Moyer v. Turnbrook Associates, Inc. -- ED Pa. - October 17, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1270P.pdf
The court rejected all of defendant's arguments and awarded attorney fees to plaintiff's counsel under the Fair Debt Collection Practices Act, 15 USC 1692 et seq.
size of award - Plaintiff's judgment was for $1,000, the statutory maximum. The judgment was based on defendant's failure to comply with the statutory requirements, "suggesting a significant level of non-compliance. Attorney fees are then mandatory under" Graziano v. Harrison, 950 F.2d 107 (3d Cir. 1991).
timing of request for fees -- Defendant said that plaintiff should have made her claim for fees during arbitration. Federal civil rules require plaintiff to request fees no later than 14 days after the entry of judgment. Plaintiff filed w/in that time.
proper party defendant - post-judgment amendment of pleading - Defendant said that the judgment against the corporate entity was unenforceable against the unincorporated Turnbrook Associates. The court allowed a post-judgment amendment of the pleading, under equitable estoppel principles, because defendant "actively misled" plaintiff when it admitted that it was a N.J. corporation.
Donald Marritz
MidPenn Legal Services
Wednesday, October 19, 2005
Monday, October 17, 2005
ADA - standing - injury in fact
Kratzer v. Gamma Management - ED Pa. -- October 12, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1259P.pdf
Defendant's motion for summary judgment denied on plaintiffs' ADA claims.
Plaintiffs alleged that they are qualified individuals with disabilities under the Americans with Disabilities Act (ADA), 42 USC sec. 12101 et seq. Defendant corporation is the operator of a Ramada Inn and Conference Center. Plaintiffs said that they visited the Ramada and were denied full, safe and equal access due to barriers and Defendant's lack of compliance with the ADA.
Defendant moved for summary judgment, alleged that plaintiffs do not have standing, because they have never tried to stay at the hotel and have no current plans to hold a conference there. Standing requires an "injury in fact." Plaintiffs did allege that each has personally visited the center, continues to desire to visit, and has attended a conference there. They made very specific allegations about the particular shortcomings of the facility.
The ADA gives remedies to "any person who is being subjected to discrimination on the basis of disability...or who has reasonable grounds for believing that such person is about to be subjected to discrimination" in violation of the ADA, 42 USC sec. 12188(a)(1). The provision also states that "[n]othing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization" covered by the law does not intend to comply with the ADA.
No circuit court appears to have addressed the precise issue here -- whether a plaintiff who has visited a facility and identified alleged compliance problems may, after a new operator has taken over, assert a claim alleging ADA violations that are grounded in a plaintiff's intended future use of the newly operated facility." However, precedent from other circuits has held that the "futility provision" allows a suit so long as the plaintiff establishes knowledge of the barriers and that they would visit the facility but for the barriers. Other circuits have held that a plaintiff who is deterred from patronizing a public accommodation because of defendant's failure to comply with the ADA may be considered to have suffered an injury in fact. Many district courts have held likewise.
Defendant's motion for summary judgment denied.
http://www.paed.uscourts.gov/documents/opinions/05D1259P.pdf
Defendant's motion for summary judgment denied on plaintiffs' ADA claims.
Plaintiffs alleged that they are qualified individuals with disabilities under the Americans with Disabilities Act (ADA), 42 USC sec. 12101 et seq. Defendant corporation is the operator of a Ramada Inn and Conference Center. Plaintiffs said that they visited the Ramada and were denied full, safe and equal access due to barriers and Defendant's lack of compliance with the ADA.
Defendant moved for summary judgment, alleged that plaintiffs do not have standing, because they have never tried to stay at the hotel and have no current plans to hold a conference there. Standing requires an "injury in fact." Plaintiffs did allege that each has personally visited the center, continues to desire to visit, and has attended a conference there. They made very specific allegations about the particular shortcomings of the facility.
The ADA gives remedies to "any person who is being subjected to discrimination on the basis of disability...or who has reasonable grounds for believing that such person is about to be subjected to discrimination" in violation of the ADA, 42 USC sec. 12188(a)(1). The provision also states that "[n]othing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization" covered by the law does not intend to comply with the ADA.
No circuit court appears to have addressed the precise issue here -- whether a plaintiff who has visited a facility and identified alleged compliance problems may, after a new operator has taken over, assert a claim alleging ADA violations that are grounded in a plaintiff's intended future use of the newly operated facility." However, precedent from other circuits has held that the "futility provision" allows a suit so long as the plaintiff establishes knowledge of the barriers and that they would visit the facility but for the barriers. Other circuits have held that a plaintiff who is deterred from patronizing a public accommodation because of defendant's failure to comply with the ADA may be considered to have suffered an injury in fact. Many district courts have held likewise.
Defendant's motion for summary judgment denied.
Sunday, October 16, 2005
disability - MS - Listing 11.09(C) - treating physician - credibility
Fisher v. Barnhart - ED Pa. - October 12, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1250P.pdf
Summary judgment granted to Plaintiff/claimant, a 44 y/o woman with multiple sclerosis (MS). She had a h.s. education, some college, and prior work as accounts payable clerk. She alleged disability as of August 1990 and had date last insured (DLI) of December 1991.
remission/consistency of severe symptoms/ fatigue/listed impairment - The ALJ found that claimant had a period of remission before her DLI, and that she did not have a severe impairment as of that date. The court rejected this, nothing that the 3d Circuit has not addressed MS specifically, but citing precedent from the 6th and 9th Circuits holding that MS "can be disabling notwithstanding normal activity in a period of remission....Although a patient may be in remission, she is not necessary symptom free." (citing an ED Mich case). For instance, Plaintiff's physicians testified that she suffered from fatigue, that her MS was "long standing in nature" and "involved extreme fatiguability which is an intrinsic part of the disease" which made her unable to do basic work activities on a "regular and continuing basis" as defined in SSR 96-8p. The "persistent fatigue" and other factors reported by her doctor supporting a finding that she met listing 11.09(c) from a date prior to her DLI to the present.
treating physician report - The ALJ did not give sufficient weight to the report of claimant's treating physicians. The 3d Circuit has said that such reports should be accorded great weight, especially when they reflect expert judgment which is the product of continuing observation over a long period of time. "In fact, 'absent persuasive contradictory evidence, the validity of the claimant's symptoms can be conclusively established by the opinion of the treating physician." (citing ED Pa. case)
ALJ's lay observation/opinion -- The court found that the "ALJ substituted her own lay understanding of Plaintiff's MS, an entirely improper substitution. The Third Circuit has made clear that 'an ALJ is not free to set his own expertise against that of physicians who present competent medical evidence.'" (citing 3d Cir. cases).
credibility/pain/homemaker & childcare activities -- The ALJ found claimant's complaints of pain to be not credible, because she voluntarily left the labor force in 1986, was a homemaker, and cared for her children. The court found this focus on her homemaker status "misplaced" because when she left the workforce, she had not yet suffered the onset of MS. Moreover, her credible testimony, backed by her physicians, was that "her MS-related fatigue was severe while she raised her children" and that she needed her from both her mother and a part-time nursery school for the children.
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1250P.pdf
Summary judgment granted to Plaintiff/claimant, a 44 y/o woman with multiple sclerosis (MS). She had a h.s. education, some college, and prior work as accounts payable clerk. She alleged disability as of August 1990 and had date last insured (DLI) of December 1991.
remission/consistency of severe symptoms/ fatigue/listed impairment - The ALJ found that claimant had a period of remission before her DLI, and that she did not have a severe impairment as of that date. The court rejected this, nothing that the 3d Circuit has not addressed MS specifically, but citing precedent from the 6th and 9th Circuits holding that MS "can be disabling notwithstanding normal activity in a period of remission....Although a patient may be in remission, she is not necessary symptom free." (citing an ED Mich case). For instance, Plaintiff's physicians testified that she suffered from fatigue, that her MS was "long standing in nature" and "involved extreme fatiguability which is an intrinsic part of the disease" which made her unable to do basic work activities on a "regular and continuing basis" as defined in SSR 96-8p. The "persistent fatigue" and other factors reported by her doctor supporting a finding that she met listing 11.09(c) from a date prior to her DLI to the present.
treating physician report - The ALJ did not give sufficient weight to the report of claimant's treating physicians. The 3d Circuit has said that such reports should be accorded great weight, especially when they reflect expert judgment which is the product of continuing observation over a long period of time. "In fact, 'absent persuasive contradictory evidence, the validity of the claimant's symptoms can be conclusively established by the opinion of the treating physician." (citing ED Pa. case)
ALJ's lay observation/opinion -- The court found that the "ALJ substituted her own lay understanding of Plaintiff's MS, an entirely improper substitution. The Third Circuit has made clear that 'an ALJ is not free to set his own expertise against that of physicians who present competent medical evidence.'" (citing 3d Cir. cases).
credibility/pain/homemaker & childcare activities -- The ALJ found claimant's complaints of pain to be not credible, because she voluntarily left the labor force in 1986, was a homemaker, and cared for her children. The court found this focus on her homemaker status "misplaced" because when she left the workforce, she had not yet suffered the onset of MS. Moreover, her credible testimony, backed by her physicians, was that "her MS-related fatigue was severe while she raised her children" and that she needed her from both her mother and a part-time nursery school for the children.
Donald Marritz
MidPenn Legal Services
Friday, October 14, 2005
child abuse - appeal - timeliness
A.P. v. DPW - Commonwealth Court - October 14, 2005
http://www.courts.state.pa.us/OpPosting/CWealth/out/424CD05_10-14-05.pdf
AP petitioned court for review of DPW order dismissing her request to expunge a report of indicated child abuse on the ground that the request was not timely.
The Court did not affirm the admin. adjudication but rather dismissed the appeal, holding that DPW Secretary was without jurisdiction to consider AP's request that she reconsider an earlier decision. "The Department's…order was not a valid order from which Petitioner could appeal," 1 Pa. Code 34.241(a), because the recon. request was not timely.
A local CYS agency filed the original indicated report in September 1999. Petitioner was given notice at that time and told that she had 45 days in which to file a request to amend or destroy the report. AP took no action until 16 months later, when she sent DPW a letter stating that she had been clearing of related criminal charges.
DPW told AP that she could request a hearing if she believed her case should be considered in spite of the late appeal. She did so and a hearing was held a short time later, resulting in a decision in December 2002 denying the request for a nunc pro tunc appeal and an evidentiary hearing on the merits.
That decision gave AP 15 days to ask for reconsideration, but AP did not act until 21 months later, September 2004. The DPW Secretary granted reconsideration and issued a final order on the merits upholding the December 2002 order dismissing APs appeal as untimely.
As stated above, the Court held that the Secretary didn’t have jurisdiction to grant recon. and so dismissed the appeal with prejudice.
The court refers to its recent opinion in C.S. v. DPW, 879 A.2d 1274 (Pa. Cmwlth. 2005) where it held that a nunc pro tunc appeal filed 6 years late should have been granted, because the appeal information in the administrative determination did not accurately set out the notice of statutory appeal rights. However, the court in A.P. does not mention this aspect of the C.S. case, only that part of C.S. that says that the DPW Secretary has the discretion to amend or expunge a finding of abuse at any time, upon good cause shown.
The notice in A.P. was presumably the same as the one in C.S., where it said that the alleged abuser "may have a right to a hearing." (emphasis in original). By contrast, the statute gives an unequivocal right to a hearing. The court said that the law "mandates that an alleged perpetrator who has made a request for a hearing will receive one, and at this hearing, the agency bears the burden of proving child abuse by the alleged perpetrator. This right is essential. Otherwise, citizens can have their ability to work at a job requiring [a clearance] taken away on the basis of an investigator's report alone and not on the basis of a hearing at which the government agency claiming abuse bears the burden of proof. The equivocal notice given by the Department…did not satisfy the exacting requirements of [the statute] and, thus, this breakdown in the administrative process entitles Petitioner to file a nunc pro tunc request for expungement….." Concerning the length of the delay in appealing, the court said that "[w]hether a delay is one day or six years late….does not change the analysis….."
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/CWealth/out/424CD05_10-14-05.pdf
AP petitioned court for review of DPW order dismissing her request to expunge a report of indicated child abuse on the ground that the request was not timely.
The Court did not affirm the admin. adjudication but rather dismissed the appeal, holding that DPW Secretary was without jurisdiction to consider AP's request that she reconsider an earlier decision. "The Department's…order was not a valid order from which Petitioner could appeal," 1 Pa. Code 34.241(a), because the recon. request was not timely.
A local CYS agency filed the original indicated report in September 1999. Petitioner was given notice at that time and told that she had 45 days in which to file a request to amend or destroy the report. AP took no action until 16 months later, when she sent DPW a letter stating that she had been clearing of related criminal charges.
DPW told AP that she could request a hearing if she believed her case should be considered in spite of the late appeal. She did so and a hearing was held a short time later, resulting in a decision in December 2002 denying the request for a nunc pro tunc appeal and an evidentiary hearing on the merits.
That decision gave AP 15 days to ask for reconsideration, but AP did not act until 21 months later, September 2004. The DPW Secretary granted reconsideration and issued a final order on the merits upholding the December 2002 order dismissing APs appeal as untimely.
As stated above, the Court held that the Secretary didn’t have jurisdiction to grant recon. and so dismissed the appeal with prejudice.
The court refers to its recent opinion in C.S. v. DPW, 879 A.2d 1274 (Pa. Cmwlth. 2005) where it held that a nunc pro tunc appeal filed 6 years late should have been granted, because the appeal information in the administrative determination did not accurately set out the notice of statutory appeal rights. However, the court in A.P. does not mention this aspect of the C.S. case, only that part of C.S. that says that the DPW Secretary has the discretion to amend or expunge a finding of abuse at any time, upon good cause shown.
The notice in A.P. was presumably the same as the one in C.S., where it said that the alleged abuser "may have a right to a hearing." (emphasis in original). By contrast, the statute gives an unequivocal right to a hearing. The court said that the law "mandates that an alleged perpetrator who has made a request for a hearing will receive one, and at this hearing, the agency bears the burden of proving child abuse by the alleged perpetrator. This right is essential. Otherwise, citizens can have their ability to work at a job requiring [a clearance] taken away on the basis of an investigator's report alone and not on the basis of a hearing at which the government agency claiming abuse bears the burden of proof. The equivocal notice given by the Department…did not satisfy the exacting requirements of [the statute] and, thus, this breakdown in the administrative process entitles Petitioner to file a nunc pro tunc request for expungement….." Concerning the length of the delay in appealing, the court said that "[w]hether a delay is one day or six years late….does not change the analysis….."
Donald Marritz
MidPenn Legal Services
Pennsylvania Bulletin of October 15, 2005
Here is the link to the Pennsylvania Bulletin of October 15, 2005
http://www.pabulletin.com/secure/data/vol35/35-42/index.html
Items of potential interest include --
- education - exec. order - Training America's Teachers Commission
http://www.pabulletin.com/secure/data/vol35/35-42/1890.html
- IOLTA - proposed regs - pro haec vice admissions
http://www.pabulletin.com/secure/data/vol35/35-42/1891.html
- minor court rules - proposed rules - subpoenas - issuance of blank subpoenas
http://www.pabulletin.com/secure/data/vol35/35-42/1896.html
- court rules - DR cases - modification/change in circumstances
http://www.pabulletin.com/secure/data/vol35/35-42/1892.html
- court rules - DR cases - more support rules
http://www.pabulletin.com/secure/data/vol35/35-42/1893.html
- community and econ. development - emergency shelter grant program
http://www.pabulletin.com/secure/data/vol35/35-42/1903.html
- health - integrated HIV planning council - public meeting
http://www.pabulletin.com/secure/data/vol35/35-42/1909.html
- human relations commission - public hearing opinions
http://www.pabulletin.com/secure/data/vol35/35-42/1922.html
Donald Marritz, staff attorney
MidPenn Legal Services
http://www.pabulletin.com/secure/data/vol35/35-42/index.html
Items of potential interest include --
- education - exec. order - Training America's Teachers Commission
http://www.pabulletin.com/secure/data/vol35/35-42/1890.html
- IOLTA - proposed regs - pro haec vice admissions
http://www.pabulletin.com/secure/data/vol35/35-42/1891.html
- minor court rules - proposed rules - subpoenas - issuance of blank subpoenas
http://www.pabulletin.com/secure/data/vol35/35-42/1896.html
- court rules - DR cases - modification/change in circumstances
http://www.pabulletin.com/secure/data/vol35/35-42/1892.html
- court rules - DR cases - more support rules
http://www.pabulletin.com/secure/data/vol35/35-42/1893.html
- community and econ. development - emergency shelter grant program
http://www.pabulletin.com/secure/data/vol35/35-42/1903.html
- health - integrated HIV planning council - public meeting
http://www.pabulletin.com/secure/data/vol35/35-42/1909.html
- human relations commission - public hearing opinions
http://www.pabulletin.com/secure/data/vol35/35-42/1922.html
Donald Marritz, staff attorney
MidPenn Legal Services
Wednesday, October 12, 2005
ADA - state employer - 11th Amendment immunity
Benn v. First Judicial District of Philadelphia - 3d Circuit Court of Appeals - October 12, 2005
http://www.ca3.uscourts.gov/opinarch/013769p.pdf
Plaintiff was a probation/parole officer for the 1st Judicial District of Pa. (Philadelphia). He sued his former employer alleging a violation of the Title I of the Americans with Disabilities Act (ADA), 42 USC 12101 et seq.
Held, the judicial district is an instrumentality of the Commonwealth and entitled to immunity under the 11th Amendment of the U.S. Constitution. The court said that it was "too late in the jurisprudence of the Eleventh Amendment for this court (and perhaps even for the Supreme Court) to interpret that Amendment in light of its explicit language as applicable only to suits against a state brought by citizens of another state. The Supreme Court has consistently held that the Eleventh Amendment immunizes an unconsenting state from suits brought in federal court by its own citizens as well as by citizens of another state." So much for "strict construction" and eschewing "judicial activism."
The court said that Congress can abrogate such immunity pursuant to its authority under sec. 5 of the 14th Amendment provided that it "has unequivocally expressed its intent to do so." Even then, however, the Supreme Court can hold that Congress did not act pursuant to a valid grant of constitutional authority," as it did in another ADA case, Board of Trustees v. Garrett, 531 US 356 (2001).
A suit can also be barred by the 11th amendment where the state is not named as a party, so long as the state is deemed the real party in interest. Held here that under the state supreme court's interpretation of the state constitution, a state judicial district is a state entity, therefore it has 11th Amendment immunity.
Donald Marritz
MidPenn Legal Services
http://www.ca3.uscourts.gov/opinarch/013769p.pdf
Plaintiff was a probation/parole officer for the 1st Judicial District of Pa. (Philadelphia). He sued his former employer alleging a violation of the Title I of the Americans with Disabilities Act (ADA), 42 USC 12101 et seq.
Held, the judicial district is an instrumentality of the Commonwealth and entitled to immunity under the 11th Amendment of the U.S. Constitution. The court said that it was "too late in the jurisprudence of the Eleventh Amendment for this court (and perhaps even for the Supreme Court) to interpret that Amendment in light of its explicit language as applicable only to suits against a state brought by citizens of another state. The Supreme Court has consistently held that the Eleventh Amendment immunizes an unconsenting state from suits brought in federal court by its own citizens as well as by citizens of another state." So much for "strict construction" and eschewing "judicial activism."
The court said that Congress can abrogate such immunity pursuant to its authority under sec. 5 of the 14th Amendment provided that it "has unequivocally expressed its intent to do so." Even then, however, the Supreme Court can hold that Congress did not act pursuant to a valid grant of constitutional authority," as it did in another ADA case, Board of Trustees v. Garrett, 531 US 356 (2001).
A suit can also be barred by the 11th amendment where the state is not named as a party, so long as the state is deemed the real party in interest. Held here that under the state supreme court's interpretation of the state constitution, a state judicial district is a state entity, therefore it has 11th Amendment immunity.
Donald Marritz
MidPenn Legal Services
Tuesday, October 11, 2005
abuse - credibility - police report/medical treatment not required to establish credibility
Karch v. Karch - Pa. Superior Court - October 11, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/A13004_05.pdf
Appellate court upheld trial court's grant of a PFA order.
1. medical treatment not required -- PFA plaintiff need not seek medical treatment for her injury. Neither the PFA act nor case law requires that there be medical evidence or that the plaintiff seek medical treatment in order for plaintiff's testimony to be found credible.
2. Police involvement not necessary. It is well-settled that neither the PFA Act not case law requires that a police report be filed in order to obtain a PFA order. "We wish to make it abundantly clear that this Court will not infer that the failure of the police to act on a report of domestic violence means that the victim is not credible, and we will not place the onus on the victim to force police departments to comply with sec. 6105 [responsibilities of law enforcement agencies] as a prerequisite for obtaining a PFA."
3. The correct burden of proof is a preponderance of the evidence.
4. The evidence was sufficient to grant a PFA order. Wife had prior 30-day PFA order a few months earlier, based on husband's having put his hands around his neck and threatened to snap it.. The newest abuse consisted of his holding his hand in the shape of a gun, touching his wife's head with enough force to cause pain, and telling her "there is your future." Wife also testified that the day after the this incident, one of her car tires had a puncture wound and was flat. The evidence also showed that husband previously had guns in the house and that they had been removed over his "strenuous objections." The court said that "this evidence was more than sufficient to sustain the grant of a PFA."
5. standard of review -- When a claim is presented that the evidence was not sufficient to support a PFA order, the court reviews the evidence in the light most favorable to the petitioner and grants her the benefit of all reasonable inferences. The court defers to the credibility determinations of the trial court as to witnesses who appeared before it.
http://www.courts.state.pa.us/OpPosting/Superior/out/A13004_05.pdf
Appellate court upheld trial court's grant of a PFA order.
1. medical treatment not required -- PFA plaintiff need not seek medical treatment for her injury. Neither the PFA act nor case law requires that there be medical evidence or that the plaintiff seek medical treatment in order for plaintiff's testimony to be found credible.
2. Police involvement not necessary. It is well-settled that neither the PFA Act not case law requires that a police report be filed in order to obtain a PFA order. "We wish to make it abundantly clear that this Court will not infer that the failure of the police to act on a report of domestic violence means that the victim is not credible, and we will not place the onus on the victim to force police departments to comply with sec. 6105 [responsibilities of law enforcement agencies] as a prerequisite for obtaining a PFA."
3. The correct burden of proof is a preponderance of the evidence.
4. The evidence was sufficient to grant a PFA order. Wife had prior 30-day PFA order a few months earlier, based on husband's having put his hands around his neck and threatened to snap it.. The newest abuse consisted of his holding his hand in the shape of a gun, touching his wife's head with enough force to cause pain, and telling her "there is your future." Wife also testified that the day after the this incident, one of her car tires had a puncture wound and was flat. The evidence also showed that husband previously had guns in the house and that they had been removed over his "strenuous objections." The court said that "this evidence was more than sufficient to sustain the grant of a PFA."
5. standard of review -- When a claim is presented that the evidence was not sufficient to support a PFA order, the court reviews the evidence in the light most favorable to the petitioner and grants her the benefit of all reasonable inferences. The court defers to the credibility determinations of the trial court as to witnesses who appeared before it.
custody - grandparent rights - Troxel distinguished - Ohio case
Harrold v. Collier - Ohio Supreme Court - October 10, 2005
http://www.sconet.state.oh.us/rod/newpdf/0/2005/2005-ohio-5334.pdf
The Ohio Supreme Court ruled that the grandparents of an 8 year-old girl must be allowed to visit her, even if her father objects, upholding the validity of a state law granting nonparents visitation rights to children. The Court said the Ohio law was narrower than the one struck down in Troxel v. Granville, 530 US 57 (2000) in that, inter alia, it granted right only to parents and other relatives of an unmarried, deceased parent. The Washington law allowed any third party to petition for visitation.
In the Ohio case, the child had lived with her deceased mother and the latter's parents. The mother died when the child was two, and the child continued to live with the maternal grandparents until she was five, when the father was granted primary custody. He refused to allow any contact by the maternal grandparents, who then petition for visitation.
The court said that Ohio courts were obligated to give "special weight" to the wishes of parents when considering visitation for nonparents. Using a strict scrutiny test, the court held that the visitation statute was constitutional and served a compelling governmental interest. The court said that, despite the "special weight" given to a parent's wishes, that Troxel did not require a nonparent to show "overwhelmingly clear circumstances" to support forcing visitation, but rather declined to defined "' the precise scope of the parental due process rights in the visitation context.' "
Unlike the Washington statute, the Ohio law applied only where one parent was deceased and the parents were unmarried; it also gave special consideration to the wishes of the surviving parents. The court said that nothing in Troxel indicated that the presumption that parents act in a child's best interest was irrebuttable that a parent's wishes were to be the sole determinant of a child's best interests, or placed above the child's best interests.
Donald Marritz
MidPenn Legal Services
http://www.sconet.state.oh.us/rod/newpdf/0/2005/2005-ohio-5334.pdf
The Ohio Supreme Court ruled that the grandparents of an 8 year-old girl must be allowed to visit her, even if her father objects, upholding the validity of a state law granting nonparents visitation rights to children. The Court said the Ohio law was narrower than the one struck down in Troxel v. Granville, 530 US 57 (2000) in that, inter alia, it granted right only to parents and other relatives of an unmarried, deceased parent. The Washington law allowed any third party to petition for visitation.
In the Ohio case, the child had lived with her deceased mother and the latter's parents. The mother died when the child was two, and the child continued to live with the maternal grandparents until she was five, when the father was granted primary custody. He refused to allow any contact by the maternal grandparents, who then petition for visitation.
The court said that Ohio courts were obligated to give "special weight" to the wishes of parents when considering visitation for nonparents. Using a strict scrutiny test, the court held that the visitation statute was constitutional and served a compelling governmental interest. The court said that, despite the "special weight" given to a parent's wishes, that Troxel did not require a nonparent to show "overwhelmingly clear circumstances" to support forcing visitation, but rather declined to defined "' the precise scope of the parental due process rights in the visitation context.' "
Unlike the Washington statute, the Ohio law applied only where one parent was deceased and the parents were unmarried; it also gave special consideration to the wishes of the surviving parents. The court said that nothing in Troxel indicated that the presumption that parents act in a child's best interest was irrebuttable that a parent's wishes were to be the sole determinant of a child's best interests, or placed above the child's best interests.
Donald Marritz
MidPenn Legal Services
Friday, October 07, 2005
Pennsylvania Bulletin of October 8, 2005
Here is the link to the Pennsylvania Bulletin of October 8, 2005
http://www.pabulletin.com/secure/data/vol35/35-41/index.html
Items of potential interest include-
- environment- DEP - mercury rule-making public involvement plan
http://www.pabulletin.com/secure/data/vol35/35-41/1851.html
- welfare - DPW - MA preferred drug list
http://www.pabulletin.com/secure/data/vol35/35-41/1863.html
- transportation - DOT - definition of "serious traffic violation"
http://www.pabulletin.com/secure/data/vol35/35-41/1864.html
- IRRC - comments issued - nursing facililties- preadmission reqmts. and civil rights compliance
http://www.pabulletin.com/secure/data/vol35/35-41/1866.html
- PUC - identity theft - order
http://www.pabulletin.com/secure/data/vol35/35-41/1880.html
Donald Marritz
MidPenn Legal Services
http://www.pabulletin.com/secure/data/vol35/35-41/index.html
Items of potential interest include-
- environment- DEP - mercury rule-making public involvement plan
http://www.pabulletin.com/secure/data/vol35/35-41/1851.html
- welfare - DPW - MA preferred drug list
http://www.pabulletin.com/secure/data/vol35/35-41/1863.html
- transportation - DOT - definition of "serious traffic violation"
http://www.pabulletin.com/secure/data/vol35/35-41/1864.html
- IRRC - comments issued - nursing facililties- preadmission reqmts. and civil rights compliance
http://www.pabulletin.com/secure/data/vol35/35-41/1866.html
- PUC - identity theft - order
http://www.pabulletin.com/secure/data/vol35/35-41/1880.html
Donald Marritz
MidPenn Legal Services
Thursday, October 06, 2005
employment discrimination - age/disability - statute of limitations
Heater v. Kidspeace - ED Pa. - October 5, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1227P.pdf
Plaintiff exhausted admin. remedies, then filed complaint in state court for age and disability discrimination. The case was eventually removed to federal court, where defendant moved to dismissed on statute of limitations grounds, based on untimely filing and service of the original case in state court.
Held, any alleged errors with this state court process had to be raised in state court, not on motion to dismiss in federal court on statute of limitations grounds..
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1227P.pdf
Plaintiff exhausted admin. remedies, then filed complaint in state court for age and disability discrimination. The case was eventually removed to federal court, where defendant moved to dismissed on statute of limitations grounds, based on untimely filing and service of the original case in state court.
Held, any alleged errors with this state court process had to be raised in state court, not on motion to dismiss in federal court on statute of limitations grounds..
Donald Marritz
MidPenn Legal Services
Wednesday, October 05, 2005
immigration status not relevant or discoverable in FLSA/AWPA case -
Galaviz-Zamora v. Brady Farms, Inc. -- USDC WD Mich. Southern Div. (September 23, 2005) - 2005 US Dist. LEXIS 22120
The court granted a protective order barring discovery of information (SSN, tax records, etc.) that were "designed to uncover Plaintiffs' immigration status."
The court held that information about that status was not relevant to any of the issues in the case, which involved the Fair Labor Standards Act (FLSA) and the Agricultural Workers Protection Act (AWPA). The court also mentioned the "detrimental impact resulting from irrelevant inquiries into a worker's immigration status."
Donald Marritz
MidPenn Legal Services
The court granted a protective order barring discovery of information (SSN, tax records, etc.) that were "designed to uncover Plaintiffs' immigration status."
The court held that information about that status was not relevant to any of the issues in the case, which involved the Fair Labor Standards Act (FLSA) and the Agricultural Workers Protection Act (AWPA). The court also mentioned the "detrimental impact resulting from irrelevant inquiries into a worker's immigration status."
Donald Marritz
MidPenn Legal Services
admin. law - federal agency interpretation of statute - "Brand X" decision
AARP v. EEOC - ED Pa. - September 27, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1174P.pdf
The Court rejected AARP's challenge to a regulation proposed by the EEOC to implement the Age Discrimination in Employement Act, 29 USC sec. 621 et seq. The regulation would permit employers who provide health care benefits to retired employees to decrease those benefits when the employees become eligible for Medicare.
The case involved the seminal decision in Chevron USA v. Natural Resource Defense Council, 467 US 837 (1984) and the recent decision in Natl. Cable & Telecommunications Assn. v. Brand X Internet Services (Brand X), 125 SCt 2688 (2005). The AARP argued and the court had previously held that a prior Third Circuit decision had interpreted the ADEA to prohibit the practice in the proposed regulation. The court reversed itself, after reconsidering the case in light of Brand X.
Under Brand X, a court interpretation of a statute bars an agency from later interpreting that statute differently from the court only "if the court has the determined the only permissible meaning of the statute." (emphasis in original). "[O]nly a judicial precedent holding that the statute unambiguously forcloses the agency's interpretation and therefore contains no gap for the agency to fill, displaces a conflicting agency construction….Put differently, Brand X states that the only court decision that forecloses a later, contrary interpretation of a statute by an agency is a decision that determines the only permissible reading of the statute, not merely the best of several alternatives." (emphasis in original)
The court held that the prior Third Circuit decision involved only one possible reading of the statute, not the only permissible one, and that the proposed EEOC regulation was not contrary to the federal Administrative Procedure Act or the ADEA.
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1174P.pdf
The Court rejected AARP's challenge to a regulation proposed by the EEOC to implement the Age Discrimination in Employement Act, 29 USC sec. 621 et seq. The regulation would permit employers who provide health care benefits to retired employees to decrease those benefits when the employees become eligible for Medicare.
The case involved the seminal decision in Chevron USA v. Natural Resource Defense Council, 467 US 837 (1984) and the recent decision in Natl. Cable & Telecommunications Assn. v. Brand X Internet Services (Brand X), 125 SCt 2688 (2005). The AARP argued and the court had previously held that a prior Third Circuit decision had interpreted the ADEA to prohibit the practice in the proposed regulation. The court reversed itself, after reconsidering the case in light of Brand X.
Under Brand X, a court interpretation of a statute bars an agency from later interpreting that statute differently from the court only "if the court has the determined the only permissible meaning of the statute." (emphasis in original). "[O]nly a judicial precedent holding that the statute unambiguously forcloses the agency's interpretation and therefore contains no gap for the agency to fill, displaces a conflicting agency construction….Put differently, Brand X states that the only court decision that forecloses a later, contrary interpretation of a statute by an agency is a decision that determines the only permissible reading of the statute, not merely the best of several alternatives." (emphasis in original)
The court held that the prior Third Circuit decision involved only one possible reading of the statute, not the only permissible one, and that the proposed EEOC regulation was not contrary to the federal Administrative Procedure Act or the ADEA.
Donald Marritz
MidPenn Legal Services
Monday, October 03, 2005
custody - same-sex parents - in loco parentis - standard/burden of proof
Jones v. Boring -- Pa. Superior Court - September 30, 2005
Primary custody of twins awarded to non-biological parent of a separated lesbian couple, based on "clear and convincing evidence" that the children were better off with her.
The couple had a relationship starting in 1988. Boring was impregnated by anonymous sperm donor and had twin boys in 1996. The couple lived together as a family unit until January 2001, when Boring left Jones' residence, where they had all lived, taking the children with her.
Initially the court ordered joint legal custody. Boring was awarded primary custody and Jones -- whose right to in loco parentis status was clear -- had "relatively typical partial custody....rights." As time passed however, the court concluded the Jones had shown by clear and convincing evidence that it was in the children's best interest that she have primary custody.
The court rejected Boring's argument that Jones had to prove that she, Boring, was "unfit." The court said that a person who is not a biological parent but stands in loco parentis "does not need to establish that the biological parent is unfit, but instead must establish by clear and convincing evidence that it is in the best interest of the children to maintain that relationship or be with that person." (emphasis in original).
Most telling was Boring's "multi-year effort to exclude Jones from the children's life [sic]....[T]he record is replete with evidence that Boring tried in every way possible to sabotage Jones' relationship with the children."
Sunday, October 02, 2005
abuse - contempt - knowledge of PFA order
Commonwealth v. Padilla - Pa. Superior Court - September 28, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/S44034_05.pdf
Defendant was found guilty of contempt for violating a temporary PFA order which had not been served on him but which he knew about from a phone call from the sheriff. During the call, the sheriff told defendant a) that there was an order, b) that it prohibited any contact with the plaintiff, and c) what the consequences were of violating it.
Despite this knowledge, Defendant made several phone threats to the plaintiff, during 5-6 harassing phone calls. Later that same day, Defendant was served with a copy of the temporary PFA order.
To establish indirect criminal contempt, one must show that a) the order was sufficiently clear to the contemnor as to leave no doubt of the conduct prohibited; b) the contemnor had notice of the order; c) the act was prohibited by the order; and d) the intent of the contemnor in committing the act was wrongful.
The only issue in the case was notice. The court held that "the telephone conversations during which Appellant was informed of the emergency order and the repercussions of violating it constitute actual notice or its equivalent even in the absence of personal service." The court discussed due process issues and the " 'special exigencies of abuse cases' ". It also mentioned 23 Pa. C.S. sec. 6016(g), which says the "[f]ailureto serve shall not stay the effect of a valid order."
The court found that "the verbal explanation provided to Appellant over the telephone was adequate to convey notice that a PFA order had been entered against him, and that a violation of that order placed him at risk of criminal penalty. He was, therefore, properly found to have been in indirect criminal contempt of court."
Donald Marritz, staff attorney
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/S44034_05.pdf
Defendant was found guilty of contempt for violating a temporary PFA order which had not been served on him but which he knew about from a phone call from the sheriff. During the call, the sheriff told defendant a) that there was an order, b) that it prohibited any contact with the plaintiff, and c) what the consequences were of violating it.
Despite this knowledge, Defendant made several phone threats to the plaintiff, during 5-6 harassing phone calls. Later that same day, Defendant was served with a copy of the temporary PFA order.
To establish indirect criminal contempt, one must show that a) the order was sufficiently clear to the contemnor as to leave no doubt of the conduct prohibited; b) the contemnor had notice of the order; c) the act was prohibited by the order; and d) the intent of the contemnor in committing the act was wrongful.
The only issue in the case was notice. The court held that "the telephone conversations during which Appellant was informed of the emergency order and the repercussions of violating it constitute actual notice or its equivalent even in the absence of personal service." The court discussed due process issues and the " 'special exigencies of abuse cases' ". It also mentioned 23 Pa. C.S. sec. 6016(g), which says the "[f]ailureto serve shall not stay the effect of a valid order."
The court found that "the verbal explanation provided to Appellant over the telephone was adequate to convey notice that a PFA order had been entered against him, and that a violation of that order placed him at risk of criminal penalty. He was, therefore, properly found to have been in indirect criminal contempt of court."
Donald Marritz, staff attorney
MidPenn Legal Services
Saturday, October 01, 2005
employment - wrongful discharge - employment at-will exception expanded
Rothrock v. Rothrock Motor Sales, Inc. - Pennsylvania Supreme Court - September 28, 2005
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-65-2004mo.pdf - majority
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-65-2004co.pdf - concurring
The limited exception to the employment at-will doctrine was expanded in this wrongful discharge case. Previous exceptions protected people who had filed claims for workers' compensation (Shick v. Shirey, 716 A2d 283 (Pa. 1998)) and unemployment compensation (Highhouse v. Avery Transportation, 660 A2d 1374 (Pa. Super. 1994) , or who had refused to submit to a polygraph test (Kroen v. Bedway Security Agency, 633 A2d 628 (Pa. Super. 1993.)
Here, the court held that public policy requires giving a cause of action for wrongful discharge to a supervisor who, contrary to the employer's direction, refuses to dissuade a subordinate from seeking worker's comp. benefits. The court held this ruling was "a necessary corollary to the policy established in Shick", and that a supervisory employee who is terminated in such a situation has a cause of action for wrongful discharge.
"[T]here is little doubt that the policy of protecting subordinate employees' rights to seek WC benefits will be well-nigh eliminated if employers can avoid the rule of Shick by pressuring and firing supervisors who do not or cannot coerce subordinate employees into foregoing their rights. Moreover, it would be equally repugnant for this Court to turn its back on such supervisors, who amount to innocent pawns in a conflict between employer and subordinate employee, and, nevertheless, would find themselves out of employment without cause or recourse absent this decision."
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
Friday, September 30, 2005
Pennsylvania Bulletin of October 1, 2005
Here is the link to the Pennsylvania Bulletin of October 1, 2005
http://www.pabulletin.com/secure/data/vol35/35-40/index.html
Items of potential interest include:
- court rules - proposed - dom. rel. - conferences, service of process, masters reports, etc.
http://www.pabulletin.com/secure/data/vol35/35-40/1815.html
- court rules - local - Schuylkill County - divorce masters
http://www.pabulletin.com/secure/data/vol35/35-40/1816.html
- attorneys - attorneys displaced by Hurricane Katrina - practice in Pa.
http://www.pabulletin.com/secure/data/vol35/35-40/1817.html
- community & econ. development - grants to local governments to promote community and/or economic development
http://www.pabulletin.com/secure/data/vol35/35-40/1821.html
- community & econ. development - urban development program - guidelines
http://www.pabulletin.com/secure/data/vol35/35-40/1822.html
- education - approval of PSSA performance level descriptors and performance level scores
http://www.pabulletin.com/secure/data/vol35/35-40/1844.html
N.B. -- You can access the entire issue any Pa. Bulletin in PDF form by clicking on the "entire bulletin" PDF link at the bottom of the index page for that issue
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
http://www.pabulletin.com/secure/data/vol35/35-40/index.html
Items of potential interest include:
- court rules - proposed - dom. rel. - conferences, service of process, masters reports, etc.
http://www.pabulletin.com/secure/data/vol35/35-40/1815.html
- court rules - local - Schuylkill County - divorce masters
http://www.pabulletin.com/secure/data/vol35/35-40/1816.html
- attorneys - attorneys displaced by Hurricane Katrina - practice in Pa.
http://www.pabulletin.com/secure/data/vol35/35-40/1817.html
- community & econ. development - grants to local governments to promote community and/or economic development
http://www.pabulletin.com/secure/data/vol35/35-40/1821.html
- community & econ. development - urban development program - guidelines
http://www.pabulletin.com/secure/data/vol35/35-40/1822.html
- education - approval of PSSA performance level descriptors and performance level scores
http://www.pabulletin.com/secure/data/vol35/35-40/1844.html
N.B. -- You can access the entire issue any Pa. Bulletin in PDF form by clicking on the "entire bulletin" PDF link at the bottom of the index page for that issue
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
Thursday, September 29, 2005
drivers licence - incompetency - medical evidence v. lay evidence
Byler v. DOT, Bureau of Driver Licensing - Commonwealth Court - September 27, 2005
http://www.courts.state.pa.us/OpPosting/CWealth/out/615CD05_9-27-05.pdf
Commonwealth Court affirmed the trial court's decision, sustaining petitioner's appeal from DOT's proposal to suspend his license for medical reasons. DOT's proposed suspension was based on a letter from petitioner's doctor, which stated in its entirety: "Mr. Byler is a 79 year old white male. He's an alcoholic and should not be driving a car. He has significant alcoholic cerebellar degeneration."
A person can be disqualified from driving if, in the opinion of a health care provider, a person's alcoholism is likely to impair his ability to control and safely operate a motor vehicle. DOT has the initial burden of showing this by a preponderance of the evidence. The driver can then rebut DOT's evidence, in which case DOT may be required to present additional evidence to satisfy its ultimate burden of proof.
Here, the trial court determined that DOT's initial burden was satisfied by the doctor's two sentence letter. The appellate court did not really address that troublesome issue. At any rate, the driver testified himself and also presented the testimony of his neighbor, both to the effect that although he did drink sometimes, he drank modestly, he never drove after drinking alcohol, never visited bars, and never drank outside the home. DOT did not present any evidence other than the doctor's letter.
Both the trial court and appellate court found that the lay testimony presented by the driver was sufficient to rebut that of the doctor and called into question the credibility of DOT's evidence. Because DOT presented no further evidence, the courts determined that DOT did not sustain its burden of showing that drinking was likely to impair the licensee's ability to drive.
The Court rejected DOT's argument that only medical evidence could rebut medical evidence. "[N]othing in the applicable statutory or regulatory provisions or in the case precedents….requires that only medical evidence may be presented by the licensee to rebut a prima facie case of the licensee's incompetency based on a medical provider's report….It was within the trial court's discretion…. to determine that [the licensee] was not incompetent and that the testimony of [the licensee and his neighbor] was more persuasive and credible that the evidence presented by DOT."
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
Monday, September 26, 2005
disability - ALJ failure to follow remand instructions
Lok v. Barnhart - ED Pa. - September 19, 2005
Plaintiff is 55 year-old woman w/chronic back pain and some mental impairments, unable to speak English, and whose prior work was as a dishwasher.
Plaintiff appealed an adverse ALJ decision to the Appeals Council (AC), which remanded the case to the ALJ after finding that there was not substantial evidence to support the ALJ's decision that the Plaintiff was not disabled. The remand order directed the ALJ to "obtain additional, updated evidence" and to recontact the treating physician for additional evidence and clarification of his opinion about disability. On remand, the ALJ was unable to get information from the treating physician, who was uncooperative. The ALJ did not seek any consultative exams.
Plaintiff appealed second adverse ALJ decision, which AC this time affirmed. The Court reversed and remanded. It found that "the ALJ's procedures were not consistent with the remand order" and that the ALJ's findings were not based on substantial evidence.
The Court held that, under the circumstances, SSA regs and the specific AC remand order required the ALJ to "seek the necessary information from alternative sources", i.e., consultative physicians. "The ALJ's task was to secure new believable evidence." The Court remanded the case, holding that the record "does not necessarily show Plaintiff is disabled, and reversal is not warranted."
Donald Marritz, staff attorney
MidPenn Legal Services- Gettysburg
Friday, September 23, 2005
IRS - innocent spouse tax relief
In some circumstances, the IRS will forgive a innocent spouse's tax liability, if it is inequitable to hold him/her liable. Some of the factors considered include:
- The taxes owed are your spouse's or ex-spouse's.
- You are no longer married to that spouse.
- You thought your spouse would pay the taxes on the original return.
- You didn't know about the items changed in the audit.
- You would suffer a financial hardship if you were required to pay the tax. You would not be able to pay for basic living expenses like food, shelter, and clothing.
- You did not significantly benefit (above normal support) from the unpaid taxes.
- You suffered abuse during your marriage.
More info is available at the web sites below……….
http://www.irs.gov/individuals/article/0,,id=96786,00.html
Thursday, September 22, 2005
disability - medical criteria - change during pendency of case
Cliggett v. Barnhart - ED Pa. - September 20, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1150P.pdf
Claimant suffered several spinal-related severe impairments, including epidural fibrosis. In court, claimant alleged that she met new Listing 1.08, which was promulgated during the course of the case, more than one and one-half years after the ALJ decision, but before the Appeals Council decision.
The court cited an SSA statement about a different rule change, in which it said that "as is our usual practice when we make changes to our regulations, we will apply these final rules to the claims of applicants for benefits that are pending at any stage of our administrative process." The court also cited an unreported 3d Circuit case holding that "[i[f it is determined that the new regulations is more favorable to the claimant that the original version, she should be entitled to rely on the more expansive construction." Coppola v. Barnhart, 99 Fed. Appx. 365, 2004 WL 1088368 (2004), noting that while not precedential, the court "finds it instructive."
The court noted that new Listing 1.08 had been adopted at the time of Appeals Council review and summarized by saying that "when final changes to Social Security regulations are made, the new regulations should be applied to claims of applicants for benefits that are pending at any stage of the administrative review process. If a new regulation is more favorable to a claimant than the original version, the claimant should be entitled to rely on the new regulation."
The court remanded that case "so as to give the Commissioner an opportunity to set forth her position on the applicability of Listing 1.08 to epidural fibrosis."
Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg
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