal Administrative Procedure Act or the ADEA.
Donald Marritz
MidPenn Legal Services
Monday, October 03, 2005
custody - same-sex parents - in loco parentis - standard/burden of proof
Jones v. Boring -- Pa. Superior Court - September 30, 2005
Primary custody of twins awarded to non-biological parent of a separated lesbian couple, based on "clear and convincing evidence" that the children were better off with her.
The couple had a relationship starting in 1988. Boring was impregnated by anonymous sperm donor and had twin boys in 1996. The couple lived together as a family unit until January 2001, when Boring left Jones' residence, where they had all lived, taking the children with her.
Initially the court ordered joint legal custody. Boring was awarded primary custody and Jones -- whose right to in loco parentis status was clear -- had "relatively typical partial custody....rights." As time passed however, the court concluded the Jones had shown by clear and convincing evidence that it was in the children's best interest that she have primary custody.
The court rejected Boring's argument that Jones had to prove that she, Boring, was "unfit." The court said that a person who is not a biological parent but stands in loco parentis "does not need to establish that the biological parent is unfit, but instead must establish by clear and convincing evidence that it is in the best interest of the children to maintain that relationship or be with that person." (emphasis in original).
Most telling was Boring's "multi-year effort to exclude Jones from the children's life [sic]....[T]he record is replete with evidence that Boring tried in every way possible to sabotage Jones' relationship with the children."
Sunday, October 02, 2005
abuse - contempt - knowledge of PFA order
Commonwealth v. Padilla - Pa. Superior Court - September 28, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/S44034_05.pdf
Defendant was found guilty of contempt for violating a temporary PFA order which had not been served on him but which he knew about from a phone call from the sheriff. During the call, the sheriff told defendant a) that there was an order, b) that it prohibited any contact with the plaintiff, and c) what the consequences were of violating it.
Despite this knowledge, Defendant made several phone threats to the plaintiff, during 5-6 harassing phone calls. Later that same day, Defendant was served with a copy of the temporary PFA order.
To establish indirect criminal contempt, one must show that a) the order was sufficiently clear to the contemnor as to leave no doubt of the conduct prohibited; b) the contemnor had notice of the order; c) the act was prohibited by the order; and d) the intent of the contemnor in committing the act was wrongful.
The only issue in the case was notice. The court held that "the telephone conversations during which Appellant was informed of the emergency order and the repercussions of violating it constitute actual notice or its equivalent even in the absence of personal service." The court discussed due process issues and the " 'special exigencies of abuse cases' ". It also mentioned 23 Pa. C.S. sec. 6016(g), which says the "[f]ailureto serve shall not stay the effect of a valid order."
The court found that "the verbal explanation provided to Appellant over the telephone was adequate to convey notice that a PFA order had been entered against him, and that a violation of that order placed him at risk of criminal penalty. He was, therefore, properly found to have been in indirect criminal contempt of court."
Donald Marritz, staff attorney
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/S44034_05.pdf
Defendant was found guilty of contempt for violating a temporary PFA order which had not been served on him but which he knew about from a phone call from the sheriff. During the call, the sheriff told defendant a) that there was an order, b) that it prohibited any contact with the plaintiff, and c) what the consequences were of violating it.
Despite this knowledge, Defendant made several phone threats to the plaintiff, during 5-6 harassing phone calls. Later that same day, Defendant was served with a copy of the temporary PFA order.
To establish indirect criminal contempt, one must show that a) the order was sufficiently clear to the contemnor as to leave no doubt of the conduct prohibited; b) the contemnor had notice of the order; c) the act was prohibited by the order; and d) the intent of the contemnor in committing the act was wrongful.
The only issue in the case was notice. The court held that "the telephone conversations during which Appellant was informed of the emergency order and the repercussions of violating it constitute actual notice or its equivalent even in the absence of personal service." The court discussed due process issues and the " 'special exigencies of abuse cases' ". It also mentioned 23 Pa. C.S. sec. 6016(g), which says the "[f]ailureto serve shall not stay the effect of a valid order."
The court found that "the verbal explanation provided to Appellant over the telephone was adequate to convey notice that a PFA order had been entered against him, and that a violation of that order placed him at risk of criminal penalty. He was, therefore, properly found to have been in indirect criminal contempt of court."
Donald Marritz, staff attorney
MidPenn Legal Services
Saturday, October 01, 2005
employment - wrongful discharge - employment at-will exception expanded
Rothrock v. Rothrock Motor Sales, Inc. - Pennsylvania Supreme Court - September 28, 2005
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-65-2004mo.pdf - majority
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-65-2004co.pdf - concurring
The limited exception to the employment at-will doctrine was expanded in this wrongful discharge case. Previous exceptions protected people who had filed claims for workers' compensation (Shick v. Shirey, 716 A2d 283 (Pa. 1998)) and unemployment compensation (Highhouse v. Avery Transportation, 660 A2d 1374 (Pa. Super. 1994) , or who had refused to submit to a polygraph test (Kroen v. Bedway Security Agency, 633 A2d 628 (Pa. Super. 1993.)
Here, the court held that public policy requires giving a cause of action for wrongful discharge to a supervisor who, contrary to the employer's direction, refuses to dissuade a subordinate from seeking worker's comp. benefits. The court held this ruling was "a necessary corollary to the policy established in Shick", and that a supervisory employee who is terminated in such a situation has a cause of action for wrongful discharge.
"[T]here is little doubt that the policy of protecting subordinate employees' rights to seek WC benefits will be well-nigh eliminated if employers can avoid the rule of Shick by pressuring and firing supervisors who do not or cannot coerce subordinate employees into foregoing their rights. Moreover, it would be equally repugnant for this Court to turn its back on such supervisors, who amount to innocent pawns in a conflict between employer and subordinate employee, and, nevertheless, would find themselves out of employment without cause or recourse absent this decision."
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
Friday, September 30, 2005
Pennsylvania Bulletin of October 1, 2005
Here is the link to the Pennsylvania Bulletin of October 1, 2005
http://www.pabulletin.com/secure/data/vol35/35-40/index.html
Items of potential interest include:
- court rules - proposed - dom. rel. - conferences, service of process, masters reports, etc.
http://www.pabulletin.com/secure/data/vol35/35-40/1815.html
- court rules - local - Schuylkill County - divorce masters
http://www.pabulletin.com/secure/data/vol35/35-40/1816.html
- attorneys - attorneys displaced by Hurricane Katrina - practice in Pa.
http://www.pabulletin.com/secure/data/vol35/35-40/1817.html
- community & econ. development - grants to local governments to promote community and/or economic development
http://www.pabulletin.com/secure/data/vol35/35-40/1821.html
- community & econ. development - urban development program - guidelines
http://www.pabulletin.com/secure/data/vol35/35-40/1822.html
- education - approval of PSSA performance level descriptors and performance level scores
http://www.pabulletin.com/secure/data/vol35/35-40/1844.html
N.B. -- You can access the entire issue any Pa. Bulletin in PDF form by clicking on the "entire bulletin" PDF link at the bottom of the index page for that issue
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
http://www.pabulletin.com/secure/data/vol35/35-40/index.html
Items of potential interest include:
- court rules - proposed - dom. rel. - conferences, service of process, masters reports, etc.
http://www.pabulletin.com/secure/data/vol35/35-40/1815.html
- court rules - local - Schuylkill County - divorce masters
http://www.pabulletin.com/secure/data/vol35/35-40/1816.html
- attorneys - attorneys displaced by Hurricane Katrina - practice in Pa.
http://www.pabulletin.com/secure/data/vol35/35-40/1817.html
- community & econ. development - grants to local governments to promote community and/or economic development
http://www.pabulletin.com/secure/data/vol35/35-40/1821.html
- community & econ. development - urban development program - guidelines
http://www.pabulletin.com/secure/data/vol35/35-40/1822.html
- education - approval of PSSA performance level descriptors and performance level scores
http://www.pabulletin.com/secure/data/vol35/35-40/1844.html
N.B. -- You can access the entire issue any Pa. Bulletin in PDF form by clicking on the "entire bulletin" PDF link at the bottom of the index page for that issue
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
Thursday, September 29, 2005
drivers licence - incompetency - medical evidence v. lay evidence
Byler v. DOT, Bureau of Driver Licensing - Commonwealth Court - September 27, 2005
http://www.courts.state.pa.us/OpPosting/CWealth/out/615CD05_9-27-05.pdf
Commonwealth Court affirmed the trial court's decision, sustaining petitioner's appeal from DOT's proposal to suspend his license for medical reasons. DOT's proposed suspension was based on a letter from petitioner's doctor, which stated in its entirety: "Mr. Byler is a 79 year old white male. He's an alcoholic and should not be driving a car. He has significant alcoholic cerebellar degeneration."
A person can be disqualified from driving if, in the opinion of a health care provider, a person's alcoholism is likely to impair his ability to control and safely operate a motor vehicle. DOT has the initial burden of showing this by a preponderance of the evidence. The driver can then rebut DOT's evidence, in which case DOT may be required to present additional evidence to satisfy its ultimate burden of proof.
Here, the trial court determined that DOT's initial burden was satisfied by the doctor's two sentence letter. The appellate court did not really address that troublesome issue. At any rate, the driver testified himself and also presented the testimony of his neighbor, both to the effect that although he did drink sometimes, he drank modestly, he never drove after drinking alcohol, never visited bars, and never drank outside the home. DOT did not present any evidence other than the doctor's letter.
Both the trial court and appellate court found that the lay testimony presented by the driver was sufficient to rebut that of the doctor and called into question the credibility of DOT's evidence. Because DOT presented no further evidence, the courts determined that DOT did not sustain its burden of showing that drinking was likely to impair the licensee's ability to drive.
The Court rejected DOT's argument that only medical evidence could rebut medical evidence. "[N]othing in the applicable statutory or regulatory provisions or in the case precedents….requires that only medical evidence may be presented by the licensee to rebut a prima facie case of the licensee's incompetency based on a medical provider's report….It was within the trial court's discretion…. to determine that [the licensee] was not incompetent and that the testimony of [the licensee and his neighbor] was more persuasive and credible that the evidence presented by DOT."
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
Monday, September 26, 2005
disability - ALJ failure to follow remand instructions
Lok v. Barnhart - ED Pa. - September 19, 2005
Plaintiff is 55 year-old woman w/chronic back pain and some mental impairments, unable to speak English, and whose prior work was as a dishwasher.
Plaintiff appealed an adverse ALJ decision to the Appeals Council (AC), which remanded the case to the ALJ after finding that there was not substantial evidence to support the ALJ's decision that the Plaintiff was not disabled. The remand order directed the ALJ to "obtain additional, updated evidence" and to recontact the treating physician for additional evidence and clarification of his opinion about disability. On remand, the ALJ was unable to get information from the treating physician, who was uncooperative. The ALJ did not seek any consultative exams.
Plaintiff appealed second adverse ALJ decision, which AC this time affirmed. The Court reversed and remanded. It found that "the ALJ's procedures were not consistent with the remand order" and that the ALJ's findings were not based on substantial evidence.
The Court held that, under the circumstances, SSA regs and the specific AC remand order required the ALJ to "seek the necessary information from alternative sources", i.e., consultative physicians. "The ALJ's task was to secure new believable evidence." The Court remanded the case, holding that the record "does not necessarily show Plaintiff is disabled, and reversal is not warranted."
Donald Marritz, staff attorney
MidPenn Legal Services- Gettysburg
Friday, September 23, 2005
IRS - innocent spouse tax relief
In some circumstances, the IRS will forgive a innocent spouse's tax liability, if it is inequitable to hold him/her liable. Some of the factors considered include:
- The taxes owed are your spouse's or ex-spouse's.
- You are no longer married to that spouse.
- You thought your spouse would pay the taxes on the original return.
- You didn't know about the items changed in the audit.
- You would suffer a financial hardship if you were required to pay the tax. You would not be able to pay for basic living expenses like food, shelter, and clothing.
- You did not significantly benefit (above normal support) from the unpaid taxes.
- You suffered abuse during your marriage.
More info is available at the web sites below……….
http://www.irs.gov/individuals/article/0,,id=96786,00.html
Thursday, September 22, 2005
disability - medical criteria - change during pendency of case
Cliggett v. Barnhart - ED Pa. - September 20, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1150P.pdf
Claimant suffered several spinal-related severe impairments, including epidural fibrosis. In court, claimant alleged that she met new Listing 1.08, which was promulgated during the course of the case, more than one and one-half years after the ALJ decision, but before the Appeals Council decision.
The court cited an SSA statement about a different rule change, in which it said that "as is our usual practice when we make changes to our regulations, we will apply these final rules to the claims of applicants for benefits that are pending at any stage of our administrative process." The court also cited an unreported 3d Circuit case holding that "[i[f it is determined that the new regulations is more favorable to the claimant that the original version, she should be entitled to rely on the more expansive construction." Coppola v. Barnhart, 99 Fed. Appx. 365, 2004 WL 1088368 (2004), noting that while not precedential, the court "finds it instructive."
The court noted that new Listing 1.08 had been adopted at the time of Appeals Council review and summarized by saying that "when final changes to Social Security regulations are made, the new regulations should be applied to claims of applicants for benefits that are pending at any stage of the administrative review process. If a new regulation is more favorable to a claimant than the original version, the claimant should be entitled to rely on the new regulation."
The court remanded that case "so as to give the Commissioner an opportunity to set forth her position on the applicability of Listing 1.08 to epidural fibrosis."
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
Wednesday, September 21, 2005
UC- vol. quit - retirement - speculation
Petrill v. UCBR - Commonwealth Court - September 20, 2005
http://www.courts.state.pa.us/OpPosting/CWealth/out/1002CD05_9-20-05.pdf
Commonwealth Court affirmed denial of benefits by UCBR.
Claimant (CL) had worked for employer (ER) for 38 years. He was on voluntary layoff for 3 weeks in August. The contract between the ER and the union, of which CL was a member, had expired in July. As of the date of the referee hearing, contract negotiations were ongoing.
CL decided to retire while on voluntary layoff. Continuing work was available to him. His main reason for the VQ was his belief that it would be advantageous to him, especially with respect to continuing health care benefits. This was based on his belief about how the new contract, once completed, would affect those benefits.
Each VQ cases is examined on an individual basis. In order to get UC benefits on voluntarily retiring, a claimant just proved the he acted with ordinary common sense in retiring and made reasonable efforts to preserve the employment relationship. The court said that "[w]hile we sympathize with [CL's] feelings of uncertainty, and the predicament that he believed himself to be in, the fact is that he chose to retired base on speculation rather than on what he actually knew to be true. The law is settled that 'the potential curtailment of medical benefits during the negotiation for a new [contract] does not meet the 'necessitous and compelling' standard under section 401(b) of the Law. (citing cases). Essentially, the law is that mere speculation about one's future job circumstances, and attendant benefits, without more, does not render a decision to voluntarily terminate employment necessitous and compelling."
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
Monday, September 19, 2005
employment - race/age discrim. - union duty of fair representation
Wilkins v. ABF Freight Systems, Inc. - ED Pa. September 15, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1142P.pdf
Seventy year-old African-American man, a former truck driver, brought various claims against his former corporate employer and individual supervisors. One supervisor made overt racial slurs. The next supervisor did as well. They also denied him the chance to earn overtime and encouraged him to retire. After going through the required administrative process, plaintiff sued in federal court. Defendants moved to dismiss most claims.
individual liability - Claims against the supervisors in their individual capacities were dismissed. Neither Title VII, 42 USC 2000e-1 et seq., nor the Age Discrimination in Employment Act (ADEA), 29 USC 621 et seq., provides for individual liability, as plaintiff ultimately conceded.
racial discrimination - Some of plaintiff's claims were found to be untimely under the 300-day administrative filing requirement. Plaintiff's claim of continuing violations was rejected, because the acts of the supervisors did not appear to be part of the company's standard operating procedures, but rather separate courses of action of two men, each not responsible for the conduct of the other.
age discrimination - Defendants challenged plaintiff's claim that he was constructively discharged due to numerous instances of age discrimination -- denying him overtime and giving it to younger drivers. The standard for such a claim is an objective one, requiring a finding that an employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign. Held, Plaintiff's allegations, e.g., that supervisor often suggested that he retire sufficiently pleaded facts sufficient to support this claim
administrative exhaustion -- Defendants claimed that plaintiff did not allege all of the same facts in the admin. process that he alleged in court. The court rejected this, holding that the relevant inquiry on exhaustion is whether the acts alleged in the subsequent suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom. The plaintiff is not required to specifically plead each instance of discrimination to meet the exhaustion requirement. The allegations need only put the agency on notice that he was alleging both race and age discrimination.
breach of duty of fair representation by union - Plaintiff made only conclusory statements that the union breached its duty of fair representation in his case. The court said that would not suffice. The union has broad discretion about whether and how to pursue an employee's grievance against an employer. The employee must prove that the union's failure to pursue his grievance was arbitrary and so far outside a wide range of reasonableness as to be irrational.
intentional infliction of emotional distress - The court rejected the argument that the racial slurs --both supervisors calling him nigger -- supported a claim for intentional infliction of emotional distress under state tort law. The court said that the slurs were not so outrageous, so extreme, as to go beyond all possible bounds of decency... atrocious, and utterly intolerable in a civilized society....the most egregious conduct. Such a finding is "extremely rare." The court said that these comments were inappropriate and unacceptable but not the kind of "utterly deplorable actions cognizable under Pennsylvania law." In addition, the court held that such claims must be brought under the state workmen's compensation law, which provides the sole remedy for injuries allegedly sustained during the course of employment.
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
SSI - treating M.D. - credibility - subjective complaints - duty of ALJ to develop record
Rodriguez v. Barnhart - ED Pa. - September ___ 2005
Summary judgment for SSA. Claimant alleged disability based on "depression and bad nerves."
Many instances of inconsistency between psychotherapy evidence and psychiatric evidence. Court upheld ALJ's decision to give little weight to opinion of treating physician (TP), because it was not supported by objective clinical, diagnostic or laboratory findings, but rather by the allegations of the claimant herself. The TP's opinion was of limited value because it largely relied only on claimant's subjective symptoms, rather than objective evidence, such as a treatment regimen.
The court also upheld the ALJ's assessment of the claimant's allegations as exaggerated and her credibility as only fair, primarily because activities of daily living -- including being primary caretaker for 6 children -- were inconsistent with her claims of the extent of her disability. The evidence also showed a "stable psychiatric condition." Credibility was evaluated under 20 CFR 4161.929 (b), (c) and (e)
The court rejected the argument that, if the treating physician's opinion was inadequate, the ALJ should have sought more information from the TP. The "ALJ correctly found that there was sufficient evidence in the record to reach a disability determination, which satisfied his duty under the regulations," 20 CFR 416.912(e).
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
age/disability discrimination - state employer - 11th amendment
Bullock v. Pa. Human Relations Commission -- ED Pa. Septemb er 14, 2005
Plaintiff's pro se age (ADEA, 29 USC 621 et seq) and disability discrimination (ADA, 42 USC 12101 et seq.) suit in federal court against her former employer, a state agency, dismissed on 11th Amendment grounds.
Congress has not abrogated state immunity under either the ADEA or ADA, and Pennsylvania has not consented to be sued under the ADEA or the ADA. Board of Trustees v. Garrett, 531 US 356 (2001); Kimmel v. Board of Regents, 528 US 62, 91 (2000).
The Commonwealth has waived its immunity for suits in state court for age/disability discrimination under the Pa. Human Relations Act, but it has specifically retained its 11th Amendment immunity for suits in federal court. Dennison v. Dept. of Corrections, 268 F.Supp2d 387, 405 (MD Pa. 2003)
Donald Marritz, staff attorney
MidPenn Legal Services- Gettysburg
Sunday, September 18, 2005
custody - international - Hague Convention
Baxter v. Baxter, Third Circuit Court of Appeals, September 15, 2005
http://www.ca3.uscourts.gov/opinarch/043228p.pdf
District Court's denial of father's petition for return of child to Australia from the the US reversed by 3d Circuit. Father consented to child's initial removal to the U.S. with the mother, but not the child's retention here. Case remanded for the entry of an order granting the petition for return of the child to the country of habitual residence, Australia.
jurisdiction
The Distict Court had jurisdiction under 28 USC 1331, since the action arose under the Hague Convention on the Civil Aspect of International Child Abduction, Oct. 25, 1980, 19 I.L.M. 1501, and its implementing legislation, the International Child Abduction Remedies Act, 42 USC 11601 et seq (ICARA). Under the ICARA, state and federal courts have concurrent original jurisdiction over actions arising under the Hague Convention.
Hague Convention (HC)
The HC has two main purposes
1) to secure the prompt return of children wrongfully removed to or retained in any contracting State, and
2) to ensure that rights of cutsody and access under the law of one contracting State are effectively respected.
The Convention's procedures are designed to restore the status quo prior to any wrongful removal or retention of a child, and to deter parents from engaging in international forum shopping in custody cases. The Convention is not designed to settle international custody disputes, but rather to ensure that cases are heard in the proper court.
To get an order for a child's return, the petitioner has the burden of proving by a preponderance of the evidence that the removal or retention was wrongful under the HC. A removal or retention is "wrongful" where a) it is in breach of rights of custody under the law of the state in which the child was habitually resident immediately before the removal/retention, and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
If the court finds a wrongful removal or retention, the burden shifts to the respondent, who must then prove an affirmative defense of a) consent or acquiescence to the removal or retention, by a preponderance of the evidence, or b) the defense of a "grave risk of harm" to the child, by clear and convincing evidence. Both of these affirmative defenses are narrowly construed, and even a finding of an exception does not automatically preclude an order of return. If a petitioner prevails, the HC requires courts to " 'order the return of the child forthwith.' "
discussion
The evidence was clear that father's consent for mother and child to come to the US was conditional and that he did not acquiesce in the child remaining in the US. Acquiescense depends of the parent's subjective intent. There was no settled purpose to leave Australia permanently and no acquiescense, as evidenced by the District Court's own conclusions that a) Australia remained the country of habitual residence at the time of removal, b) the parents were undecided about their next residence, and c) father's prompt contest of mother's decision to remain in the US and move in with a new male partner whom she had known for only a short time.
There was no "grave risk of harm" to the child if he was returned to the father in Australia. Such harm must involve a real risk of being hurt, physically or psychologically, as a result of repatriation, and not just inconvenience or hardship, the elimination of education opportunities, or the child's preferences.
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
Friday, September 16, 2005
Pennsylvania Bulletin of September 17, 2005
Here is the link to the Pennsylvania Bulletin of September 17, 2005
http://www.pabulletin.com/secure/data/vol35/35-38/index.html
Items of potential interest include
- court records - public access - notice of proposed policy - electronic case records in unified judicial system
N.B. comments due no later than November 17, 2005
http://www.pabulletin.com/secure/data/vol35/35-38/1709.html
- courts - Pa. Supreme Court - internal procedures - decisional procedures
http://www.pabulletin.com/secure/data/vol35/35-38/1705.html
- courts - costs and fees
http://www.pabulletin.com/secure/data/vol35/35-38/1703.html
- court rules - local rules - Berks County - papers presented by 3d parties
http://www.pabulletin.com/secure/data/vol35/35-38/1706.html
- court rules - local rules - Fayette County - motion for post-trial relief
http://www.pabulletin.com/secure/data/vol35/35-38/1707.html
- court rules - local rules - Monroe County - security police, school police, private detectives
http://www.pabulletin.com/secure/data/vol35/35-38/1708.html
- health - child immunization practices
http://www.pabulletin.com/secure/data/vol35/35-38/1727.html
- welfare - MA - day-of-care definition
http://www.pabulletin.com/secure/data/vol35/35-38/1711.html
- Hurricane Katrina - Governor's proclamation of emergency to receive mutual aid , receive and house evacuees
http://www.pabulletin.com/secure/data/vol35/35-38/1702.html
- Indpt. Regulatory Review Commission - notice of comments issued
http://www.pabulletin.com/secure/data/vol35/35-38/1746.html
- Indpt. Regulatory Review Commission - notice of final rulemaking
http://www.pabulletin.com/secure/data/vol35/35-38/1747.html
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
Thursday, September 15, 2005
employment - age discrimination - reduction in force
Houser v. Carpenter Technology Corp. - ED Pa. Sept. 12, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1125P.pdf
Claims under Age Discrimination in Employment Act (ADEA) and Pa. Human Relations Act dismissed on summary judgment.
Plaintiff lost his job when employer initiated a reduction in force (RIF). Plaintiff made out a prima facie case of discrimination by showing that a) he was a member of the protected class, b) he was qualified for the job in question, c) he suffered an adverse employment action, and d) circumstances existed which gave rise to an inference of unlawful discrimination. Since this was a reduction in force case, he also had to and did show that the employer retained a sufficiently younger similarly situated employee.
However, the court held that the employer had articulated a legitimate nondiscriminatory reason (NDR) for the adverse employment action, thus shifting the burden back to the plaintiff to show that such NDR was only a pretext for discrimination.
The court held that the plaintiff failed to successfully refute the employer's asserted legitimate NDR for his dismissal. Plaintiff's primary argument was that the employer had used to wrong criteria for its decision and that it had made a wrong decision. The court rejected this reasoning based on other cases holding that " 'to discredit the employer's proffered reasons....the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute as issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent,or competent.' " Instead, the plaintiff would have had to show "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence" and that its reasons were pretextual.
The plaintiff did not do that. Nor did the plaintiff show that the in the RIF as a whole, older workers were affected more than younger employees.
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
http://www.paed.uscourts.gov/documents/opinions/05D1125P.pdf
Claims under Age Discrimination in Employment Act (ADEA) and Pa. Human Relations Act dismissed on summary judgment.
Plaintiff lost his job when employer initiated a reduction in force (RIF). Plaintiff made out a prima facie case of discrimination by showing that a) he was a member of the protected class, b) he was qualified for the job in question, c) he suffered an adverse employment action, and d) circumstances existed which gave rise to an inference of unlawful discrimination. Since this was a reduction in force case, he also had to and did show that the employer retained a sufficiently younger similarly situated employee.
However, the court held that the employer had articulated a legitimate nondiscriminatory reason (NDR) for the adverse employment action, thus shifting the burden back to the plaintiff to show that such NDR was only a pretext for discrimination.
The court held that the plaintiff failed to successfully refute the employer's asserted legitimate NDR for his dismissal. Plaintiff's primary argument was that the employer had used to wrong criteria for its decision and that it had made a wrong decision. The court rejected this reasoning based on other cases holding that " 'to discredit the employer's proffered reasons....the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute as issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent,or competent.' " Instead, the plaintiff would have had to show "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence" and that its reasons were pretextual.
The plaintiff did not do that. Nor did the plaintiff show that the in the RIF as a whole, older workers were affected more than younger employees.
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
Tuesday, September 13, 2005
disability - treating physicians' opinions - GAF - credibility - etc.
Burley v. Barnhart - ED Pa. September 9, 2005 - diability claim based on mental disorders denied
http://www.paed.uscourts.gov/documents/opinions/05D1124P.pdf
Opinions of treating professionals - The ALJ accepted the opinions of consultative physicians and medical expert over that of a treating physician and a treating therapist with an M.Ed., not medical degree, and "appropriately explained his reasons for" doing so, including "several specific and substantial justifications for his decision." The court set out a decent synopsis of Third Circuit law about effect of findings and opinions of treating physician.
Rejectionf of GAF assessment - The court accepted the medical expert's statement that "GAF scores are unreliable, non scientific assessments of overall mental functioning reflecting [claimant's[ symptoms rather than his functioning capacity," citing Howard v. Commissioner, 276 F.3d 234, 241 (6th Cir. 2002) (ALJ's failure to reference GAF score in the RFC does not, standing alone, make the RFC inaccurate.)
credibility -- The court said that "adverse credbility findings are afforded substantial deference so long as the findings are supported by specific cogent reasons. The reasons must be substantial and bear a legitimate nexus to the finding."
Overall, the court acklowledged that a different conclusion could have been reached on the record, but that the ALJ's decision was supposted by the required substantial evidence.
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
Sunday, September 11, 2005
custody - relocation - right to travel
In re Marriage of Ciesluk, 113 P.3d 135 (Colorado 2005)
http://www.cobar.org/opinions/opinion.cfm?OpinionID=5167
This is a Colorado case, but it is interesting for its discussion of the effect of a parent's consitutional right to travel (see e.g. Shapiro v. Thompson, 394 U.S. 618 (1969)) in a relocation case in relation to other important factors -- a parent's right to the care and control of her/his children (Troxel v. Granville, 530 U.S. 57 (2000)), and the best interest of the children.
The court discussed the approaches of three other states. Wyoming gives priority to the right to travel, Watt v. Watt, 971 P.2d 608 (Wyo. 1999). Minnesota holds that because the best interest of the child is a compelling state interest, there is no need to balance the competing rights of the parents set out in Shapiro and Troxel. LaChapelle v. Mitten, 607 N.W.2d 151 (Minn. Ct.App. 2000). New Mexico courts say that the interests of the parents and children are best protected through an equal sharing of burdens, Jaramillo v. Jaramillo, 8213 P.2d 299 (N.M. 1991), also adopted by Maryland, Braun v. Headley, 750 A.2d 624 (Md. Ct. App. 2000). The Colorado court chose to apply the New Mexico/Maryland standard, which it found to be most consistent with the detailed Colorado statute governing relocation cases.
Donald Marritz, staff attorney
MidPenn Legal Services-Gettysburg
Friday, September 09, 2005
civil rights - domestic violence - sec. 1983 suit v. police
Starr v. Price - ED Pa. - Sept. 8, 2005
http://www.pamd.uscourts.gov/opinions/munley/03v636.pdf
Estate of deceased victim of domestic violence sued various law enforcement officials for violations of deceased's constitutional rights involving the return of a firearm to deceased's husband, who subequently killed her and others.
Summary judgment granted to defendants based on analysis in Town of Castle Rock v. Gonzalez, 125 S.Ct. 2796 (2005). Claims for violations of substantive due process, procedural due process, and Brady Claim all denied.
"Section 1983 is not a 'font of tort law…but it does not mean that State are powerless to provide victims with personally enforceable remedies….Thus Plaintiff has no section 1983 remedy for her claims, although she may have an enforceable state law remedy. Absent a pendent federal claim, however, we have no jurisdiction over the state law claims."
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
foster parents are not state actors under 42 USC sec. 1983 - 3d Cir. case
Leshko v. Servis - 3d Circuit Court of Appeals, September 9, 2005
http://www.ca3.uscourts.gov/opinarch/042610p.pdf
Held, foster parents are not state actors for purposes of liability under 42 USC sec. 1983.
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
child abuse - corporal punishment - criminal negligence standard applied
W.S. Dept. of Public Welfare - Commonwealth Court, September 9, 2005
http://www.courts.state.pa.us/OpPosting/CWealth/out/214CD05_9-9-05.pdf
The Court reversed DPW's finding that father had abused his daughter, as abuse is defined in the Child Protective Services Law, 23 Pa. C.S. 6301 et seq. Under the CPSL, child abuse is "any recent act or failure to act…which causes nonaccidental serious physical injury to a child under 18 years of age," 23 Pa. C.S. 6303(b)(1)(i). "Serious physical injury" is defined as an injury that "causes a child severe pain" or "significantly impairs a child's functioning, either temporarily or permanently.," 23 Pa. C.S. 6303(a)
Father hit his 14 y/o daughter on the ear with an open hand 2-3 times when she lied to him about where she had been and her report card. When she fell to the floor, he hit her again. The findings were undisputed, and DPW found both parent and child to be credible. Father had not hit the daughter before. The daughter testified that she did not complain about her ear hurting, didn’t take aspirin or anything else for pain, went to school the next day and had no problem hearing her teachers, and that she is not afraid of her father. Father was "frustrated because of his daughter's continuous misconduct and, in disciplining her, did not intend to inflict injury." The record showed and the court emphasized continuing disciplinary problems with the daughter.
Citing P.R. v. DPW, 801 A.2d 478 (Pa. 2002), the Court said that the case presented "competing objectives" which involved balancing a parent's right to discipline a child, including by corporal punishment, with the duty under the CPLS to protect children. The P.R. case established a criminal negligence standard in parental corporal punishment cases. Under that standard, there is no abuse, under the CPSL, unless there has been as "gross deviation from the standard of care that a reasonable person would observe in the actor's situation."
The Court said that the "evidence…reveals that [father] slapped [his daughter] two to three times with an open hand, after numerous attempts to discipline her without resorting to physical contact. Although the slapping resulted in a temporary loss of hearing, [father's] conduct did not rise to the level of criminal negligence and cannot be viewed as a gross deviation from the standard of care a reasonable parent would observe in the same situation….[The father] maintained self-control by walking away from the situation after he made physical contact with her the second or third time. The fact that [the daughter] experienced a temporary hearing loss does not allow us to presuppose an unjustificable risk that would lead to the finding of criminal negligence. The injury [the daughter] received as a result of corporal punishment was an accident, and a 'regrettable result of corporal punishment' rather than abuse."
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
Pennsylvania Bulletin for September 10, 2005
Here is the link to the Pennsylvania Bulletin for September 10, 2005
http://www.pabulletin.com/secure/data/vol35/35-37/index.html
Items of potential interest include -
- welfare - energy assistance - LIHEAP plan for 2006
http://www.pabulletin.com/secure/data/vol35/35-37/1682.html
- welfare - MA - fee schedule revisions - 2005 HCPCS updates - prior authorization requirements
http://www.pabulletin.com/secure/data/vol35/35-37/1683.html
- Indpt. Regulatory Review Commission (IRRC) - actions taken by IRRC
http://www.pabulletin.com/secure/data/vol35/35-37/1688.html
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
Tuesday, September 06, 2005
civil rights - forcible removal and medical exam of children
Adkins v. Luzerne County Child & Youth Services - MD Pa. September 2, 2005
http://www.pamd.uscourts.gov/opinions/vanaskie/01v470.pdf
Held that, under the circumstances, there were no civil rights violations when county CYS forcibly removed plaintiff's children from the home and subjected them to medical examinations. Summary judgment for defendants.
The circumstances were -- Plaintiff's first wife had died of "presumed natural causes" at age 40. His second wife died at age 30 from undetermined causes. A confidential informant told police that a) Plaintiff 4 y/o daughter had told her that Plaintiff's new girlfriend had said the she (the daughter) was going to heaven very soon to join her mother, and that b) the daughter had been sick several times recently but had not received proper medical attention. The children were taken into custody on March 18, examined and found to be in good health, then released back to Plaintiff on March 22. There was never any search warrant issued, nor any juvenile protective custody hearing.
substantive due process - The court recognized that Plaintiff had a fundamental substantive DP interest in the care, custody and management of his children. However, the court applied a "shock the conscience" test and said that CYS had " 'reasonable and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse.' " The court said that CYS had reasonable grounds to believe that the children were in imminent danger of harm, and that the agency action had not been "' so ill-conceived or malicious that it 'shocks the conscience'….In the context of the removal of a child from the parent's home, the social worker's conduct 'must exceed both negligence and deliberate indifference, and reach a level of gross negligence or arbitrariness that indeed shocks the conscience.
unreasonable search and seizure - Defendants conceded that their taking the children had been a seizure, but the court held that that it had been reasonable under the circumstances, given the potential emergency nature of the case. The court also sustained the taking of bodily fluids from the children, under the analysis of Vernonia School District v. Action, 515 U.S. 646 (1995).
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
Monday, September 05, 2005
consumer protection - atty. fees - additional damages - etc.
Neal v. Bavarian Motors, et al. - Pa. Superior Court, September 2, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/a10022_05.pdf
Plaintiff sued car dealer, finance company, etc, for damages she suffered as a result of defendants' having sold, financed, etc. a stolen car, which Plaintiff lost when it was impounded by the police.
Plaintiff was awarded actual damages, as well as treble damages and attorney fees under the state consumer protection law (CPL), 73 PS sec. 201-9.2, as well as damages under the UCC and the Motor Vehicle Sales Finance Act, and costs. Defendants appealed.
attorney fees - The majority reduced the award of attorney fees under the CPL. It "eliminate[d] from the award of attorney fees the efforts of counsel to recover on non-CPL theories....[A]bsent special circumstances, to permit plaintiff to recover counsel fees for all of the counts upon which she recovered damages would not only be inequitable, but would be contrary to the law.....'[A]n effort should be made to apportion the time spent by counsel on the distinct causes of action.'"
The concurring judge said that "determining the amount of CPL-related attorney fees is very fact-specific and should be assessed on a case-by-case basis." He said that "apportioning CPL-related damages 'may prove difficult given that these claims are based on a common core of facts and related legal theories,'" and noted that in other CPL cases, the court had refused to award attorney fees based on the % of CPL damages as distinguished from the total damage award. He said that it "may be inherently difficult to separate attorney fees based on a strict percentage" because some research "supported multiple legal theories."
treble damages and costs - The court said that "any violation of the CPL empowers the trial judge to consider the additional remedies provided thereunder...." such as treble damages. (emphasis added) In this case, the court found the appellants' conduct "egregious and their liability clear" and upheld the lower court.
joint and several liability - The court noted that Pennsylvania has adopted sec. 879 of the Restatement (2d) of Torts on this issue, holding that "if the tortious conduct of each of two or more persons is a legal cause of harm that cannot be apportioned, each is subject to liability for the entire harm, irrespective of whether their conduct is concurring or consecutive." An arbitrary apportionment should not be made where there is no rational, logical or practical basis to divide the harm caused by multiple defendants.
remittitur - The court upheld the trial court's refusal to grant a larger remittitur, summarizing Pa. law as follows -- A remittitur should fix the highest amount any jury could properly award, giving due weight to all evidence offered. The question is whether the award falls within the uncertain limits of fair and reasonable compensation, or whether the verdict so shocks the sense of justice as to suggest that the jury was influenced by partiality, prejduce, mistake, or corruption.
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburgwww.midpenn.org
Friday, September 02, 2005
age discrimination - statute of limitations, tolling - etc.
Holocheck v. Luzerne County Head Start, M.D Pa., August 30, 2005
http://www.pamd.uscourts.gov/opinions/vanaskie/04v2082.pdf
Defendant moved to dismiss Age Discrimination complaint which alleged federal and state causes of action.
tolling statute of limitations - 180-day limit on bringing an age discrimination claim can be tolled where the employer fails to post required notice of employee rights. Failure to post the notice means that the employee was "prevented from asserting her rights…."
- individual liability - federal statute, ADEA, 29 USC 63 et seq -- federal claims against invidivuals supervisors dismissed --
"…courts in this and other circuits continue to reject the notion that individuals may be held liable under the ADEA
- individual liability - state statute - PHRA - 43 Pa. CS 955 "contemplates individual liability…Supervisory employees…may be held liable…on the theory that only supervisors can share the discriminatory purpose and intent of the employer that is required for aiding and abetting." Thus, motion to dismiss this claim denied.
- Sec. 1983 - personnel manual, federal regulations - Section 1983 claims dismissed. Held, personnel manual did not create an enforceable property interest under state law, where there was no state enabling legislation that gave local government the right to employ people on other than an at-will basis. Similarly, a "federal regulation alone may not create a right enforceable through section 1983 not already found in the enforcing statute…'a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not…[R]egulations give rise to a right of action [under sec. 1983] only insofar as they constue a personal right that a statute creates,'" citing Three Rivers Center for Indpt. Living vf. Housing Authority, 382 F.3d 412, 424 (3d Cir. 2004).
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
Pennsylvania Bulletin of September 3, 2005
Here is the link to the Pennsylvania Bulletin of September 3, 2005
http://www.pabulletin.com/secure/data/vol35/35-36/index.html
Items of potential interest include:
- court rules - Pa. RCP 76 - definitions - signature - computer-generated signatures
http://www.pabulletin.com/secure/data/vol35/35-36/1631.html
- court rules - local - Northumberland Co. - family transition program - custody conflict resolution program
http://www.pabulletin.com/secure/data/vol35/35-36/1633.html
- health -HIV community prevention planning committee - public meeting
http://www.pabulletin.com/secure/data/vol35/35-36/1646.html
- welfare - NOTICE - diversion program
http://www.pabulletin.com/secure/data/vol35/35-36/1647.html
DPW "intents [sic] to amend the...TANF (42 U.S.C.A. §§ 601--619) State Plan. The proposed amendment will permit individuals or families who otherwise qualify for TANF cash assistance to receive a nonassistance diversion payment as an alternative to receiving ongoing cash assistance."
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
Tuesday, August 30, 2005
sec. 1983 - police liability for part in private repo. in DV case
Harvey v. Plains Township Police Department - 3d Circuit Court of Appeals, August 30, 2005
http://www.ca3.uscourts.gov/opinarch/041148p.pdf
Summary judgment in favor of individual police officer reversed (2-1) in 42 USC 1983 case. Plaintiff alleged that the officer took part in an improper entry into her apartment and an ex parte private repossession of her property by her former boyfriend. The court held that, in a summary judgment procedural posture, the evidence showed that
a) the officer took part in "state action" by ordering the landlord to open plaintiff's apartment, contrary to the direction of an existing protection from abuse (PFA) order.
b) such action violated plaintiff's clearly established 4th Amendment constitutional right to be free of unreasonable searches/seizures
c) the officer was not entitled to qualified immunity -- There was a violation of clearly established constitutional rights, and a reasonable police officer would have believed that his conduct deprived plaintiff of her constitutional rights. The court held that a letter from the boyfriend's attorney to the plaintiff's attorney did not give the officer a reasonable belief that plaintiff consented to the boyfriend's seizure of property at her home, especially given knowledge of the PFA order. "A reasonable offivce at least would have refused to assist with opening the door until he was satisfied that consent was given." His actions went well beyond keeping the peace.
The dissent felt that the officer was entitled to qualified immunity.
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
Steininger v. Barnhart - hypo must include all credibly established limitations - ED Pa.
Steininger v. Barnhart -- ED Pa. August 24, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1065P.pdf
The court remanded the case because the ALJ's hypothetical to the vocation expert was inadequate at step 4 in the disability determination process -- involving determination of ability to do past relevant work.
The court said that "an ALJ hypothetical must include all of claimant's impairments," citing Ramirez v. Barnhart, 372 F.3d 546, 552 (3d Cir. 2004), and that the claimant's mental impairments were not adequately set out. They didn't even comport with the ALJ's own findings on the issue.
An ALJ need not submit "every impairment alleged by a claimant," but it is "required that 'the hypothetical posed must accurately portray the cliamant's impairments and that the expert must be given an oppportunity to evaluate those impairments as contained in the record'....The ALJ's hypothetical 'must accurately convey to the vocational expert all of a claimant's credibly establish limitations.'" (emphasis in original). The court said that ''great specificity' is required when an ALJ incorporates a claimant's mental or physical limitations into a hypothetical," citing Ramirez, 372 F.3d at 554-5.
The court also said that even though the issue in the case arose at step 4 in the 5-step disability process, the Ramirez analysis was still dispositive, even though that was a step-5 case, since the ALJ's decision relied "exclusively" on the VE's testimony.
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
Monday, August 29, 2005
recent disability cases - Pa. fed. courts - 07-08. 2005
Eastern District of Pennsylvania
Pierce v. Barnhart - August 11,2005
http://www.paed.uscourts.gov/documents/opinions/05D1054P.pdf
Nunnery v. Barnhart - August 23, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1047P.pdf
Garcia v. Barnhart - August 22, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1045P.pdf
Jones v. Barnhart - August 23, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1042P.pdf
Laracuente v. Barnhart - August 18, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1026P.pdf
Thompson v. Barnhart - August 17, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1018P.pdf
Middle District of Pennsylvania
Smith v. Barnhart - July 25, 2005
http://www.pamd.uscourts.gov/opinions/munley/04v810.pdf
3rd Circuit Court of Appeals
Allen v. Barnhart - August 8, 2005
http://www.ca3.uscourts.gov/opinarch/042163p.pdf
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