age/disability discrimination - state employer - 11th amendment

Bullock v. Pa. Human Relations Commission -- ED Pa. Septemb er 14, 2005

 

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

 

Plaintiff's pro se age (ADEA, 29 USC 621 et seq) and disability discrimination (ADA, 42 USC 12101 et seq.) suit in federal court against her former employer, a state agency, dismissed on 11th Amendment grounds.

 

Congress has not abrogated state immunity under either the ADEA or ADA, and Pennsylvania has not consented to be sued under the ADEA or the ADA. Board of Trustees v. Garrett, 531 US 356 (2001); Kimmel v. Board of Regents, 528 US 62, 91 (2000).

 

The Commonwealth has waived its immunity for suits in state court for age/disability discrimination under the Pa. Human Relations Act, but it has specifically retained its 11th Amendment immunity for suits in federal court. Dennison v. Dept. of Corrections, 268 F.Supp2d 387, 405 (MD Pa. 2003)

 

Donald Marritz, staff attorney

MidPenn Legal Services- Gettysburg

custody - international - Hague Convention

Baxter v. Baxter, Third Circuit Court of Appeals, September 15, 2005
http://www.ca3.uscourts.gov/opinarch/043228p.pdf

District Court's denial of father's petition for return of child to Australia from the the US reversed by 3d Circuit. Father consented to child's initial removal to the U.S. with the mother, but not the child's retention here. Case remanded for the entry of an order granting the petition for return of the child to the country of habitual residence, Australia.

jurisdiction
The Distict Court had jurisdiction under 28 USC 1331, since the action arose under the Hague Convention on the Civil Aspect of International Child Abduction, Oct. 25, 1980, 19 I.L.M. 1501, and its implementing legislation, the International Child Abduction Remedies Act, 42 USC 11601 et seq (ICARA). Under the ICARA, state and federal courts have concurrent original jurisdiction over actions arising under the Hague Convention.

Hague Convention (HC)
The HC has two main purposes
1) to secure the prompt return of children wrongfully removed to or retained in any contracting State, and
2) to ensure that rights of cutsody and access under the law of one contracting State are effectively respected.

The Convention's procedures are designed to restore the status quo prior to any wrongful removal or retention of a child, and to deter parents from engaging in international forum shopping in custody cases. The Convention is not designed to settle international custody disputes, but rather to ensure that cases are heard in the proper court.

To get an order for a child's return, the petitioner has the burden of proving by a preponderance of the evidence that the removal or retention was wrongful under the HC. A removal or retention is "wrongful" where a) it is in breach of rights of custody under the law of the state in which the child was habitually resident immediately before the removal/retention, and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

If the court finds a wrongful removal or retention, the burden shifts to the respondent, who must then prove an affirmative defense of a) consent or acquiescence to the removal or retention, by a preponderance of the evidence, or b) the defense of a "grave risk of harm" to the child, by clear and convincing evidence. Both of these affirmative defenses are narrowly construed, and even a finding of an exception does not automatically preclude an order of return. If a petitioner prevails, the HC requires courts to " 'order the return of the child forthwith.' "

discussion
The evidence was clear that father's consent for mother and child to come to the US was conditional and that he did not acquiesce in the child remaining in the US. Acquiescense depends of the parent's subjective intent. There was no settled purpose to leave Australia permanently and no acquiescense, as evidenced by the District Court's own conclusions that a) Australia remained the country of habitual residence at the time of removal, b) the parents were undecided about their next residence, and c) father's prompt contest of mother's decision to remain in the US and move in with a new male partner whom she had known for only a short time.

There was no "grave risk of harm" to the child if he was returned to the father in Australia. Such harm must involve a real risk of being hurt, physically or psychologically, as a result of repatriation, and not just inconvenience or hardship, the elimination of education opportunities, or the child's preferences.

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

Pennsylvania Bulletin of September 17, 2005

Here is the link to the Pennsylvania Bulletin of September 17, 2005

http://www.pabulletin.com/secure/data/vol35/35-38/index.html

Items of potential interest include

        - court records - public access - notice of proposed policy - electronic case records in unified judicial system

        N.B. comments due no later than November 17, 2005
        http://www.pabulletin.com/secure/data/vol35/35-38/1709.html

        - courts - Pa. Supreme Court - internal procedures - decisional procedures
        http://www.pabulletin.com/secure/data/vol35/35-38/1705.html

        - courts - costs and fees
        http://www.pabulletin.com/secure/data/vol35/35-38/1703.html

        - court rules - local rules - Berks County - papers presented by 3d parties
        http://www.pabulletin.com/secure/data/vol35/35-38/1706.html

        - court rules - local rules - Fayette County - motion for post-trial relief
        http://www.pabulletin.com/secure/data/vol35/35-38/1707.html

        - court rules - local rules - Monroe County - security police, school police, private detectives
        http://www.pabulletin.com/secure/data/vol35/35-38/1708.html

        - health - child immunization practices
        http://www.pabulletin.com/secure/data/vol35/35-38/1727.html

        - welfare - MA - day-of-care definition
        http://www.pabulletin.com/secure/data/vol35/35-38/1711.html

        - Hurricane Katrina - Governor's proclamation of emergency to receive mutual aid , receive and house evacuees
        http://www.pabulletin.com/secure/data/vol35/35-38/1702.html

        - Indpt. Regulatory Review Commission - notice of comments issued
        http://www.pabulletin.com/secure/data/vol35/35-38/1746.html

        - Indpt. Regulatory Review Commission - notice of final rulemaking
        http://www.pabulletin.com/secure/data/vol35/35-38/1747.html

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

employment - age discrimination - reduction in force

Houser v. Carpenter Technology Corp. - ED Pa. Sept. 12, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1125P.pdf

Claims under Age Discrimination in Employment Act (ADEA) and Pa. Human Relations Act dismissed on summary judgment.

Plaintiff lost his job when employer initiated a reduction in force (RIF). Plaintiff made out a prima facie case of discrimination by showing that a) he was a member of the protected class, b) he was qualified for the job in question, c) he suffered an adverse employment action, and d) circumstances existed which gave rise to an inference of unlawful discrimination. Since this was a reduction in force case, he also had to and did show that the employer retained a sufficiently younger similarly situated employee.

However, the court held that the employer had articulated a legitimate nondiscriminatory reason (NDR) for the adverse employment action, thus shifting the burden back to the plaintiff to show that such NDR was only a pretext for discrimination.

The court held that the plaintiff failed to successfully refute the employer's asserted legitimate NDR for his dismissal. Plaintiff's primary argument was that the employer had used to wrong criteria for its decision and that it had made a wrong decision. The court rejected this reasoning based on other cases holding that " 'to discredit the employer's proffered reasons....the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute as issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent,or competent.' " Instead, the plaintiff would have had to show "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence" and that its reasons were pretextual.

The plaintiff did not do that. Nor did the plaintiff show that the in the RIF as a whole, older workers were affected more than younger employees.

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

disability - treating physicians' opinions - GAF - credibility - etc.

Burley v. Barnhart - ED Pa. September 9, 2005 - diability claim based on mental disorders denied

http://www.paed.uscourts.gov/documents/opinions/05D1124P.pdf

Opinions of treating professionals - The ALJ accepted the opinions of consultative physicians and medical expert over that of a treating physician and a treating therapist with an M.Ed., not medical degree, and "appropriately explained his reasons for" doing so, including "several specific and substantial justifications for his decision."   The court set out a decent synopsis of Third Circuit law about effect of findings and opinions of treating physician.

Rejectionf of GAF assessment - The court accepted the medical expert's statement that "GAF scores are unreliable, non scientific assessments of overall mental functioning reflecting [claimant's[ symptoms rather than his functioning capacity," citing Howard v. Commissioner, 276 F.3d 234, 241 (6th Cir. 2002) (ALJ's failure to reference GAF score in the RFC does not, standing alone, make the RFC inaccurate.)

credibility -- The court said that "adverse credbility findings are afforded substantial deference so long as the findings are supported by specific cogent reasons.  The reasons must be substantial and bear a legitimate nexus to the finding."

Overall, the court acklowledged that a different conclusion could have been reached on the record, but that the ALJ's decision was supposted by the required substantial evidence.

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

custody - relocation - right to travel

In re Marriage of Ciesluk, 113 P.3d 135 (Colorado 2005)
http://www.cobar.org/opinions/opinion.cfm?OpinionID=5167

This is a Colorado case, but it is interesting for its discussion of the effect of a parent's consitutional right to travel (see e.g. Shapiro v. Thompson, 394 U.S. 618 (1969)) in a relocation case in relation to other important factors -- a parent's right to the care and control of her/his children (Troxel v. Granville, 530 U.S. 57 (2000)), and the best interest of the children.

The court discussed the approaches of three other states. Wyoming gives priority to the right to travel, Watt v. Watt, 971 P.2d 608 (Wyo. 1999). Minnesota holds that because the best interest of the child is a compelling state interest, there is no need to balance the competing rights of the parents set out in Shapiro and Troxel. LaChapelle v. Mitten, 607 N.W.2d 151 (Minn. Ct.App. 2000). New Mexico courts say that the interests of the parents and children are best protected through an equal sharing of burdens, Jaramillo v. Jaramillo, 8213 P.2d 299 (N.M. 1991), also adopted by Maryland, Braun v. Headley, 750 A.2d 624 (Md. Ct. App. 2000). The Colorado court chose to apply the New Mexico/Maryland standard, which it found to be most consistent with the detailed Colorado statute governing relocation cases.

Donald Marritz, staff attorney
MidPenn Legal Services-Gettysburg

civil rights - domestic violence - sec. 1983 suit v. police

Starr v. Price - ED Pa. - Sept. 8, 2005
http://www.pamd.uscourts.gov/opinions/munley/03v636.pdf

Estate of deceased victim of domestic violence sued various law enforcement officials for violations of deceased's constitutional rights involving the return of a firearm to deceased's husband, who subequently killed her and others.

Summary judgment granted to defendants based on analysis in Town of Castle Rock v. Gonzalez, 125 S.Ct. 2796 (2005). Claims for violations of substantive due process, procedural due process, and Brady Claim all denied.

"Section 1983 is not a 'font of tort law…but it does not mean that State are powerless to provide victims with personally enforceable remedies….Thus Plaintiff has no section 1983 remedy for her claims, although she may have an enforceable state law remedy. Absent a pendent federal claim, however, we have no jurisdiction over the state law claims."

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

foster parents are not state actors under 42 USC sec. 1983 - 3d Cir. case

Leshko v. Servis - 3d Circuit Court of Appeals, September 9, 2005

http://www.ca3.uscourts.gov/opinarch/042610p.pdf

Held, foster parents are not state actors for purposes of liability under 42 USC sec. 1983.

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

child abuse - corporal punishment - criminal negligence standard applied

W.S. Dept. of Public Welfare - Commonwealth Court, September 9, 2005
http://www.courts.state.pa.us/OpPosting/CWealth/out/214CD05_9-9-05.pdf

The Court reversed DPW's finding that father had abused his daughter, as abuse is defined in the Child Protective Services Law, 23 Pa. C.S. 6301 et seq. Under the CPSL, child abuse is "any recent act or failure to act…which causes nonaccidental serious physical injury to a child under 18 years of age," 23 Pa. C.S. 6303(b)(1)(i). "Serious physical injury" is defined as an injury that "causes a child severe pain" or "significantly impairs a child's functioning, either temporarily or permanently.," 23 Pa. C.S. 6303(a)

Father hit his 14 y/o daughter on the ear with an open hand 2-3 times when she lied to him about where she had been and her report card. When she fell to the floor, he hit her again. The findings were undisputed, and DPW found both parent and child to be credible. Father had not hit the daughter before. The daughter testified that she did not complain about her ear hurting, didn’t take aspirin or anything else for pain, went to school the next day and had no problem hearing her teachers, and that she is not afraid of her father. Father was "frustrated because of his daughter's continuous misconduct and, in disciplining her, did not intend to inflict injury." The record showed and the court emphasized continuing disciplinary problems with the daughter.

Citing P.R. v. DPW, 801 A.2d 478 (Pa. 2002), the Court said that the case presented "competing objectives" which involved balancing a parent's right to discipline a child, including by corporal punishment, with the duty under the CPLS to protect children. The P.R. case established a criminal negligence standard in parental corporal punishment cases. Under that standard, there is no abuse, under the CPSL, unless there has been as "gross deviation from the standard of care that a reasonable person would observe in the actor's situation."

The Court said that the "evidence…reveals that [father] slapped [his daughter] two to three times with an open hand, after numerous attempts to discipline her without resorting to physical contact. Although the slapping resulted in a temporary loss of hearing, [father's] conduct did not rise to the level of criminal negligence and cannot be viewed as a gross deviation from the standard of care a reasonable parent would observe in the same situation….[The father] maintained self-control by walking away from the situation after he made physical contact with her the second or third time. The fact that [the daughter] experienced a temporary hearing loss does not allow us to presuppose an unjustificable risk that would lead to the finding of criminal negligence. The injury [the daughter] received as a result of corporal punishment was an accident, and a 'regrettable result of corporal punishment' rather than abuse."

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

Pennsylvania Bulletin for September 10, 2005

Here is the link to the Pennsylvania Bulletin for September 10, 2005

http://www.pabulletin.com/secure/data/vol35/35-37/index.html

Items of potential interest include -

        - welfare - energy assistance - LIHEAP plan for 2006
        http://www.pabulletin.com/secure/data/vol35/35-37/1682.html

        - welfare - MA - fee schedule revisions - 2005 HCPCS updates - prior authorization requirements
        http://www.pabulletin.com/secure/data/vol35/35-37/1683.html

        - Indpt. Regulatory Review Commission (IRRC) - actions taken by IRRC
        http://www.pabulletin.com/secure/data/vol35/35-37/1688.html

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

civil rights - forcible removal and medical exam of children

Adkins v. Luzerne County Child & Youth Services - MD Pa. September 2, 2005
http://www.pamd.uscourts.gov/opinions/vanaskie/01v470.pdf

Held that, under the circumstances, there were no civil rights violations when county CYS forcibly removed plaintiff's children from the home and subjected them to medical examinations. Summary judgment for defendants.

The circumstances were -- Plaintiff's first wife had died of "presumed natural causes" at age 40. His second wife died at age 30 from undetermined causes. A confidential informant told police that a) Plaintiff 4 y/o daughter had told her that Plaintiff's new girlfriend had said the she (the daughter) was going to heaven very soon to join her mother, and that b) the daughter had been sick several times recently but had not received proper medical attention. The children were taken into custody on March 18, examined and found to be in good health, then released back to Plaintiff on March 22. There was never any search warrant issued, nor any juvenile protective custody hearing.

substantive due process - The court recognized that Plaintiff had a fundamental substantive DP interest in the care, custody and management of his children. However, the court applied a "shock the conscience" test and said that CYS had " 'reasonable and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse.' " The court said that CYS had reasonable grounds to believe that the children were in imminent danger of harm, and that the agency action had not been "' so ill-conceived or malicious that it 'shocks the conscience'….In the context of the removal of a child from the parent's home, the social worker's conduct 'must exceed both negligence and deliberate indifference, and reach a level of gross negligence or arbitrariness that indeed shocks the conscience.

unreasonable search and seizure - Defendants conceded that their taking the children had been a seizure, but the court held that that it had been reasonable under the circumstances, given the potential emergency nature of the case. The court also sustained the taking of bodily fluids from the children, under the analysis of Vernonia School District v. Action, 515 U.S. 646 (1995).

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

consumer protection - atty. fees - additional damages - etc.

Neal v. Bavarian Motors, et al. - Pa. Superior Court, September 2, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/a10022_05.pdf

Plaintiff sued car dealer, finance company, etc, for damages she suffered as a result of defendants' having sold, financed, etc. a stolen car, which Plaintiff lost when it was impounded by the police.

Plaintiff was awarded actual damages, as well as treble damages and attorney fees under the state consumer protection law (CPL), 73 PS sec. 201-9.2, as well as damages under the UCC and the Motor Vehicle Sales Finance Act, and costs. Defendants appealed.

attorney fees - The majority reduced the award of attorney fees under the CPL. It "eliminate[d] from the award of attorney fees the efforts of counsel to recover on non-CPL theories....[A]bsent special circumstances, to permit plaintiff to recover counsel fees for all of the counts upon which she recovered damages would not only be inequitable, but would be contrary to the law.....'[A]n effort should be made to apportion the time spent by counsel on the distinct causes of action.'"

The concurring judge said that "determining the amount of CPL-related attorney fees is very fact-specific and should be assessed on a case-by-case basis." He said that "apportioning CPL-related damages 'may prove difficult given that these claims are based on a common core of facts and related legal theories,'" and noted that in other CPL cases, the court had refused to award attorney fees based on the % of CPL damages as distinguished from the total damage award. He said that it "may be inherently difficult to separate attorney fees based on a strict percentage" because some research "supported multiple legal theories."

treble damages and costs - The court said that "any violation of the CPL empowers the trial judge to consider the additional remedies provided thereunder...." such as treble damages. (emphasis added) In this case, the court found the appellants' conduct "egregious and their liability clear" and upheld the lower court.

joint and several liability - The court noted that Pennsylvania has adopted sec. 879 of the Restatement (2d) of Torts on this issue, holding that "if the tortious conduct of each of two or more persons is a legal cause of harm that cannot be apportioned, each is subject to liability for the entire harm, irrespective of whether their conduct is concurring or consecutive." An arbitrary apportionment should not be made where there is no rational, logical or practical basis to divide the harm caused by multiple defendants.

remittitur - The court upheld the trial court's refusal to grant a larger remittitur, summarizing Pa. law as follows -- A remittitur should fix the highest amount any jury could properly award, giving due weight to all evidence offered. The question is whether the award falls within the uncertain limits of fair and reasonable compensation, or whether the verdict so shocks the sense of justice as to suggest that the jury was influenced by partiality, prejduce, mistake, or corruption.

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburgwww.midpenn.org

age discrimination - statute of limitations, tolling - etc.

Holocheck v. Luzerne County Head Start, M.D Pa., August 30, 2005
http://www.pamd.uscourts.gov/opinions/vanaskie/04v2082.pdf

Defendant moved to dismiss Age Discrimination complaint which alleged federal and state causes of action.

         tolling statute of limitations - 180-day limit on bringing an age discrimination claim can be tolled where the employer fails  to post required notice of employee rights.  Failure to post the notice means that the employee was "prevented from     asserting her rights…."

        - individual liability - federal statute, ADEA, 29 USC 63 et seq -- federal claims against invidivuals supervisors dismissed --

        "…courts in this and other circuits continue to reject the notion that individuals may be held liable under the ADEA

 
        - individual liability - state statute - PHRA - 43 Pa. CS 955 "contemplates individual liability…Supervisory    employees…may be held liable…on the theory that only supervisors can share the discriminatory purpose and intent of the         employer that is required for aiding and abetting."  Thus, motion to dismiss this claim denied.

        - Sec. 1983 - personnel manual, federal regulations - Section 1983 claims dismissed.  Held, personnel manual did not    create an enforceable property interest under state law, where there was no state enabling legislation that gave local  government the right to employ people on other than an at-will basis.  Similarly,  a "federal regulation  alone may not create  a right enforceable through section 1983 not already found in the enforcing statute…'a regulation may invoke a private right    of action that Congress through statutory text created, but it may not create a right that Congress has not…[R]egulations       give rise to a right of action [under sec. 1983] only insofar as they constue a personal right that a statute creates,'" citing         Three Rivers Center for Indpt. Living vf. Housing Authority, 382 F.3d 412, 424 (3d Cir. 2004).

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

Pennsylvania Bulletin of September 3, 2005

Here is the link to the Pennsylvania Bulletin of September 3, 2005

http://www.pabulletin.com/secure/data/vol35/35-36/index.html

Items of potential interest include:

        - court rules - Pa. RCP 76 - definitions - signature - computer-generated signatures
        http://www.pabulletin.com/secure/data/vol35/35-36/1631.html

        - court rules - local - Northumberland Co. - family transition program - custody conflict resolution program
        http://www.pabulletin.com/secure/data/vol35/35-36/1633.html

        - health  -HIV community prevention planning committee - public meeting
        http://www.pabulletin.com/secure/data/vol35/35-36/1646.html

        - welfare - NOTICE - diversion program
        http://www.pabulletin.com/secure/data/vol35/35-36/1647.html

DPW "intents [sic] to amend the...TANF (42 U.S.C.A. §§ 601--619) State Plan. The proposed amendment will permit individuals or families who otherwise qualify for TANF cash assistance to receive a nonassistance diversion payment as an alternative to receiving ongoing cash assistance."

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

sec. 1983 - police liability for part in private repo. in DV case

Harvey v. Plains Township Police Department - 3d Circuit Court of Appeals, August 30, 2005
http://www.ca3.uscourts.gov/opinarch/041148p.pdf

Summary judgment in favor of individual police officer reversed (2-1) in 42 USC 1983 case.  Plaintiff alleged that the officer took part in an improper entry into her apartment and an ex parte private repossession of her property by her former boyfriend.  The court held that, in a summary judgment procedural posture, the evidence showed that

        a) the officer took part in "state action" by ordering the landlord to open plaintiff's apartment, contrary to the direction of an existing protection from abuse (PFA) order.

        b) such action violated plaintiff's clearly established 4th Amendment  constitutional right to be free of unreasonable searches/seizures

        c) the officer was not entitled to qualified immunity -- There was a violation of clearly established constitutional rights, and a reasonable police officer would have believed that his conduct deprived plaintiff of her constitutional rights.  The court held that a letter from the boyfriend's attorney to the plaintiff's attorney did not give the officer a reasonable belief that plaintiff consented to the boyfriend's seizure of property at her home, especially given knowledge of the PFA order.  "A reasonable offivce at least would have refused to assist with opening the door until he was satisfied that consent was given."  His actions went well beyond keeping the peace.

The dissent felt that the officer was entitled to qualified immunity.

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

Steininger v. Barnhart - hypo must include all credibly established limitations - ED Pa.

Steininger v. Barnhart -- ED Pa. August 24, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1065P.pdf

The court remanded the case because the ALJ's hypothetical to the vocation expert was inadequate at step 4 in the disability determination process -- involving determination of ability to do past relevant work.

The court said that "an ALJ hypothetical must include all of claimant's impairments," citing Ramirez v. Barnhart, 372 F.3d 546, 552 (3d Cir. 2004), and that the claimant's mental impairments were not adequately set out. They didn't even comport with the ALJ's own findings on the issue.

An ALJ need not submit "every impairment alleged by a claimant," but it is "required that 'the hypothetical posed must accurately portray the cliamant's impairments and that the expert must be given an oppportunity to evaluate those impairments as contained in the record'....The ALJ's hypothetical 'must accurately convey to the vocational expert all of a claimant's credibly establish limitations.'" (emphasis in original). The court said that ''great specificity' is required when an ALJ incorporates a claimant's mental or physical limitations into a hypothetical," citing Ramirez, 372 F.3d at 554-5.

The court also said that even though the issue in the case arose at step 4 in the 5-step disability process, the Ramirez analysis was still dispositive, even though that was a step-5 case, since the ALJ's decision relied "exclusively" on the VE's testimony.

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg

recent disability cases - Pa. fed. courts - 07-08. 2005

Eastern District of Pennsylvania

Pierce v. Barnhart - August 11,2005
http://www.paed.uscourts.gov/documents/opinions/05D1054P.pdf

Nunnery v. Barnhart - August 23, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1047P.pdf

Garcia v. Barnhart - August 22, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1045P.pdf

Jones v. Barnhart - August 23, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1042P.pdf

Laracuente v. Barnhart - August 18, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1026P.pdf

Thompson v. Barnhart - August 17, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1018P.pdf

Middle District of Pennsylvania

Smith v. Barnhart - July 25, 2005
http://www.pamd.uscourts.gov/opinions/munley/04v810.pdf

3rd Circuit Court of Appeals

Allen v. Barnhart - August 8, 2005
http://www.ca3.uscourts.gov/opinarch/042163p.pdf

Pennsylvania Bulletin of August 27, 2005

Here is the link to the August 27, 2005 edition of the Pennsylvania
Bulletin

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

The following items may be of interest--

-- welfare - revisions to GA and MA benefits packages &
recipient co-payments for adults
http://www.pabulletin.com/secure/data/vol35/35-35/1586.html
http://www.pabulletin.com/secure/data/vol35/35-35/1586a.html

-- welfare - pharmaceutical services - revisisions to max.
allowable cost
http://www.pabulletin.com/secure/data/vol35/35-35/1561.html

- transportation - approval of ignition interlocks
http://www.pabulletin.com/secure/data/vol35/35-35/1605.html

-- Patient Safety Authority - MCARE- public meeting - Sept. 12,
2005
http://www.pabulletin.com/secure/data/vol35/35-35/1617.html

-- health - syphillis tests - pregnant women in Allegheny,
Bucks, Dauphin, Erie, Lancaster, Lehigh,
Luzerne, Montgomery, Northampton, Northumberland, Philadelphia
and Westmoreland Counties
http://www.pabulletin.com/secure/data/vol35/35-35/1601.html

-- Gaming Control Board - amendments to temporary regulations
http://www.pabulletin.com/secure/data/vol35/35-35/1590.html

Don

Donald Marritz, staff attorney
MidPenn Legal Services
128 Breckenridge Street
Gettysburg, Pa. 17325
tel. 717/334-7623 x2414
fax 717/334-0863
dmarritz@midpenn.org
www.midpenn.org

Pennsylvania Bulletin for August 20, 2005

Here’s the missing link

http://www.pabulletin.com/secure/data/vol35/35-34/index.html

Of possible interest--

        - attorneys - bar admission rules - amendment
        http://www.pabulletin.com/secure/data/vol35/35-34/1554.html

        - local rules - Forest/Warren Counties - pro se filings
        http://www.pabulletin.com/secure/data/vol35/35-34/1555.html

        - welfare - MA - FFS - pharmaceutical services - revisions to max. allowable cost (MAC)
        http://www.pabulletin.com/secure/data/vol35/35-34/1561.html

        - welfare - MA - fee increases for dental anesthesia services
        http://www.pabulletin.com/secure/data/vol35/35-34/1576.html

        - health - integrated HIV Planning Council - public meeting
        http://www.pabulletin.com/secure/data/vol35/35-34/1574.html

        - State Ethics Commission - public meeting
        http://www.pabulletin.com/secure/data/vol35/35-34/1584.html

Donald Marritz, staff attorney
MidPenn Legal Services- Gettysburg

LEP - license suspension - refusal to take breath test - inability to understand O'Connell warnings

Martinovic v. DOT, Bureau Driver Licensing -- Commonwealth Court - August 17, 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/406CD05_8-17-05.pdf

Driver's license suspension by DOT for licensee's (L) alleged refusal to take breath test upheld by the court, despite his apparent inability to understand the required warnings about the consequences of failure to submit to the test.

L's native language was Serbo-Croatian. All interaction between L and police was in English or by the police acting things out. The police officer said there was "no protocol" for dealing with a non-English speaker in these cases. L was not successful in producing enough breath for a valid breath test, which failure is assumed to be a refusal, absent an inability to provide enough breath.

L testified in court through a translator. He said that he didnt understand anything the police said but tried to figure it out from their gestures. The trial court found L to be credible and, based on a videotape, held that L had met his burden of showing the he didnt speak English well enough to have understood warnings about the consequences of refusing a breath test.

Case law holds that DOT has burden of proving that a) L arrested for DUI by a police officer who had reasonable grounds to do so; b) L was asked to submit to chemical test; c) L refused to do so; d) L specifically warned about the consequences of a refusal. Once that burden is met, the L has the burden to show he was physically unable to do the breath test OR that his refusal was not knowing or conscious

Citing prior cases, the court said the "most cases hold that a failure to understand English provides no foundation for an argument that the licensee was unable to make a knowing and conscious refusal....[W]hether Licensee understand the...warnings or not is inconsequential. An officer's sole duty is to inform motorists of the implied consent warnings; once they have done so, they have satisfied their obligation....[O]fficers ghave no duty to make sure the licensees under the O'Connell warnings of the consequences of refusing a chemical test....It is equally not the officer's duty to enlist the assistance of an interpreter to make sure a motorist understands implied consent warnings." (emphasis in original)

The court also said that "whether Licensee fails to understand English is not automatically outcome determinative....[S]imply because Licensee spoke Serbo-Croatian and did not speak English does not mean that he cannot act knowingly and consciously. The court used the analogy of a drunk person whose voluntary intoxication prevents him/her from conscious and intentional actions. "The same is true for language barriers; when motorists are limited by their understanding of the English language, thereby allegedly preventing them from 'knowingly' refusing the test, we still hold that those motorists 'knowingly' refused the test absent some other verifiable impediment....Otherwise, anyone who speaks little or not English can automatically claim that he or she did not understand the ....warnings and avoid the consequences of refusing a chemical test, just as anyone who is drunk could automatically claim that he or she was too drunk to understand the....warnings and avoid the consequences of refusing a chemical test."

Wow !

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg