PFA - "family/household member" - grandfather of plaintiff's child

Slusser v. DeBoer - Superior Court - November 23, 2009

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a26039_09.pdf

PFA order properly granted PFA order to mother of defendant's grandchild. Defendant was a "family or household member" under the Act.

The court rejected grandfather's argument that his relationship to the mother of his grandchild does not fit within any of the relationships described in the definition of "abuse" -- the "occurrence of one or more...acts between family or household members, sexual or intimate partners or persons who share biological parenthood." (emphasis in original)

Both parties "have a direct blood relationship to the child, and by extension are inextricably linked to each other by that relationship. In fact, the parties are more directly related by consanguinity than the in-law relationship that was deemed adequate to invoke the protection of the Act in McCance v. McCance, 908 A.2d 905, 910 (Pa.Super. 2006) (Court interpreted “affinity” to include a family relationship of in-laws)."

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The abuse here consisted of defendant pulling a gun out of the glove compartment, showing it to plaintiff andt telling her that if she didn't let him see his granddaughter, she knows what he could do.

__._,_.___

child abuse - dependency - appeal - aggrieved party

In the Interest of J.G., a minor - Superior Court - November 13, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1948CD08_11-17-09.pdf

County child welfare agency (CWA) was not an "aggrived party" under PRAP 501 and did not have standing to appeal a lower court decision holding that the subject child was dependent, but failing to specify that the child's parents had committed the abuse.

CWA petitioned the court for a dependency order. It did not request a specific finding that the parents had abused the child. The lower court refused to make such a finding, given the fact that the child had been under the control of both the parents and a babysitter during the period when the abuse had taken place, thus preventing the application of the presumption in 23 Pa. C.S. 6381.

"Although a prevailing party may disagree with the trial court’s legal reasoning or findings of fact, the prevailing party’s interest is not adversely affected by the trial court’s ultimate order because the prevailing party was meritorious in the proceedings below.....Under Pa.R.A.P. 501, “[o]nly an aggrieved party can appeal from an order entered by a lower court.” ...This Court has consistently held that for purposes of Pa.R.A.P. 501, “[a] party is ‘aggrieved’ when the party has been adversely affected by the decision from which the appeal is taken. A prevailing party is not ‘aggrieved’ and therefore, does not have standing to appeal an order that has been entered in his or her favor.”

There is no statutory provision in the Child Protective Services Law or the Juvenile Act to suggest that the trial court must make a specific finding as to which caretaker perpetrated the abuse in order to adjudicate a dependent. These are two separate inquires. Where, as here, the evidence is inconclusive as to who had control or supervision over the child at the time of the abuse, the presumption in 23 Pa.C.S.A. § 6381(d) is inherently self-rebutting, and applying it to one or both persons alleged to be the perpetrators would be arbitrary and capricious in the absence of a credibility determination and a factual finding by the trial court to the contrary.

UC - referee performance - backlog

Horwitz v. Dept. of Labor and Industry - Cmwlth. Court - November 16, 2009 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/221CD09_11-16-09.pdf

UC referee's challenge to his employee performance report (EPR) rejected, holding that there was no discrimination against him based on non-merit factors.

The EPR essentially reflects the Department’s conclusion that Horwitz had an unacceptable backlog of decisions. Two standards pertinent to the present case provide as follows:

Disposal of Cases - Each referee is to schedule and dispose of an average of 30-35 appeals per week. 30-35 meets standard, more than 35 exceeds standard.
Issuance of Decisions - Federal mandates will remain the same until new mandates are promulgated in the near future. 60% of all hearings decided within 30 days, 80% of all hearings decided within 45 days are satisfactory.

In addition to the federal standards, DOLI requires that all Referees issue decisions as quickly as possible after hearings.

The opinion indicates that there were "nine complaints during the fall of 2007 from parties who had waited two to four months for decisions from Horwitz."

UC - voluntary quit - personal preference v. necessitous and compelling reason

Dopson v. UCBR - Cmwlth. Court - November 13, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1129CD09_11-13-09.pdf

Claimant requested an FMLA leave to go to South Carolina to help care for the young child of her son and daughter-in-law, who were finishing students teaching study for medical board tests, respectively. The court held that "Claimant did not quit her job to rejoin a spouse, but to temporarily relocate to assist her son and daughter-in-law. While laudable, this was her personal preference. This Court agrees with the Board that Claimant lacked a necessitous and compelling reason to terminate her employment." Hammond v. UCBR, 569 A.2d 1013 (Pa. Cmwlth. 1990),

The court distinguished decisions in Truitt v. UCBR, 527 Pa. 138, 589 A.2d 208 (1991), Beachem v. UCBR, 760 A.2d 68 (Pa. Cmwlth. 2000), and Wagner v. UCBR, 965 A.2d 324 (Pa. Cmwlth. 2009).

housing - disability - reasonable accommodation

Solivan v. Valley Housing Development Corp. - ED Pa. - November 9, 2009

http://www.paed.uscourts.gov/documents/opinions/09D1355P.pdf

This case involved a plaintiff-tenant's claims against a sec. 8 landlord for, inter alia, failure to reasonably accommodate her disability in the leasing of an apartment. For the most part, the Court rejected the defendant's motion for summary judgment, as follows:

- statute of limitations - plaintiff apparently came within the two-year statute

- disability - plaintiff present sufficient evidence that she was "disabled" under the ADA, i.e., that she suffered from “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 42 U.S.C. § 12102(2)

- reasonable accommodation - The Court must consider: 1) whether Plaintiff’s requested accommodation/modification was necessary to afford her an equal opportunity to use and enjoy the dwelling; and 2) whether Plaintiff’s requested accommodation was reasonable, or whether it imposed an undue hardship on Defendant. To show that a requested accommodation is necessary, a plaintiff “must show that, but for the accommodation, [she] will likely be denied an equal opportunity to enjoy the housing of [her] choice.” Lapid-Laurel, LLC v. Zoning Bd. Of Adjustment of Twp. Of Scotch Plains, 284 F.3d 442, 461 (3d Cir. 2002). Here, without the accommodation of a first floor apartment, Plaintiff was required to walk up two flights of stairs in order to enter or leave her apartment, which took her 30 minutes.

- expert testimony - not required at this point - The standard for whether expert testimony is required under federal law is as follows: Expert testimony is not necessary . . . if all the primary facts can be accurately and intelligibly described to the jury, and if they, as men of common understanding, are as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or peculiar training, experience, or observation in respect of the subject under investigation. Padillas v. Stork-Gamco, Inc., 186 F.3d 412, (3d Cir. 1999).

- money damages - Under the section of the ADA prohibiting discrimination in public accommodations, private plaintiffs may not obtain monetary damages. Preventive relief, including an injunction or restraining order, is the only remedy. 42 U.S.C. § 12188 (a)(1) (providing that “the remedies and procedures set forth in section 2000a-3(a) of this title are the remedies and procedures this subchapter provides to any person who is being subjected to discrimination on the basis of disability in violation of this subchapter;” 42 U.S.C. § 2000a-3(a) describes preventive relief). Summary judgment on this issue to defendant.

- sec. 1983 - The private landlord was not a state actor, in spite of receipt of rent in the form of govt. subsidies. Cases considering the application of 42 U.S.C. § 1983 against housing providers who accept and even rely exclusively on Section 8 vouchers hold that such housing providers are private actors who are not acting under color of state law. Miller v. Hartwood Apartments, 689 F.2d 1239, 1242 (5th Cir. 1982); Young, supra at 366; see Morris v. Dehaan, 1991 U.S. App. Lexis 22135, *10 (6th Cir. 1991); Tosta v. Williams, 1987 WL 17233, *3 (E.D.P.A. 1987).

disability - ALJ duty to a) order consultative exams and b) to develop the record

Poleck v. Astrue - ED Pa. - November 9, 2009

http://www.paed.uscourts.gov/documents/opinions/09D1349P.pdf

The Magistrate Judge found that the ALJ failed to fully articulate his reasons for denying plaintiff's claims regarding his alleged heart impairment and carpal tunnel syndrome and recommended that these claims be remanded for further consideration by the Commissioner. Plaintiff appealed, claiming that the ALJ should have ordered second consultative examination and should have more fully developed the record. The court disagreed.

Failure to Order a Second Consultative Examination
Plaintiff claims that 20 C.F.R. § 1519a creates an independent duty on the part of the ALJ to order a second consultative examination even though plaintiff had informed the ALJ that he had medical insurance and would see his doctors for further evaluation. Plaintiff's 443). Plaintiff's reading of the regulation is incorrect.

Section 1519a states that a consultative examination may be purchased when the record as a whole is insufficient to support a decision on a claim. It then lists five situations that normally require a consultative examination.1 None of them apply in this case. Moreover, 20C.F.R. § 404.1512 states that it is the claimant’s responsibility to provide medical evidence showing the existence and scope of any impairment. This is consistent with the general principle that the claimant – not the Commissioner – has the burden of proof.

1 The five situations in which a consultative examination is required are when (1) additional evidence needed is not contained in the claimant’s medical sources, (2) evidence from the claimant’s medical source cannot be obtained for reasons beyond the claimant’s control, (3) the evidence is highly technical or highly specialized and not available from the claimant’s medical sources, (4) a conflict, inconsistency, ambiguity or insufficiency in the evidence must be resolved but cannot be by contacting the claimant’s medical source and (5) there is an indication of a change in the claimant’s condition that is likely to affect the claimant’s ability to work but the severity of the change cannot be established. 20 C.F.R. § 1519a(b)(1) - (5).

ALJ Duty to Develop the Record
Claimant argued that the 1) status of his alleged back, heart and mental impairments was unknown at the time of the hearing, 2) in such circumstances the ALJ has an affirmative duty to develop the record, 3) this duty could only be satisfied by ordering a second consultative examination, 4) the ALJ did not order such an examination and, therefore, 5) the ALJ’s decision is not supported by substantial evidence.

"This argument’s third premise is mistaken. It is important to recognize that the scope of an ALJ’s duty to independently investigate the facts is relatively narrow. In Sims v.Apfel, the Supreme Court stated that ALJs have a duty “to investigate the facts and develop the arguments both for and against granting benefits,” but this portion of his opinion was joined by only three other members of the court and is not precedential. 530 U.S. 103, 111 (2000). Although the Third Circuit has quoted this language favorably in two precedential opinions, it has never formally imposed a broad duty to investigate and develop arguments for all parties...."

The regulation describing the duties of the ALJ states, in part, that the ALJ "shall inquire fully into the matters at issue and shall receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters. If the ALJ believes that there is relevant and material evidence available which has not been presented at the hearing, the ALJ may adjourn the hearing or, at any time prior to the mailing of notice of the decision, reopen the hearing for the receipt of such evidence." 20 C.F.R. § 410.640 (emphasis added).

The only Third Circuit opinion directly interpreting the scope of this regulation is Hess v. Secretary, 497 F.2d 837 (3d Cir. 1974). In Hess, an ALJ denied the claimant's benefits claim without consulting his attending physician and without interviewing or examining the plaintiff. Id. at 840. The Third Circuit concluded that this was error, explaining that the claimant had the burden of proving his disability but that “due regard for the beneficent purposes of the legislation requires that a more tolerant standard be used in this administrative proceeding than is applicable in a typical suit in a court of record where the adversary systemprevails.” Id.

In its application of thismore tolerant standard the Third Circuit explicitly refused to hold “that the responsibility will always be upon the hearing officer to secure current medical evaluations.” Id. at 841. Instead, it stated that “some lesser effort might be employed” and, in a non-exclusive list of examples, noted that an ALJ might advise claimants of the importance of current medical evaluations and suggest their submission at a later date. Id.

The Third Circuit explicitly refused to hold “that the responsibility will always be upon the hearing officer to secure current medical evaluations.” Id. at 841. Instead, it stated that “some lesser effort might be employed” and, in a non-exclusive list of examples, noted that an ALJ might advise claimants of the importance of current medical evaluations and suggest their submission at a later date. Id.

Here, the magistrate judge balanced plaintiff’s right to have his record developed by the ALJ with his burden to prove that he is disabled. The ALJ questioned claimant about the possibility of obtaining additional medical records. Claimant said that he had medical insurance, that he would consult his doctor, and that he would agree to any tests recommended by his doctor. His attorney said nothing to the contrary. Before this exchange, the ALJ had already agreed to leave the record open for thirty days so that claimant and his counsel could submit additional evidence. In these circumstances, the ALJ had every reason to believe that claimant would provide him with a complete record.

drivers license - refusal to take chemical test - location of request/refusal - silence

Deal v. PennDOT - Cmwtlh. Court - November 5, 2009 - unpublished memorandum opinion

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/344CD09_11-5-09.pdf

silence - In Broadbelt v. DOT, 903 A.2d 636 (Pa. Cmwlth. 2006), our court determined that the licensee’s silence when asked to submit to chemical testing after having been read the DL-26 form, constituted a refusal in violation of Section 1547 of the Vehicle Code. This court has consistently held that “police officers are not required to spend effort either cajoling the [licensee] or spend time waiting to see if the [licensee] will ultimately change his mind.” King v. DOT, 828 A.2d 1, 5, n.8 (Pa. Cmwlth.), appeal denied, 577 Pa. 738, 848 A.2d 931 (2002)

location of request/refusal - Our Supreme Court in DOT v. Scott, 546 Pa. 241, 253, 684 A.2d 539, 545 (1996), stated that: the police must advise the motorist that in making this decision, he does not have the right to speak with counsel, or anyone else, before submitting to chemical testing, and further, if the motorist exercises his right to remain silent as a basis for refusing to submit to testing, it will be considered a refusal and he will suffer the loss of his driving privileges.

[I]t would be absurd for an officer to drive a licensee to the situs of the breath, blood or urine testing equipment, which could be miles away from the scene of arrest, in order to allow the licensee to look at the equipment prior to the licensee’s silence being considered a refusal. Requiring a police officer to drive the licensee to the situs of testing when the licensee has already been properly warned but has refused chemical testing, either explicitly or through his silence, would fail to serve the purposes of the current Implied Consent Law and would be a waste of valuable and limited police, and State Trooper, resources.

As police officers are now required to give licensees warnings prior to asking them to consent to chemical testing, and such warnings state that “remaining silent when asked to submit to chemical testing will constitute a refusal,” remaining silent will constitute a refusal, irrespective of where the licensee is at the time the warnings are given.

drivers license - refusal to take chemical test - knowing refusal - influence of prescr. drug and head injury

Sitoski v. PennDOT - Cmwlth. Court - October 29, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/431CD09_10-29-09.pdf

If a licensee takes a prescription drug, knowing its side effects, and then sustains a head injury in an accident, the licensee can establish an inability to make a knowing and conscious refusal by presenting expert medical testimony that the head injury played a greater role in the refusal than the prescription drug.

Here, the licensee presented medical testimony, but not about whether licensee’s closed-head injury played a greater role than the prescription sleep medication in his inability to make a knowing and conscious refusal. The doctor testified only that the sleep medication in combination with the closed-head injury made licensee unable to make a knowing and conscious refusal. The suspension, therfore, was proper.
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child abuse - expungement - founded report - finality of appeal

LC v. DPW - Cmwlth. Court - October 29, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/189CD09_10-29-09.pdf

DPW was not required to wait until appellant's criminal appeals were finally resolved to list him as an abuser in a "founded" report. Section 6303 of the Child Protective Services Law defines “founded report” as a child abuse report made pursuant to “any judicial adjudication” of guilt to a criminal charge involving the same factual circumstances involved in the allegation of child abuse. 23 Pa. C.S. §6303. Thus, DPW was not required to wait until L.C. exhausted his appeals to list him as an abuser in a “founded report.”

RESPA - anti-kickback provision - private right of action - no overcharge allegation requiredd

Alston et al. v. Countrywide Financial Corp. - 3d Cir. - October 28, 2009

http://www.ca3.uscourts.gov/opinarch/084334p.pdf

This is a class action brought by homebuyers who sought to recover statutory treble damages pursuant to §8(d)(2) of the Real Estate Settlement Procedures Act of 1974 (“RESPA”), 12 U.S.C. § 2607(d)(2).

Plaintiffs alleged that their private mortgage insurance premiums were channeled into an unlawful “captive reinsurance arrangement”—essentially, a kickback scheme—operated by their mortgage lender and its affiliated reinsurer, in violation of RESPA §8(a) and §8(b), 12 U.S.C. § 2607(a)-(b).*

The thrust of the complaint is that, in enacting and amending section 8, Congress bestowed upon the consumer the right to a real estate settlement free from unlawful kickbacks and unearned fees, and Countrywide’s invasion of that statutory right, even without a resultant overcharge, was an injury-in-fact for purposes of Article III standing. The District Court disagreed and dismissed the complaint without prejudice for lack of jurisdiction.

What is before us for decision turns on a question of statutory interpretation—does or does not the plain language of RESPA section 8(d)** indicate that Congress created a private right of action without requiring an overcharge allegation? We conclude that it does. Accordingly, we will reverse the Order of the District Court.

The plain language of RESPA section 8 does not require plaintiffs to allege an overcharge. The best indication of Congress’s intent in this regard is the method it prescribed for the calculation of statutory damages in [other sections of RESPA]....Critically, none of these provisions contains the word “overcharge” or otherwise implies that the plaintiff must allege that he or she paid more than he or she otherwise would have paid. See id. § 2607(a), (b), (d)(2). Instead, damages are fixed at three times the total charge paid by the consumer in exchange for a settlement service, and not merely any overcharge.

We agree with plaintiffs and the United States, intervening on plaintiffs’ behalf, that the provision of statutory damages based on the entire payment, not on an overcharge, is a certain indication that Congress did not intend to require an overcharge to recover under section 8 of RESPA.
______________
* Section 8(a) prohibits “any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person.” 12 U.S.C. § 2607(a). Section 8(b) prohibits unearned fees: “No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service . . . other than for services actually performed.” Id. § 2607(b).

** Congress authorized private actions against a person who violates section 8. As amended in 1983, section 8(d)(2) provides that “[a]ny person or persons who violate the prohibition or limitations of this section shall be jointly and severally liable to the person or persons charged for the settlement service involved in the violation in an amount equal to three times the amount of any charge paid for such settlement service.” Id.

UC - appeal - statement of objections - PRAP 1513(d) - Deal, et al.

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1170CD08_10-28-09.pdf - unreported

Another appeal quashed because the claimant's "general statement of objections to the Board's order in the petition for review fails to fairly embrace the issues raised in his brief filed by his attorney," following Deal v. UCBR, 878 A.2d 131 (Pa. Cmwlth. 2005) and Maher v. UCBR (Pa. Cmwlth., No. 1843 C.D. 2008, filed October 27, 2009) and rejecting Pearson v. UCBR, 954 A.2d 1260 (Pa. Cmwlth. 2008).

UC- vol. quit - follow-the-spouse - necessity

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/652CD09_10-28-09.pdf - unreported

Benefits denied in follow-the-spouse case where spouse took new job in South Carolina to improve his career, and not as a matter of necessity. "It wasn't relocate or else."

“[I]n a following the spouse case the reason for the spouse’s relocation must be beyond the spouse’s control and not a matter of personal preference.” Procito v. UCBR, 945 A.2d 261, 266 (Pa. Cmwlth. 2008). Further, “[w]here a claimant terminates employment to join a relocating spouse, the claimant must demonstrate an economic hardship in maintaining two residences or that the move has posed an insurmountable commuting problem.” Sturpe v. UCBR, 823 A.2d 239, 242 (Pa. Cmwlth. 2003).

Social Security Number - prohibition against disclosure - F.R. Civ. Pa. 5.2(a)

Federal Rules of Civil Procedure 5.2(a) (Privacy Protections for Filings Made with the Court) states that any court filing "may include only" the last 4 digits of a person's social security number and just the year of a person's birth.

A federal district court in Minnesota (Engeseth v. County of Isanti) recently sanctioned an attorney $5,000 for including the full social security numbers of 179 people in an affidavit filed with the court and discussed the serious threat of identity theft.

UC - appeal - statement of objections - PRAP 1513(d) - Deal v. UCBR

Maher v. UCBR - Cmwlth. Court -

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1843CD08_10-27-09.pdf

Pro se attorney claimant appealed an adverse UCBR decision to Commonwealth Court by a Petition for Review which listed the following “Objections to the Determination: 6. The determination of the Unemployment Compensation Board of Review is not supported by substantial evidence. 7. The determination of the Unemployment Compensation Board of Review is based on errors of law."

Majority
The Court granted the UCBR's Motion to Strike the Petition for failing to preserve any issue for the court’s review, relying on Deal v. UCBR, 878 A.2d 131 (Pa. Cmwlth. 2005), Patla v. UCBR, 962 A.2d 724 (Pa. Cmwlth. 2008) and Jimoh v. UCBR, 902 A.2d 608 (Pa. Cmwlth. 2006), holding that a petition that merely reiterates the court's standard of review and fails to articulate specific objections to the Board’s decision does not satisty Pa. R.A.P. 1513(d), rejecting Pearson v. UCBR, 954 A.2d 1260 (Pa. Cmwlth. 2008).

Rule 1513(d) requires “'a general statement of the objections to the order or other determination.' This general statement will be deemed to include every subsidiary question fairly comprised therein. Id. However, more than a restatement of our standard of review is required. Deal. We will not consider issues raised in a party’s brief when they are not sufficiently addressed in the petition for review."

Even though the appellate rules state that “[t]he statement of objections will be deemed to include every subsidiary question fairly comprised therein,” the court held, as it did in Deal, that "a petition for review under Pa. R.A.P. 1513(d) must state its objections with “sufficient specificity to permit the conversion of an appellate document to an original jurisdiction pleading and vice versa should such action be necessary to assure proper judicial disposition.” Pa. R.A.P. 1513, Note." [emphasis in opinion].

Dissent
Judge Leavitt dissented, stating that the "premise to the majority’s decision is that a petition for review must articulate specific objections to the underlying agency decision or face dismissal. That premise, however, is directly contrary to the plain language of the applicable rule of appellate procedure, PA. R.A.P. 1513, which requires only a “general statement” of a petitioner’s objections. How specific must a general statement of objections be? Because Claimant’s petition for review complied with Rule 1513, I would deny the Board’s motion to strike the petition....Rule 1513(d) could not be clearer. In an appellate petition for review, only a “general statement” of a petitioner’s objections to the order or determination is required."

"The word 'general' in this context is free from any ambiguity, and this Court may not disregard the letter of the rule. 1 Pa. C.S. §1921(b). Quite simply, 'general' does not mean 'specific;' it means the opposite of 'specific.'”

The dissent prefered the reasoning in Pearson v. UCBR, 954 A.2d 1260 (Pa. Cmwlth. 2008), where the court "offered a better approach for evaluating whether a petition for review contains a “general statement” of issues. In that case, the claimant raised two issues in his petition for review: (1) “the Board failed to ‘review all the facts;’” and (2) “‘this case is not strong enough’ to withhold unemployment compensation benefits.” Pearson, 954 A.2d at 1263. Applying the proviso that “[t]he statement of objections will be deemed to include every subsidiary question fairly comprised therein,” PA. R.A.P. 1513(d), we construed the claimant’s “general statement” of issues to challenge the sufficiency of the evidence and whether the employer had sustained its burden of proof. In doing so, we looked beyond the four corners of the petition for review and noted that “[c]laimant sufficiently addresses these arguments in his handwritten appellate brief.” Pearson, 954 A.2d at 1263."

"Pearson recognizes that a petition for review should not be considered in a vacuum. Indeed, Rule 1513 requires the petitioner to attach a copy of the challenged order or determination, i.e., the adjudication, to the petition for review. By putting the 'general statement' together with the attached adjudication, 'every subsidiary question fairly comprised' can be discussed. The Pearson approach is preferable to the drastic measure of striking a petition for review on a technicality and effectively putting a litigant out of court."

debt collection - "communications" - automated telephone calls

Inman v. NCO Financial Systems - ED Pa. - October 21, 2009

http://www.paed.uscourts.gov/documents/opinions/09D1288P.pdf

Defendant debt collector's automated messages left on Plaintiff's answering machine consituted "communications" under the Fair Debt Collection Pracctices Act, 15 USC sec. 1692a(2). The court relied heavily on the decison in Foti v. NCO Financial Systems, 424 F.Supp. 2d 643 (SDNY 2006)

NCO’s records reflect that automated telephone calls were placed on the dates and times alleged, and that the content of the recordings on Plaintiff’s voicemail system accurately reflects a portion of NCO’s automated interactive “script.” Such portions of the script went as follows:

This message is for - Thomas Inman. Please call us back today at toll-free, 1-800-350-2457. When calling back, the Reference ID is EL9170. Once again, this number is toll-free 1-800-350-2457. Thank you. Goodbye.
or

This message is for - Thomas Inman. Please call us back today at toll-free, 1-800-350-2457. When calling back, the Reference ID is EL9170. Once again, the number is toll-free 1-800-350-2457. Thank you. Goodbye.

There were about 20 such calls over a one-month period.

IFP - CCP Rules - SSN not required

In Re: Order Amending Rule 240 of the Pennsylvania Rules of Civil Procedure,
No. 515 Civil Procedural Rules Docket
Opinion By: per curiam, Posted By: W.D. Prothonotary

Date Rendered: 10/22/2009
Date Posted: 10/22/2009
Opinion Type: Rules
515civ.pdf

Date Rendered: 10/22/2009
Date Posted: 10/22/2009
Opinion Type: Rules
515civ.attach.pdf

Explanatory Comment - There has been an increase in the concern about the use of social security numbers in court paper records. Consequently, the Supreme Court of Pennsylvania has amended Rule 240(h) governing the form for the petition to proceed in forma pauperis by deleting the requirement for a petitioner to supply his or her social security number.

IFP - MDJ Rule 206 - SSN not required

In RE: Order Amending Rule 206 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges, No. 262 Magisterial Docket
Opinion By: per curiam
Posted By: W.D. Prothonotary

Opinion Type: Rules 262mag.pdf
Opinion Type: Rules 262mag.rpt.pdf
Opinion Type: Rules 262mag.attach.pdf


FINAL REPORT

Amendment to Rule 206 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges

REMOVAL OF SOCIAL SECURITY NUMBER IN IFP PETITION

On October 22, 2009, effective immediately, upon recommendation of the Minor Court Rules Committee, the Supreme Court of Pennsylvania approved an amendment to Rule 206 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges.

I. Background and Discussion
In the spring of 2007, the Court Administrator of Pennsylvania convened a working group to formulate a statewide public access policy for official case records of the magisterial district courts. The working group was asked to specifically address release of sensitive information, such as social security numbers (“SSNs”). Staff Counsel for the Minor Court Rules Committee (“Committee”) was a member of the working group. The working group concluded that SSNs should not be included on forms filed with magisterial district courts if that information is unnecessary for the court’s adjudication of the case or collection of the information is not otherwise required by law.

In light of that conclusion, the working group asked Staff Counsel if the Committee would consider removing the SSN requirement from the in forma pauperis (“IFP") petition described in Rule 206E(vi).

The Committee members discussed the working group’s request and agreed that the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges should be consistent with any procedures adopted by the Court governing access to information in the official case records of the magisterial district courts. In addition, the Committee unanimously concurred that there was no judicial rationale for requesting SSNs. Therefore, the Committee recommended removal of the SSN requirement from the IFP petition.

II. Approved Rule Changes
Accordingly, the Committee proposed the deletion of the line in the IFP petition that requires entry of a petitioner’s SSN. The Committee believes this amendment to be of a perfunctory nature. Therefore, the Committee respectfully recommended that the Court adopt this recommendation in accordance with Pa.R.J.A. No. 103(a)(3), without prior publication for public comment.

custody - fast-track appeals - concise statement of errors - PRAP 905, 1925

In re K.T.E.L. - Superior Court - October 21, 2009

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/S53016_09.pdf

In this case, we address an issue of first impression: the disposition of an appeal in which an appellant in a case involving termination of parental rights fails to comply with Pennsylvania Rules of Appellate Procedure 905(a)(2) and 1925(a)(2), both adopted January 13, 2009.

We hold that henceforth, in all children’s fast track cases, the failure to file a concise statement of errors complained of on appeal with the notice of appeal will result in a defective notice of appeal, to be disposed of on a case by case basis.

The amendments to Rule 905 and 1925, adopted January 13, 2009....included new sub-sections applicable only to children’s fast track cases. Rule 905(a)(2) provides in pertinent part: “If the appeal is a children’s fast track appeal, the concise statement of errors complained of on appeal as described in Rule 1925(a)(2) shall be filed with the notice of appeal and served in accordance with Rule 1925(b)(1).” Pa.R.A.P. 905(a)(2) (emphasis added).

Rule 1925(a)(2)(i) states: “The concise statement of errors complained of on appeal shall be filed and served with the notice of appeal as required by Rule 905. See Pa.R.A.P. 905(a)(2).” Pa.R.A.P. 1925(a)(2)(i) (emphasis added).

While both rules require the contemporaneous filing of a notice of appeal and concise statement, there are no provisions defining the effect on the appellant’s appeal of the failure to comply. We find however, that rule 905(a)(2) is procedural, not jurisdictional; therefore, we are not divested of our jurisdiction by non-compliance. Instead, we find that failure to comply with Rule 905(a)(2) will result in a defective notice of appeal.

“The extreme action of dismissal should be imposed by an appellate court sparingly, and clearly would be inappropriate when there has been substantial compliance with the rules and when the party [moving for quashal of the appeal] has suffered no prejudice.” Stout v. Universal Underwriters Ins. Co., 421 A.2d 1047, 1049 (Pa. 1980).

Accordingly, as there is no per se rule requiring quashal or dismissal of a defective notice of appeal, we hold that in the instant case and henceforth, the failure of an appellant in a children’s fast track case to file contemporaneously a concise statement with the notice of appeal pursuant to rules 905(a)(2) and 1925(a)(2), will result in a defective notice of appeal. The disposition of the defective notice of appeal will then be decided on a case by case basis under the guidelines set forth in Stout.

criminal records - expungement - divulging of expunged record not a due process violation

Nuñez v. Pachman - 3d Circuit - August 26, 2009

http://www.ca3.uscourts.gov/opinarch/083314p.pdf

Disclosure of an expunged criminal record held not to violate the federal due process clause.

The fact that a New Jersey statute law mandates removal of an expunged record from all public documents does not create a reasonable expectation of privacy in this information.

Because expungement is available only after a minimum statutory period of ten years has elapsed, and because references to a defendant’s criminal conduct may persist in public news sources after expungement, the information expunged is never truly “private.”

Even if the state recognizes a privacy interest in an expunged criminal record, the court decided that "such an interest is not cognizable under the federal constitution," whose protection of privacy is "significantly narrow that the right of privacy protected by state tort law." (emphasis in original) The state statute does not "harden the right of privacy into a constitutional right."

Query: Does Pennsylvania constitution offer greater protection of privacy that New Jersey's? See, Seth Kreimer, "The Right to Privacy in the Pennsylvania Constitution," in The Pennsylvania Constitution: A Treatise on Rights and Liberties at 785-819.

UC - subpoena duces tecum - enforcement, cost of producing records

Hahn v. UCBR - Cmwlth. Court - October 21, 2009 - unreported memorandum opinion

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2262CD08_10-21-09.pdf

Subpoena duces tecum
The UCBR did not err in failing to enforce a subpoena duces tecum against the employer, where the phone company and not the employer was in possession of the relevant records.

Cost of producing records - 43 P.S. 826
The employer raised the excessive cost of producing records as an issue in the case. The decision did not involve this issue, but the court noted that "neither party in this case cites to or relies upon...43 P.S. § 826 [sec. 506 of the UC Law] to argue that the fee to be paid to [phone company] for production of the phone records should have been set by the Board and paid out of the Board’s Administration Fund.

Section 506 states, in relevant part: The department and the board shall have power to issue summons or subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed necessary as evidence in connection with a disputed claim or the administration of this act. . . . Witnesses subpoenaed pursuant to this act shall be allowed reasonable fees and expenses at a rate fixed by the department. Such fees and all expenses of proceedings involving disputed claims shall be deemed a part of the expense of administering this act and shall be paid from the Administration Fund. 43 P.S. § 826 (emphasis added). As neither party has argued that the Board should have fixed a fee for the production of the records, and paid such fee, we shall not address the issue sua sponte.

mootness - case or controversy

Harris, et al. v. Rendell, et al. - Cmwlth. Court -

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/504MD08_10-19-09.pdf

This case has to do with the parole board, but there is interesting language in it about mootness, case/controversy. Interesting and important in itself. Some of it may also have relevance to the standing question in foreclosure cases.
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Under the mootness doctrine, "an actual case or controversy must be extant at all stages of review, not merely at the time the complaint is filed." Pub.Defender's Office of Venango County v. Venango County Court of Common Pleas, 586 Pa. 317, 325, 893 A.2d 1275, 1279 (2006) [quoting Pap's A.M. v. City of Erie, 571 Pa. 375, 389, 812 A.2d 591, 599-600 (2002)]. The existence of a case or controversy requires "a real and not a hypothetical legal controversy and one that affects another in a concrete manner so as to provide a factual predicate for reasoned adjudication …." City of Philadelphia v. SEPTA, 937 A.2d 1176, 1179 (Pa. Cmwlth. 2007).
As the Pennsylvania Supreme Court explained: The cases presenting mootness problems involve litigants who clearly had standing to sue at the outset of the litigation. The problems arise from events occurring after the lawsuit has gotten under way—changes in the facts or in the law—which allegedly deprive the litigant of the necessary stake in the outcome. Pap's A.M., 571 Pa. at 389, 812 A.2d at 599-600 (2002) [quoting In re Cain, 527 Pa. 260, 263, 590 A.2d 291, 292 (1991)].

It is well settled that the courts "do not render decisions in the abstract or offer purely advisory opinions." Pittsburgh Palisades Park, LLC v. Commonwealth, 585 Pa. 196, 203, 888 A.2d 655, 659 (2005). Judicial intervention "is appropriate only where the underlying controversy is real and concrete, rather than abstract." City of Philadelphia v. Commonwealth, 575 Pa. 542, 559, 838 A.2d 566, 577 (2003)....

Under the exceptions to the mootness doctrine, the court may consider technically moot issues "where the conduct complained of is capable of repetition yet likely to evade review, where the case involves issues important to the public interest or where a party will suffer some detriment without the court's decision." Sierra Club v. Pa. Public Utility Comm'n, 702 A.2d 1131, 1134 (Pa. Cmwlth. 1997), aff'd, 557 Pa. 11, 731 A.2d 133 (1999). It is within the court's "discretion to decide substantial questions, otherwise moot, that are capable of repetition unless settled." In re Bishop, 717 A.2d 1114, 1116 (Pa. Cmwlth. 1998).

[There are] cases in which the courts decided to review technically moot issues. See, e.g., Jersey Shore Area Sch. Dist. v. Jersey Shore Educ. Ass'n, 519 Pa. 398, 548 A.2d 1202 (1988) (the legality of teachers' strike was one of important public interest and capable of repetition yet apt to evade review); Colonial Gardens Nursing Home, Inc. v. Bachman, 473 Pa. 56, 373 A.2d 748 (1977) (the trial court's issuance of preliminary injunction would escape appellate review because the effect of the injunction would terminate before review); Lutz v. Tanglwood Lakes Cmty. Ass'n, 866 A.2d 471 (Pa. Cmwlth. 2005), appeal granted in part, 583 Pa. 508, 880 A.2d 502 (2005) (the issue concerning dismissal of a nonprofit corporation's directors was of great public importance to the governance of nonprofit corporations and likely to reoccur because directors' terms would likely expire before final resolution of any legal challenge to their removal); Coady v. Pa. Bd. of Prob. & Parole, 804 A.2d 121 (Pa. Cmwlth. 2002) (the constitutionality of the 1996 amendment to the Parole Act, as applied to inmates who had been convicted prior to the amendment, was a matter of great public importance; the court noted the federal district court's earlier ruling that the amendment, as applied, violated the ex post facto clause).

[T]he great public importance exception to the mootness doctrine "is generally confined to a narrow category of cases." Bottomer v. Progressive Cas. Ins. Co., 580 Pa. 114, 120, 859 A.2d 1282, 1285 (2004). As our Supreme Court stated in Wortex Mills, Inc. v. Textile Workers Union of America, 369 Pa. 359, 370, 85 A.2d 851, 857 (1952): It is only in very rare cases where exceptional circumstances exist or where matters or questions of great public importance are involved, that this court ever decides moot questions or erects guideposts for future conduct or actions. … [The issues] will not be anticipated but will be dealt with only as they are appropriately raised upon a record before us.

A controlling factor in determining whether the moot questions may be appropriately reviewed under the great public importance exception is whether "the legislature obviously recognized the significance of [such] questions." In re Gross, 476 Pa. at 215, 382 A.2d at 123. If the statute "deals squarely with the issues," the case does not fall within the great public importance exception.

UC - referee duty to unrepresented claimant - sexual harassment

Murray v. UCBR - Cmwlth. Court - October 19, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/820CD09_10-19-09.pdf

This case was not reported, but it has some useful things in it, nonetheless.

Referee duty to unrepresented claimant -
When a party is unaccompanied by counsel at a hearing before the referee, the referee is charged with a heightened responsibility of supervising the presentation of evidence. Drs. Katsur & Associates v. UCBR, 509 A.2d 926 (Pa. Cmwlth. 1986). The referee must act reasonably in assisting an unrepresented party’s development of necessary facts but need not advise a party on evidentiary questions or specific points of law. Bennett. The referee must advise a claimant of his right to be represented by counsel, to offer witnesses and to cross-examine adverse witnesses. Catanese v. UCBR, 452 A.2d 929 (Pa. Cmwlth. 1982). However, it is true that a referee need not advise a claimant with respect to the conduct of the hearing at every stage. Rohrbach v. UCBR, 450 A.2d 323 (Pa. Cmwlth. 1982). Any failure to develop an adequate record must be shown to be prejudicial to the claimant; mere harmless error will not support a reversal. Snow v. UCBR, 433 A.2d 922 (Pa. Cmwlth. 1981).
In Bennett v. UCBR, 445 A.2d 258 (Pa. Cmwlth. 1982), the claimant alleged that she was not afforded a full and fair hearing as the referee failed to assist her in developing relevant testimony, inter alia, “alleged sexual harassment by patrons of which her employer was aware but did not remedy.” This Court concluded that the “very sparse record” and the “two-page hearing transcript . . . of which only less than half of a page is germane to" the issues "revealed that the referee did not ask sufficient questions to aid the claimant in establishing a necessitous and compelling cause for leaving her job. Bennett, 445 A.2d at 459. We also noted, that the referee did not inform claimant of her right to counsel or to cross-examine witnesses, and, thus, the hearing was less than “full and fair.” Thus, we concluded that the referee should have more “thoroughly and reasonably extracted testimony” on these issues. Id.
Here, however, although claimant correctly recited the law, her allegation that the referee failed to properly help her develop the record and establish facts that were supportive of her claim is unsupported by evidence of record. Moroever, the referee told claimant of her right to counsel and other rights, explained the hearing procedures, asked questions of her and attempted to elicit relevant testimony.

Sexual harassment
Sexual harassment can be a necessitous and compelling reason for separating from employment, provided the employee has taken reasonable and prudent steps to alleviate the problem. Weissman v. Unemployment Compensation Board of Review, 502 A.2d 782 (Pa. Cmwlth. 1986). Thus, a claimant must establish that she took “common sense action” such that the employer was aware of the nature of the objection. Colduvell v. Unemployment Compensation Board of Review, 408 A.2d 1207 (Pa. Cmwlth. 1979). See Homan v. Unemployment Compensation Board of Review, 527 A.2d 1109 (Pa. Cmwlth. 1987) and Collier Stone Company v. Unemployment Compensation Board of Review, 876 A.2d 481 (Pa. Cmwlth. 2005); Comitalo v. UCBR, 737 A.2d 342 (Pa. Cmwlth. 1999).

UC - voluntary quit - length of commute

Blazowich v. UCBR - Cmwlth. Court - October 19, 2009 - unreported memorandum opinion

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/754CD09_10-19-09.pdf

Transportation inconveniences constitute a necessitous and compelling reason for voluntary termination “only where they are ‘so serious and unreasonable as to present a virtually insurmountable problem and the claimant must demonstrate that he or she took reasonable steps to remedy or overcome the transportation problems prior to severing the employment relationship.’” Musguire v. UCBR, 415 A.2d 708, 709 (Pa. Cmwlth. 1980) (quoting Lee v. UCBR, 401 A.2d 12, 13 (Pa. Cmwlth. 1979).

A fifty-mile one-way commute, without more, does not constitute a necessitous and compelling reason to quit. Kieley v. UCBR, 471 A.2d 1345 (Pa. Cmwlth. 1984). Furthermore, a claimant who has not tried a sixty-mile commute, even for a single day, before severing the employment relationship, has not taken reasonable steps to overcome transportation problems. Musguire. Here, Claimant would have had to travel a distance of only twenty-five miles, and Claimant did not attempt commuting to the new assignment, not even once, before refusing Employer’s offer. Thus, Claimant has failed to establish a necessitous and compelling reason for terminating employment.

UC - vol. quit - safety of claimant v. safety of others

Green Tree School v. UCBR - Cmwlth. Court - October 19, 2009 (2-1)

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/7CD09_10-19-09.pdf

Majority
The court reversed the UCBR and held that Claimant’s stated safety concerns and Employer’s refusal to allow her to participate in a staffing decision gave her necessitous and compelling reasons to resign. Concluding that they did not, we reverse the Board.

Employer is a private school for children with autism and emotional disturbances, where Claimant worked for seven years as the Director of Education. She quit her job when another job position, behavior health coordinator -- which was occupied by her life partner -- was eliminated, without any consultation with the claimant.

Claimant submitted a resignation letter to the school’s board of directors that its “decision to cut the position of Behavior Coordinator for the coming year … has resulted in my resignation.” The board accepted the resignation.

The court agreed with the Employer contention that claimant’s concerns regarding the “physical and emotional safety” of the persons at the school was speculative and that claimant did not take reasonable steps to preserve her employment.

The court rejected claimant's argument that the elimination of the position made the school unsafe for the children, citing only cases about a claimant's own personal safety. "There is simply a disconnect between the harm posited by claimant and her personal safety....The test is not whether a claimant’s belief is a genuine one. Rather, the test is whether the claimant has demonstrated that the workplace environment has placed “real,” i.e., actual and extreme, pressure on the claimant....Claimant’s self-serving testimony did not demonstrate that she was unsafe or that the workplace was unsafe with the kind of objective evidence presented" in other cases.

The exclusion of the claimant from the staffing decision did not give her good cause to quit either. "Employees do not enjoy a general right to participate in management decisions, such as how many staff are needed in another department. In addition, [the school director] explained that claimant should not have been involved in this particular personnel decision precisely because of her relationship with" the employee whose position was eliminated -- her life partner.

Claimant also "failed in her duty to preserve employment." It was "not her prerogative" to make a demand to be involved in the staffing position. She quit before waiting to seehow the staffing change would affect her or the school before announcing her resignation. "Claimant simply issued an ultimatum to Employer that it yield to her views, but the ultimatum did not satisfy her duty to preserve employment."

Dissent
Without addressing the issue head-on, the dissent said that danger to the children, and just claimant, would constitute good cause, and that the claimant had established such a danger. The dissent felt that claimant notified the employer of the problem in advance of quitting and left the job only when the employer did not address the problem.

tax sale - notice

Lerza-Keubler v. Monroe County Tax Claim Bureau - Cmwlth. Court - October 15, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/174CD09_10-15-09.pdf

The court set aside a tax sale because, after the post office returned the tax sale notices unclaimed, the Bureau failed to make a reasonable effort to notify the owner of the tax sale by calling the telephone number the tax claim bureau had for the deceased owner, which was the same telephone number of the executrix, who was living at the property. Such a failure can be cured by showing actual notice, but proof of that was lacking here.

UC - willful misconduct - prior incidents v. final incident

Philadelphia Parking Authority v. UCBR - Cmwlth. Court - October 15, 2009 - unreported memorandum opinion

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2335CD08_10-15-09.pdf

"Notwithstanding a history of job-related misconduct, an employer must still prove that the final incident of misconduct for which a claimant was purportedly terminated contained an element of willfulness; should the employer fail to establish that the final incident constituted willful conduct, the employer has also failed to prove the required causal connection between the claimant’s purported culpable behavior, and the termination. See SEPTA v. UCBR, 525 A.2d 458 (Pa. Cmwlth. 1987); Crib Diaper Service v. UCBR, 98 A.2d 490 (Pa. Super. 1953). As such, Employer’s arguments regarding Claimant’s prior alleged instances of misconduct are of no moment to the issue on appeal sub judice."
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municipal ordinances - adoption - void ab initio doctrine

Hawk v. Eldred Twp. Board of Supervisors - Cmwlth. Court - October 6, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/218CD09_10-6-09.pdf

Township zoning ordinance held to be not void ab initio, despite some defects in adoption under the Municipal Planning Code, 53 P.S. §§10101-11202, because, inter alia, the appellant did not challenge the ordinance until 4 years after its adoption. Moreover, "the public was repeatedly informed of every meeting concerning the creation and enactment of the Ordinance in a newspaper of general circulation, a reasonable forum for providing such notice which is tantamount to the notice that it would have received if the statutory requirements would have been followed. [The appellant] had every opportunity for years to attend a meeting and for months to view the Ordinance and could have challenged it from its inception. But he did not. Because he waited for four years and had not been deprived of any constitutional right, he is time barred from challenging the validity of the Ordinance."

The doctrine of void ab initio is a legal theory stating that a statute held unconstitutional is void in its entirety and is treated as if it had never existed. For a thorough discussion of the history of the void ab initio doctrine, see Glen-Gery Corporation v. Zoning Hearing Board of Dover Township, 589 Pa. 135, 143-45, 907 A.2d 1033, 1037-38 (2006). See also Geryville Materials, Inc. v. Lower Milford Township Zoning Hearing Board, 972 A.2d 136, 142-43 (Pa. Cmwlth. 2009), where the court counseled against "an overly aggressive application of the doctrine could result in excessive uncertainty...."

handicapped - negligent placement of wheelchair ramp on bus - sovereign immunity

Mannella v. Port Authority of Allegheny County - Cmwlth. Court - October 6, 2009 (2-1 decision)

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/5CD09_10-6-09.pdf

The court held that a bus driver’s alleged negligent placement of a bus wheelchair ramp does not fall within the vehicle exception to sovereign immunity under Section 8522(b)(1) of the Judicial Code, 42 Pa. C.S. §8522(b)(1), because it was undisputed that neither the bus nor the wheelchair ramp was in operation at the time of the accident.

insurance - rates - Consumer Protection Law - exhaustion of remedies under insurance statutes not required

White v. Conestoga Title Insurance Company - Superior Court - October 2, 2009

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/S24030_09.pdf

Plaintiff need not exhaust admininistrative remedies under the Title Insurance Companies Act (TICA), 40 P.S. sec. 910-1 et seq. or the Unfair Insurance Practices Act (UIPA), 40 P.S. 1171.1 et seq., , before bringing an action against an insurance company under the Consumer Protection Law, 73 P.S. sec. 201-1 et seq., based on a claim that the company systematically failed to give plaintiff (and the class) the discounted insurance rates for refinancing transactions, as mandated by the approved rate structure, and thus "engaged in deceptive business practices and pervasively overcharged poilicy holders...by charging the highest approved rate, regardless of consumers' qualification for a discounted rate."

The Court relied on its decision in In Pekular v. Eich, 513 A.2d 427 (Pa. Super. 1986), appeal denied, 516 Pa. 635, 533 A.2d 93 (1987), where it held that the UIPA was not an exclusive administrative remedy, even though the alleged actions may fall within its definitional language. The Court ruled that a plaintiff, when not directly or indirectly claiming a violation of the UIPA, could bring a private action under the CPL for statutorily defined wrongs, because “the limited penalties of the [UIPA] do not represent the sole and exclusive deterrent to alleged unfair or deceptive acts of insurers and their agents.” The Court noted that the Pekular decision has been followed by subsequent panels in Wright v. North American Life Assurance Company, 539 A.2d 434 (Pa. Super. 1988) and Hardy v. Pennock Insurance Agency, Inc., 529 A.2d 471 (Pa. Super. 1987).

The Court said that it was "incongruous" for the insurance company "to suggest that the Legislature intended the TICA to control and be the exclusive administrative remedy for claims of unfair and deceptive insurance practices that only tangentially relate to insurance rates, " and that neither the UIPA nor the TICA provided a proper remedy for the wrongs the plaintiff had alleged here. It characterized the defendant's argument as an "attempt to sidestep the consumer protection laws truly at issue here..."

UC - EUC - financial eligibility - wages - allocation - earned v. paid

McKenna v. UCBR - Cmwlth. Court - September 29, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/797CD09_9-29-09.pdf

The court held that the claimant did not satisfy the requirement of state and federal law -- 26 U.S.C. §3304 Note, and 43 P.S. §813 -- that his base-year earnings be equal to or greater than 1.5 times his high-quarter earnings.

Claimant's high quarter earnings included some that he earned in the previous quarter. They also included a bonus payment. Had these not been included in his high quarter, he would have been eligible for EUC benefits.

The court rejected his argument that these wages be allocated to the quarter in which they were earned rather than paid.

"This Court is unable to agree with Claimant’s desired allocation of his wages. The Act provides that eligibility for EUC benefits must be determined by state law which implements Section 202(a)(5) of the Federal-State Extended Unemployment Compensation Act of 1970. That section of the Law is Section 403-A which states a claimant must have wages equal to or greater than one and one–half times the highest quarterly wage. Section 4(x) of the Law, 43 P.S. §753(x), defines “wages” as “remuneration paid.”

In Pollard v. Unemployment Compensation Board of Review, 454 A.2d 1166 (Pa. Cmwlth. 1983), this Court explained when wages are considered paid. The Board ruled that William J. Pollard (Pollard) was ineligible for benefits because his wages during the base year were at least $439.00 less than the qualifying amount. Pollard reported that he received $889.53 in additional wages which were not received until after the base year but were attributed to work performed in the fourth quarter of the base year. Pollard argued that the $889.53 should be allocated to the fourth quarter when it was earned. This Court did not agree on the basis that wages must be included in the quarter in which the employee received them not when they were earned. Pollard, 454 A.2d at 1167.

Here, even though Claimant may have earned the $3,200 in the third quarter, it was not paid to him until the fourth quarter. Consequently, this amount must be allocated to fourth quarter wages. Congress has set forth the framework under which EUC benefits are administered and has given states some authority with respect to eligibility. Our General Assembly established the one and one-half times the highest quarter for total wages and has defined “wages.” This Court has determined that wages count when they are paid not when they are earned. The Board did not err."

admin. law - findings - sufficiency - conclusions follow from facts

Pennsylvania Bankers Assn. v. Dept. of Banking - September 28, 2009 - Cmwlth. Court

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/42MD05_9-28-09.pdf

“A reviewing court has the discretion to determine whether the findings that accompany an administrative agency adjudication are sufficient” and the “findings need only be enough to enable the Court to determine the questions and ensure that the conclusions follow from the facts.” Krebs Chrysler-Plymouth, Inc. v. State Bd. of Vehicle Mfrs., Dealers & Salespersons, 655 A.2d 190, 193 (Pa. Cmwlth. 1995).

drivers license - seizure disorder - conclusive v. rebuttable presumption

Peachey v. PennDOT - Cmwlth. Court - August 13, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2251CD08_8-13-09.pdf

Following DOT v. Clayton, 684 A.2d 1060 (Pa. 1996), the court rejected the irrebutable presumption created by 75 Pa. C.S. 1519(c) and 67 Pa. Code 83.4 that a person who has had a seizure is not competent to drive until s/he has been free from seizures for a least 6 months.

In this case, a doctor wrote and testified that the driver had not been diagnosed with episodes of loss of consciousness that would interfere with the safe operation of a car, and that he did not think it was appropriate to apply the 6-month rule to this particular driver.

As the court had done in Clayton, the court here rejected DOT's arguments that driving in a right and not a privilege and rejected the irrebuttable presumption created by the regulation, noting that procedural due process required a "meaningful hearing" which included consideration of all evidence essential to a decision about a licensee's ability to drive safely. " '[S]ince the competency to drive is the paramount factor behind the instant regulations, any hearing which eliminates consideration of that very factor is violative of procedural due process.' "

child abuse - expungement - credibility - burden/standard of proof

Dauphin Co. CYS v. DPW - September 18, 2009 - unreported memorandum opinion

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/184CD09_9-18-09.pdf

The court affirmed the DPW order directing expungement of an indicated report of abuse. The case involved the alleged sexual abuse of a 16 year-old female student by her male driver education teacher. The case was decided (both by the ALJ and the Secretary, on appeal) based on the transcript in the related criminal case, in which the alleged abuser was found to be not guilty.

Credibility
The ALJ found the alleged victim to be credible. The DPW Secretary reversed that finding. The court rejected CYS's argument on this issue, noting the the "Supreme Court has held that the Secretary of Public Welfare or her designee is the ultimate fact finder in expungement proceedings, with the authority to make credibility determinations. C.K. v. DPW, 869 A.2d 48, 57 n.9 (Pa. Cmwlth. 2005) (citing R. v. DPW, 535 Pa. 440, 446, 636 A.2d 142, 154 (1994)). Accordingly, the County’s argument that the Secretary lacked authority to reverse the ALJ’s credibility determinations lacks merit. Further, the parties agreed to have the Bureau decide J.F.’s appeal based exclusively on the transcript of the related criminal trial. The remand hearing requested by the County would give it the proverbial second bite at the apple."

Burden/Standard of proof
The court also affirmed the finding that CYS failed to meet its burden of proof, noting that "the numerous inconsistencies in [alleged victim's] testimony and the evidence presented by [the alleged abuser] support the Secretary’s conclusion that [the alleged victim's] testimony was not credible. In an expungement case, the County bears the burden of proving that the actions of the perpetrator constitute child abuse within the meaning of the statute. C.F. v. DPW, 804 A.2d 755, 757 (Pa. Cmwlth. 2002).

"For the County to succeed, it was required to present “evidence which so preponderates in favor of a conclusion that it outweighs, in the mind of the factfinder, any inconsistent evidence and reasonable inferences drawn therefrom.” C.K., 869 A.2d at 52 n.6." The court noted that the alleged victim's testimony at the preliminary hearing and trial was "laced with inconsistencies involving, inter alia, the identity of the perpetrator, the location and timing of the alleged assault and whether her attacker ejaculated."

"In sum, the Secretary’s conclusion that [the alleged victim's] testimony lacked credibility supported her conclusion that the County failed to meet its burden of proof."

MR waiver services - proof of MR before age 21 - post-21 evidence

Heraty v. DPW - Cmwlth. Court - September 16, 2009 - unreported memorandum opinion

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/326CD09_9-16-09.pdf

The court remanded this case, in which the Petitioner requested mental retardation (MR) waiver-funded services. Petitioner is a 53 year old woman who has been registered with and receiving services from the county MR office for over 20 years. She sought additional funding, known as waiver funding due to the alleged severity of her mental retardation1 because her elderly mother, with whom she lives, will be unable to provide for her long-term care. Petitioner suffers from autism, is non-verbal and deaf, can use only rudimentary sign language and, aside from simple matters such as dressing and feeding herself, is completely dependent upon her mother for her care.

In order to qualify for the waiver services, Petitioner had to show that she was mentally retarded before her 22nd birthday, 55 Pa. Code §6210.63(3), which requires that "It has been certified that documentation to substantiate that the applicant’s or recipient’s conditions were manifest before the applicant’s or recipient’s 22nd birthday.

The ALJ rejected Petitioners application based solely on an evaluation in 1976 when she was 21, which showed that she had a partial IQ score of 98, making her not mentally retarded under the standards contained in 55 Pa. Code §4210.101a, a policy statement that lists IQ as one of various factors to consider when making a diagnosis of mental retardation.

By contrast, a 2008 psychological evaluation showed that she could not be adequately assessed due to her disabilities and, instead used adaptive functioning tests that could be substituted for IQ tests. On these tests, Petitioner scored at a one year, nine month level for communication, a six year, six month level for daily living, and a one year, nine month level for socialization. According to these tests, her composite age equivalent is three years, four months, which supports a classification of severe mental retardation, and that her disabilities have been present since childhood. The clinician’s report also stated that Petitioner’s developmental delay was present before 22 years of age.

Based on its opinion in Lycoming-Clinton County MH/MR Program v. DPW, 884 A.2d 382 (Pa. Cmwlth. 2005), the court held that it was error for the ALJ to rely solely on the 1976 IQ test, noting that "55 Pa. Code §4210.101(a) states that while an IQ score can be used, it is not always a reliable indicator of mental retardation, and other factors must also be considered where it does not accurately reflect the person’s real-life functioning abilities. Lycoming-Clinton County, 884 A.2d at 384-85...." [T]o rely solely on a full scale IQ score of 70 or below to diagnose MR [mental retardation] would be inconsistent with the statutory definition of MR....Notably, the statutory definition of MR does not require a base IQ score to diagnose an individual as mentally retarded and, in fact, does not mention IQ.... To determine if Petitioner is eligible for mental retardation waiver funded services, it is necessary for DPW to consider whether she is impaired in her maturation, learning and social adjustment, not to take an IQ score, let alone a partial IQ score, and automatically categorize her based upon that score."

All that the relevant regulation, 55 Pa. Code §6210.63(3), "requires is that 'documentation' is presented that “substantiates” that Petitioner’s mental retardation was manifest” before her 22nd birthday, not that the evaluation that resulted in the documentation occurred before her 22nd birthday."

federal courts - civil rights - attorney fees - award to defendant

McCarthy v. Darman - ED Pa. - September 9, 2009

http://www.paed.uscourts.gov/documents/opinions/09D1126P.pdf

42 U.S.C. § 1988 allows a court to award attorneys’ fees to the prevailing party in a § 1983 case. Defendants in a § 1983 action are eligible to recover attorneys’ fees under § 1988, but a prevailing defendant must meet a more stringent standard than a prevailing plaintiff in order to do so.... A prevailing defendant should only be awarded attorneys’ fees if the plaintiff’s claim was “frivolous, unreasonable, or groundless, or . . . the plaintiff continued to litigate after it clearly became so.”

The Third Circuit has articulated several factors that should be considered when determining whether a claim was frivolous, including “whether the plaintiff established a prima facie case, the defendant offered to settle, the trial court dismissed the case prior to trial or the case continued until a trial on the merits.” In addition, the court should consider whether the issues litigated were ones of first impression, and what the real risk of the alleged injury was to the plaintiff.

Each case must be decided individually, however, and these factors are “guidelines, not strict rules.” “[I]t is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.”

In this case, the court held that plaintiff's substantive due process claims were frivolous but that his procedure due process claims were not, so the defendant's claim for fees was denied.

mortgage foreclosure - standing - post-complaint assignment

US Bank v. Mallory - Superior Court - September 14, 2009

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a15045_09.pdf

The Superior Court denied the homeowner's petition to open/strike a default judgment. The Petition to Strike relied on the fact that, at the time the complaint was filed, the mortgage had not been assigned to plaintiff but rather was alleged to be in the process of being assigned. The homeowner claimed that this failure was in violation of Pa. RCP 1147(a)(1), which requires a statment of the date of assignment and the place where it is recorded, and of Pa. R.C.P. 1019(i), which requires that, where claims are based a writing, the writing must be attached.

Plaintiff filed its foreclosure complaint on November 14, 2007. The mortgage was not assigned to plaintiff untilDecember 28, 2007, and was not recorded until January 15, 2008 -- after a default judgment had already been entered against the homeowner, for failure to respond to the complaint.

Petition to Strike
The court concluded that "there was not a fatal defect apparent on the record" and that the plaintiff "sufficiently set forth the existence and date of the mortgage," the fact that plaintiff was the mortgage holder and "was now the legal owner of the mortgage, thereby indicating it had assumed all the rights and remedies related to the mortgage, and the fact [plaintiff] was seeking to formalize the assignment....Simply put, [plaintiff's] complaint sufficiently put [the homeowner] on notice of [plaintiff's] claim of interest with regard to the subject mortgage. Contrary to [the homeowner's] suggestion, we conclude that Pa.R.C.P. 1147(a)(1) does not require that a party have a recorded assignment as a prerequisite to filing a complaint in mortgage foreclosure."

Concerning the failure to attach the assignment to the complaint, as required by Pa. R.C.P. 1019(i), the court said that the "averment that [plaintiff] was in the process of formalizing the assignment sufficiently explained why, under Pa.R.C.P. 1019, a copy of the written assignment was not attached to the complaint. Thereafter, as [plaintiff] explained in the complaint that it was in the process of doing, the written assignment was executed on December 28, 2007, and recorded on January 15, 2008. We are convinced that [plaintiff] adequately met the requirements of Pa.R.C.P. 1147 and 1019, and we note that, to the extent [the homeowner] believes [plaintiff] was not the legal owner of the mortgage, who was in the process of formalizing the assignment, then the proper recourse would have been to go beyond the face of the record and seek to open the judgment on this basis."

The court squarely rejected the argument that "the trial court should have granted [the homeowner's] to strike since it was apparent on the face of the record that [plaintiff] did not have standing to file a complaint in mortgage foreclosure against [the homeowner]. The “crux” of [homeowner's] argument is that, before [plaintiff] could file a complaint in mortgage foreclosure, [plaintiff] was required to have executed and recorded a written assignment..., thereby indicating it was the real party in interest. We reject this argument....Simply put, contrary to [the homeowner's] suggestion, the recording of an assignment of the mortgage was not a prerequisite to plaintiff/assignee having standing to seek enforcement of the mortgage via a mortgage foreclosure action."

Petition to Open
The court noted the the homeowner had "averred meritorious defenses, namely, that she lacked a security interest in the property due to her rescission of the loan, the loan should not be enforced since it is a predatory loan, the loan was void due to the broker’s violation of Pennsylvania’s Credit Services Act, and the loan violated Pennsylvania’s consumer protection statute."

However, it did not consider these defenses, holding that the homeowner's petition to open filed 82 days after the entry of judgment was not "promptly filed" and that she did not have a valid excuse for not filing earlier, rejecting her claim of lack of sophistication and belated awareness of potentially valid defenses. The court said that "this is a case where [the homeowner], despite numerous notices to secure counsel, simply did not do so until approximately three months after the complaint was filed and six weeks after the default judgment was entered against her. The fact [she]may be unsophisticated in legal and financial matters is all the more reason she should have heeded the notices to secure legal counsel at once, and her deliberate decision not to defend does not provide a reasonable explanation or excuse necessary to open the default judgment." Thus, "even assuming [she] pleaded a meritorious defense, the trial court properly denied [the homeowner's] petition to open the default judgment."

social security - disability - obesity - findings/reasons

Diaz v. Commissioner or Social Security - 3rd Circuit - August 12, 2009

http://www.ca3.uscourts.gov/opinarch/084067p.pdf

Claimant's case was remanded because of the failure of the ALJ to properly evaluate the effect of her morbid obesity on her ability to work.

The ALJ’s ruling is not supported by substantial evidence because, contrary to SocialSecurity Ruling (“SSR”) 00-3p, no consideration was given to Diaz’s severe obesity. The ALJ acknowledged this impairment at step two but failed to consider its impact, in combination with her other impairments, at step three, as required.

SSR 00-3p replaced an automatic designation of obesity as a Listed impairment, based on a claimant’s height and weight, with an individualized inquiry, focused on the combined effect of obesity and other severe impairments afflicting the claimant: “We will also find equivalence if an individual has multiple impairments, including obesity, no one of which meets or equals the requirements of a listing, but the combination of impairments is equivalent in severity to a listed impairment.” Although SSR 00-3p was superseded by SSR 02-1p, SSR 02-1p did not materially amend SSR 00-3p. See Rutherford v. Barnhart, 399 F.3d 546, 552 n.4 (3d Cir. 2005).

SSR 00-3p instructs that “obesity may increase the severity of coexisting or related impairments to the extent that the combination of impairments meets the requirements of a listing. This is especially true of musculoskeletal, respiratory, and cardiovascular impairments. It may also be true for other coexisting or related impairments, including mental disorders.” Hence, an ALJ must meaningfully consider the effect of a claimant’s obesity, individually and in combination with her impairments, on her workplace function at step three and at every subsequent step.

In Burnett, the court held that an ALJ must clearly set forth the reasons for his decision. 220 F.3d at 119. Conclusory statements that a condition does not constitute the medical equivalent of a listed impairment are insufficient. The ALJ must provide a “discussion of the evidence” and an “explanation of reasoning” for his conclusion sufficient to enable meaningful judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d 501, 505 & n.3 (3d Cir. 2004).

The court also remanded on the basis of the ALJ's failure to give proper wieght and consideration to the treating physician's opinion, which was well supported by the evidence.

mortgages - HEMAP - reasonable prospect - speculative income

Smeal v. PHFA - Cmwlth. Court - August 5, 2009 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2216CD08_8-5-09.pdf

The court upheld PHFA's decision that the applicant for HEMAP assistance from PHFA did not have a reasonable prospect of resuming full mortgage payments within the statutorily specified time -- in that case, 24 months.

The agency found that the applicant was "financially overextended" and that her expenses had exceeded her income for some time. Most pertinent, it found that her claims of future income from a personal business were "purely speculative" and did not establish the required "reasonable prospect" . The court thus approved of the agency's consideration of the applicant's "actual income history without considering...speculative income" that she claimed she would receive.

consumer - gist-of-the-action doctrine - contract v. tort

DeFebo v. Anderson Windows Inc. - ED Pa. - September 3, 2009

http://www.paed.uscourts.gov/documents/opinions/09D1082P.pdf

Consumer's tort claims against window manufacturer and seller dismissed under the gist-of-the-action doctrine. The court characterized this as follows: "Something like a gathering storm, this is one in an increasing number of cases where the plaintiff attempts to turn straightforward breach of contract and warranty claims into tort claims. Pennsylvania law is not hospitable to such attempts. " The court dismissed plaintiff's tort claims in a complaint which alleged breach of contract, misrepresentation, breach of express warranty, breach of implied warranties, and violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law

"Under Pennsylvania law, the gist of the action doctrine “precludes a plaintiff from recasting a breach of contract claim into a tort claim.” (citations omitted) For the tort action to survive, “‘the wrong ascribed to [the] defendant must be the gist of the action, the contract being collateral.’”...The doctrine specifically bars claims on extra-contractual statements regarding duties or obligations of parties that are later outlined in the contract....

Notably, fraud-in-the-inducement claims are not always barred by the gist of the action doctrine....(“[F]raud in the inducement of a contract would not necessarily be covered by [the gist of the action] doctrine because fraud to induce a person to enter into a contract is generally collateral to (i.e., not ‘interwoven’ with) the terms of the contract itself.”). However, the type of fraud is not necessarily dispositive, , and courts have applied the doctrine to claims for fraud-in-the-inducement.

Rather, a tort claim is generally barred by the doctrine if (1) it arises solely from a contract between the parties; (2) the duties allegedly breached were created and grounded in contract itself; (3) the liability stems from a contract; or (4) the tort claim essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of a contract.”

UC - independent contractor - "online mentor"

Thomas Edison State College v. UCBR - August 26, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2284CD08_8-26-09.pdf

An "online mentor" of students, paid on a per-student basis, was held to be independent contractor rather than an employee and thus disqualified under Section 4(l)(2)(B) of the UC Law, 43 P.S. § 753(l)(2)(B), which creates a two-pronged test in order to determine whether a person is an employee or not: first, whether the person was free from control and direction in the performance of the work; and second, whether the business was one which is customarily engaged in as an independent trade or business. Venango Newspapers v. UCBR, 631 A.2d 1384 (Pa. Cmwlth. 1993).

The court also relied on CE Credits Online v. UCBR, 946 A.2d 1162 (Pa. Cmwlth. 2008), petition for allowance of appeal denied, 971 A.2d 493 (2009). Glatfelter Barber Shop v. UCBR, 957 A.2d 786, 789 (Pa. Cmwlth.), petition for allowance of appeal denied, 599 Pa. 712, 962 A.2d 1198 (2008); Pavalonis v. UCBR, 426 A.2d 215 (Pa. Cmwlth. 1981). Danielle Viktor, Ltd. v. DOLI, 586 Pa. 196, 892 A.2d 781 (2006).

housing - sec. 8 - termination - admin. findings

Housing Authority of Pittsburgh v. Degelman - Cmwlth. Court - September 2, 2009 - unreported memorandum decision

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/228CD09_9-2-09.pdf

This decision is not reported and therefore not citeable http://www.pacode.com/secure/data/210/chapter67/chap67toc.html#67.55, but it may be of some use to advocates.

The city housing authority moved to terminate the tenancy of a sec. 8 tenant for alleged drug-related criminal activity. At the admin. hearing, police testified about finding lots of used needles and other drug paraphenalia on the premises, for which the tenant said other people were responsible.

Apparently the hearing officer did not making findings about the tenant's credibility and, in his decision, did not refer to the testimony of the tenant or the maintenance man, which was clearly relevant to the decision. The court thus said that

(f)ederal courts that have considered the degree to which a decision has satisfied this requirement [of stating reasons for the decision] have generally not required a thorough review and evaluation of all of the evidence parties have presented. Nor have they appeared to have required the fact finder to explain the reasons why he or she apparently did not find certain evidence credible. See, e.g., Edgecomb v. Housing Authority of the Town of Vernon, 824 F. Supp. 312 (D. Conn. 1993); 49 Federal Register 12215 (describing reasons for development of 24 C.F.R. §982.555(e)(6)). Admittedly, the hearing officer satisfied the requirements of 24 C.F.R. §982.555(e)(6). She described the testimony of Officer Sisak, which indicated that he found drug paraphernalia in [the tenant's] apartment. However, our review is governed by Pennsylvania standards. While the federal regulations may reflect a more relaxed standard, our applicable law requires adjudicators acting under the authority of the Local Agency Law to render decisions that provide an adequate basis for appellate review.

Consequently, we believe that the hearing officer was required to evaluate the testimony of [the tenant and maintenance man] in order to determine [the tenant's] culpability with regard to the drug activity. The failure of the hearing officer to consider this testimony essentially precludes us from meaningful appellate review, as we are unable to discern from the hearing officer’s decision whether said testimony was considered at all or simply rejected. Moreover, we are unable to discern whether the hearing officer exercised her discretion noted above due to the lack of any findings with respect to this testimony.... Because the hearing officer never indicated in her decision whether she believed [the tenant or maintenance man], we cannot discern whether the hearing officer simply ignored this evidence or silently concluded that the testimony was not credible.

The court remanded the cases to the housing authority hearing examiner "for further findings consistent with this opinion."

custody - jurisdiction - home state - finding

Bouzos-Reilly v. Reilly - Superior Court - August 27, 2009

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a20005_09.pdf

Because the trial judge failed to conduct a full hearing with relevant witnesses to elicit testimony regarding the underlying jurisdictional issue, there was insufficient evidence on the record to support the trial court’s findings. Thus, we reverse.

We recognize that the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), 23 Pa.C.S. §5401, et seq., is designed to eliminate a rush to the courthouse to determine jurisdiction. However, the UCCJEA is dependent on a proper finding that there is a home state. The judge in New York and the judge in Pennsylvania communicated by telephone, which is certainly proper. However, the determination of a home state should not be based on which judge speaks first to claim home state status. In this case, the New York court erred, and merely because that judge spoke first does not mean the Pennsylvania judge should automatically acquiesce to that determination.

A court's decision to exercise or decline jurisdiction is subject to an abuse of discretion standard of review and will not be disturbed absent an abuse of that discretion. Under Pennsylvania state law, an abuse of discretion occurs when the court has overridden or misapplied the law, when its judgment is manifestly unreasonable, or when there is insufficient evidence of record to support the court's findings. An abuse of discretion requires clear and convincing evidence that the trial court misapplied the law or failed to follow proper legal procedures. Billhime v. Billhime, 952 A.2d 1174, 1176 (Pa. Super. 2008) (citation omitted).

child abuse - expungement - timely admin. decision - judicial delay

J.C. v. DPW - Cmwlth. Court - August 27, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2309CD08_8-27-09.pdf

The court affirmed the finding of abuse and rejected the argument that the "initial report of child abuse should be deemed “unfounded” by operation of law because a final determination was not made within the 60-day time limit of Section 6337(b) of the Child Protective Services Law (Law), 23 Pa. C.S. §6337(b). In this case, the determination was made more than 60 days after the appellant's plea but within 60 days of her sentencing.

The law -- 23 Pa. C.S. §6337(b), 23 Pa. C.S. §6303, and 55 Pa. Code §3490.69 -- "contemplates a suspension of the investigation/final determination period where, as here, “court action has been initiated and is responsible for the delay.” 23 Pa. C.S. §6337(b). More importantly, the regulations contemplate a suspension of the 60-day period where, as here, there is criminal court action pending and the agency reports that status to ChildLine. 55 Pa. Code §3490.67."

The court also rejected the argument that entry of a no contest plea is a judicial adjudication. Rather, the court found that "[f]or purposes of determining a report to be “founded” based on action in a pending criminal proceeding, we believe a judicial adjudication occurs at sentencing, and not earlier....[A] judicial adjudication in a criminal case occurs when an appealable judgment of sentence is imposed.

Under this interpretation, a suspension of the 60-day investigation/final determination period does not end with the entry of a plea in a criminal case; rather, the suspension may continue until a final, appealable judgment of sentence is imposed."