employment - age discrim. - statute of limitations - equitable tolling

Uber v. Slippery Rock University - Commonwealth Court - November 23, 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/269CD05_11-23-05.pdf

Appellant, a police officer at a university, applied for but was denied a higher position in March 1998. He filed an internal grievance, which was denied in October 1998. In May 1999, he filed a complaint with the Pa. Human Relations Commission, which after investigation dismissed the case in December 1999. In January 2000, he filed a complaint with the EEOC and cross-filed with the PHRC, which closed the investigation in January 2001, after finding no violations. Appellant then filed a complaint in a court of common pleas alleging age discrimination and retaliation under the PHRA, 43 P.S. 955(a) and (d).

The trial court's dismissal of the age discrimination complaint was upheld on appeal. Appellant's complaint with the PHRC was not filed within 180 days of the alleged act of discrimination, as required by the PHRC. His complaint was not subject to equitable tolling by his filing an internal complaint with the university, because: a) he was not actively misled by the defendant; b) there were no extraordinary circumstances that prevented him from asserting his right; c) he did not present his claims in a timely manner but in the wrong forum. An internal complaint with an employer is not what the legislature intended as a substitute for filing a complaint with the PHRC.

On the retaliation claim, appellant failed to show an adverse employment action. A 1999 performance evaluation -- and not his not being hired for the job -- was the only issue before the trial court and the only one preserved for appeal.

Donald Marritz
MidPenn Legal Services

SSI- child - medical evaluation, 42 USC 1382c (a)(3)(I)

Drake v. Barnhart

http://www.paed.uscourts.gov/documents/opinions/05D1393P.pdf

SSI claim of child with deafness in one ear and learning disabilities denied.

- The necessity for accommodations at school does not mean that a child has "marked" limitations.

- Treating physicians's opinion not given controlling weight because not supported by diagnostic testing.

- Failure to obtain medical evaluation - Section 1382c(a)(3)(I) of title 42 satisfied, under Acquiesence Ruling 04-01(9), when state agencvy consultant evaluates the case. The statute requires "an evaluation of each child's case, but nowhere does it mention a hearing-level analysis." The SSA Commissioner's interpretation of the statute "represents a reasonable contruction" under Chevron, 467 U.S. 837, 842-4 91984). "'State agency... psychological consultants...are highly qualified....experts in Social Security disability evaluation,'" and the psychologist in this case "based his assessment on a full review of Plaintiff's medical and scholastic records."

Donald Marritz
MidPenn Legal Services

SSI - child - obesity - sleep apnea

Williams v. Barnhart - ED Pa. - November 21, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1414P.pdf

Claim for benefits denied for 17 y/o child with obstructive sleep apnea and obesity. Child had never been hospitalized and had received medical treatment "only for minor conditions such as allergies and dermatitis." Child's IQ scores were all in the mid-70s range, which is above the disability listing level. Opinion by an MSN not given controlling weight, because not issued by an "acceptable medical source" under 20 CFR 416,.913(a) (licensed physician, licensed/certified psychologisits, licensed optomentrists, licensed podiatrists, qualified speech-language pathologists."

Donald Marritz, staff attorney
MidPenn Legal Services

admin. law - right to stenographic record - 2 Pa. C.S. 504

Mason v. Dept. of Corrections

http://www.courts.state.pa.us/OpPosting/CWealth/out/467CD05_11-21-05.pdf

The substance of this case -- a claim by the DOC that a prisoner should pay for medical treatment given to him, under the Prison Medical Services Act, 61 P.S. 1013 -- is not within our practice.

However, there is an important procedural issue. The DOC held an assessment hearing in the case and entered an order directing the prisoner to pay DOC more than $77,000. However, the testimony at the hearing was not stenographically or electronically recorded. The prisoner appealed, claiming a due process violation by denying him a stenographer at the hearing, a right guaranteed under the Administrative Agency Law, 2 Pa. C.S. sec. 504, which states that "[a]ll testimony shall be stenographically record and a full and complete record shall be kept of the proceedings."

The court held that a failure to make a full and complete record "render[ed] the adjudication invalid," citing Holloway v. Lehman, 671 A.2d 1179 (Pa. Cmwlth. 1996) and Callahan v. State Police, 431 A.1d 946 (Pa. 1981). The case was "remanded for a hearing in accordance with the provisions" of the Administration Agency Law.

Donald Marritz
MidPenn Legal Services

employment - disability discrimination - ADA, PHRA, FMLA, IIED

Kaniuka v. Good Shepherd Home -- ED Pa - November 3, 2005

http://www.paed.uscourts.gov/documents/opinions/05d1358p.pdf


Plaintiff was terminated from her job when she accidentally mixed up her medications, resulting in her being hospitalized and missing work. The employer said she was fired for a) sleeping at work, b) intentionally taking meds not prescribed to her; c) "mental health reasons", and d) "being out on leave."

Plaintiff sued her employer under the ADA, PHRA, FMLA and state common law. The employer moved to dismiss several claims. The court said that a plaintiff need not plead every material fact to survive motion to dismiss, only facts that, in addition to inferences drawn from them, provide a basis for recovery. Claims should not be dismissed unless there it is beyond doubt that the plaintiff can prove no set of facts that would entitled her to relief.

retaliation claims under ADA, 29 USC 12201 et seq., and PHRA, 43 P.S. 951 et seq.
A prima face retaliation claim requires a plaintiff to show a) she engaged in a protected activity, b) the ER took adverse action at the time of or after such activity, and c) there is a causal connection between the two. "Protected activity" includes asking for working conditions that accommodate a disability, or filing a claim for disability discrimination. Taken as a whole, P's complaint here alleges sufficient facts to show that the ER took adverse action against her after she made an accommodation request.

PHRA "aiding and abetting" claim against supervisors
The PHRA generally does not apply against individuals, only employers. However, sec. 955(e) prohibits any person from aid or abetting unlawful discriminatory acts under the PHRA. The allegations and inferences of the complaint sufficiently allege potential supervisor liability to withstand summary judgment.

Family and Medical Leave Act, 29 USC 2610 et seq.
Complaint properly alleged the plaintiff was "employee" and defendant an "employer" under the FMLA

intentional infliction of emotional distress under Pa. common law
Tort claims against employers generally are barred by the Worker's Compensation Law, unless they involve intentionally tortious conduct. However, the plaintiff in such a case must show that the alleged action was taken for purely personal reasons, unrelated to the employment relationship. She did not do so in this case, so that claim was dismissed.

Donald Marritz
MidPenn Legal Services

employment - age discrimination - ADEA and PHRA

Kasali v. J.P. Norgan/Chase Manhattan Mortage Corp. - ED Pa. November 7, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1363P.pdf

Pa. Human Relations Act- 43 PS 51 et seq.
Plaintiff's age discrimination claim under the Pa. Human Relations Act dismissed because of untimely filing -- not w/in 180 days of alleged discriminatory act. P did filed Age Discrimination in Employment (ADEA), 29 USC 621 et seq., claim w/in required 300 days but did not clear and unambiguously ask for dual-filing of PHRA claim, so equitable tolling denied.

Age Discrimination in Employment Act - 29 USC 621 et seq.
Plaintiff established the "not onerous" burden of showing a prima facie age discrimination claim -- over 40, applied and rejected for job for which she was miniminally qualified, in favor of a person younger enough to permit inference of age discrimination. The employer's proferred non-discrminatory reasons were sufficiently countered by Plaintiff's allegations that those reasons were pretextual, so as to raise genuine issue of material fact and survive ER's motion for summary judgment.

Plaintiff's retaliation claim under the ADEA was rejected, since she did not establish a prima facie case -- i.e., retaliatory conduct which affected compensation, terms, conditions or privileges of employment.

Donald Marritz
MidPenn Legal Services

Pennsylvania Bulletin of November 19, 2005

Here is the link to the Pennsylvania Bulletin of November 19, 2005

http://www.pabulletin.com/secure/data/vol35/35-47/index.html

Of possible interest --

- recent statutes
http://www.pabulletin.com/secure/data/vol35/35-47/2114.html

- minor court rules - "incompatible practices" - tech.
amendments
http://www.pabulletin.com/secure/data/vol35/35-47/2116.html

- court rules - misc. amendments - publication on internet
required
http://www.pabulletin.com/secure/data/vol35/35-47/2117.html

- insurance - financial statement filing requirements for 2006
for insurance companies
http://www.pabulletin.com/secure/data/vol35/35-47/2144.html

Donald Marritz
MidPenn Legal Services

Education Law - Burden of Persuasion in IDEA Due Process Hearings

The United States Supreme Court has held, in SCHAFFER V. WEAST (04-698), decided on November 14, 2005, that the burden of persuasion in in an administrative hearing challenging an IEP is properly placed upon the party seeking relief, whether that is the disabled child or the school district.

To ensure disabled children a "free appropriate public education," 20 U.S.C.A. §1400(d)(1)(A), the Individuals with Disabilities Education Act (IDEA or Act) requires school districts to create an "individualized education program" (IEP) for each disabled child, §1414(d), and authorizes parents challenging their child’s IEP to request an "impartial due process hearing," §1415(f), but does not specify which party bears the burden of persuasion at that hearing.

After an IDEA hearing initiated by petitioners, the Administrative Law Judge held that they bore the burden of persuasion and ruled in favor of respondents. The District Court reversed, concluding that the burden of persuasion is on the school district. The Fourth Circuit reversed the District Court, concluding that petitioners had offered no persuasive reason to depart from the normal rule of allocating the burden to the party seeking relief.

In an opinion by Justice O'Conner the Court found:

(a) Because IDEA is silent on the allocation of the burden of persuasion, this Court begins with the ordinary default rule that plaintiffs bear the burden regarding the essential aspects of their claims. Although the ordinary rule admits of exceptions, decisions that place the entire burden of persuasion on the opposing party at the outset of a proceeding–as petitioners urge the Court to do here–are extremely rare. Absent some reason to believe that Congress intended otherwise, the Court will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief.

(b) Petitioners’ arguments for departing from the ordinary default rule are rejected. Petitioners’ assertion that putting the burden of persuasion on school districts will help ensure that children receive a free appropriate public education is unavailing. Assigning the burden to schools might encourage them to put more resources into preparing IEPs and presenting their evidence, but IDEA is silent about whether marginal dollars should be allocated to litigation and administrative expenditures or to educational services.

There is reason to believe that a great deal is already spent on IDEA administration, and Congress has repeatedly amended the Act to reduce its administrative and litigation-related costs. The Act also does not support petitioners’ conclusion, in effect, that every IEP should be assumed to be invalid until the school district demonstrates that it is not. Petitioners’ most plausible argument–that ordinary fairness requires that a litigant not have the burden of establishing facts peculiarly within the knowledge of his adversary, United States v. New York, N. H. & H. R. Co., 355 U.S. 253, 256, n. 5–fails because IDEA gives parents a number of procedural protections that ensure that they are not left without a realistic chance to access evidence or without an expert to match the government.

Stevens, J., filed a concurring opinion. Ginsburg, J., and Breyer, J., filed dissenting opinions. Roberts, C. J., took no part in the consideration or decision of the case.

The Court's decision is available from the Legal Information Institute at Cornell Law School at: http://straylight.law.cornell.edu/supct/html/04-698.ZS.html.

custody - modification - UCCJEA

Wagner v. Wagner - Pa. Superior Court - November 7, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/a31002_05.pdf

Following the parents' divorce in Mercer County, Pennsylvania in 2002, Mother got primary physical custody of the two children by an order of the same court. The parties shared legal custody. Mother, who was in the Army Reserve, maintained her domicile in Florida, where she had a mailing address, driver's license and was registered to vote. She and the children had other significant connections to Florida. Father moved to Ohio. Mother was then transferred to Fort Dix, NJ, and children were sent to live with her stepmother in Florida. When Mother got orders to go to Iraq, Father sought and got a custody order from the Mercer County court. Mother appealed, alleging lack of jurisdiction under the UCCJEA and violation of the Servicemembers' Civil Relief Act, 50 USC App. sec. 501 et seq.,

The Superior Court reversed. Applying 23 Pa. C.S. sec. 5422(a), dealing with modification orders, the court held that the lower court did not have "exclusive, continuing jurisdiction" to modify its original order, because (a) neither parent resided in Pennsylvania, and (b) neither the children nor the parents had "significant connections" with Pennsylvania.

The court also decided that the lower court did not have jurisdiction under sec. 5422(b), because it did not have jurisdiction under the criteria in sec. 5421 to make an initial custody determination. Pennsylvania was not the "home state," since the children were no longer here, and neither parent lived here. Nor did Pennsylvania have jurisdiction under the "significant connections" test, which can only apply if no other state can assume jurisdiction. The court found that the children had more significant connections with Florida than Pennsylvania and remanded the case to the trial court with a direction that it be transferred to Florida.

Donald Marritz
MidPenn Legal Services

physician-patient privilege - blacken the character

Grimminger v. Maitra - Pa. Superior Court - November 4, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/s47039_05.pdf

Held, doctor did not breach common law or statutory duty when he released medical information about a patient to the patient's employer. The doctor had previously sent info to the employer concerning plaintiff's work limitations. Two years later, the employer came to the doctor, showed him a video of plaintiff and asked for the doctor's opinion about plaintiff's work restrictions. The employer offered a new opinion and the employer subsequently fired the plaintiff.

Pennsylvania recognizes a civil cause of action for breach of the physician-patient privilege where "confidential disclosures occurred that were unrelated to any judicial proceedings." Haddad v. Gopal, 787 A.2d 975, 981 (Pa. Super. 2001). This the rule in the majority of jurisdictions. There is also statute, 42 Pa. CS sec. 5929, which prohibits the release of information in a civil matter where that information "shall tend to blacken the character of the patient," unless the patient has consented to the release. Pa. law also recognizes a distinction between information communicated by the patient and information which the doctor gets by examination and observation.

The court's response to each of the plaintiff's arguments was that the information released did not tend to black the patient's character.

Donald Marritz
MidPenn Legal Services

continuances - exercise/abuse of discretion

Gillespie v. Penn DOT - Commonwealth Court - November 2, 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/546CD05_11-2-05.pdf

Held, the trial court erred by refusing to exercise its discretion to consider a request for a continuance based solely on a standing policy that all parties must agree to a continuance.

"Blind adherence" to an establishing policy is the opposite of the required exercise of discretion, which is an informed decision between multiple courses of action. Instead, the court "essentially delegated its decision-making function to the attorneys....We can think of no clearer example of an abuse of discretion than abdication of the judge's role to an interested party. The trial court's continuance policy....is manifestly unreasonable." It was an abuse of discretionto blindly apply the policy and refuse to consider the merits of the moving party's request.

Donald Marritz
MidPenn Legal Services

attorney-client privilege - former client

In re Investigating Grand Jury -- Pa. Superior Court - November 1, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/a25019_05.pdf

In a case said to be of first impression, a criminal defendant's conversation with his former counsel was held to be privileged, even after the representation had ended. The conversation related to the attorney's former representation (about which the defendant was complaining) and was about the case. The court felt that it was likely that the former client "believe[d] that because of their prior relationship, confidentiality remained between them," even though the "conversation did not involved a client seeking legal advice from his lawyer."

Donald Marritz, staff attorney
MidPenn Legal Services

employment - discrimination - PHRA - "employment agency"

Nethken v. Pa. Civil Service Commission - Commonwealth Court - November 1, 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/1064CD05_11-1-05.pdf

The Pa. Civil Services Commission is an "employment agency" under the Pa. Human Relations Act, 43 PS sec. 951 et seq., and can be liable for age discrimination.

Plaintiff stated prima facie case of age discrimination when she was not put on a list of eligibles solely because she graduated from college in 1974, when job posting called for recent grad (1999). Lower court judgment on liability upheld.

D. Marritz
MidPenn Legal Services

HIPAA - HHS privacy rules valid - 3d Cir.

Citizens for Health, et al. v. Leavitt, Secy. of HHS - 3d Cir. - October 3, 2005

http://www.ca3.uscourts.gov/opinarch/042550p.pdf

HHS privacy rules under HIPAA upheld against challenges under Administrative Procedure Act and 1st & 5th Amendments.

admin. law - collateral estoppel/issue preclusion - capricious disregard of competent evidence

The Frog, Switch & Mfg. Co. v. Pa. Human Relations Commn. - Cmwlth. Court - Oct. 27, 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/125CD05_10-27-05.pdf

This is an employment law case, but it has implications in all administrative law cases, hence the cross posting. The Petitioner/Employer appealed from a ruling of the PHRC that it had unlawfully retaliated against a former employee because of his union activities. The employee had also gone through arbitration, resulting in a contrary decision, i.e., that the employer had just cause for disciplining him (but that termination was an excessive punishment).

collateral estoppel/issue preclusion -- In the administrative proceeding before the PHRC, the employer contended that the facts found by the arbitrator were conclusive and binding on the Commission. After an extended (and unnecessary?) discussion about whether collateral estoppel (aka, issue preclusion) was applicable, the court held that the Supreme Court's decision in Bortz v.WCAB, 683 A.2d 259 (Pa. 1996), was controlling. There the court held that a decision of the UCBR did not have preclusive effect in a worker's comp. case, "because every administrative agency...is charged with enforcing its own acts which have different purposes; therefore, one agency's hands would be tied by the findings and conclusions of another without being allowed to make independent findings and conclusions and applying its own expertise to the facts."

The court said that "[because labor arbitrations are akin to 'private administrative agencies' and the Commission is charged...with adjudicating claims under the PHRA...., the General Assembly did not intend any arbitration award to have preclusive effect on claims of discrimination brought pursuant to the PHRA."

capricious disregard -- The court remanded the case back to the Commission, because it had "capriciously disregarded overwhelming critical evidence that could have compelled a different conclusion.," citing Wintermeyer v. WCAB, 812 A.2d 478 (Pa. 2002), and its 8-17-05 decision in Hinkle v. City of Philadelphia,
http://www.courts.state.pa.us/OpPosting/CWealth/out/2071CD04_8-17-05.pdf
In the latter case, the court said that the capricious disregard standard is a "shorthand way of addressing various statutory and constitutional requirements that require...an agency to give reasons for its decision, and when an agency ignored critical overwhelming evidence that constituted an abuse of discretion requiring the decision to be vacated" so that the agency can "explain its action and arrive at a new decision if it so desired. Because an agency has so much discretion when enforcing its statute, capricious disregard, like abuse of discretion, will only be applied in rare instances when the agency palpably has failed to give a proper explanation of overwhelming critical evidence. This is one of the extremely rare cases where the threshold has been reached, because in each and every key finding of causation, it ignored evidence that would have compelled a different conclusion."

Donald Marritz
MidPenn Legal Services

admin. law - standard of proof - preponderance v. clear-and-convincing

Suber v. Pennsylvania Commn. on Crime & Delinquency -- Cmwlth. Court - October 28, 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/265CD05_10-28-05.pdf

Held, the proper standard of proof was "preponderance of the evidence" and not "clear and convincing" in a case involving the removal of a deputy sheriff from an educ./training program, based on allegations that he had cheated on an exam.

The standard of proof in a particular type of case is "based on the level of concern regarding the degree of accuracy in the factual findings made by the trier of fact...The traditional 'preponderance of the evidence' standard allows parties...to share equally in the risk in proving their claims and affirmative defenses. Any other standard expresses a preference for one side's interests."

In most civil and administrative actions, the proper standard of proof is "preponderance of the evidence." (citing cases). "Clear and convincing" is the highest standard of proof in civil law and is "reserved for cases 'where particularly important individual interests or rights are at stake....'" such as termination of parental rights, civil fraud, involuntary commitment, and public figure defamation.

Meeting the "clear and convincing" standard requires that the witnesses be found to be credible, the facts to which they have testified be remembered distinctly, and their testimony be so clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.

The court found that this case was like Ruane v. Shippensburg Univ., 871 A.2d 859 (2005), in which it applied the preponderance standard in a matter involving the suspension of a student for sexual assault. It rejected the analogy to an attorney disbarment case in which the clear-and-convincing standard was applied, ODC v. Duffield, 644 A.2d 1186 (Pa. 1994).

Donald Marritz
MidPenn Legal Services

Pennsylvania Bulletin of October 29, 2005

Here is the link to the Pennsylvania Bulletin of October 29, 2005

http://www.pabulletin.com/secure/data/vol35/35-44/index.html

Items of potential interest include --

-DPW - personal care homes - delayed implementation of some regs
http://www.pabulletin.com/secure/data/vol35/35-44/1981.html

- local court rules - Crawford County -
http://www.pabulletin.com/secure/data/vol35/35-44/1977.html

- local court rules - Lehigh County
http://www.pabulletin.com/secure/data/vol35/35-44/1978.html

- local court rules - Somerset County
http://www.pabulletin.com/secure/data/vol35/35-44/1979.html
http://www.pabulletin.com/secure/data/vol35/35-44/1980.html

lean pickings

Donald Marritz
MidPenn Legal Services

disability - med. equivalency - evidence

Oakes v. Barnhart - ED Pa. - October 18, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1276P.pdf

The court rejected the magistrate's recommendation that summary judgment be granted to plaintiff (P) and, rather, granted s/j to defendant (D).

The magistrate believed that the ALJ's equivalency decision was not supported by substantial evidence, because the ALJ failed to secure the testimony of a medical expert before determining that plaintiff's impairment did not equal a listing. The magistrate recommended that the case be remanded for the taking of medical evidence about whether the combination of P's impairments equaled a listed impairment.

The court rejected this reasoning and agreed with SSA that under its "testing modifications" policy set out at 20 CFR 404.906(b)(2), it had "fundamentally altered" its former long-standing policy by allowing an ALJ to use medical expert testimony when "appropriate," rather than requiring the opinion of a medical consultant to determine if a claimant met or equaled a listed impairment. This testing modification policy applies to cases decided in Pennsylvania and nine other states.

The court held that 20 CFR 404.906(b)(1) and (2) established a "single decisionmaker model" and that the ALJ is not required to seek a medical opinion of the issue of equivalence, although s/he may do so where "appropriate," thus going from a "mandatory to discretionary use of medical experts on the issue of equivalency."

The Court upheld the ALJ decision on (non)equivalency and granted s/j to defendant.

Donald Marritz
MidPenn Legal Services

ADA - employment - regarded as having a disability

Eshelman v. Agere Systems, Inc. - ED Pa. - October 19, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1278P.pdf

The court rejected the defendant's post-trial motion to overturn a jury verdict for plaintiff, whom it found that defendant had "regarded as disabled" under the Americans with Disabilities Act. Plaintiff established that she is an "qualified individual with a disability," 42 USC 12112(a), i.e., a person who with or w/o a reasonable accommodation can perform the essential functions of the job that she holds or wants.

A "disability" is defined as either a) physical/mental impairment that substantially limits one or more major life activities, or b) a record of such impairment, or c) being regarded as having such an impairment.

A person is "regarded as having a disability if a) she has an impairment that doesn't limit any major life function, but is treated by the employer as if it does; b) she has an impairment that does limit her, but only as a result of the attitude of others; or c) has no impairment but is treated as having a substantially limiting impairment., 29 CFR 1630.2(1).

Plaintiff prevailed because she showed that she was discriminated against by her employer, who believed that she was unable to work in a particular class or broad range of jobs, as required in the definition of disability.

Donald Marritz
MidPenn Legal Services

UC - willful misconduct - decision of another agency is not WM per se

Woods Services v. UCBR - Commonwealth Court - October 2, 4 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/784CD05_10-24-05.pdf

Held, determination of county child/youth services (CYS) agency that an employee of a residential treatment facility "abused" one of his clients "does not constitute willful misconduct per se." The finding is enough to terminate a claimant's employment, which the employer had to do to retain its DPW license to run the facility. Without more, however, the CYS determination does not support a finding of willful misconduct. The employer "failed to present any admissible testimony or evidence, independent of the…. determination, to support a finding of willful misconduct."

The employer did only a cursory investigation. Its proffered testimony was hearsay and rejected. Claimant and an eyewitness testified. The Board resolved all credibility issues in favor of the claimant and his witness. "Our review of the record supports the Board's finding the Employer failed to directly link the CYS finding of child abuse to Claimant for purposes of establishing willful misconduct….."

Donald Marritz
MidPenn Legal Services

disability - fibromyalgia - credibility - treating physician

Kurilla v. Barnhart - ED Pa. - October 18, 20

http://www.paed.uscourts.gov/documents/opinions/05D1280P.pdf

Case remanded (sentence four, 42 USC 405(g)) because of ALJ errors on credibility and use of reports of treating physicians.

The ALJ's credibility finding was not supported by substantial evidence or made in accordance with SSR 96-7p, which requires careful consideration of statements about symptoms such as pain, which may suggest a greater impairment than shown by the objective medical evidence alone. This is especially true in the case of fibromyalgia, an impairment which is "mysterious and elusive....because it lacks both a clear etiology and objective diagnostic testing capable of verifying the legitimacy of accompanying symptoms."

The finding and statements of claimant's treatment providers was not given sufficient weight. If they are supported by medical date, they should be accepted absent contradictory medical evidence (citing 3d Cir. precedent). The record about fibromyalgia consisted solely of claimant's complaints and his treating physician's diagnosis that he was disabled. Without any evidence to the contrary than the ALJ's erroneous determination that claimant lacked credibility, the court concluded that the ALJ's rejection of the treating physician's opinion was impermissible, because it was not based on substantial evidence.

The court remanded the case for a new consultative exam about the effects of claimant's fibromyalgia on his RFC and a new RFC assessment by a physician, preferably a rheumatologist who has experience and an expertise in fibromyalgia and its related symptoms.

The court did not simply reverse and grant benefits, because "granting...benefits at Step 4 improperly truncates the sequential evaluation process. Step 5 of the process is necessary to determine whether the claimant could perform a less demanding level of work, such as sedentary work."

Donald Marritz
MidPenn Legal Services

employment - FMLA - advance notice provision

Solovey v. Wyoming Valley Health Care System-Hospital, MD Pa. - October 13, 2005
http://www.pamd.uscourts.gov/opinions/conaboy/04v2683.pdf

Held, that the employer's (ER) policy of requiring two-week advance notice before being able to take an accrued paid vacation day violates the FMLA. Summary judgment granted to plaintiff-employee.

Plaintiff's father was placed in hospice care in June 2003. On June 23, plaintiff left work in mid-shift after learning that her father's condition had worsened. She spent June 23 and 25 with her father and returned to work on June 26th, but left early when she learned that his condition had become critical. She remained out on June 27 and her father died on June 28.

Plaintiff was paid for June 23 and 24 through a policy of "family ill days." The ER deemed the other time missed as FMLA leave but denied her request to use accrued vacation time to cover her other absences, because she had not complied with the collective bargaining agreement (CBA) requirement that she give a two-week notice before taking a vacation in order that the absence qualify for use of paid vacation time. Plaintiff couldn't give such notice, because she didn't know of her need to use it until June 22nd.

The court agreed with plaintiff that sec. 2612 of the FMLA, 29 USC 2612(d)(2)(A), is an express grant allowing her to use accrued vacation w/o the restriction of a two-week notice policy. The statute also holds that a CBA may grant more rights than the FMLA but may not diminish FMLA rights. To adopt the ER's argument would mean that an employee who had ample accrued pain vacation time to substitute for FMLA leave might have to go w/o pay for up to two weeks in the common situation where a serious health situation requiring leave was not foreseeable. This is the kind of economic hardship the FMLA seeks to avoid. It is appropriate to treat a procedural impediment (two-week notice) to using paid leave differently from a substantive right to use the leave (e.g. has the leave time vested? how much has accrued?). The court also found that the ER had no business reason other than its desire to enforce strict adherence to the procedural aspects of the CBA vacation policy to prohibit an employee from taking paid time off during the two-week notice period, when the need for the FMLA leave was not foreseeable.

Donald Marritz, staff attorney
MidPenn Legal Services

employment - wrongful discharge - sexual harassment

Weaver v. Harpster -- Pa. Superior Court, October 21, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/s44032_05.pdf

Plaintiff, an at-will employee, held to have stated a common law cause of action for wrongful discharge based on allegations of sexual harassment, even though the employer (ER) did not meet definition of "employer" under the Pa. Human Relations Act (PHRA) because it had fewer than four employees.

The court rejected the notion that there is never an alternative to the PHRA as an avenue for relief for sexual discrimination. It also held that, under the circumstances, there was a public policy exception to the at-will employment doctrine, because state law -- a statute and the state constitution -- established a "clear public policy against sexual discrimination."

Plaintiff had quit her job because of intolerable work conditions. Her request that the PHRC investigate and take action was rejected because the ER did not meet the statutory definition of "employer." Plaintiff then filed a case in the common pleas court claiming, inter alia, wrongful discharge. The ER's preliminary objections were sustained. The lower court held that the state PHRA provided the exclusive remedy for employment discrimination based on sex, and that since the PHRA provided plaintiff no remedy, she had none.

Donald Marritz, staff attorney
MidPenn Legal Services

UC - VQ - demotion - justification v. substantial change analysis

Diversified Management Care v. UCBR -- Commonwealth Court - October 21, 2005 (2-1 decision)

http://www.courts.state.pa.us/OpPosting/CWealth/out/796CD05_10-21-05.pdf

Claimant (CL) quit her job when she was demoted. There was a reduction in her responsibilities but no reduction in pay or benefits. The employer (ER) demoted CL over an incident in which her son was arrested and faced criminal charges. During this period, she used ER phones to discuss what the UCBR found were "pressing legal and financial matters." There was no ER policy about using phones for personal reasons. The Board found no misconduct or even poor judgment on CL's part.

The ER claimed that the UCBR should have used the "substantial change analysis" to decide the case, and that the CL had failed to show that her job duties had substantially changed as a result of her demotion.

The court cited Allegheny Valley School District v. UCBR, 697 A.2d 243 (Pa. 1997) as setting forth the "appropriate standard" for determining whether a claimant has good cause to quit a job after a demotion. In that case, the court said that the focus in such a case should be "the justification for the demotion." If the demotion was justified, the claimant should get no benefits. If it wasn’t, benefits should be granted. The Commonwealth Court thus upheld the UCBR's application of the justification analysis and its refusal to use the change-of-circumstances analysis.

The Court also upheld the UCBR's reliance on the fact that the ER had no policy prohibiting the way that CL used the phones. The "Board did not err when it based its decision in part on the fact that Employer had no telephone policy, or, more important, that the demotion was unjustified."

Dissenting opinion -- Judge Leavitt filed a dissenting opinion, arguing that the Allegheny Valley case was factually different from instant case. The former involved both a reduction in responsibilities and in salary. The instant case involved only a reduction in responsibilities. The dissent felt that, for that reason, the correct analysis should have been substantial change. She felt that the justification analysis is appropriate if there is a reduction in duties and salary -- whether both of those factors are present so as to constitute a demotion. If so, then the justification analysis is applicable.

Because the instant case only involved a reduction in responsibilities and not in salary, the dissent felt that Allegheny Valley was "distinguishable...and…inapposite. In other words, inquiry into the justification for Claimant's so-called demotion is unnecessary." The Board didn't make findings about substantial change. Without those, and the impact that such changes had on her, "it is impossible to determine whether those changes were substantial and whether 'like circumstances would compel a reasonable person' to voluntarily quit." Judge Leavitt also disagreed with putting the burden on the employer to prove that the demotion was justified, given that in VQ cases, the burden is on the claimant. Overall, the dissent felt that the majority had undermined the goal of the Allegheny Valley court "to avoid intruding upon the ability of employers to make 'valid demotion'….The test should not be whether the Board agrees with the Employer's decision to relieve Claimant of her supervisory responsibilities but whether Employer can show that its stated reasons for a demotion can be factually supported."

Donald Marritz
MidPenn Legal Services

Pennsylvania Bulletin of October 22, 2005

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

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

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

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.

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

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

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

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

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.

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

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

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

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

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

custody - same-sex parents - in loco parentis - standard/burden of proof

Jones v. Boring -- Pa. Superior Court - September 30, 2005

 http://www.courts.state.pa.us/OpPosting/Superior/out/a25041_05.pdf

 

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."

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

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

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

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

disability - ALJ failure to follow remand instructions

Lok v. Barnhart - ED Pa. - September 19, 2005

 

http://www.paed.uscourts.gov/documents/opinions/05D1153P.pdf
 

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

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

http://www.irs.gov/individuals/content/0,,id=130302,00.html

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

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

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

 

http://www.paed.uscourts.gov/documents/opinions/05D1138P.pdf

 

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

 

http://www.paed.uscourts.gov/documents/opinions/05D1133P.pdf

 

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