Gerhart v. State Police - ED Pa. - August 13, 2009
http://www.paed.uscourts.gov/documents/opinions/09D1022P.pdf
The court refused to dismiss plaintiffs' sec. 1983 claims against two Pennsylvania State Police officers who forced them out of their mobile home. The real property on which the home was affixed had been sold at a sheriff's sale. However the PSP officers apparently were not acting pursuant to any specific court order, allowing them to force Plaintiff from their home, but rather only pursuant to the request of the buyer at the sheriff's sale.
The claims against the officers, the Commonwealth, and the state police, in their official capacities, were dismissed. "Section 1983 only imposes liability on “persons,” and Section 1985(3) only imposes liability on “two or more persons” who conspire together. 42 U.S.C. §§ 1983, 1985(3). For the purposes of Section 1983, state agencies and state officers in their official capacities are immune from liability because they are not considered “persons” "within the meaning of the statute.
Section 1983 - Fourth Amendment
However, the plaintiffs did allege "sufficient facts to state a claim that Defendant State Troopers violated Plaintiffs’ Fourth Amendment rights. The Fourth Amendment protects a person’s right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .”...
To establish a violation of the Fourth Amendment, Plaintiff must show that the “defendant’s actions (1) constituted a search or seizure within the meaning of the Fourth Amendment, and (2) were unreasonable in light of the surrounding circumstances.” ....A seizure occurs when there is a meaningful interference with a person’s possessory interest in his property. ...The acts of police officers in assisting an illegal eviction without an order, a writ, a warrant, or any other statutory authority can constitute an unreasonable seizure in violation of the Fourth Amendment.
Here, Plaintiffs allege that Defendant State Troopers evicted Plaintiffs from their mobile home and padlocked their door to prevent reentry without an order or legal authority. It is clear that such conduct, if true, plausibly amounts to an interference with Plaintiffs’ possessory interests. Plaintiffs also allege that the State Troopers lacked a court order and knowingly had no legal authority to evict Plaintiffs. Such behavior states a claim for an unreasonable seizure in violation of the Fourth Amendment.... See Open Inns, 24 F. Supp. 2d at 424 (holding that police officers who actively assist a private party to evict a tenant “without an order, a writ, a warrant, or any statutory authority [engage in] precisely the type of unreasonable behavior that the Fourth Amendment forbids”); accord Soldal, 506 U.S. at 68 (holding that the towing of a trailer was a seizure “subject to Fourth Amendment scrutiny even though no search within the meaning of the Amendment [took] place”); Gale v. Storti, 608 F. Supp. 2d 629, 633-34 (E.D. Pa. 2009).
Fourteenth Amendment
Plaintiffs have also sufficiently alleged that Defendant State Troopers violated Plaintiffs’ Fourteenth Amendment rights. “The fourteenth amendment prohibits state deprivations of life, liberty, or property without due process of law.” ...It is “well established that possessory interests in property invoke procedural due process protections.” At the core of procedural due process jurisprudence is the right to advance notice of significant deprivations of liberty or property and to a meaningful opportunity to be heard.”. To state a procedural due process claim, a plaintiff “must establish that the officers were acting as state actors when they deprived him of a property interest to which he had a legitimate claim of entitlement without the process he deserved.” . Here, as Plaintiffs allege that they were given no notice or opportunity to be heard prior to the State Troopers evicting them from their home, there is no question that Plaintiffs have sufficiently stated a claim that state actors deprived them of their property without due process of law.
official immunity
The Third Circuit has held that “it is not for law enforcement officers to decide who is entitled to possession of property.” See Abbott, 164 F.3d at 149. Rather, “it is the domain of the courts.” Further, the question of whether Defendant State Troopers acted reasonably is a fact-intensive inquiry.... This case is similar to Gale v. Storti, 608 F. Supp. 2d 629 (E.D. Pa. 2009), where various defendants moved for dismissal of the plaintiffs’ constitutional claims arising out an allegedly unlawful eviction. The district court noted that the relevant qualified immunity inquiry is “whether or not the officers made a reasonable mistake as to what the law requires,” and concluded that “[a]nswering this depends on a factual inquiry, particularly, exactly what documents were provided to the officers prior to going to the premises and what the contents of these documents were.”
As in Gale, there are simply too few settled facts in this case to definitively determine at this point whether the alleged constitutional violations by Defendant State Troopers were reasonable, thereby rendering the Troopers immune from liability under the doctrine of qualified immunity. There is a question as to whether Defendant State Troopers evicted Plaintiffs without legal authority and whether the State Troopers made a reasonable mistake as to what the law requires. These questions depend on a factual inquiry that has not yet been conducted. See id.; see also Open Inns, 24 F. Supp. 2d at 420 (noting on summary judgment that qualified immunity was inappropriate where the defendant officers, in repossessing the plaintiffs’ property, “went far beyond the ministerial act of serving process or doing their common law duty of keeping the peace”).
Plaintiffs’ Section 1983 claims cannot be dismissed on the ground of qualified immunity. Simply stated, at this preliminary stage, the Court finds that Plaintiffs have stated a claim that Defendant State Troopers unreasonably violated clearly established laws
Monday, August 24, 2009
Thursday, July 30, 2009
disability - reversal instead of remand
Soto v. Astrue - ED Pa. - July 28, 2009 (24 pp.)
http://www.paed.uscourts.gov/documents/opinions/09D0896P.pdf
The court reversed and granted benefits outright.
The ALJ finding that claimant can do light work is not supported by substantial evidence. The ALJ improperly gave "considerable weight" to the medical opinions of the examining physician and the over that of the treating physician, accorded only minimal weight, in spite of "voluminous evidence in the record provided by the treating physician" whose opinion was dismissed with a single sentence. The ALJ's explanation for this decision was inadequate and improper, as explained at length in the opinion.
In addition, the hypothetical question to the vocational expert was deficient.
Reversal instead of remand -- When this Court determines that the ALJ's decision is not supported by substantial evidence, it also has the power to reverse and direct an award of benefits. Allen v. Bowen, 881 F.2d 37, 43 (3d Cir. 1989) (citing Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984)). The district court should award benefits only when “the administrative record of the case has been fully developed and when substantial evidence on the record as a whole indicates that the claimant is disabled and entitled to benefits.” Podedworny, 745 F.2d at 221-22.
“When faced with such cases, it is unreasonable for a court to give the ALJ another opportunity to consider new evidence concerning the disability because the administrative proceeding would result only in further delay in the receipt of benefits.” Id. at 222; see also Morales, 225 F.3d at 320... In this case the record has been fully developed up to the time of the ALJ’s decision. The record contains extensive evidence from Plaintiff’s treating physicians, particularly notes for three years of treatment, and from Plaintiff’s several hospitalizations and physical therapy sessions. The ALJ held a hearing during which Plaintiff and a vocational expert testified.
Based on the analysis in the previous section, this Court has concluded that the opinion of treating physician, which concluded Plaintiff was unable to work, should be given substantial weight. Furthermore, although this Court concluded that the ALJ did not properly consider the impact Plaintiff’s necessary treatment will have on his ability to work, the vocational expert did testify on that issue, concluding that Plaintiff would be unemployable if he continued with the course of treatments he had followed for the past several years.
Given the well-developed record, no additional information is necessary to determine Plaintiff’s eligibility for benefits and thus there is no reason to remand this case to the ALJ for further consideration. Thus, this Court finds, based on the opinion of the primary treating physician, the medical evidence from other treating physicians, the responses of the vocational expert, and the credible testimony of Plaintiff, that Plaintiff is disabled. As such, this Court will award Plaintiff disability benefits.
http://www.paed.uscourts.gov/documents/opinions/09D0896P.pdf
The court reversed and granted benefits outright.
The ALJ finding that claimant can do light work is not supported by substantial evidence. The ALJ improperly gave "considerable weight" to the medical opinions of the examining physician and the over that of the treating physician, accorded only minimal weight, in spite of "voluminous evidence in the record provided by the treating physician" whose opinion was dismissed with a single sentence. The ALJ's explanation for this decision was inadequate and improper, as explained at length in the opinion.
In addition, the hypothetical question to the vocational expert was deficient.
Reversal instead of remand -- When this Court determines that the ALJ's decision is not supported by substantial evidence, it also has the power to reverse and direct an award of benefits. Allen v. Bowen, 881 F.2d 37, 43 (3d Cir. 1989) (citing Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984)). The district court should award benefits only when “the administrative record of the case has been fully developed and when substantial evidence on the record as a whole indicates that the claimant is disabled and entitled to benefits.” Podedworny, 745 F.2d at 221-22.
“When faced with such cases, it is unreasonable for a court to give the ALJ another opportunity to consider new evidence concerning the disability because the administrative proceeding would result only in further delay in the receipt of benefits.” Id. at 222; see also Morales, 225 F.3d at 320... In this case the record has been fully developed up to the time of the ALJ’s decision. The record contains extensive evidence from Plaintiff’s treating physicians, particularly notes for three years of treatment, and from Plaintiff’s several hospitalizations and physical therapy sessions. The ALJ held a hearing during which Plaintiff and a vocational expert testified.
Based on the analysis in the previous section, this Court has concluded that the opinion of treating physician, which concluded Plaintiff was unable to work, should be given substantial weight. Furthermore, although this Court concluded that the ALJ did not properly consider the impact Plaintiff’s necessary treatment will have on his ability to work, the vocational expert did testify on that issue, concluding that Plaintiff would be unemployable if he continued with the course of treatments he had followed for the past several years.
Given the well-developed record, no additional information is necessary to determine Plaintiff’s eligibility for benefits and thus there is no reason to remand this case to the ALJ for further consideration. Thus, this Court finds, based on the opinion of the primary treating physician, the medical evidence from other treating physicians, the responses of the vocational expert, and the credible testimony of Plaintiff, that Plaintiff is disabled. As such, this Court will award Plaintiff disability benefits.
UC - voluntary quit - conscious intention to quit
Ponce v. UCBR - July 30, 2009 - Cmwlth. Court - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2407CD08_7-30-09.pdf
The Court reversed the UCBR and held that claimant did not quit his job but rather was terminated by the employer for reasons which did not constitute willful misconduct.
Claimant was absent for several days following an alcohol overdose, brought on by a heated confrontation with the employer. Anything he might have said to the contrary to his wife while intoxicated cannot be used against him. "Statements made to one’s spouse while intoxicated do not constitute a resignation of employment. Accordingly, Claimant did not demonstrate a clear intent to resign his employment."
Moreover, the "Employer’s actions demonstrate that even if Employer believed that Claimant quit [his job] Employer did not accept his resignation but rather, continued to consider him an employee....Claimant’s testimony, also uncontroverted, established that when Lentz was able to speak to Claimant personally, his first question was when Claimant would be available to return to work. These comments are those of an employer anxious for a sick or injured employee to return to work, not those of an employer who believes a disgruntled employee has quit. Because Employer did not accept Claimant’s alleged resignation, it had no operative effect. Therefore, Claimant did not voluntarily quit."
The court found, rather, that the employer fired claimant when they told claimant that they did not want him to return to work when he was released from the hospital. This occurred three days after Claimant’s alleged resignation. During that three-day period, [employer] had consistently treated Claimant as an employee, never indicating that Employer accepted his resignation. Accordingly, it was the decision of the employer committee that caused Claimant’s separation from employment.... Employer did not contend that Claimant was ineligible by reason of his willful misconduct, and the Referee made no finding in that regard. Accordingly, the issue is not before us."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2407CD08_7-30-09.pdf
The Court reversed the UCBR and held that claimant did not quit his job but rather was terminated by the employer for reasons which did not constitute willful misconduct.
Claimant was absent for several days following an alcohol overdose, brought on by a heated confrontation with the employer. Anything he might have said to the contrary to his wife while intoxicated cannot be used against him. "Statements made to one’s spouse while intoxicated do not constitute a resignation of employment. Accordingly, Claimant did not demonstrate a clear intent to resign his employment."
Moreover, the "Employer’s actions demonstrate that even if Employer believed that Claimant quit [his job] Employer did not accept his resignation but rather, continued to consider him an employee....Claimant’s testimony, also uncontroverted, established that when Lentz was able to speak to Claimant personally, his first question was when Claimant would be available to return to work. These comments are those of an employer anxious for a sick or injured employee to return to work, not those of an employer who believes a disgruntled employee has quit. Because Employer did not accept Claimant’s alleged resignation, it had no operative effect. Therefore, Claimant did not voluntarily quit."
The court found, rather, that the employer fired claimant when they told claimant that they did not want him to return to work when he was released from the hospital. This occurred three days after Claimant’s alleged resignation. During that three-day period, [employer] had consistently treated Claimant as an employee, never indicating that Employer accepted his resignation. Accordingly, it was the decision of the employer committee that caused Claimant’s separation from employment.... Employer did not contend that Claimant was ineligible by reason of his willful misconduct, and the Referee made no finding in that regard. Accordingly, the issue is not before us."
Tuesday, July 28, 2009
federal courts - pleading - Twombly and Iqbal
Kamara v. Columbia Home Loans - 07/24/2009 - ED Pa.
http://www.paed.uscourts.gov/documents/opinions/09D0875P.pdf
The current standard for adequately pleading a claim was set out in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Under Twombly, to state a claim, a party’s factual allegations must raise a right to relief above the speculative level. Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (citing Twombly, 550 U.S. at 555).
The Supreme Court recently reaffirmed and clarified the Twombly standard in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). The Iqbal Court explained that although a plaintiff is not required to make “detailed factual allegations,” Federal Rule 8 demands more than an “unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 1949.
To survive a motion to dismiss, a party cannot allege “labels and conclusions.” Twombly, 550 U.S. at 555. Rather, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is “plausible on its face.” Iqbal, 1927 S. Ct. at 1949.
A claim has facial plausibility when the plaintiff pleads sufficient factual content to allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Id.
The Supreme Court has explained that “two working principles” underlie a motion to dismiss inquiry. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. at 1950.
Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. Determining whether a complaint states a plausible claim for relief is “a context specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged, but has not “shown,” that the pleader is entitled to relief within the meaning of Rule 8(a)(2).
http://www.paed.uscourts.gov/documents/opinions/09D0875P.pdf
The current standard for adequately pleading a claim was set out in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Under Twombly, to state a claim, a party’s factual allegations must raise a right to relief above the speculative level. Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (citing Twombly, 550 U.S. at 555).
The Supreme Court recently reaffirmed and clarified the Twombly standard in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). The Iqbal Court explained that although a plaintiff is not required to make “detailed factual allegations,” Federal Rule 8 demands more than an “unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 1949.
To survive a motion to dismiss, a party cannot allege “labels and conclusions.” Twombly, 550 U.S. at 555. Rather, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is “plausible on its face.” Iqbal, 1927 S. Ct. at 1949.
A claim has facial plausibility when the plaintiff pleads sufficient factual content to allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Id.
The Supreme Court has explained that “two working principles” underlie a motion to dismiss inquiry. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. at 1950.
Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. Determining whether a complaint states a plausible claim for relief is “a context specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged, but has not “shown,” that the pleader is entitled to relief within the meaning of Rule 8(a)(2).
Monday, July 27, 2009
housing authorities - sovereign immunity - tort suits
Rhoads v. Phila. Housing Authority - July 2009 - Cmwlth. Court (2-1)
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1966CD08_7-27-09.pdf
Held: The housing authority is a "commonwealth agency" entitled to sovereign immunity under 42 Pa. C.S. sec. 8522 from a suit against PHA for intentional tort claims of wrongful use of civil proceedings and fraudulent misrepresentation, and demands for punitive damages based on allegations that the PHA filed a false claim against plaintiff, in another suit, for breach of contract.
The dissent argued that the PHA is not a "commonwealth agency" bur rather a "local authority," not entitled to immunity under the statute.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1966CD08_7-27-09.pdf
Held: The housing authority is a "commonwealth agency" entitled to sovereign immunity under 42 Pa. C.S. sec. 8522 from a suit against PHA for intentional tort claims of wrongful use of civil proceedings and fraudulent misrepresentation, and demands for punitive damages based on allegations that the PHA filed a false claim against plaintiff, in another suit, for breach of contract.
The dissent argued that the PHA is not a "commonwealth agency" bur rather a "local authority," not entitled to immunity under the statute.
Friday, July 24, 2009
subpoenas - service - minors - Pa. R.C.P. 234.2
In Re: Amendment of Rule 234.2 - Issuance and Service of Subpoenas; No. 514 Civil Procedural Rules Docket, Opinion By: per curiam, Posted By: W.D. Prothonotary
Date Rendered: 7/23/2009, Date Posted: 7/23/2009
Opinion Type: Rules 514civ.pdf
Date Rendered: 7/23/2009, Date Posted: 7/23/2009
Opinion Type: Rules 514civ.attach.pdf
Date Rendered: 7/23/2009, Date Posted: 7/23/2009
Opinion Type: Rules 514civ.rpt.pdf
Explanatory Comment
To provide greater protection to minors, Rule 234.2 has been amended to provide a separate procedure for the issuance and service of a subpoena on a witness who is a minor. The amendment provides that a subpoena must be served upon the minor and the guardian of the minor. A subpoena may be served on a minor who is a witness without also serving the guardian if a court has reviewed and given prior approval for the issuance of the subpoena upon good cause shown.
Thursday, July 23, 2009
federal courts - attorney fees - effect of negotiations
Lohman v. Duryea Borough - 3d Circuit - July 23, 2009
http://www.ca3.uscourts.gov/opinarch/083524p.pdf
"Settlement negotiations may be relevant in measuring success, and, if so, are clearly only one factor to be considered in the award of fees." (emphasis in original)
http://www.ca3.uscourts.gov/opinarch/083524p.pdf
"Settlement negotiations may be relevant in measuring success, and, if so, are clearly only one factor to be considered in the award of fees." (emphasis in original)
abuse - expungement - recanted allegations
Bucks County CYS v. DPW - Cmwlth. Court - July 23, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2193CD08_7-23-09.pdf
Court affirmed the admin. decision to expunge CYS finding of abuse, based mostly on the 14 year-old alleged victim's testimony at the hearing, at which she recanted prior statements alleging sexual abuse by her father..
The court rejected the CYS claims that it was error to credit the recantation of A.G. and ignore the testimony of other witnesses. CYS has the burden of establishing by substantial evidence that an indicated report of child abuse is accurate. Bucks County CYS v. DPW, 808 A.2d 990, 993 (Pa. Cmwlth. 2002). If CYS fails to sustain its burden, the request for expungement will be granted. Id.
When the fact finder has determined the weight and the credibility of evidence, the court will not disturb such determinations on review. S.T. v. DPW, 681 A.2d 853, 856 (Pa. Cmwlth. 1996), appeal denied, 547 Pa. 747, 690 A.2d 1165 (1997).
In this case, the ALJ determined that the testimony of A.G., in which she recanted her previous accusations, was credible. Although CYS argues that A.G. was lying when she recanted the allegations, the ALJ and BHA determined otherwise. The court is bound by such determination.
Having credited the testimony of A.G., only the hearsay testimony of the CYS investigator, the grandmother and another person remained. Hearsay evidence, even if admissible and not objected to, does not alone constitute substantial evidence. A.Y. v. DPW, 537 Pa. 116, 641 A.2d 1148 (1994).
__._,_.___
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2193CD08_7-23-09.pdf
Court affirmed the admin. decision to expunge CYS finding of abuse, based mostly on the 14 year-old alleged victim's testimony at the hearing, at which she recanted prior statements alleging sexual abuse by her father..
The court rejected the CYS claims that it was error to credit the recantation of A.G. and ignore the testimony of other witnesses. CYS has the burden of establishing by substantial evidence that an indicated report of child abuse is accurate. Bucks County CYS v. DPW, 808 A.2d 990, 993 (Pa. Cmwlth. 2002). If CYS fails to sustain its burden, the request for expungement will be granted. Id.
When the fact finder has determined the weight and the credibility of evidence, the court will not disturb such determinations on review. S.T. v. DPW, 681 A.2d 853, 856 (Pa. Cmwlth. 1996), appeal denied, 547 Pa. 747, 690 A.2d 1165 (1997).
In this case, the ALJ determined that the testimony of A.G., in which she recanted her previous accusations, was credible. Although CYS argues that A.G. was lying when she recanted the allegations, the ALJ and BHA determined otherwise. The court is bound by such determination.
Having credited the testimony of A.G., only the hearsay testimony of the CYS investigator, the grandmother and another person remained. Hearsay evidence, even if admissible and not objected to, does not alone constitute substantial evidence. A.Y. v. DPW, 537 Pa. 116, 641 A.2d 1148 (1994).
__._,_.___
Wednesday, July 22, 2009
dependency - foster parents - intervention - standing
In the Interest of J.S. - Superior Court - July 21, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/A12024_09.pdf
Foster parents do not have standing to intervene in a dependency proceeding under 42 Pa.C.S. § 6336.1, even where the placement goal was changed from reunification with parents to adoption to subsidized permanent legal custodianship.
The grounds for standing in dependency proceedings are narrow. “Only a ‘party’ has the right to participate, to be heard on his or her own behalf, to introduce evidence, and/or to cross-examine witnesses.” Id. at 3 As CYF accurately observes, Foster Parents did not stand in loco parentis because their status as foster parents was subordinate to CYF, who maintained legal custody and was primarily responsible for the child’s care and custody. In re N.S., 845 A.2d 884, 887 (Pa.Super. 2004); In re Adoption of Crystal D.R., 480 A.2d 1146, 1151-52 (Pa.Super. 1984).
In L.C., II, this Court identified the only three classes of individuals that are conferred standing to participate, introduce evidence, be heard on their own behalf, and cross-examine witnesses during a dependency hearing: “(1) the parents of the juvenile whose dependency status is at issue; (2) the legal custodian of the juvenile whose dependency status is at issue, or (3) the person whose care and control of the juvenile is in question.” We further explained, “These categories logically stem from the fact . . . the court has the authority to remove a [dependent] child from the custody of his or her parents or legal custodian, [and] [d]ue process requires that the child’s legal caregiver . . . be able to participate and present argument in the dependency proceedings.” Id. at 381.
Here, Foster Parents do not fall within any of the foregoing definitions of a “party.” They are not J.S.’s parents. They are not the child’s legal custodian. It is beyond argument that CYF has maintained legal custody of J.S. since the adjudication of dependency on October 20, 2005. Finally, Foster Parents are not the people whose care and control is in question; herein, it is Mother and Father whose care is being challenged.
Accordingly, Foster Parents do not have standing in the underlying dependency proceeding. See In re L.C., II, supra; See also In re F.B., 927 A.2d 268, 273 (Pa.Super. 2007).
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/A12024_09.pdf
Foster parents do not have standing to intervene in a dependency proceeding under 42 Pa.C.S. § 6336.1, even where the placement goal was changed from reunification with parents to adoption to subsidized permanent legal custodianship.
The grounds for standing in dependency proceedings are narrow. “Only a ‘party’ has the right to participate, to be heard on his or her own behalf, to introduce evidence, and/or to cross-examine witnesses.” Id. at 3 As CYF accurately observes, Foster Parents did not stand in loco parentis because their status as foster parents was subordinate to CYF, who maintained legal custody and was primarily responsible for the child’s care and custody. In re N.S., 845 A.2d 884, 887 (Pa.Super. 2004); In re Adoption of Crystal D.R., 480 A.2d 1146, 1151-52 (Pa.Super. 1984).
In L.C., II, this Court identified the only three classes of individuals that are conferred standing to participate, introduce evidence, be heard on their own behalf, and cross-examine witnesses during a dependency hearing: “(1) the parents of the juvenile whose dependency status is at issue; (2) the legal custodian of the juvenile whose dependency status is at issue, or (3) the person whose care and control of the juvenile is in question.” We further explained, “These categories logically stem from the fact . . . the court has the authority to remove a [dependent] child from the custody of his or her parents or legal custodian, [and] [d]ue process requires that the child’s legal caregiver . . . be able to participate and present argument in the dependency proceedings.” Id. at 381.
Here, Foster Parents do not fall within any of the foregoing definitions of a “party.” They are not J.S.’s parents. They are not the child’s legal custodian. It is beyond argument that CYF has maintained legal custody of J.S. since the adjudication of dependency on October 20, 2005. Finally, Foster Parents are not the people whose care and control is in question; herein, it is Mother and Father whose care is being challenged.
Accordingly, Foster Parents do not have standing in the underlying dependency proceeding. See In re L.C., II, supra; See also In re F.B., 927 A.2d 268, 273 (Pa.Super. 2007).
Tuesday, July 21, 2009
employment - wrongful discharge - sex discrimination - covered employers
Weaver v. Harpster and Shipman - Pa. Supreme Court - July 20, 2009 (5-2 decision)
http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-53-2008mo.pdf
Under the Pennsylvania Human Relations Act (PHRA), 43 P.S. §§ 951-963, employers with four or more employees are prohibited from discriminating against their employees on the basis of sex. See 43 P.S. §§ 954 (defining employer), 955 (listing “unlawful discriminatory practices”).
At common law, an employer may terminate an at-will employee for any reason unless that reason violates a clear mandate of public policy emanating from either the Pennsylvania Constitution or statutory pronouncements.
In this case, we address the intersection of the PHRA and the public policy exception to at-will employment, namely, whether an employer with fewer than four employees, although not subject to the PHRA’s prohibition against sexual discrimination, nevertheless is prohibited from discriminating against an employee on the basis of sex.
Because the PHRA reflects the unambiguous policy determination by the legislature that employers with fewer than four employees will not be liable for sex discrimination in Pennsylvania, we are constrained to conclude that a common law claim for wrongful discharge, resulting from sex discrimination, will not lie against those employers. We therefore reverse the Superior Court.
Dissent - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-53-2008do.pdf
I believe the Pennsylvania Constitution, supported by statutory law, makes it unmistakably clear that the public policy of our Commonwealth simply does not tolerate invidious gender discrimination here in the form of sexual harassment with respect to continued employment.
For the reasons stated more fully below, while I would reaffirm the vitality of the at-will doctrine in our Commonwealth, I believe that we should join other states that have considered similar issues and recognize a cause of action for wrongful discharge, for those individuals who fall outside of the coverage of the Pennsylvania Human Relations Act (“Human Relations Act”), to redress a termination that contravenes our Commonwealth’s fundamental public policy against gender discrimination. Thus, I would affirm the order of the Superior Court.
Furthermore, a finding of a cause of action for those individuals who fall outside of the coverage of the Human Relations Act is entirely consonant with the conclusions reached by courts which have recognized a claim for wrongful discharge based upon a violation of public policy expressed in a state constitution, even when the state legislature has enacted an anti-discrimination statute which limits the size of the employer covered by the statute. See, e.g., Molesworth v. Brandon, 341 Md. 621, 672 A.2d 608 (1996) (upholding Maryland’s common law cause of action for wrongful discharge of an employee based on sex discrimination against an employer with less than 15 employees where public policy against sex discrimination was evidenced by constitutional amendment, statutes, and executive order); accord Thurdin v. SEI Boston, LLC, 452 Mass. 436, 895 N.E.2d 446 (2008) (concluding employee may bring claim for sex discrimination under state equal rights act where employer was not covered by Massachusetts’ state employment discrimination law); Collins v. Rizkana, 73 Ohio St. 3d 65, 652 N.E.2d 653 (1995) (recognizing common law tort claim for wrongful discharge in violation of Ohio public policy based upon statutory and judicial sources); Williamson v. Greene, 200 W.Va. 421, 490 S.E.2d 23 (1997) (determining common law claim for retaliatory discharge based on sex discrimination in light of West Virginia’s public policy found in state human relations act); Roberts v. Dudley, 140 Wn.2d 58, 993 P.2d 901 (2000) (finding claim for wrongful discharge in violation of Washington’s public policy against gender discrimination based upon statutes and judicial decisions); but see Jarman v. Deason, 173 N.C. App. 297, 618 S.E.2d 776 (2005) (concluding no claim of wrongful discharge for age discrimination in North Carolina relying on legislative prerogative but in absence of constitutional basis for public policy); Burton v. Exam Ctr. Indus. & Gen. Med. Clinic, Inc., 994 P.2d 1261 (Utah 2000) (same).
http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-53-2008mo.pdf
Under the Pennsylvania Human Relations Act (PHRA), 43 P.S. §§ 951-963, employers with four or more employees are prohibited from discriminating against their employees on the basis of sex. See 43 P.S. §§ 954 (defining employer), 955 (listing “unlawful discriminatory practices”).
At common law, an employer may terminate an at-will employee for any reason unless that reason violates a clear mandate of public policy emanating from either the Pennsylvania Constitution or statutory pronouncements.
In this case, we address the intersection of the PHRA and the public policy exception to at-will employment, namely, whether an employer with fewer than four employees, although not subject to the PHRA’s prohibition against sexual discrimination, nevertheless is prohibited from discriminating against an employee on the basis of sex.
Because the PHRA reflects the unambiguous policy determination by the legislature that employers with fewer than four employees will not be liable for sex discrimination in Pennsylvania, we are constrained to conclude that a common law claim for wrongful discharge, resulting from sex discrimination, will not lie against those employers. We therefore reverse the Superior Court.
Dissent - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-53-2008do.pdf
I believe the Pennsylvania Constitution, supported by statutory law, makes it unmistakably clear that the public policy of our Commonwealth simply does not tolerate invidious gender discrimination here in the form of sexual harassment with respect to continued employment.
For the reasons stated more fully below, while I would reaffirm the vitality of the at-will doctrine in our Commonwealth, I believe that we should join other states that have considered similar issues and recognize a cause of action for wrongful discharge, for those individuals who fall outside of the coverage of the Pennsylvania Human Relations Act (“Human Relations Act”), to redress a termination that contravenes our Commonwealth’s fundamental public policy against gender discrimination. Thus, I would affirm the order of the Superior Court.
Furthermore, a finding of a cause of action for those individuals who fall outside of the coverage of the Human Relations Act is entirely consonant with the conclusions reached by courts which have recognized a claim for wrongful discharge based upon a violation of public policy expressed in a state constitution, even when the state legislature has enacted an anti-discrimination statute which limits the size of the employer covered by the statute. See, e.g., Molesworth v. Brandon, 341 Md. 621, 672 A.2d 608 (1996) (upholding Maryland’s common law cause of action for wrongful discharge of an employee based on sex discrimination against an employer with less than 15 employees where public policy against sex discrimination was evidenced by constitutional amendment, statutes, and executive order); accord Thurdin v. SEI Boston, LLC, 452 Mass. 436, 895 N.E.2d 446 (2008) (concluding employee may bring claim for sex discrimination under state equal rights act where employer was not covered by Massachusetts’ state employment discrimination law); Collins v. Rizkana, 73 Ohio St. 3d 65, 652 N.E.2d 653 (1995) (recognizing common law tort claim for wrongful discharge in violation of Ohio public policy based upon statutory and judicial sources); Williamson v. Greene, 200 W.Va. 421, 490 S.E.2d 23 (1997) (determining common law claim for retaliatory discharge based on sex discrimination in light of West Virginia’s public policy found in state human relations act); Roberts v. Dudley, 140 Wn.2d 58, 993 P.2d 901 (2000) (finding claim for wrongful discharge in violation of Washington’s public policy against gender discrimination based upon statutes and judicial decisions); but see Jarman v. Deason, 173 N.C. App. 297, 618 S.E.2d 776 (2005) (concluding no claim of wrongful discharge for age discrimination in North Carolina relying on legislative prerogative but in absence of constitutional basis for public policy); Burton v. Exam Ctr. Indus. & Gen. Med. Clinic, Inc., 994 P.2d 1261 (Utah 2000) (same).
Friday, July 17, 2009
Ten Practical Tips for Making Your Case Appealable
The ABA Section of Litigation has published "Ten Practical Tips for Making Your Case Appealable" as part of their Tips from the Trenches series.
The tips, authored by Alex Wilson Albright and Susan Vance, offer ten practice tips to help ensure that your case is appealable—and “appealing”—to a reviewing court.
Ten Practical Tips for Making Your Case Appealable
The tips, authored by Alex Wilson Albright and Susan Vance, offer ten practice tips to help ensure that your case is appealable—and “appealing”—to a reviewing court.
Ten Practical Tips for Making Your Case Appealable
Thursday, July 16, 2009
divorce - equitable distribution - rental credit - exclusion from home in PFA
Lee v. Lee - Pa. Superior Court - July 15, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/A24031_08.pdf
In divorce-related equitable distribution, when a spouse has been excluded from the marital home by a protection from abuse order, the other spouse may raise an equitable defense against the first spouse’s claim to rental credit for the time period in which the order was in effect.
There is no legal authority on point on the question of whether a PFA, or a spouse’s abusive behavior prompting a PFA, can be the basis of a meritorious equitable defense to an award of rental credit. However, the Divorce Code provides that its purpose is to “[e]ffectuate economic justice between parties who are divorced or separated . . . and insure a fair and just determination and settlement of their property rights.” 23 Pa.C.S.A. § 3102(a)(6). Section 3323(f) provides: In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this part and may grant such other relief or remedy as equity and justice require against either party . . . . 23 Pa.C.S.A. § 3323(f). “He who comes into a court of equity must come with clean hands.”
In this instance, it is clear that Husband’s behavior prompted the PFA, which in turn excluded him from the home. No matter the reason for Husband’s not living in the marital residence at a certain point in time, there is no dispute that as of the date of entry of the PFA order, he was precluded from even visiting the home. We therefore conclude that equity prohibits Husband from receiving a monetary credit from Wife for the time that he was excluded by the PFA, as the order was entered on the basis of his misbehavior toward her. Thus, we agree with Wife that Husband was not entitled to any rental credit after the PFA was issued against him.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/A24031_08.pdf
In divorce-related equitable distribution, when a spouse has been excluded from the marital home by a protection from abuse order, the other spouse may raise an equitable defense against the first spouse’s claim to rental credit for the time period in which the order was in effect.
There is no legal authority on point on the question of whether a PFA, or a spouse’s abusive behavior prompting a PFA, can be the basis of a meritorious equitable defense to an award of rental credit. However, the Divorce Code provides that its purpose is to “[e]ffectuate economic justice between parties who are divorced or separated . . . and insure a fair and just determination and settlement of their property rights.” 23 Pa.C.S.A. § 3102(a)(6). Section 3323(f) provides: In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this part and may grant such other relief or remedy as equity and justice require against either party . . . . 23 Pa.C.S.A. § 3323(f). “He who comes into a court of equity must come with clean hands.”
In this instance, it is clear that Husband’s behavior prompted the PFA, which in turn excluded him from the home. No matter the reason for Husband’s not living in the marital residence at a certain point in time, there is no dispute that as of the date of entry of the PFA order, he was precluded from even visiting the home. We therefore conclude that equity prohibits Husband from receiving a monetary credit from Wife for the time that he was excluded by the PFA, as the order was entered on the basis of his misbehavior toward her. Thus, we agree with Wife that Husband was not entitled to any rental credit after the PFA was issued against him.
Wednesday, July 15, 2009
custody - Hague Convention - surrender of passports, etc.
Axford v. Axford - ED Pa. - July 10, 2009
http://www.paed.uscourts.gov/documents/opinions/09D0808P.pdf
Expedited ex parte Motion for Expedited Service and Surrender of Passports and Travel Documents granted.
International Child Abduction Remedies Act, 42 U.S.C. §§ 11601 et seq., which implemented the Hague Convention, entitles a person whose child has been wrongfully removed to the United States, usually by a parent, to petition a federal court to order the child returned. See Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 270 (3d Cir. 2007) (“A person claiming that a child has been wrongfully removed to or retained in the United States can commence judicial proceedings under the Hague Convention by filing a petition for the return of the child in a state or federal court which has jurisdiction where the child is located.” (citing 42 U.S.C. § 11603(b)). The Hague Convention reflects a universal concern about the harm done to children by parental kidnaping and a strong desire among the Contracting States to implement an effective deterrent to such behavior. Hague Convention, Preamble, 42 U.S.C. § 11601(a)(1)-(4)
The Hague Convention has two main purposes: “to ensure the prompt return of children to the state of their habitual residence when they have been wrongfully removed,” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Karkkainen v. Kovalchuk, 445 F.3d 280, 287 (3d Cir. 2006) (citations omitted). The Hague Convention’s procedures are designed “to restore the status quo prior to any wrongful removal or retention and to deter parents from engaging in international forum shopping in custody cases.” Baxter v. Baxter, 423 F.3d 363, 367 (3d Cir. 2005) (citing Feder v. Evans-Feder, 63 F.3d 217, 221 (3d Cir. 1995)). The Hague Convention is not designed to settle international custody disputes, but rather to ensure that cases are heard in the proper court. See Hague Convention, art. 19 (“A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.”).
Surrender of passports, etc. - A court exercising jurisdiction under the Hague Convention “may take or cause to be taken measures under Federal or State law, as appropriate, to protect the well-being of the child involved or to prevent the child’s further removal or concealment before the final disposition of [a] petition.” 42 U.S.C. § 11604(a). In accordance with this authority, federal courts have ordered respondents to surrender their passports to the Clerk of Court and to remain in the court’s jurisdiction pending resolution of a petition.
http://www.paed.uscourts.gov/documents/opinions/09D0808P.pdf
Expedited ex parte Motion for Expedited Service and Surrender of Passports and Travel Documents granted.
International Child Abduction Remedies Act, 42 U.S.C. §§ 11601 et seq., which implemented the Hague Convention, entitles a person whose child has been wrongfully removed to the United States, usually by a parent, to petition a federal court to order the child returned. See Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 270 (3d Cir. 2007) (“A person claiming that a child has been wrongfully removed to or retained in the United States can commence judicial proceedings under the Hague Convention by filing a petition for the return of the child in a state or federal court which has jurisdiction where the child is located.” (citing 42 U.S.C. § 11603(b)). The Hague Convention reflects a universal concern about the harm done to children by parental kidnaping and a strong desire among the Contracting States to implement an effective deterrent to such behavior. Hague Convention, Preamble, 42 U.S.C. § 11601(a)(1)-(4)
The Hague Convention has two main purposes: “to ensure the prompt return of children to the state of their habitual residence when they have been wrongfully removed,” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Karkkainen v. Kovalchuk, 445 F.3d 280, 287 (3d Cir. 2006) (citations omitted). The Hague Convention’s procedures are designed “to restore the status quo prior to any wrongful removal or retention and to deter parents from engaging in international forum shopping in custody cases.” Baxter v. Baxter, 423 F.3d 363, 367 (3d Cir. 2005) (citing Feder v. Evans-Feder, 63 F.3d 217, 221 (3d Cir. 1995)). The Hague Convention is not designed to settle international custody disputes, but rather to ensure that cases are heard in the proper court. See Hague Convention, art. 19 (“A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.”).
Surrender of passports, etc. - A court exercising jurisdiction under the Hague Convention “may take or cause to be taken measures under Federal or State law, as appropriate, to protect the well-being of the child involved or to prevent the child’s further removal or concealment before the final disposition of [a] petition.” 42 U.S.C. § 11604(a). In accordance with this authority, federal courts have ordered respondents to surrender their passports to the Clerk of Court and to remain in the court’s jurisdiction pending resolution of a petition.
Friday, July 10, 2009
UC - eligibility - employer/claimant agreement
Goldsmith v. UCBR - Cmwlth. Court - July 9, 2009 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1385CD08_7-9-09.pdf
This is an unreported decision, but there's still a lot of important, useful stuff in it. The discussion about referees duties highlights why advocates should not bring claimants into willful misconduct hearings under some circumstances, e.g., the employer doesn't show up or doesn't bring witnesses with first-hand information.
______________________________________________
During the course of administrative proceedings in a UC case, claimant and employer entered into an agreement and sumitted it to the UCBR as a "stipulation." The terms included the employer dropping opposition to the UC claim. The Board ignored the stipulation and issued a decision.
Employer-claimant agreements about eligibility are not valid - The Court held that the Board's failure to address the stipulation was proper, since "[i]n the context of unemployment compensation benefits, '[a]n employer and employee . . . cannot determine the employee’s entitlement to benefits by subsequent agreement” after a finding that Claimant, under the facts of the case, is not legally entitled to benefits. Sill-Hopkins, 563 A.2d at 1289; Cozzone v. UCBR, 103 A.2d 284, 285 (Pa. Super. 1954); Turner v. UCBR, 381 A.2d 223, 224 (Pa. Cmwlth. 1978). Similarly, the courts have refused to give determinative weight to an agreement between an employer and a claimant that resolved their dispute that had led to the claimant’s discharge, and affirmed the denial of benefits even when, by agreement, employer reinstated claimant in his position. Nesmith v. UCBR, 402 A.2d 1132, 1133 (Pa. Cmwlth. 1979).
A key reason behind this principle is that “[t]he Board is charged with the duty of safeguarding the [unemployment compensation] fund.” Phillips v. UCBR, 30 A.2d 718, 723 (Pa. Super. 1943); see also Amspacher v. UCBR, 479 A.2d 688, 691 (Pa. Cmwlth. 1984) (the Commonwealth has a “duty to protect the unemployment compensation fund against dissipation by those not entitled to benefits.”)....[P]rivate agreements between claimants and employers that rely on the fund threaten the viability of the unemployment compensation system." Department of Labor and Industry v. UCBR, 418 Pa. 471, 211 A.2d 463, 469-470 (1965).
In this case, employer and claimant essentially seek to use the UC fund as the source of a settlement of Claimant’s separate civil rights claims against the Employer. Such purpose is not congruent with the purposes behind the UC Law.
Duty to referee to develop record - This safeguarding responsibility requires the referee and Board to examine the facts of each case to determine if the circumstances surrounding a claimant’s unemployment qualify that claimant, under the law, for compensation from the fund. See PTC v. UCBR (In re Gagliardi), 141 A.2d 410, 415 (Pa. Super. 1958) (“It is the duty of the referee, as representative or agent for the board ‛to fairly develop the facts.’”) This duty extends beyond merely passively “hearing the witnesses who voluntarily appear,” and gives “the referee or the Board [the responsibility] to call witnesses” should “additional testimony [be] required” to adequately assess the factual circumstances surrounding a claimant’s unemployment. Phillips, 30 A.2d at 723.
The responsibility is necessary, in part, because an employer’s interests may not coincide with the Board’s interest of protecting the fund. Given this possible divergence of interests, the Board and referee must necessarily investigate the circumstances, independent of any representations made by the Employer. See generally, DiGiovanni v. UCBR, 404 A.2d 449, 450 (Pa. Cmwlth. 1979) (noting the responsibility of the Board to protect the unemployment compensation fund, as well as the investigative power of the Board toward that end, and citing to numerous cases of this Court where an employer’s nonparticipation had no bearing on the ultimate decision).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1385CD08_7-9-09.pdf
This is an unreported decision, but there's still a lot of important, useful stuff in it. The discussion about referees duties highlights why advocates should not bring claimants into willful misconduct hearings under some circumstances, e.g., the employer doesn't show up or doesn't bring witnesses with first-hand information.
______________________________________________
During the course of administrative proceedings in a UC case, claimant and employer entered into an agreement and sumitted it to the UCBR as a "stipulation." The terms included the employer dropping opposition to the UC claim. The Board ignored the stipulation and issued a decision.
Employer-claimant agreements about eligibility are not valid - The Court held that the Board's failure to address the stipulation was proper, since "[i]n the context of unemployment compensation benefits, '[a]n employer and employee . . . cannot determine the employee’s entitlement to benefits by subsequent agreement” after a finding that Claimant, under the facts of the case, is not legally entitled to benefits. Sill-Hopkins, 563 A.2d at 1289; Cozzone v. UCBR, 103 A.2d 284, 285 (Pa. Super. 1954); Turner v. UCBR, 381 A.2d 223, 224 (Pa. Cmwlth. 1978). Similarly, the courts have refused to give determinative weight to an agreement between an employer and a claimant that resolved their dispute that had led to the claimant’s discharge, and affirmed the denial of benefits even when, by agreement, employer reinstated claimant in his position. Nesmith v. UCBR, 402 A.2d 1132, 1133 (Pa. Cmwlth. 1979).
A key reason behind this principle is that “[t]he Board is charged with the duty of safeguarding the [unemployment compensation] fund.” Phillips v. UCBR, 30 A.2d 718, 723 (Pa. Super. 1943); see also Amspacher v. UCBR, 479 A.2d 688, 691 (Pa. Cmwlth. 1984) (the Commonwealth has a “duty to protect the unemployment compensation fund against dissipation by those not entitled to benefits.”)....[P]rivate agreements between claimants and employers that rely on the fund threaten the viability of the unemployment compensation system." Department of Labor and Industry v. UCBR, 418 Pa. 471, 211 A.2d 463, 469-470 (1965).
In this case, employer and claimant essentially seek to use the UC fund as the source of a settlement of Claimant’s separate civil rights claims against the Employer. Such purpose is not congruent with the purposes behind the UC Law.
Duty to referee to develop record - This safeguarding responsibility requires the referee and Board to examine the facts of each case to determine if the circumstances surrounding a claimant’s unemployment qualify that claimant, under the law, for compensation from the fund. See PTC v. UCBR (In re Gagliardi), 141 A.2d 410, 415 (Pa. Super. 1958) (“It is the duty of the referee, as representative or agent for the board ‛to fairly develop the facts.’”) This duty extends beyond merely passively “hearing the witnesses who voluntarily appear,” and gives “the referee or the Board [the responsibility] to call witnesses” should “additional testimony [be] required” to adequately assess the factual circumstances surrounding a claimant’s unemployment. Phillips, 30 A.2d at 723.
The responsibility is necessary, in part, because an employer’s interests may not coincide with the Board’s interest of protecting the fund. Given this possible divergence of interests, the Board and referee must necessarily investigate the circumstances, independent of any representations made by the Employer. See generally, DiGiovanni v. UCBR, 404 A.2d 449, 450 (Pa. Cmwlth. 1979) (noting the responsibility of the Board to protect the unemployment compensation fund, as well as the investigative power of the Board toward that end, and citing to numerous cases of this Court where an employer’s nonparticipation had no bearing on the ultimate decision).
Monday, July 06, 2009
UC - willful misconduct - inability to do work
Durham v. UCBR - Cmwlth Court - July 2, 2009 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/30CD09_7-2-09.pdf
The court reversed the decision of the Board, affirming the referee decision that Claimant was not eligible for benefits under Section 402(e) of the UC Law, 43 P.S. §802(e), for alleged willful misconduct, because "the facts showed only Claimant’s inability to complete assignments, as opposed to refusal to do so..."
Claimant was unable to catch up on progress notes because of a 5-day absence for health reasons. Even though the Board found Employer’s witnesses credible, the substance of that credited testimony does not support a finding that Claimant intentionally disregarded his job duties. This is simply a case of an employee working to the best of his ability but still falling short of his employer’s expectations. This does not amount to willful misconduct.
On the employer testimony, the Board found that Claimant’s conduct was intentional. However, the testimony established only that Claimant was not performing at a rate which she considered satisfactory, and that in her opinion Claimant’s productivity had declined. Employer’s reaction to Claimant’s supposed misconduct indicates that it, too, believed Claimant was simply incompetent. Indeed, Employer took measures to assist him in completing his backlog of work. This suggests that Employer believed Claimant needed extra time and help in order to complete his workload, not that he refused to complete it or refused to exercise the requisite diligence. The employer witness did not testify that Claimant disregarded Employer’s interests or his duties; her testimony showed only that Claimant did not complete the duties assigned to him. In short, Claimant’s failure to complete his work was the result of “mere incompetence, inexperience, or inability.”
It is important to focus on the definition of “willful.” Actual intent to wrong the employer is not necessary. Willful misconduct can be proven by a finding of “conscious indifference to the duty owed the employer.” Homony v. UCBR, 312 A.2d 77, 78 (Pa. Cmwlth. 1973). However, “mere incompetence, inexperience, or inability which may indeed be sufficient to justify discharge, will not constitute willful misconduct.” Ungard v. UCBR, 442 A.2d 16, 19 (Pa. Cmwlth. 1982). Where an employee works to the best of his ability, it does not amount to willful misconduct. Radio Station WVCH v. UCBR, 430 A.2d 737, 740 (Pa. Cmwlth. 1981); Geslao v. UCBR, 519 A.2d 1096, 1098 (Pa. Cmwlth. 1987); Herndon v. UCBR, 540 A.2d 633, 634 (Pa. Cmwlth. 1988). The record in this case does not support the Board’s conclusion that Claimant’s failure to complete his work constituted willful misconduct.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/30CD09_7-2-09.pdf
The court reversed the decision of the Board, affirming the referee decision that Claimant was not eligible for benefits under Section 402(e) of the UC Law, 43 P.S. §802(e), for alleged willful misconduct, because "the facts showed only Claimant’s inability to complete assignments, as opposed to refusal to do so..."
Claimant was unable to catch up on progress notes because of a 5-day absence for health reasons. Even though the Board found Employer’s witnesses credible, the substance of that credited testimony does not support a finding that Claimant intentionally disregarded his job duties. This is simply a case of an employee working to the best of his ability but still falling short of his employer’s expectations. This does not amount to willful misconduct.
On the employer testimony, the Board found that Claimant’s conduct was intentional. However, the testimony established only that Claimant was not performing at a rate which she considered satisfactory, and that in her opinion Claimant’s productivity had declined. Employer’s reaction to Claimant’s supposed misconduct indicates that it, too, believed Claimant was simply incompetent. Indeed, Employer took measures to assist him in completing his backlog of work. This suggests that Employer believed Claimant needed extra time and help in order to complete his workload, not that he refused to complete it or refused to exercise the requisite diligence. The employer witness did not testify that Claimant disregarded Employer’s interests or his duties; her testimony showed only that Claimant did not complete the duties assigned to him. In short, Claimant’s failure to complete his work was the result of “mere incompetence, inexperience, or inability.”
It is important to focus on the definition of “willful.” Actual intent to wrong the employer is not necessary. Willful misconduct can be proven by a finding of “conscious indifference to the duty owed the employer.” Homony v. UCBR, 312 A.2d 77, 78 (Pa. Cmwlth. 1973). However, “mere incompetence, inexperience, or inability which may indeed be sufficient to justify discharge, will not constitute willful misconduct.” Ungard v. UCBR, 442 A.2d 16, 19 (Pa. Cmwlth. 1982). Where an employee works to the best of his ability, it does not amount to willful misconduct. Radio Station WVCH v. UCBR, 430 A.2d 737, 740 (Pa. Cmwlth. 1981); Geslao v. UCBR, 519 A.2d 1096, 1098 (Pa. Cmwlth. 1987); Herndon v. UCBR, 540 A.2d 633, 634 (Pa. Cmwlth. 1988). The record in this case does not support the Board’s conclusion that Claimant’s failure to complete his work constituted willful misconduct.
Thursday, July 02, 2009
certificate of merit - actions against licensed professionals
Zatuchni v. Richman, et al - ED Pa. - June 30, 2009
http://www.paed.uscourts.gov/documents/opinions/09D0762P.pdf
Under Pennsylvania law, a Certificate of Merit (COM) is required when a professional liability claim is asserted against a licensed professional, and when it is asserted against “a partnership, unincorporated association, corporation or similar entity where the entity is responsible for a licensed professional who deviated from an acceptable professional standard.”26 PA. R. CIV. P. 1042.1(a).
This rule is one of substantive law to be applied by federal courts sitting in diversity.
A COM must be filed for all actions, whether in state or federal court, that are “based upon an allegation that a licensed professional deviated from an acceptable professional standard.”
http://www.paed.uscourts.gov/documents/opinions/09D0762P.pdf
Under Pennsylvania law, a Certificate of Merit (COM) is required when a professional liability claim is asserted against a licensed professional, and when it is asserted against “a partnership, unincorporated association, corporation or similar entity where the entity is responsible for a licensed professional who deviated from an acceptable professional standard.”26 PA. R. CIV. P. 1042.1(a).
This rule is one of substantive law to be applied by federal courts sitting in diversity.
A COM must be filed for all actions, whether in state or federal court, that are “based upon an allegation that a licensed professional deviated from an acceptable professional standard.”
Tuesday, June 30, 2009
federal courts - private right of action - Nursing Home Reform Amendments - 42 USC 1396r et seq.
Grammer v. John J. Kane Regional Centers - 3d Cir. - June 30, 2009
http://www.ca3.uscourts.gov/opinarch/072358p.pdf
We are asked in this appeal to determine whether an action will lie under 42 U.S.C. § 1983 to challenge the treatment Appellant’s decedent received (or did not receive) at the Appellee nursing home – treatment Appellant argues violated the Federal Nursing Home Reform Amendments (FNRA), 42 U.S.C. § 1396r et seq. We answer that question in the affirmative and will reverse and remand the cause to the District Court.
In so holding, we conclude that the language of the FNHRA is sufficiently rights-creating and that the rights conferred by its various provisions are neither “vague and amorphous” nor impose upon states a mere precatory obligation. See Gonzaga Univ. v. Doe, 536 U.S. 273, 287 (2002) (citing Alexander v. Sandoval, 532 U.S. 275-288-89 (2001)). Further, we conclude that § 1983 provides the proper avenue for relief because the Appellee has failed to demonstrate that Congress foreclosed that option by adopting another, more comprehensive enforcement scheme. See Gonzaga Univ., 536 U.S. at 284.
http://www.ca3.uscourts.gov/opinarch/072358p.pdf
We are asked in this appeal to determine whether an action will lie under 42 U.S.C. § 1983 to challenge the treatment Appellant’s decedent received (or did not receive) at the Appellee nursing home – treatment Appellant argues violated the Federal Nursing Home Reform Amendments (FNRA), 42 U.S.C. § 1396r et seq. We answer that question in the affirmative and will reverse and remand the cause to the District Court.
In so holding, we conclude that the language of the FNHRA is sufficiently rights-creating and that the rights conferred by its various provisions are neither “vague and amorphous” nor impose upon states a mere precatory obligation. See Gonzaga Univ. v. Doe, 536 U.S. 273, 287 (2002) (citing Alexander v. Sandoval, 532 U.S. 275-288-89 (2001)). Further, we conclude that § 1983 provides the proper avenue for relief because the Appellee has failed to demonstrate that Congress foreclosed that option by adopting another, more comprehensive enforcement scheme. See Gonzaga Univ., 536 U.S. at 284.
UC- able and available - health issues
Poolpak Technologies v. UCBR - Cmwlth Court - June 30, 2009 - unreported decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/70CD09_6-30-09.pdf
The court affimed the UCBR decision that the claimant was able to work and available for work, despite his prior health leave of absence from the employer, which was caused by work-related stress caused by his relationship with his supervisor.
The Board made findings that, after Claimant’s FMLA leave expired, Employer replaced Claimant because Employer was not willing to accommodate Claimant’s need for a different work situation. Claimant was able to work and was available for work, except work with his previous supervisor.
Section 401(d) of the UC Law states that unemployment benefits are payable to any employee who is unemployed and who is able to work and is available for suitable work. It is presumed that an employee who registers for unemployment benefits is able to work and is available for suitable work. Penn Hills School District v. UCBR, 496 Pa. 620, 437 A.2d 1213 (1981). However, an employer may rebut this presumption by presenting countervailing evidence. Id.
If the UCBR’s finding of availability is supported by substantial evidence, it is binding on an appellate court. Penn Hills. To see if substantial evidence exists in the record to support a finding of availability, an appellate court must examine the evidence in the light most favorable to the party in whose favor the fact-finder has ruled, giving that party the benefit of all logical and reasonable inferences. Id.
Here, Claimant applied for unemployment benefits, thereby creating the presumption that he was able to work and was available for suitable work. Employer rebutted the presumption with a psychologist’s report stating that Claimant was being seen by a psychologist and by a psychiatrist for major depression and was considered unable to work at that time.
Claimant, however, presented the decision of Employer’s own short-term disability insurer, which had rejected Claimant’s appeal from the insurer’s denial of benefits. Claimant testified that he submitted the psychologist’s report to Employer’s insurer in support of his appeal, but the insurer still denied Claimant benefits because, although Claimant was not able to work with a particular supervisor, Claimant was able to work for a different employer or in a different work situation. Such testimony constitutes substantial evidence to support the UCBR’s finding that Claimant was able to work and was available for suitable work.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/70CD09_6-30-09.pdf
The court affimed the UCBR decision that the claimant was able to work and available for work, despite his prior health leave of absence from the employer, which was caused by work-related stress caused by his relationship with his supervisor.
The Board made findings that, after Claimant’s FMLA leave expired, Employer replaced Claimant because Employer was not willing to accommodate Claimant’s need for a different work situation. Claimant was able to work and was available for work, except work with his previous supervisor.
Section 401(d) of the UC Law states that unemployment benefits are payable to any employee who is unemployed and who is able to work and is available for suitable work. It is presumed that an employee who registers for unemployment benefits is able to work and is available for suitable work. Penn Hills School District v. UCBR, 496 Pa. 620, 437 A.2d 1213 (1981). However, an employer may rebut this presumption by presenting countervailing evidence. Id.
If the UCBR’s finding of availability is supported by substantial evidence, it is binding on an appellate court. Penn Hills. To see if substantial evidence exists in the record to support a finding of availability, an appellate court must examine the evidence in the light most favorable to the party in whose favor the fact-finder has ruled, giving that party the benefit of all logical and reasonable inferences. Id.
Here, Claimant applied for unemployment benefits, thereby creating the presumption that he was able to work and was available for suitable work. Employer rebutted the presumption with a psychologist’s report stating that Claimant was being seen by a psychologist and by a psychiatrist for major depression and was considered unable to work at that time.
Claimant, however, presented the decision of Employer’s own short-term disability insurer, which had rejected Claimant’s appeal from the insurer’s denial of benefits. Claimant testified that he submitted the psychologist’s report to Employer’s insurer in support of his appeal, but the insurer still denied Claimant benefits because, although Claimant was not able to work with a particular supervisor, Claimant was able to work for a different employer or in a different work situation. Such testimony constitutes substantial evidence to support the UCBR’s finding that Claimant was able to work and was available for suitable work.
Wednesday, June 24, 2009
disability - attorney fees - "substantially justified"
Cruz v. Astrue - ED Pa. - June 22, 2009
http://www.paed.uscourts.gov/documents/opinions/09D0725P.pdf
Despite the plaintiff having prevailed, the court held that the position of SSA was substantially justified, because
- treating physician - there were inconsistencies in the Medical Source Statement, records, and objective tests
- credibility - "Given the conflict between subjective complaints and the other evidence, the ALJ’s finding that plaintiff was not totally credible was reasonable, and the Commissioner’s defense of the same was substantially justified."
- witness testimony - testimony of plaintiff's daughter was "not particularly probative," not in conflict with ALJ findings, and "not unbiased"
- RFC assessment - state agency opinions, on which the ALJ relied, were "most consistent with the medical evidence"
http://www.paed.uscourts.gov/documents/opinions/09D0725P.pdf
Despite the plaintiff having prevailed, the court held that the position of SSA was substantially justified, because
- treating physician - there were inconsistencies in the Medical Source Statement, records, and objective tests
- credibility - "Given the conflict between subjective complaints and the other evidence, the ALJ’s finding that plaintiff was not totally credible was reasonable, and the Commissioner’s defense of the same was substantially justified."
- witness testimony - testimony of plaintiff's daughter was "not particularly probative," not in conflict with ALJ findings, and "not unbiased"
- RFC assessment - state agency opinions, on which the ALJ relied, were "most consistent with the medical evidence"
Friday, June 19, 2009
social security - disability - severity - consideration of evidence - need for finding
Rupard v. Astrue - ED Pa. - June 16, 2009
http://www.paed.uscourts.gov/documents/opinions/09D0709P.pdf
Over defendant's objection, the court upheld the magistrates recommenddation “that the case be remanded for further consideration of Plaintiff’s hand impairment” because Plaintiff presented sufficient evidence to satisfy the de minimis requirement of step two...."
The ALJ's “scattered references” to Plaintiff’s hand impairment “do not rise to the level of a proper step-two determination” The ALJ’s failure to make a finding concerning the severity of Plaintiff’s hand impairment requires that the case be remanded for further proceedings. There is no question that the ALJ did not expressly consider Plaintiff’s alleged hand impairment at step two. The ALJ made no finding one way or the other concerning Plaintiff’s hand impairment. This silence cannot be interpreted as a determination that Plaintiff’s hand impairment is not “severe,” especially considering the fact that the ALJ expressly determined that Plaintiff’s depression and drug and alcohol abuse are non-severe impairments.
It was incumbent upon the ALJ to expressly consider the hand impairment at step two. We remand this case because the ALJ failed to make any determination about Plaintiff’s hand impairment at step two. Based upon the ALJ’s failure to expressly consider evidence of Plaintiff’s hand impairment, we cannot conclude that the ALJ’s final determination is supported by substantial evidence.
http://www.paed.uscourts.gov/documents/opinions/09D0709P.pdf
Over defendant's objection, the court upheld the magistrates recommenddation “that the case be remanded for further consideration of Plaintiff’s hand impairment” because Plaintiff presented sufficient evidence to satisfy the de minimis requirement of step two...."
The ALJ's “scattered references” to Plaintiff’s hand impairment “do not rise to the level of a proper step-two determination” The ALJ’s failure to make a finding concerning the severity of Plaintiff’s hand impairment requires that the case be remanded for further proceedings. There is no question that the ALJ did not expressly consider Plaintiff’s alleged hand impairment at step two. The ALJ made no finding one way or the other concerning Plaintiff’s hand impairment. This silence cannot be interpreted as a determination that Plaintiff’s hand impairment is not “severe,” especially considering the fact that the ALJ expressly determined that Plaintiff’s depression and drug and alcohol abuse are non-severe impairments.
It was incumbent upon the ALJ to expressly consider the hand impairment at step two. We remand this case because the ALJ failed to make any determination about Plaintiff’s hand impairment at step two. Based upon the ALJ’s failure to expressly consider evidence of Plaintiff’s hand impairment, we cannot conclude that the ALJ’s final determination is supported by substantial evidence.
Wednesday, June 17, 2009
consumer - debt collection - information from third parties
Smith v. NCO Financial Systems - ED Pa. - June 12, 2009 - class action
http://www.paed.uscourts.gov/documents/opinions/09D0695P.pdf
Debt collector sent a collection notice with the following privacy statement.
InformationWe Collect
We collect non-public personal information about you fromthe following sources:
• From you on applications or other forms, over the telephone, in face-toface meetings and via the Internet. Examples of information we receive from you include your name and address, telephone number, social security number, employment information, credit history and other financial information. . . .
• From employers and others to verify information you have given to us.
Plaintiff alleges that this statement “misleads the consumer into believing that third parties such as her boss, co-workers or others may be contacted and asked to provide information concerning the consumer, when the FDCPA forbids such third party contact.”
In light of these allegations, Plaintiff has stated claims under Sections 1692e and 1692e(5) upon which relief can be granted.
As explained supra, debt collectors contacting third parties to obtain anything other than location information about the consumer is prohibited by the FDCPA. Upon reading the Privacy Notice, the least sophisticated debtor could believe that Defendants could and would legally contact employers and other persons to verify non-public personal information such as one’s social security number, credit history and other financial information. The least sophisticated debtor could also believe that Defendants are allowed to verify a much broader range of employment information than is actually permitted under the FDCPA.
As this reading of the Privacy Notice is neither “bizarre or idiosyncratic,” Plaintiff has adequately alleged a violation of Sections 1692e and 1692e(5) of the FDCPA, and the Court will not grant Defendant’s Motion for judgment on the same
http://www.paed.uscourts.gov/documents/opinions/09D0695P.pdf
Debt collector sent a collection notice with the following privacy statement.
InformationWe Collect
We collect non-public personal information about you fromthe following sources:
• From you on applications or other forms, over the telephone, in face-toface meetings and via the Internet. Examples of information we receive from you include your name and address, telephone number, social security number, employment information, credit history and other financial information. . . .
• From employers and others to verify information you have given to us.
Plaintiff alleges that this statement “misleads the consumer into believing that third parties such as her boss, co-workers or others may be contacted and asked to provide information concerning the consumer, when the FDCPA forbids such third party contact.”
In light of these allegations, Plaintiff has stated claims under Sections 1692e and 1692e(5) upon which relief can be granted.
As explained supra, debt collectors contacting third parties to obtain anything other than location information about the consumer is prohibited by the FDCPA. Upon reading the Privacy Notice, the least sophisticated debtor could believe that Defendants could and would legally contact employers and other persons to verify non-public personal information such as one’s social security number, credit history and other financial information. The least sophisticated debtor could also believe that Defendants are allowed to verify a much broader range of employment information than is actually permitted under the FDCPA.
As this reading of the Privacy Notice is neither “bizarre or idiosyncratic,” Plaintiff has adequately alleged a violation of Sections 1692e and 1692e(5) of the FDCPA, and the Court will not grant Defendant’s Motion for judgment on the same
Tuesday, June 09, 2009
UC- willful misconduct - violation of employer rule - good cause
Roberts v. UCBR - Cmwlth. Court - June 8, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1989CD08_6-8-09.pdf
Claimant, a client care worker in a residential facility for persons with special needs, had good cause for his violation of an employer rule.
Claimant was directly responsible for the care of a “one-to-one” client who was subject to “close reach supervision … at all times due to behavioral concerns.” Employer’s rule required close supervision of one-to-one clients. However, these clients were alone and unattended between the hours of 11:00 p.m. and 7:00 a.m. except for checks every thirty minutes.
Good cause is established “where the action of the employee is justified or reasonable under the circumstances.” Frumento v. UCBR, 466 Pa. 81, 87, 351 A.2d 631, 634 (1976). Precedent teaches that taking actions to advance a patient’s health and safety will constitute good cause to violate an employer’s work rule.
In this case, the need to retrieve Client’s breakfast provided Claimant good cause for his violation of Employer’s rule. Claimant had the responsibility to make sure Client was properly fed, and he testified that because pantry staff was often not available, client care workers routinely retrieve food from the kitchen for their clients and later put it away. Claimant argues that a “[f]ailure on my part to get and reserve my client food from the kitchen could keep him hungry until lunch.” Claimant acted in the best interests of both Client and Employer by going to the kitchen to secure Client’s breakfast leaving Client, who was secured in his bed with his bedrail in place, for a brief time -- five (5) minutes.
Even though the UCBR found all of the employer testimony credible, there was uncontradicted testimony from Claimant that Employer permitted and even required “one-to-one” clients to be left alone briefly, notwithstanding its close supervision rule. There was a question, therefore, about whether Claimant even violated Employer’s rule.
Assuming Employer’s rule was inflexible, however, Claimant showed good cause to violate it. Claimant was attending to a basic need of Client, having secured Client in his bed, while he left Client for approximately five minutes. The evidence established good cause for Claimant’s violation of the work rule and, thus, the Board erred in finding that Claimant’s actions constituted willful misconduct.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1989CD08_6-8-09.pdf
Claimant, a client care worker in a residential facility for persons with special needs, had good cause for his violation of an employer rule.
Claimant was directly responsible for the care of a “one-to-one” client who was subject to “close reach supervision … at all times due to behavioral concerns.” Employer’s rule required close supervision of one-to-one clients. However, these clients were alone and unattended between the hours of 11:00 p.m. and 7:00 a.m. except for checks every thirty minutes.
Good cause is established “where the action of the employee is justified or reasonable under the circumstances.” Frumento v. UCBR, 466 Pa. 81, 87, 351 A.2d 631, 634 (1976). Precedent teaches that taking actions to advance a patient’s health and safety will constitute good cause to violate an employer’s work rule.
In this case, the need to retrieve Client’s breakfast provided Claimant good cause for his violation of Employer’s rule. Claimant had the responsibility to make sure Client was properly fed, and he testified that because pantry staff was often not available, client care workers routinely retrieve food from the kitchen for their clients and later put it away. Claimant argues that a “[f]ailure on my part to get and reserve my client food from the kitchen could keep him hungry until lunch.” Claimant acted in the best interests of both Client and Employer by going to the kitchen to secure Client’s breakfast leaving Client, who was secured in his bed with his bedrail in place, for a brief time -- five (5) minutes.
Even though the UCBR found all of the employer testimony credible, there was uncontradicted testimony from Claimant that Employer permitted and even required “one-to-one” clients to be left alone briefly, notwithstanding its close supervision rule. There was a question, therefore, about whether Claimant even violated Employer’s rule.
Assuming Employer’s rule was inflexible, however, Claimant showed good cause to violate it. Claimant was attending to a basic need of Client, having secured Client in his bed, while he left Client for approximately five minutes. The evidence established good cause for Claimant’s violation of the work rule and, thus, the Board erred in finding that Claimant’s actions constituted willful misconduct.
Tuesday, June 02, 2009
housing - reasonable accommodation - duty of HA in inquire - continuing duty of court to accept evidence
Lebanon County Housing Authority v. Landeck - Superior Court - February 27, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a27022_08.pdf
A court must consider evidence of a tenant's handicap up until time of trial. The common pleas court impropetly refused to accept evidence of the tenant's disability that was offered after the MDJ hearing. Tenant offered some evidence there and tried to offer more after the MDJ judgment. The tenant made clear consistent requests for accommodation, relating to mental problems which caused housekeeping concerns.
“It shall be unlawful to . . .discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of . . . that buyer or renter.” 42 U.S.C. § 3604(f)(1)(A).
“To establish a reasonable accommodation defense under the Fair Housing Act, the tenant must demonstrate that (1) she suffered from a ‘handicap’[4] (or ‘disability’), (2) the landlord knew or should have known of the disability, (3) an accommodation of the disability may be necessary to afford the tenant an equal opportunity to use and enjoy her apartment, (4) the tenant requested a reasonable accommodation, and (5) the landlord refused to grant a reasonable accommodation.” Douglas v. Kriegsfeld Corporation, 884 A.2d 1109, 1129 (D.C. 2005)
If, as the Authority asserts, it was unclear about what accommodation was being requested, the HA had a duty to “promptly respond” to the Tenant’s request. Douglas, 884 A.2d at 1122. The Douglas court explains: If the request is not sufficiently detailed to reveal the nature of that request, the Act-as properly interpreted-requires the landlord to ‘open a dialogue’ with the tenant, eliciting more information as needed, to determine what specifics the tenant has in mind and whether such accommodation would, in fact, be reasonable under the circumstances.
Tenant has established that she suffered from depression which is a “handicap” under the Fair Housing Act; that the Authority should have known of the handicap; that she requested a reasonable accommodation; and that the Authority refused to make the accommodation. To prevail under the Act, however, Tenant was also required to prove she was unable to maintain her unit as required by the terms of the lease because of her disability. The trial court erroneously prevented Tenant from presenting evidence in support of this final prong of her defense when it refused to consider evidence beyond a certian date or permit witnesses to testify.
The court remanded the case to the trial court for a new non-jury trial to permit tenant to present evidence in support of her assertion she was unable to satisfy the terms of the lease because of her handicap. If she proves her handicap caused the breach of the lease the Authority must produce rebuttal evidence that the requested accommodation was unreasonable before an eviction may be ordered.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a27022_08.pdf
A court must consider evidence of a tenant's handicap up until time of trial. The common pleas court impropetly refused to accept evidence of the tenant's disability that was offered after the MDJ hearing. Tenant offered some evidence there and tried to offer more after the MDJ judgment. The tenant made clear consistent requests for accommodation, relating to mental problems which caused housekeeping concerns.
“It shall be unlawful to . . .discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of . . . that buyer or renter.” 42 U.S.C. § 3604(f)(1)(A).
“To establish a reasonable accommodation defense under the Fair Housing Act, the tenant must demonstrate that (1) she suffered from a ‘handicap’[4] (or ‘disability’), (2) the landlord knew or should have known of the disability, (3) an accommodation of the disability may be necessary to afford the tenant an equal opportunity to use and enjoy her apartment, (4) the tenant requested a reasonable accommodation, and (5) the landlord refused to grant a reasonable accommodation.” Douglas v. Kriegsfeld Corporation, 884 A.2d 1109, 1129 (D.C. 2005)
If, as the Authority asserts, it was unclear about what accommodation was being requested, the HA had a duty to “promptly respond” to the Tenant’s request. Douglas, 884 A.2d at 1122. The Douglas court explains: If the request is not sufficiently detailed to reveal the nature of that request, the Act-as properly interpreted-requires the landlord to ‘open a dialogue’ with the tenant, eliciting more information as needed, to determine what specifics the tenant has in mind and whether such accommodation would, in fact, be reasonable under the circumstances.
Tenant has established that she suffered from depression which is a “handicap” under the Fair Housing Act; that the Authority should have known of the handicap; that she requested a reasonable accommodation; and that the Authority refused to make the accommodation. To prevail under the Act, however, Tenant was also required to prove she was unable to maintain her unit as required by the terms of the lease because of her disability. The trial court erroneously prevented Tenant from presenting evidence in support of this final prong of her defense when it refused to consider evidence beyond a certian date or permit witnesses to testify.
The court remanded the case to the trial court for a new non-jury trial to permit tenant to present evidence in support of her assertion she was unable to satisfy the terms of the lease because of her handicap. If she proves her handicap caused the breach of the lease the Authority must produce rebuttal evidence that the requested accommodation was unreasonable before an eviction may be ordered.
Monday, May 25, 2009
CPA - license - revocation
Ake v. State Board of Accountancy - Cmwlth. Court (2-1) - May 20, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1103CD08_5-20-09.pdf
The court reversed the imposition of the maximum penality--revocation of a CPA's license--based on a 2002 Illinois felony conviction for a hate crime, consisting of a series of harassing phone calls to a YWCA director concerning the fact that she was a lesbian, something that was contrary to the appellant's religious, moral and ethical beliefs. The court held that the board had abused its discretion in imposing the maximum penalty, which had the effect of depriving appellant of any opportunity for reinstatement of his CPA license.
The court relied on the fact that
- the conviction was relatively remote in time;
- appellant had completed all of the conditions of his sentence and probation (14 days in jail, $2000 fine, 30 months probation, psychological counseling)
- the offense would have only been a misdemeanor in Pennsylvania
- the conduct was not of the type that is an "anathema to the accounting profession"
- there was no rehabilition requirement under the CPA law, but if there were, appellant was rehabilitated, having fulfilled each term of his Illinois sentence
- revocation is reserved for the "worst offenders"
The dissent thought that the board had acted within its discretion and had not abused it. It found that appellant's offense related to his moral character, which is a factor under the CPA law, and that it involved his honesty and integrity.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1103CD08_5-20-09.pdf
The court reversed the imposition of the maximum penality--revocation of a CPA's license--based on a 2002 Illinois felony conviction for a hate crime, consisting of a series of harassing phone calls to a YWCA director concerning the fact that she was a lesbian, something that was contrary to the appellant's religious, moral and ethical beliefs. The court held that the board had abused its discretion in imposing the maximum penalty, which had the effect of depriving appellant of any opportunity for reinstatement of his CPA license.
The court relied on the fact that
- the conviction was relatively remote in time;
- appellant had completed all of the conditions of his sentence and probation (14 days in jail, $2000 fine, 30 months probation, psychological counseling)
- the offense would have only been a misdemeanor in Pennsylvania
- the conduct was not of the type that is an "anathema to the accounting profession"
- there was no rehabilition requirement under the CPA law, but if there were, appellant was rehabilitated, having fulfilled each term of his Illinois sentence
- revocation is reserved for the "worst offenders"
The dissent thought that the board had acted within its discretion and had not abused it. It found that appellant's offense related to his moral character, which is a factor under the CPA law, and that it involved his honesty and integrity.
Wednesday, May 13, 2009
EAJA - attorney fees - substantially justified - totality of circumstances
Segers v. Astrue - ED Pa. - May 8, 2009
http://www.paed.uscourts.gov/documents/opinions/09D0537P.pdf
Noting that neither the Supreme Court nor the Third Circuit Court of Appeals has outlined the correct focus or level of generality for deciding whether the Commissioner’s position was “substantially justified,” and other courts have set forth differing approaches, the court adopted the this Court will adopt a "reasoned approach" in the “totality of the circumstances” method of analysis that examines the entirety of the government’s position in litigation when determining substantial justification, . See Roanoke River Basin Assoc. v. Hudson, 991 F.2d 132, 139 (4th Cir. 1993); Jackson v. Chater, 94 F.3d 274, 278 (7th Cir. 1996); Williams, 595 F. Supp. 2d at 586; Corona, 431 F. Supp. 2d at 514. See also Williams v. Astrue, 595 F. Supp. 2d 582, 585-86 (E.D. Pa. 2009) (comparing the approaches of different courts); Corona, 431 F. Supp. 2d at 512-13 (E.D. Pa. 2006) (same).
In this case, "applying a 'totality of the circumstances' approach, it is clear that the Commissioner had (1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the theory it propounded; and (3) a reasonable connection between the facts alleged and the legal theory advanced. See Morgan 142 F.3d at 684. Accordingly, the Court is satisfied that the ALJ acted reasonably and the Commissioner’s position was substantially justified, and the Court denies Ms. Segers’s motion for attorney’s fees."
http://www.paed.uscourts.gov/documents/opinions/09D0537P.pdf
Noting that neither the Supreme Court nor the Third Circuit Court of Appeals has outlined the correct focus or level of generality for deciding whether the Commissioner’s position was “substantially justified,” and other courts have set forth differing approaches, the court adopted the this Court will adopt a "reasoned approach" in the “totality of the circumstances” method of analysis that examines the entirety of the government’s position in litigation when determining substantial justification, . See Roanoke River Basin Assoc. v. Hudson, 991 F.2d 132, 139 (4th Cir. 1993); Jackson v. Chater, 94 F.3d 274, 278 (7th Cir. 1996); Williams, 595 F. Supp. 2d at 586; Corona, 431 F. Supp. 2d at 514. See also Williams v. Astrue, 595 F. Supp. 2d 582, 585-86 (E.D. Pa. 2009) (comparing the approaches of different courts); Corona, 431 F. Supp. 2d at 512-13 (E.D. Pa. 2006) (same).
In this case, "applying a 'totality of the circumstances' approach, it is clear that the Commissioner had (1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the theory it propounded; and (3) a reasonable connection between the facts alleged and the legal theory advanced. See Morgan 142 F.3d at 684. Accordingly, the Court is satisfied that the ALJ acted reasonably and the Commissioner’s position was substantially justified, and the Court denies Ms. Segers’s motion for attorney’s fees."
Tuesday, May 12, 2009
UC - appeal - filing by email - timeliness
Roman-Hutchinson v. UCBR - May 11, 2009 - Cmwlth. Court
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2112CD08_5-11-09.pdf
Appeal sent by e-mail which was not received until after the appeal deadline was not timely.
The risk of non-delivery of an e-mail appeal is on the appellant, 34 Pa. Code §101.82(b)(4)
The "common law 'mailbox rule', which provides that the depositing in the post office of a properly addressed letter with prepaid postage raises a natural presumption that the letter reached its destination by due course of mail, does not apply to appeals sent by e-mail. Under the “mailbox rule,” evidence that a letter has been mailed ordinarily will be sufficient to permit a fact finder to find that the letter was, in fact, received by the party to whom it was addressed.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2112CD08_5-11-09.pdf
Appeal sent by e-mail which was not received until after the appeal deadline was not timely.
The risk of non-delivery of an e-mail appeal is on the appellant, 34 Pa. Code §101.82(b)(4)
The "common law 'mailbox rule', which provides that the depositing in the post office of a properly addressed letter with prepaid postage raises a natural presumption that the letter reached its destination by due course of mail, does not apply to appeals sent by e-mail. Under the “mailbox rule,” evidence that a letter has been mailed ordinarily will be sufficient to permit a fact finder to find that the letter was, in fact, received by the party to whom it was addressed.
Tuesday, May 05, 2009
admin. law - appeal - date of decision v. date of mailing
Ribaudo v. DPW - Supreme Court - April 29, 2009
majority - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-115-2008mo.pdf
dissent - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-115-08do.pdf
reversing http://www.courts.state.pa.us/OpPosting/CWealth/out/351CD06_1-4-07.pdf
Held: A notice of adjudication that clearly advised the party of the starting and ending dates of the applicable appeal period, but did not specifically designate the date stamped on the notice as the notice’s mailing date, was held to be sufficient to trigger the start of the appeal period. Therefore, an appeal filed more than 8 months after the decision was untimely.
The statute in qeustion specified that the appeal period was to run from the date of the notice, not the date of mailing of the notice.
The court said that the "linchpin" in the case was its decision in Schmidt v. Commonwealth, 433 A2d 456 (Pa. 1981), where it "addressed whether a notice of adjudication, whose only indication of its date of mailing was a postmark, triggered the relevant appeal period. We construed the statutory language at issue in Schmidt as implying a duty on the part of the government agency to advise the taxpayer of the mailing date, and we concluded it would be “manifestly unjust” to dismiss a taxpayer’s appeal based on some internal departmental mailing date where the taxpayer was never informed of the mailing date."
The court said (and noted that appellant conceded that it "did not impose in Schmidt an absolute rule that all administrative agency notices must contain a mailing date which is specifically designated as such. Rather, Schmidt requires only that an agency’s notice of adjudication sufficiently inform the recipient of the starting date of the appeal period so that the recipient has all the information needed to timely exercise its appeal rights."
The court held that "DPW complied with Schmidt. It notified [appellant] of the starting date of the appeal period and advised appellant that if it disagreed with the findings contained in the audit report, it had “the right to ppeal by filing a written request for a hearing with [the Bureau] within 33 days of the date of this letter,” and the letter was date-stamped “MAR 31, 2004.” The combination of the letter’s content and the date-stamp was sufficient to put appellant on notice that the appeal had to be filed within 33 days of March 31, 2004 ─ “the date of this letter.” Moreover, this information comported with the relevant statute specifying that appeals must be filed within 33 days “of the date of the notice of the departmental action” rather than the date of mailing.
The court reaffirmed its approach in Schmidt, and held that "whether an agency’s notice of adjudication triggers the start of an appeal period depends on whether, consistent with the applicable statute, the notice sufficiently informs the recipient of the starting date of the appeal period so that the recipient has all the information needed to timely exercise its appeal rights. Because we find that the notice in this case was sufficient, the appeal to the Bureau was untimely."
majority - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-115-2008mo.pdf
dissent - http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-115-08do.pdf
reversing http://www.courts.state.pa.us/OpPosting/CWealth/out/351CD06_1-4-07.pdf
Held: A notice of adjudication that clearly advised the party of the starting and ending dates of the applicable appeal period, but did not specifically designate the date stamped on the notice as the notice’s mailing date, was held to be sufficient to trigger the start of the appeal period. Therefore, an appeal filed more than 8 months after the decision was untimely.
The statute in qeustion specified that the appeal period was to run from the date of the notice, not the date of mailing of the notice.
The court said that the "linchpin" in the case was its decision in Schmidt v. Commonwealth, 433 A2d 456 (Pa. 1981), where it "addressed whether a notice of adjudication, whose only indication of its date of mailing was a postmark, triggered the relevant appeal period. We construed the statutory language at issue in Schmidt as implying a duty on the part of the government agency to advise the taxpayer of the mailing date, and we concluded it would be “manifestly unjust” to dismiss a taxpayer’s appeal based on some internal departmental mailing date where the taxpayer was never informed of the mailing date."
The court said (and noted that appellant conceded that it "did not impose in Schmidt an absolute rule that all administrative agency notices must contain a mailing date which is specifically designated as such. Rather, Schmidt requires only that an agency’s notice of adjudication sufficiently inform the recipient of the starting date of the appeal period so that the recipient has all the information needed to timely exercise its appeal rights."
The court held that "DPW complied with Schmidt. It notified [appellant] of the starting date of the appeal period and advised appellant that if it disagreed with the findings contained in the audit report, it had “the right to ppeal by filing a written request for a hearing with [the Bureau] within 33 days of the date of this letter,” and the letter was date-stamped “MAR 31, 2004.” The combination of the letter’s content and the date-stamp was sufficient to put appellant on notice that the appeal had to be filed within 33 days of March 31, 2004 ─ “the date of this letter.” Moreover, this information comported with the relevant statute specifying that appeals must be filed within 33 days “of the date of the notice of the departmental action” rather than the date of mailing.
The court reaffirmed its approach in Schmidt, and held that "whether an agency’s notice of adjudication triggers the start of an appeal period depends on whether, consistent with the applicable statute, the notice sufficiently informs the recipient of the starting date of the appeal period so that the recipient has all the information needed to timely exercise its appeal rights. Because we find that the notice in this case was sufficient, the appeal to the Bureau was untimely."
Monday, May 04, 2009
abuse - expungement - proof of identity - collateral proceedings - standard of proof
C.S. v. DPW - Cmwlth. Court - May 1, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/426CD08_5-1-09.pdf
Welfare authorities in an expungement appeal could not rely on evidence in a dependency case to prove that appellants-parents abused their child, when the evidence in the dependency case was only "prima facie evidence that the parents were the abusers."
The court distinguished J.G. v. DPW, 795 A.2d 1089 (Pa. Cmwlth. 2002), where the identity of the perpetrator was established in a separate court proceeding, and clarified its opinion in K.R. v. DPW, 950 A2d 1069, 1072 (Pa. Cmwlth. 2008) to make clear that where "a founded report is based upon a judicial adjudication in a non-criminal proceeding, such as a dependency action, in which the court enters a finding that the child was abused, but does not issue a corresponding finding that the named perpetrator was responsible for the abuse, a named perpetrator is entitled to an administrative appeal before the secretary to determine whether the underlying adjudication of child abuse supports a ‘founded report’ of abuse."
The court also noted the different between dependency and expungement actions. In dependency cases, CYS needs to establish the fact of abuse by clear and convincing evidence, but the identity on the alleged abuser only by prima facie evidence.
"By contrast, in expungement proceedings, the county agency or DPW has the burden of proving by substantial evidence that the alleged perpetrator's conduct falls within one of the definitions of child abuse set forth in Section 6303(b)(1) of the CPSL....Section 6303(a) of the CPSL defines an "indicated report" as a child abuse report based on a determination by the county agency or the Department that, "substantial evidence of the alleged abuse exists." 23 Pa. C.S. § 6303(a).
For the purpose of an expungement proceeding, substantial evidence is "[e]vidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion." Thus, the standard for determining the identity of a perpetrator in dependency matters is a significantly lower burden of proof than in expungement proceedings. The different burdens of proof set forth for the proceedings highlight the fundamentally different purposes that dependency proceedings and expungement proceedings serve." (emphasis added)
Note: The use of term "substantial evidence" in the statute is confusing and misleading. The definition is virtually the same as "preponderance of the evidence." "A preponderance of the evidence is defined as "the greater weight of the evidence, i.e., to tip a scale slightly is the criteria or requirement for preponderance of the evidence." Raker v. Raker, 847 A.2d 720, 724 (Pa.Super. 2004)
In fact, there is a strong argument that since expungement cases involve the fundamental right of reputation under Article I, sec. 1, of the Pennsylvania Constitution, the standard of proof should be clear and convincing. As the majority noted, the "CPSL is geared more towards reporting perpetrators of abuse, which may adversely affect a perpetrator’s reputation and employment opportunities. A.Y. v. Department of Public Welfare, 537 Pa. 116, 125 n.7, 641 A.2d 1148, 1152 n.7 (1994); 23 Pa. C.S. § 6338(a).
As the Supreme Court in A.Y. explained, "Although less process is due in an administrative proceeding than where criminal charges have been brought, an administrative adjudication of suspected child abuse is of the most serious nature. Therefore, this society, which was founded upon, inter alia, its citizens' ‘inherent and indefeasible rights . . . of acquiring, possessing and protecting property and reputation,’ cannot blithely surrender those rights in the name of prosecutorial convenience." A.Y., 537 Pa. at 124, 641 A.2d at 1152.... Thus, the higher standard of proof required in an expungement proceeding to prove the identity of a perpetrator is reasonable in light of his "inherent and indefeasible rights" which may be negatively affected."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/426CD08_5-1-09.pdf
Welfare authorities in an expungement appeal could not rely on evidence in a dependency case to prove that appellants-parents abused their child, when the evidence in the dependency case was only "prima facie evidence that the parents were the abusers."
The court distinguished J.G. v. DPW, 795 A.2d 1089 (Pa. Cmwlth. 2002), where the identity of the perpetrator was established in a separate court proceeding, and clarified its opinion in K.R. v. DPW, 950 A2d 1069, 1072 (Pa. Cmwlth. 2008) to make clear that where "a founded report is based upon a judicial adjudication in a non-criminal proceeding, such as a dependency action, in which the court enters a finding that the child was abused, but does not issue a corresponding finding that the named perpetrator was responsible for the abuse, a named perpetrator is entitled to an administrative appeal before the secretary to determine whether the underlying adjudication of child abuse supports a ‘founded report’ of abuse."
The court also noted the different between dependency and expungement actions. In dependency cases, CYS needs to establish the fact of abuse by clear and convincing evidence, but the identity on the alleged abuser only by prima facie evidence.
"By contrast, in expungement proceedings, the county agency or DPW has the burden of proving by substantial evidence that the alleged perpetrator's conduct falls within one of the definitions of child abuse set forth in Section 6303(b)(1) of the CPSL....Section 6303(a) of the CPSL defines an "indicated report" as a child abuse report based on a determination by the county agency or the Department that, "substantial evidence of the alleged abuse exists." 23 Pa. C.S. § 6303(a).
For the purpose of an expungement proceeding, substantial evidence is "[e]vidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion." Thus, the standard for determining the identity of a perpetrator in dependency matters is a significantly lower burden of proof than in expungement proceedings. The different burdens of proof set forth for the proceedings highlight the fundamentally different purposes that dependency proceedings and expungement proceedings serve." (emphasis added)
Note: The use of term "substantial evidence" in the statute is confusing and misleading. The definition is virtually the same as "preponderance of the evidence." "A preponderance of the evidence is defined as "the greater weight of the evidence, i.e., to tip a scale slightly is the criteria or requirement for preponderance of the evidence." Raker v. Raker, 847 A.2d 720, 724 (Pa.Super. 2004)
In fact, there is a strong argument that since expungement cases involve the fundamental right of reputation under Article I, sec. 1, of the Pennsylvania Constitution, the standard of proof should be clear and convincing. As the majority noted, the "CPSL is geared more towards reporting perpetrators of abuse, which may adversely affect a perpetrator’s reputation and employment opportunities. A.Y. v. Department of Public Welfare, 537 Pa. 116, 125 n.7, 641 A.2d 1148, 1152 n.7 (1994); 23 Pa. C.S. § 6338(a).
As the Supreme Court in A.Y. explained, "Although less process is due in an administrative proceeding than where criminal charges have been brought, an administrative adjudication of suspected child abuse is of the most serious nature. Therefore, this society, which was founded upon, inter alia, its citizens' ‘inherent and indefeasible rights . . . of acquiring, possessing and protecting property and reputation,’ cannot blithely surrender those rights in the name of prosecutorial convenience." A.Y., 537 Pa. at 124, 641 A.2d at 1152.... Thus, the higher standard of proof required in an expungement proceeding to prove the identity of a perpetrator is reasonable in light of his "inherent and indefeasible rights" which may be negatively affected."
Tuesday, April 28, 2009
UC - willful misconduct - negligence v. breach of employer rule
Moran v. UCBR - Cmwlth. Cour - Ap[ril 27, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1659CD08_4-27-09.pdf
The court rejected claimant's argument that his failure to put the brake on his truck was merely negligence, under Navickas v. UCBR, 787 A.2d 284 (Pa. 2001), since claimant was fired not for a negligent error but rather for the violation of the work rule regarding putting the brake on trucks.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1659CD08_4-27-09.pdf
The court rejected claimant's argument that his failure to put the brake on his truck was merely negligence, under Navickas v. UCBR, 787 A.2d 284 (Pa. 2001), since claimant was fired not for a negligent error but rather for the violation of the work rule regarding putting the brake on trucks.
UC - appeal -proof of mailing - postage meter
Moran v. UCBR - Cmwlth. Cour - Ap[ril 27, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1659CD08_4-27-09.pdf
Employer's appeal was timely filed, where the date on the emvelope, from the the employer's postage meter, was within the appeal period, upholding the validity of 34 Pa. Code 101.82 and distinguishing Lin v. UCBR, 735 A.2d 697 (Pa. 1999), a pre-regulation decision.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1659CD08_4-27-09.pdf
Employer's appeal was timely filed, where the date on the emvelope, from the the employer's postage meter, was within the appeal period, upholding the validity of 34 Pa. Code 101.82 and distinguishing Lin v. UCBR, 735 A.2d 697 (Pa. 1999), a pre-regulation decision.
Wednesday, April 15, 2009
adminative law - regulation v. statement of policy
Borough of Bedford, et al. v. DEP, et al. - Cmwlth. Court - April 14, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/160MD08_4-14-09.pdf
DEP's motion for summary judgment denied. DEP claimed that the relevant document was a statement of policy, 45 P.S. 1102(13). The Plaintiffs claimed that it was a regulation, 45 P.S. 1102(12). The court said that the statutory definitions "do little to separate a statement of policy from a regulation" and that the resolution of the legal issue would require factual development.
There is an extensive discussion about the important administrative law issue of whether an agency promulgation is a
- regulation, which has the force of law, establishes a "binding norm," and must be adopted according to a strict procedure - The "basic procedures by which an agency promulgates a regulation are set forth in the Commonwealth Documents Law. In essence, these procedures require an agency to give notice to the public of its proposed rule-making and an opportunity for the public to comment.11 See Eastwood Nursing, 910 A.2d at 141 n.13. However, this is only the beginning. The agency must also obtain the approval of the Attorney General and the General Counsel of a proposed regulation’s form and legality. Sections 204(b) and 301(10) of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, 71 P.S. §§732-204(b) and 732-301(10). Finally, an agency’s regulation must also undergo legislative scrutiny in accordance with the Regulatory Review Act." - OR
- statement of policy, which does not have the force of law , but rather is "merely an announcement to the public of the policy which the agency hopes to implement in future rulemakings or adjudications. A general statement of policy, like a press release, presages an upcoming rulemaking or announces the course which the agency intends to follow in future adjudications....A general statement of policy, on the other hand, does not establish a ‘binding norm’…. A policy statement announces the agency’s tentative intentions for the future. When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued. Id. at 349-350, 374 A.2d at 679 (quoting Pacific Gas & Electric Co. v. Federal Power Commission, 506 F.2d 33, 38 (1974)) (emphasis added)."
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/160MD08_4-14-09.pdf
DEP's motion for summary judgment denied. DEP claimed that the relevant document was a statement of policy, 45 P.S. 1102(13). The Plaintiffs claimed that it was a regulation, 45 P.S. 1102(12). The court said that the statutory definitions "do little to separate a statement of policy from a regulation" and that the resolution of the legal issue would require factual development.
There is an extensive discussion about the important administrative law issue of whether an agency promulgation is a
- regulation, which has the force of law, establishes a "binding norm," and must be adopted according to a strict procedure - The "basic procedures by which an agency promulgates a regulation are set forth in the Commonwealth Documents Law. In essence, these procedures require an agency to give notice to the public of its proposed rule-making and an opportunity for the public to comment.11 See Eastwood Nursing, 910 A.2d at 141 n.13. However, this is only the beginning. The agency must also obtain the approval of the Attorney General and the General Counsel of a proposed regulation’s form and legality. Sections 204(b) and 301(10) of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, 71 P.S. §§732-204(b) and 732-301(10). Finally, an agency’s regulation must also undergo legislative scrutiny in accordance with the Regulatory Review Act." - OR
- statement of policy, which does not have the force of law , but rather is "merely an announcement to the public of the policy which the agency hopes to implement in future rulemakings or adjudications. A general statement of policy, like a press release, presages an upcoming rulemaking or announces the course which the agency intends to follow in future adjudications....A general statement of policy, on the other hand, does not establish a ‘binding norm’…. A policy statement announces the agency’s tentative intentions for the future. When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued. Id. at 349-350, 374 A.2d at 679 (quoting Pacific Gas & Electric Co. v. Federal Power Commission, 506 F.2d 33, 38 (1974)) (emphasis added)."
Wednesday, April 01, 2009
UC - petition for review - statement of objections
Shimp v. UCBR - Cmwlth. Court - March 30, 2009 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1798CD08_3-31-09.pdf
The pro se form petition for review stated that the "Board of Review should be reversed because (You must state with specificity why you believe the Board is in error)." Claimant did not make any allegation here but just attached a postal proof of mailing.
Claimant's failure to raise any allegation of error regarding the Board’s decision in the petition for review was a waiver and violated Pa.R.A.P. 1513(d), since there was no "general statement of the objections to the order or other determination." See Werner v. Zazyczny, 545 Pa. 570, 681 A.2d 1331 (1996) (Commonwealth Court was correct in refusing to consider issues not fairly comprised from objections raised in petition for review); Jimoh v. UCBR, 902 A.2d 608 (Pa. Cmwlth. 2006) (issue not raised in the stated objections in the petition for review nor “fairly comprised therein” is waived and will not be addressed by this Court); Tyler v. UCBR, 591 A.2d 1164 (Pa. Cmwlth. 1991) (same).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1798CD08_3-31-09.pdf
The pro se form petition for review stated that the "Board of Review should be reversed because (You must state with specificity why you believe the Board is in error)." Claimant did not make any allegation here but just attached a postal proof of mailing.
Claimant's failure to raise any allegation of error regarding the Board’s decision in the petition for review was a waiver and violated Pa.R.A.P. 1513(d), since there was no "general statement of the objections to the order or other determination." See Werner v. Zazyczny, 545 Pa. 570, 681 A.2d 1331 (1996) (Commonwealth Court was correct in refusing to consider issues not fairly comprised from objections raised in petition for review); Jimoh v. UCBR, 902 A.2d 608 (Pa. Cmwlth. 2006) (issue not raised in the stated objections in the petition for review nor “fairly comprised therein” is waived and will not be addressed by this Court); Tyler v. UCBR, 591 A.2d 1164 (Pa. Cmwlth. 1991) (same).
Thursday, March 26, 2009
arbitration - express, unequivocal mutual agreement
Kirleis v. Dickie, McCamey & Chilcote, PC - Third Circuit - March 24, 2009
http://www.ca3.uscourts.gov/opinarch/073504p.pdf
Attorney-shareholder of law firm sued for sex discrimination. The firm moved to compel arbitration under the terms of the corporate bylaws. The 3d Circuit upheld the district court's refusal to grant the firm's motion.
Plaintiff alleged--and the firm did not challenge--that she was never informed of the presence of the arbitration provision in the by-Laws, she never signed any agreement or document which refers to or incorporates the arbitration provision in the by-Laws. and she never agreed to arbitrate my claims against the firm.
Pennsylvania law about contract formation/arbitration requires that "[b]efore a party to a lawsuit can be ordered to arbitrate . . . there should be an express, unequivocal agreement to that effect," Par-Knit Mills, 636 F.2d at 54. No such agreement was shown in this case. The court held that plaintiff's status as a shareholder did not put her on constructive notice of the provision. "Under Pennsylvania law, explicit agreement is essential to the formation of an enforceable arbitration contract...."A mutual manifestation of intent to be bound is an essential element of a contract.". Thus, the firm's argument that Kirleis impliedly agreed to
arbitrate her claims must fail under Pennsylvania law. See also, Quiles v.
Financial Exchange Co., 879 A.2d 281 (Pa. Super. Ct. 2005)
http://www.ca3.uscourts.gov/opinarch/073504p.pdf
Attorney-shareholder of law firm sued for sex discrimination. The firm moved to compel arbitration under the terms of the corporate bylaws. The 3d Circuit upheld the district court's refusal to grant the firm's motion.
Plaintiff alleged--and the firm did not challenge--that she was never informed of the presence of the arbitration provision in the by-Laws, she never signed any agreement or document which refers to or incorporates the arbitration provision in the by-Laws. and she never agreed to arbitrate my claims against the firm.
Pennsylvania law about contract formation/arbitration requires that "[b]efore a party to a lawsuit can be ordered to arbitrate . . . there should be an express, unequivocal agreement to that effect," Par-Knit Mills, 636 F.2d at 54. No such agreement was shown in this case. The court held that plaintiff's status as a shareholder did not put her on constructive notice of the provision. "Under Pennsylvania law, explicit agreement is essential to the formation of an enforceable arbitration contract...."A mutual manifestation of intent to be bound is an essential element of a contract.". Thus, the firm's argument that Kirleis impliedly agreed to
arbitrate her claims must fail under Pennsylvania law. See also, Quiles v.
Financial Exchange Co., 879 A.2d 281 (Pa. Super. Ct. 2005)
Thursday, March 05, 2009
federal courts - standing - organizational standing
SUPREME COURT OF THE UNITED STATES
SUMMERS ET AL. v. EARTH ISLAND INSTITUTE ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 07–463. Argued October 8, 2008—Decided March 3, 2009
After the U. S. Forest Service approved the Burnt Ridge Project, a salvage sale of timber on 238 acres of fire-damaged federal land, respondent environmentalist organizations filed suit to enjoin the Service from applying its regulations exempting such small sales fromthe notice, comment, and appeal process it uses for more significant land management decisions, and to challenge other regulations thatdid not apply to Burnt Ridge. The District Court granted a preliminary injunction against the sale, and the parties then settled theirdispute as to Burnt Ridge. Although concluding that the sale was no longer at issue, and despite the Government’s argument that respondents therefore lacked standing to challenge the regulations, thecourt nevertheless proceeded to adjudicate the merits of their challenges, invalidating several regulations, including the notice and comment and the appeal provisions. Among its rulings, the NinthCircuit affirmed the determination that the latter regulations, which were applicable to Burnt Ridge, were contrary to law, but held that challenges to other regulations not at issue in that project were not ripe for adjudication.
Held: Respondents lack standing to challenge the regulations still atissue absent a live dispute over a concrete application of those regulations. Pp. 4–12.
(a) In limiting the judicial power to "Cases" and "Controversies," Article III restricts it to redressing or preventing actual or imminently threatened injury to persons caused by violation of law. See, e.g., Lujan v. Defenders of Wildlife, 504 U. S. 555, 559–560. The standing doctrine reflects this fundamental limitation, requiring that "the plaintiff . . . ‘alleg[e] such a personal stake in the outcome of thecontroversy’ as to warrant his invocation of federal-court jurisdiction," Warth v. Seldin, 422 U. S. 490, 498–499. Here, respondentscan demonstrate standing only if application of the regulations will affect them in such a manner. Pp. 4–5.
(b) As organizations, respondents can assert their members’ standing. Harm to their members’ recreational, or even their mere esthetic, interests in the National Forests will suffice to establish the requisite concrete and particularized injury, see Sierra Club v. Morton, 405 U. S. 727, 734–736, but generalized harm to the forest or the environment will not alone suffice. Respondents have identified noapplication of the invalidated regulations that threatens imminentand concrete harm to their members’ interests. Respondents’ argument that they have standing based on Burnt Ridge fails because, after voluntarily settling the portion of their lawsuit relevant to Burnt Ridge, respondents and their members are no longer under threat of injury from that project. The remaining affidavit submitted in support of standing fails to establish that any member has concrete plans to visit a site where the challenged regulations are being applied in a manner that will harm that member’s concrete interests. Additional affidavits purporting to establish standing were submitted after judgment had already been entered and notice of appeal filed,and are thus untimely. Pp. 5–8.
(c) Respondents’ argument that they have standing because they have suffered procedural injury—i.e., they have been denied the ability to file comments on some Forest Service actions and will continueto be so denied—fails because such a deprivation without some concrete interest affected thereby is insufficient to create Article III standing. See, e.g., Defenders of Wildlife, supra, at 572, n. 7. Pp. 8–9.
(d) The dissent’s objections are addressed and rejected. Pp. 9–12. 490 F. 3d 687, reversed in part and affirmed in part.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. KENNEDY, J., filed a concurring opinion. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.
SUMMERS ET AL. v. EARTH ISLAND INSTITUTE ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 07–463. Argued October 8, 2008—Decided March 3, 2009
After the U. S. Forest Service approved the Burnt Ridge Project, a salvage sale of timber on 238 acres of fire-damaged federal land, respondent environmentalist organizations filed suit to enjoin the Service from applying its regulations exempting such small sales fromthe notice, comment, and appeal process it uses for more significant land management decisions, and to challenge other regulations thatdid not apply to Burnt Ridge. The District Court granted a preliminary injunction against the sale, and the parties then settled theirdispute as to Burnt Ridge. Although concluding that the sale was no longer at issue, and despite the Government’s argument that respondents therefore lacked standing to challenge the regulations, thecourt nevertheless proceeded to adjudicate the merits of their challenges, invalidating several regulations, including the notice and comment and the appeal provisions. Among its rulings, the NinthCircuit affirmed the determination that the latter regulations, which were applicable to Burnt Ridge, were contrary to law, but held that challenges to other regulations not at issue in that project were not ripe for adjudication.
Held: Respondents lack standing to challenge the regulations still atissue absent a live dispute over a concrete application of those regulations. Pp. 4–12.
(a) In limiting the judicial power to "Cases" and "Controversies," Article III restricts it to redressing or preventing actual or imminently threatened injury to persons caused by violation of law. See, e.g., Lujan v. Defenders of Wildlife, 504 U. S. 555, 559–560. The standing doctrine reflects this fundamental limitation, requiring that "the plaintiff . . . ‘alleg[e] such a personal stake in the outcome of thecontroversy’ as to warrant his invocation of federal-court jurisdiction," Warth v. Seldin, 422 U. S. 490, 498–499. Here, respondentscan demonstrate standing only if application of the regulations will affect them in such a manner. Pp. 4–5.
(b) As organizations, respondents can assert their members’ standing. Harm to their members’ recreational, or even their mere esthetic, interests in the National Forests will suffice to establish the requisite concrete and particularized injury, see Sierra Club v. Morton, 405 U. S. 727, 734–736, but generalized harm to the forest or the environment will not alone suffice. Respondents have identified noapplication of the invalidated regulations that threatens imminentand concrete harm to their members’ interests. Respondents’ argument that they have standing based on Burnt Ridge fails because, after voluntarily settling the portion of their lawsuit relevant to Burnt Ridge, respondents and their members are no longer under threat of injury from that project. The remaining affidavit submitted in support of standing fails to establish that any member has concrete plans to visit a site where the challenged regulations are being applied in a manner that will harm that member’s concrete interests. Additional affidavits purporting to establish standing were submitted after judgment had already been entered and notice of appeal filed,and are thus untimely. Pp. 5–8.
(c) Respondents’ argument that they have standing because they have suffered procedural injury—i.e., they have been denied the ability to file comments on some Forest Service actions and will continueto be so denied—fails because such a deprivation without some concrete interest affected thereby is insufficient to create Article III standing. See, e.g., Defenders of Wildlife, supra, at 572, n. 7. Pp. 8–9.
(d) The dissent’s objections are addressed and rejected. Pp. 9–12. 490 F. 3d 687, reversed in part and affirmed in part.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. KENNEDY, J., filed a concurring opinion. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.
federal courts - pre-emption - drug warnings
SUPREME COURT OF THE UNITED STATES - WYETH v. LEVINE
CERTIORARI TO THE SUPREME COURT OF VERMONT
No. 06–1249. Argued November 3, 2008—Decided March 4, 2009
Petitioner Wyeth manufactures the antinausea drug Phenergan. After a clinician injected respondent Levine with Phenergan by the "IVpush" method, whereby a drug is injected directly into a patient’s vein, the drug entered Levine’s artery, she developed gangrene, and doctors amputated her forearm. Levine brought a state-law damages action, alleging, inter alia, that Wyeth had failed to provide an adequate warning about the significant risks of administering Phenergan by the IV-push method. The Vermont jury determined that Levine’s injury would not have occurred if Phenergan’s label includedan adequate warning, and it awarded damages for her pain and suffering, substantial medical expenses, and loss of her livelihood as aprofessional musician. Declining to overturn the verdict, the trial court rejected Wyeth’s argument that Levine’s failure-to-warn claimswere pre-empted by federal law because Phenergan’s labeling hadbeen approved by the federal Food and Drug Administration (FDA). The Vermont Supreme Court affirmed.
Held: Federal law does not pre-empt Levine’s claim that Phenergan’slabel did not contain an adequate warning about the IV-push method of administration. Pp. 6–25.
(a) The argument that Levine’s state-law claims are pre-empted because it is impossible for Wyeth to comply with both the state-law duties underlying those claims and its federal labeling duties is rejected. Although a manufacturer generally may change a drug labelonly after the FDA approves a supplemental application, the agency’s"changes being effected" (CBE) regulation permits certain preapproval labeling changes that add or strengthen a warning to improve drug safety. Pursuant to the CBE regulation, Wyeth could have unilaterally added a stronger warning about IV-push administration,and there is no evidence that the FDA would ultimately have rejected such a labeling change. Wyeth’s cramped reading of the CBE regulation and its broad assertion that unilaterally changing the Phenerganlabel would have violated federal law governing unauthorized distribution and misbranding of drugs are based on the fundamental misunderstanding that the FDA, rather than the manufacturer, bearsprimary responsibility for drug labeling. It is a central premise of theFood, Drug, and Cosmetic Act (FDCA) and the FDA’s regulationsthat the manufacturer bears responsibility for the content of its label at all times. Pp. 11–16.
(b) Wyeth’s argument that requiring it to comply with a state-law duty to provide a stronger warning would interfere with Congress’ purpose of entrusting an expert agency with drug labeling decisions is meritless because it relies on an untenable interpretation of congressional intent and an overbroad view of an agency’s power to preempt state law. The history of the FDCA shows that Congress didnot intend to pre-empt state-law failure-to-warn actions. In advancing the argument that the FDA must be presumed to have established a specific labeling standard that leaves no room for different state-law judgments, Wyeth relies not on any statement by Congress but on the preamble to a 2006 FDA regulation declaring that statelaw failure-to-warn claims threaten the FDA’s statutorily prescribed role. Although an agency regulation with the force of law can preempt conflicting state requirements, this case involves no such regulation but merely an agency’s assertion that state law is an obstacleto achieving its statutory objectives. Where, as here, Congress has not authorized a federal agency to pre-empt state law directly, theweight this Court accords the agency’s explanation of state law’s impact on the federal scheme depends on its thoroughness, consistency,and persuasiveness. Cf., e.g., Skidmore v. Swift & Co., 323 U. S. 134. Under this standard, the FDA’s 2006 preamble does not merit deference: It is inherently suspect in light of the FDA’s failure to offer interested parties notice or opportunity for comment on the preemption question; it is at odds with the available evidence of Congress’ purposes; and it reverses the FDA’s own longstanding positionthat state law is a complementary form of drug regulation without providing a reasoned explanation. Geier v. American Honda Motor Co., 529 U. S. 861, is distinguished. Pp. 17–25.
___ Vt. ___, 944 A. 2d 179, affirmed.
STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and SCALIA, J., joined.
CERTIORARI TO THE SUPREME COURT OF VERMONT
No. 06–1249. Argued November 3, 2008—Decided March 4, 2009
Petitioner Wyeth manufactures the antinausea drug Phenergan. After a clinician injected respondent Levine with Phenergan by the "IVpush" method, whereby a drug is injected directly into a patient’s vein, the drug entered Levine’s artery, she developed gangrene, and doctors amputated her forearm. Levine brought a state-law damages action, alleging, inter alia, that Wyeth had failed to provide an adequate warning about the significant risks of administering Phenergan by the IV-push method. The Vermont jury determined that Levine’s injury would not have occurred if Phenergan’s label includedan adequate warning, and it awarded damages for her pain and suffering, substantial medical expenses, and loss of her livelihood as aprofessional musician. Declining to overturn the verdict, the trial court rejected Wyeth’s argument that Levine’s failure-to-warn claimswere pre-empted by federal law because Phenergan’s labeling hadbeen approved by the federal Food and Drug Administration (FDA). The Vermont Supreme Court affirmed.
Held: Federal law does not pre-empt Levine’s claim that Phenergan’slabel did not contain an adequate warning about the IV-push method of administration. Pp. 6–25.
(a) The argument that Levine’s state-law claims are pre-empted because it is impossible for Wyeth to comply with both the state-law duties underlying those claims and its federal labeling duties is rejected. Although a manufacturer generally may change a drug labelonly after the FDA approves a supplemental application, the agency’s"changes being effected" (CBE) regulation permits certain preapproval labeling changes that add or strengthen a warning to improve drug safety. Pursuant to the CBE regulation, Wyeth could have unilaterally added a stronger warning about IV-push administration,and there is no evidence that the FDA would ultimately have rejected such a labeling change. Wyeth’s cramped reading of the CBE regulation and its broad assertion that unilaterally changing the Phenerganlabel would have violated federal law governing unauthorized distribution and misbranding of drugs are based on the fundamental misunderstanding that the FDA, rather than the manufacturer, bearsprimary responsibility for drug labeling. It is a central premise of theFood, Drug, and Cosmetic Act (FDCA) and the FDA’s regulationsthat the manufacturer bears responsibility for the content of its label at all times. Pp. 11–16.
(b) Wyeth’s argument that requiring it to comply with a state-law duty to provide a stronger warning would interfere with Congress’ purpose of entrusting an expert agency with drug labeling decisions is meritless because it relies on an untenable interpretation of congressional intent and an overbroad view of an agency’s power to preempt state law. The history of the FDCA shows that Congress didnot intend to pre-empt state-law failure-to-warn actions. In advancing the argument that the FDA must be presumed to have established a specific labeling standard that leaves no room for different state-law judgments, Wyeth relies not on any statement by Congress but on the preamble to a 2006 FDA regulation declaring that statelaw failure-to-warn claims threaten the FDA’s statutorily prescribed role. Although an agency regulation with the force of law can preempt conflicting state requirements, this case involves no such regulation but merely an agency’s assertion that state law is an obstacleto achieving its statutory objectives. Where, as here, Congress has not authorized a federal agency to pre-empt state law directly, theweight this Court accords the agency’s explanation of state law’s impact on the federal scheme depends on its thoroughness, consistency,and persuasiveness. Cf., e.g., Skidmore v. Swift & Co., 323 U. S. 134. Under this standard, the FDA’s 2006 preamble does not merit deference: It is inherently suspect in light of the FDA’s failure to offer interested parties notice or opportunity for comment on the preemption question; it is at odds with the available evidence of Congress’ purposes; and it reverses the FDA’s own longstanding positionthat state law is a complementary form of drug regulation without providing a reasoned explanation. Geier v. American Honda Motor Co., 529 U. S. 861, is distinguished. Pp. 17–25.
___ Vt. ___, 944 A. 2d 179, affirmed.
STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and SCALIA, J., joined.
Wednesday, March 04, 2009
UC - willful misconduct - nolo contendere plea
Smith v. UCBR - Cmwlth. Court - February 27, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1760CD08_2-27-09.pdf
A nolo contendre plea to theft by deception "essentially constituted an admission of the facts charged in the underlying criminal proceedings" and constituted substantial evidence of willful misconduct under sec. 402(e) and fault under sec. 3
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1760CD08_2-27-09.pdf
A nolo contendre plea to theft by deception "essentially constituted an admission of the facts charged in the underlying criminal proceedings" and constituted substantial evidence of willful misconduct under sec. 402(e) and fault under sec. 3
Thursday, February 19, 2009
UC - subpoena - standard for granting
Alston v. UCBR - Cmwlth. Court - February 19, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1769CD07_2-19-09.pdf
The court reversed the UCBR decision on the merits and remanded the case for a hearing with claimant witnesses whom the referee improperly refused to subpoena.
The court rejected the Board's claim that the witnesses' evidence would be "directly contradictory" to that of the employer and held that it need only lead to "relevant and provative evidence," citing Hamilton v. UCBR, 532 A.2d A.2d 535, 537 (Pa. Cmwlth. 1987).
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1769CD07_2-19-09.pdf
The court reversed the UCBR decision on the merits and remanded the case for a hearing with claimant witnesses whom the referee improperly refused to subpoena.
The court rejected the Board's claim that the witnesses' evidence would be "directly contradictory" to that of the employer and held that it need only lead to "relevant and provative evidence," citing Hamilton v. UCBR, 532 A.2d A.2d 535, 537 (Pa. Cmwlth. 1987).
UC - appeal letter - pro se litigant
Alston v. UCBR - Cmwlth. Court - February 19, 2009
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1769CD07_2-19-09.pdf
A letter to the court served as an appeal under Pa. RAP 1514(a) and sec. 67.13 of court internal operating procedure, which gives a pro se claimant 30 days from receipt of timely appeal letter in which to file a proper petition for review.
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1769CD07_2-19-09.pdf
A letter to the court served as an appeal under Pa. RAP 1514(a) and sec. 67.13 of court internal operating procedure, which gives a pro se claimant 30 days from receipt of timely appeal letter in which to file a proper petition for review.
Wednesday, January 28, 2009
arbitration - class action - no stay as to plaintiffs whose contracts do not have arbitration clause
Mendez, et al. v. Puerto Rican International Companies - 3d Cir. - January 26, 2009
http://www.ca3.uscourts.gov/opinarch/074053p.pdf
The issue for resolution is whether a defendant who is entitled to arbitrate an issue which it has with one plaintiff in a suit can insist on a mandatory stay of litigation of issues it has with other plaintiffs who are not committed to arbitrate those issues. We conclude that Section 3 was not intended to mandate curtailment of the litigation rights of anyone who has not agreed to arbitrate any of the issues before the court.
We acknowledge at the outset that Section 3 can be read literally to confer a right to a mandatory stay in the context of this case. Section 3 is an integral part of a statutory scheme, however, and reading it in the context of the FAA as a whole, we decline to attribute that intent to Congress.
The purpose of the FAA is to render agreements to arbitrate fully enforceable. 9 U.S.C. § 2 (a contract to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract”). The purpose of Section 3, in particular, is to guarantee that a party who has secured the agreement of another to arbitrate rather than litigate a dispute will reap the full benefits of its bargain. In short, the “liberal policy ‘favoring arbitration agreements . . . is at bottom a policy guaranteeing the enforcement of private contractual arrangements.’”
Accordingly, “under the FAA, ‘a court may compel a party to arbitrate where that party has entered into a written agreement to arbitrate that covers the dispute.’” Because Congress thus limited the rights it created in the FAA to situations involving corresponding obligations voluntarily assumed by another, we decline appellants’ invitation to interpret Section 3 in a way that would mandate the imposition of a material burden on a party’s right to litigate claims it has not agreed to arbitrate.
While Section 3, as appellants read it, would postpone rather than eliminate a party’s right to litigate its claims against another, it would nevertheless defer that right for the duration of a proceeding over which the constrained party has no control and would deprive the Court of any discretion to consider the impact of that delay on that party. We find no persuasive evidence in the FAA for sanctioning such a burden.
http://www.ca3.uscourts.gov/opinarch/074053p.pdf
The issue for resolution is whether a defendant who is entitled to arbitrate an issue which it has with one plaintiff in a suit can insist on a mandatory stay of litigation of issues it has with other plaintiffs who are not committed to arbitrate those issues. We conclude that Section 3 was not intended to mandate curtailment of the litigation rights of anyone who has not agreed to arbitrate any of the issues before the court.
We acknowledge at the outset that Section 3 can be read literally to confer a right to a mandatory stay in the context of this case. Section 3 is an integral part of a statutory scheme, however, and reading it in the context of the FAA as a whole, we decline to attribute that intent to Congress.
The purpose of the FAA is to render agreements to arbitrate fully enforceable. 9 U.S.C. § 2 (a contract to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract”). The purpose of Section 3, in particular, is to guarantee that a party who has secured the agreement of another to arbitrate rather than litigate a dispute will reap the full benefits of its bargain. In short, the “liberal policy ‘favoring arbitration agreements . . . is at bottom a policy guaranteeing the enforcement of private contractual arrangements.’”
Accordingly, “under the FAA, ‘a court may compel a party to arbitrate where that party has entered into a written agreement to arbitrate that covers the dispute.’” Because Congress thus limited the rights it created in the FAA to situations involving corresponding obligations voluntarily assumed by another, we decline appellants’ invitation to interpret Section 3 in a way that would mandate the imposition of a material burden on a party’s right to litigate claims it has not agreed to arbitrate.
While Section 3, as appellants read it, would postpone rather than eliminate a party’s right to litigate its claims against another, it would nevertheless defer that right for the duration of a proceeding over which the constrained party has no control and would deprive the Court of any discretion to consider the impact of that delay on that party. We find no persuasive evidence in the FAA for sanctioning such a burden.
Tuesday, January 27, 2009
disability - attorney fees - subantially justified
Magwood v. Astrue - ED Pa. - January 21, 2009
http://www.paed.uscourts.gov/documents/opinions/09D0086P.pdf
Government's position was not substantially justified where it was contrary to clearly established law concerning step 2 (severity) of the disability evaluation process. The government's prior "string of successes" before a 3d Cir. reversal was not enough to satisfy its burden.
A fee of $12,275.21 was awarded (68.30 hours at a rate of $176.23, plus $238.70 for expenses)
http://www.paed.uscourts.gov/documents/opinions/09D0086P.pdf
Government's position was not substantially justified where it was contrary to clearly established law concerning step 2 (severity) of the disability evaluation process. The government's prior "string of successes" before a 3d Cir. reversal was not enough to satisfy its burden.
A fee of $12,275.21 was awarded (68.30 hours at a rate of $176.23, plus $238.70 for expenses)
mortgage foreclosure - defective Act 91 - prejudice
Wells Fargo v. Monroe - Superior Court - January 26, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/s71014_08.pdf
An allegedly defective* Act 91 notice was held not to be a defense to a foreclosure action when the mortgagors were given and availed themselves of the opportunity to pursue mortgage assistance through the HEMAP program.
They met with a credit counseling agency within the 30, as provided by the Act 91 Notice, and applied for mortgage assistance, which was ultimately denied. Under these circumstances, no prejudice could be presumed because of lack of compliance with the Act 91 requirements, and no prejudice was shown.
The " trial court did not abuse its discretion in finding that the Act 91 Notice sufficiently apprised the Monroes of their options with regard to the aid to which they were entitled. Therefore, the trial court’s grant of the motion for summary judgment filed by Wells Fargo was proper."
*The Act 91 notice was alleged to be defective for lack of notation of a place to cure and the inclusion of improper fees.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/s71014_08.pdf
An allegedly defective* Act 91 notice was held not to be a defense to a foreclosure action when the mortgagors were given and availed themselves of the opportunity to pursue mortgage assistance through the HEMAP program.
They met with a credit counseling agency within the 30, as provided by the Act 91 Notice, and applied for mortgage assistance, which was ultimately denied. Under these circumstances, no prejudice could be presumed because of lack of compliance with the Act 91 requirements, and no prejudice was shown.
The " trial court did not abuse its discretion in finding that the Act 91 Notice sufficiently apprised the Monroes of their options with regard to the aid to which they were entitled. Therefore, the trial court’s grant of the motion for summary judgment filed by Wells Fargo was proper."
*The Act 91 notice was alleged to be defective for lack of notation of a place to cure and the inclusion of improper fees.
attorney fees - lease - prevailing party
Bayne v. Smith - Superior Court - January 26, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a28016_08.pdf
The court reversed the trial court and held that the lease was not an adhesion contract and that the attorney fee provision was not unconscionable. The tenant did not show a lack of meaningful choice about whether to accept the provision, or that the provision unreasonably favored the landlord.
The court held that critical language in Galligan v. Arovitch, 421 Pa. 301[, 219 A.2d 463] (1966), was mere dicta. It found that the trial court’s reliance on Galligan and Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 485-486, 329 A.2d 812, 830 (1974)] was "misplaced" and the the tenant "failed to satisfy her burden as to unconscionability."
The fee provision in question would have allowed the tenant to recover attorney fees from the landlord had she prevailed in her defense. It gave the "prevailing party" the right to recover fees.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a28016_08.pdf
The court reversed the trial court and held that the lease was not an adhesion contract and that the attorney fee provision was not unconscionable. The tenant did not show a lack of meaningful choice about whether to accept the provision, or that the provision unreasonably favored the landlord.
The court held that critical language in Galligan v. Arovitch, 421 Pa. 301[, 219 A.2d 463] (1966), was mere dicta. It found that the trial court’s reliance on Galligan and Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 485-486, 329 A.2d 812, 830 (1974)] was "misplaced" and the the tenant "failed to satisfy her burden as to unconscionability."
The fee provision in question would have allowed the tenant to recover attorney fees from the landlord had she prevailed in her defense. It gave the "prevailing party" the right to recover fees.
discovery - sanctions - Pa. courts
Cove Centre, Inc. v. Westhafer Construction Co. - Superior Court - January 26, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a32023_08.pdf
Where a discovery sanction either terminates the action directly or would result in its termination by operation of law, the court must consider multiple factors balanced together with the necessity of the sanction.(1) the nature and severity of the discovery violation;(2) the defaulting party's willfulness or bad faith;(3) prejudice to the opposing party;(4) the ability to cure the prejudice; and(5) the importance of the precluded evidence in light of the failure to comply.
With few exceptions, there is no greater sanction in a civil case than a deemed admission of a Request for Admission, as well as preclusion of expert testimony and entry of judgment, so a balancing of the equities emphasizing the nature and motive of the non-compliant party’s conduct is mandatory.
The mere failure of an unrepresented party to comply with discovery rules does not amount to “willfulness or bad faith” as contemplated by case law.
As concerns potential prejudice occasioned by the failure to comply with discovery, the record discloses no hardship to the party seeking sanctions which is not readily remedied upon remand.
The party never filed a Motion to Compel Discovery so as to invoke the trial court’s authority in the interest of advancing the litigation and minimizing delay, which has now been extended by the necessity of this appeal. Moreover, the violations in question did not result in a loss of evidence favorable to the movant. Compliance with the discovery requests in question, even at this late date, would allow the matter to proceed to a full and fair resolution.Compared to the extraordinary prejudice of a sanction order that the trial court has since repudiated, the prejudice to the movant imposed by the failure to comply with discovery is minimal.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a32023_08.pdf
Where a discovery sanction either terminates the action directly or would result in its termination by operation of law, the court must consider multiple factors balanced together with the necessity of the sanction.(1) the nature and severity of the discovery violation;(2) the defaulting party's willfulness or bad faith;(3) prejudice to the opposing party;(4) the ability to cure the prejudice; and(5) the importance of the precluded evidence in light of the failure to comply.
With few exceptions, there is no greater sanction in a civil case than a deemed admission of a Request for Admission, as well as preclusion of expert testimony and entry of judgment, so a balancing of the equities emphasizing the nature and motive of the non-compliant party’s conduct is mandatory.
The mere failure of an unrepresented party to comply with discovery rules does not amount to “willfulness or bad faith” as contemplated by case law.
As concerns potential prejudice occasioned by the failure to comply with discovery, the record discloses no hardship to the party seeking sanctions which is not readily remedied upon remand.
The party never filed a Motion to Compel Discovery so as to invoke the trial court’s authority in the interest of advancing the litigation and minimizing delay, which has now been extended by the necessity of this appeal. Moreover, the violations in question did not result in a loss of evidence favorable to the movant. Compliance with the discovery requests in question, even at this late date, would allow the matter to proceed to a full and fair resolution.Compared to the extraordinary prejudice of a sanction order that the trial court has since repudiated, the prejudice to the movant imposed by the failure to comply with discovery is minimal.
Monday, January 26, 2009
contracts - right-to-cure clause - incurable breach
LJL Transportation v. Pilot Air Freight Corp. - Pa. Supreme Court - January 22, 2009
http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-60-2008mo.pdf
Held: A party’s conduct in breaching a francise agreement can may justify its immediate termination, even if the contract includes an express provision granting the breaching party the right to cure before the contract is terminated, when there is a material breach of the contract so serious it goes directly to the heart and essence of the contract, rendering the breach incurable.
The wrongful conduct consisted of plaintiff's admittedly dishonest, indefensible diversion of business to defendant's competitor.
The court looked to the law of other states, which had adopted the “Williston view,” which provides, “Unless a contract provision for termination for breach is in terms exclusive . . . it is a cumulative remedy and does not bar the ordinary remedy of termination for a breach which is material or which goes to the root of the matter or essence of the contract.” Williston, A Treatise on The Law of Contracts, § 842, 165 n.1 (3d. ed. 1962).
http://origin-www.courts.state.pa.us/OpPosting/Supreme/out/J-60-2008mo.pdf
Held: A party’s conduct in breaching a francise agreement can may justify its immediate termination, even if the contract includes an express provision granting the breaching party the right to cure before the contract is terminated, when there is a material breach of the contract so serious it goes directly to the heart and essence of the contract, rendering the breach incurable.
The wrongful conduct consisted of plaintiff's admittedly dishonest, indefensible diversion of business to defendant's competitor.
The court looked to the law of other states, which had adopted the “Williston view,” which provides, “Unless a contract provision for termination for breach is in terms exclusive . . . it is a cumulative remedy and does not bar the ordinary remedy of termination for a breach which is material or which goes to the root of the matter or essence of the contract.” Williston, A Treatise on The Law of Contracts, § 842, 165 n.1 (3d. ed. 1962).
diability - examining physician opinion
Brownawell v. Commissioner - 3d Cir. - Dec. 9, 2008
http://www.ca3.uscourts.gov/opinarch/074405p.pdf
The appellate court entered an outright reversal and directed the payment of benefits, because
- the decision to deny benefits was improperly based on a number of erroneous facts and discredits the opinions of two examining doctors (who clearly considered her to be disabled), improperly favoring the opinion of a non-examining psychologist, and
- because substantial evidence on a fully developed record indicates that Brownawell is disabled.
http://www.ca3.uscourts.gov/opinarch/074405p.pdf
The appellate court entered an outright reversal and directed the payment of benefits, because
- the decision to deny benefits was improperly based on a number of erroneous facts and discredits the opinions of two examining doctors (who clearly considered her to be disabled), improperly favoring the opinion of a non-examining psychologist, and
- because substantial evidence on a fully developed record indicates that Brownawell is disabled.
Wednesday, January 21, 2009
birth registration - "gestational carrier"
In re I.L.P. - Superior Court - January 21, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/A30027_08.pdf
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/A30027_08.pdf
Friday, January 16, 2009
employment - wages - "hours worked" - donning and doffing
Lugo, et al. v. Farmers Pride, Inc. - Superior Court - January 15, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a10011_08.pdf
Dismissal of employees wage claims reversed on appeal.
The Pennsylvnaia Minimum Wage Act requires that certain minimum wages be paid for all “hours worked.” 43 P.S. § 333.104(a). The focal point of the issue before us is whether the concept of “hours worked” includes, under the PMWA, the time that appellants spent donning, doffing, and sanitizing their protective gear for their work in a chicken processing plant.
"The answer, under the facts of this case, is found in the regulations promulgated in support of the Pennsylvnaia Minimum Wage Act, which defines “hours worked” to include "time during which an employee is required by the employer to be on the premises of the employer, to be on duty or to be at the prescribed work place, time spent in traveling as part of the duties of the employee during normal working hours and time during which an employee is employed or permitted to work...." 34 Pa.Code § 231.1" Under that definition, the time spent donning, doffing, and sanitizing work gear is included in "hours worked" and is compensable.
The court also held that the employees could alternatively plead a claim for unjust enrichment.
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a10011_08.pdf
Dismissal of employees wage claims reversed on appeal.
The Pennsylvnaia Minimum Wage Act requires that certain minimum wages be paid for all “hours worked.” 43 P.S. § 333.104(a). The focal point of the issue before us is whether the concept of “hours worked” includes, under the PMWA, the time that appellants spent donning, doffing, and sanitizing their protective gear for their work in a chicken processing plant.
"The answer, under the facts of this case, is found in the regulations promulgated in support of the Pennsylvnaia Minimum Wage Act, which defines “hours worked” to include "time during which an employee is required by the employer to be on the premises of the employer, to be on duty or to be at the prescribed work place, time spent in traveling as part of the duties of the employee during normal working hours and time during which an employee is employed or permitted to work...." 34 Pa.Code § 231.1" Under that definition, the time spent donning, doffing, and sanitizing work gear is included in "hours worked" and is compensable.
The court also held that the employees could alternatively plead a claim for unjust enrichment.
Wednesday, January 14, 2009
criminal conviction - expungement - factual basis and nature of plea agreement
Commonwealth v. Hanna - Superior Court - January 14, 2008
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a18026_08.pdf
Case remanded for hearing to resolve factual disputes about the factual basis and nature of the defendant's plea agreement, under which he pleaded guilty to one charge and many others were dismissed.
In the course of the opinion, the court reviewed many of the most important expungement cases, including Wexler and A.M.R., infra, as well as Commonwealth v. Lutz, 788 A.2d 993 (Pa. Super. 2001)
General principles
“The decision to grant or deny a request for expungement of an arrest record lies in the sound discretion of the trial judge, who must balance the competing interests of the petitioner and the Commonwealth. We review the decision of the trial court for an abuse of discretion.” Commonwealth v. Rodland, 871 A.2d 216, 218 (Pa. Super. 2005) (citation omitted).
This Court explained the nature of the right to expungement as follows: In this Commonwealth, there exists the right to petition for expungement of a criminal arrest record. This right is an adjunct of due process and is not dependent upon express statutory authority.
In Commonwealth v. Wexler, [431 A.2d 877, 879 (Pa. 1981)], the seminal case on expungement hearings in the Commonwealth, our Supreme Court defined the responsibilities of a court as it decides whether to expunge an arrest record: “In determining whether justice requires expungement, the court, in each particular case, must balance the individual’s right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth's interest in preserving such records.”
The Wexler factors “include the strength of the Commonwealth’s case against the petitioner, the reasons the Commonwealth gives for wishing to retain the records, the petitioner’s age, criminal record, and employment history, the length of time that has elapsed between the arrest and the petition to expunge, and the specific adverse consequences the petitioner may endure should expunction be denied.” Wexler, 431 A.2d at 879.
The Commonwealth’s retention of an arrest record, in and of itself, may cause serious harm to an individual. See Commonwealth v. Malone, 366 A.2d 584, 588 (Pa. Super. 1976) (noting possible effects of maintaining an arrest record, including economic and non-economic losses and injury to reputation). Commonwealth v. A.M.R., 887 A.2d 1266, 1268 (Pa. Super. 2005) (footnote omitted).
In this case, counsel argued that Appellant was 26 years old at the time of the offense, had no prior criminal record, and successfully served his probation. Appellant is a high-school graduate with college credits and technology-class credits. He is married and supports three children. According to counsel, the dismissed charges were having a serious adverse effect on Appellant’s employment prospects in the computer field.
If the defendant is convicted of a crime, he is not entitled to expungement except under the extremely limited circumstances permitted by statute. Commonwealth v. Maxwell, 737 A.2d 1243, 1244 (Pa. Super. 1999), citing 18 Pa.C.S.A. § 9122. At the opposite extreme, if the defendant is acquitted, he is generally entitled to automatic expungement of the charges for which he was acquitted. Commonwealth v. D.M., 695 A.2d 770 (Pa. 1997); cf. Rodland, 871 A.2d at 219 (where the defendant is acquitted of some charges and not others, the court should expunge the acquitted charges unless the Commonwealth “demonstrates to the trial court that expungement is impractical or impossible under the circumstances”).
"Unsurprisingly, the cases posing the most difficulty fall in between these extremes."
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a18026_08.pdf
Case remanded for hearing to resolve factual disputes about the factual basis and nature of the defendant's plea agreement, under which he pleaded guilty to one charge and many others were dismissed.
In the course of the opinion, the court reviewed many of the most important expungement cases, including Wexler and A.M.R., infra, as well as Commonwealth v. Lutz, 788 A.2d 993 (Pa. Super. 2001)
General principles
“The decision to grant or deny a request for expungement of an arrest record lies in the sound discretion of the trial judge, who must balance the competing interests of the petitioner and the Commonwealth. We review the decision of the trial court for an abuse of discretion.” Commonwealth v. Rodland, 871 A.2d 216, 218 (Pa. Super. 2005) (citation omitted).
This Court explained the nature of the right to expungement as follows: In this Commonwealth, there exists the right to petition for expungement of a criminal arrest record. This right is an adjunct of due process and is not dependent upon express statutory authority.
In Commonwealth v. Wexler, [431 A.2d 877, 879 (Pa. 1981)], the seminal case on expungement hearings in the Commonwealth, our Supreme Court defined the responsibilities of a court as it decides whether to expunge an arrest record: “In determining whether justice requires expungement, the court, in each particular case, must balance the individual’s right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth's interest in preserving such records.”
The Wexler factors “include the strength of the Commonwealth’s case against the petitioner, the reasons the Commonwealth gives for wishing to retain the records, the petitioner’s age, criminal record, and employment history, the length of time that has elapsed between the arrest and the petition to expunge, and the specific adverse consequences the petitioner may endure should expunction be denied.” Wexler, 431 A.2d at 879.
The Commonwealth’s retention of an arrest record, in and of itself, may cause serious harm to an individual. See Commonwealth v. Malone, 366 A.2d 584, 588 (Pa. Super. 1976) (noting possible effects of maintaining an arrest record, including economic and non-economic losses and injury to reputation). Commonwealth v. A.M.R., 887 A.2d 1266, 1268 (Pa. Super. 2005) (footnote omitted).
In this case, counsel argued that Appellant was 26 years old at the time of the offense, had no prior criminal record, and successfully served his probation. Appellant is a high-school graduate with college credits and technology-class credits. He is married and supports three children. According to counsel, the dismissed charges were having a serious adverse effect on Appellant’s employment prospects in the computer field.
If the defendant is convicted of a crime, he is not entitled to expungement except under the extremely limited circumstances permitted by statute. Commonwealth v. Maxwell, 737 A.2d 1243, 1244 (Pa. Super. 1999), citing 18 Pa.C.S.A. § 9122. At the opposite extreme, if the defendant is acquitted, he is generally entitled to automatic expungement of the charges for which he was acquitted. Commonwealth v. D.M., 695 A.2d 770 (Pa. 1997); cf. Rodland, 871 A.2d at 219 (where the defendant is acquitted of some charges and not others, the court should expunge the acquitted charges unless the Commonwealth “demonstrates to the trial court that expungement is impractical or impossible under the circumstances”).
"Unsurprisingly, the cases posing the most difficulty fall in between these extremes."
Tuesday, January 13, 2009
court - rules - children's fast-track appeals
Order Adopting Amendments to Pa.R.A.P. 102, 904, 905, 1112, 1113, 1116, 1123, 1925, 1931, 1972, 2113, 2154, 2172, 2185, 2542, 2545, and to Official Notes to Pa.R.A.P. 2572 and 3723, No. 197 Appellate Procedural Rules Docket No. 1
Opinion Type: Rules
197aplt.1.pdf
Opinion Type: Rules
197aplt.1attach.pdf
Children’s fast track appeal—Any appeal from an order involving dependency, termination of parental rights, adoptions, custody or paternity. See 42 Pa.C.S. §§ 6301 et seq.; 23 Pa.C.S. §§ 2511 et seq.; 23 Pa.C.S. §§ 2101 et seq.; 23 Pa.C.S. §§ 5301 et seq.; 23 Pa.C.S. §§ 5102 et seq.
Opinion Type: Rules
197aplt.1.pdf
Opinion Type: Rules
197aplt.1attach.pdf
Children’s fast track appeal—Any appeal from an order involving dependency, termination of parental rights, adoptions, custody or paternity. See 42 Pa.C.S. §§ 6301 et seq.; 23 Pa.C.S. §§ 2511 et seq.; 23 Pa.C.S. §§ 2101 et seq.; 23 Pa.C.S. §§ 5301 et seq.; 23 Pa.C.S. §§ 5102 et seq.
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