Pennsylvania Bulletin of March 4th*

Here’s the link

http://www.pabulletin.com/secure/data/vol36/36-9/index.html


Of possible interest—

- IRRC – LIHEAP regs approved
http://www.pabulletin.com/secure/data/vol36/36-9/369.html

- public utilities – telephone regs – petition of Consumer Advocate to amend chapter 63
http://www.pabulletin.com/secure/data/vol36/36-9/358.html


* The only date which is a command

disability - consid. of evidence - duty to develop record - scope of magistrate judge's duty

Roman v. Barnhart - ED Pa. - February 28, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0248P.pdf

This case involves a 10 year-old boy with hearing and speech impairment. The case was remanded because ALJ did not explain his consideration of the records of the child's primary physician and "did not appear to give meaningful consideration to the non-medical evidence from [the child's] teacher...." This evidence was directed "to be evaluated and subjectively considered by the ALJ."

An ALJ need not always give a comprehensive explanation for the rejection of evidence. In most cases a sentence or short paragraph will suffice. Here however "it does seem to be an inescapable conclusion the ALJ did fail to directly address evidence from" the teacher.

The Magistrate's Report did discuss this evidence. However, in doing so, the Magistrate "exceeded her limited scope of review...[I]t is impermissible...to rectify ALJ errors by making an independent analysis and relying on information not relied upon by the ALJ....rather than focusing only on the reasons set forth by the ALJ."

There is also a good discussion of the ALJ's duty to develop the record adequately, even where the claimant is represented by counsel. When the ALJ is aware of a report that is "reasonably necessary for the full presentation of a case," the ALJ on his/her own initiative "may" issue subpoenas for the material documents.

Donald Marritz
MidPenn Legal Services

disability - treating physician rule, etc.

Somenski v. Barnhart - ED Pa. - February 28, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0240P.pdf

Summary judgment for Plaintiff.

treating physician - phys. not an advocate; opinion based on objective evidence
Good review of 3d Cir. law on treating physician rule, which the ALJ improperly discounted. The ALJ erred in holding that the doctor's opinion was undermined by the fact that he "was an advocate" for plaintiff in a worker's comp. proceeding. The adversarial nature of W/C proceedings does not affect the reliability of the [doctor's] testimony. An ALJ "may not disregard medical findings of examining physicians merely because it was offered as part of a worker's compensation hearing..."

In addition, the physician's opinions were not based on the claimant's subjective complaints but on an objective, detailed assessment of Plaintiff's functioning.

finding of another agency
Plaintiff had been granted disability benefits by a US Dept. of Labor ALJ in a Longshoreman & Harbor Worker's Comp. case, 33 USC 901 et seq. While that decision is not binding, 20 CFR 404.1504, is "entitled to substantial weight....If the ALJ reaches a contrary conclusion, the ALJ must offer an explanation of why he rejected the other agency's finding." The ALJ in this case "did not specify what amount of weight, if any, he accorded the... decision not did he explain his reasons for rejecting it, beyond the fact that it was not binding. Under controlling Third Circuit law, this was error."

subjective complaints
Claimant's accounts of pain were corroborated by the unrebutted opinions of all physicians. Even though an ALJ's credibility determination is "entitled to great deference," subjective symptoms must be considered and "may not be discounted if reasonably consistent with the objective evidence and other evidence in the record." Here the ALJ improperly discounted unrebutted medical opinions and "erroneously supplanted" the doctor's opinions "with his personal speculation."

V/E - hypo
The hypothetical question to the vocation expert must fairly encompass "all of an individual's significant limitations that are supported by the record." (emphasis in original) The hypo in this case was lacking because if did not take into account the severity of the plaintiff's psych. problems or any of his exertional limitations.

remedy
Noting a) that the 3d Circuit has expressed "frustration with the delays in disability determinations," b) that plaintiff applied for benefits more than 8 years ago, c) that the extensive record is unlikely to change and "constitutes substantial evidence that [plaintiff] is precluded from engaging in substantial gainful activity," the court awarded benefits.

Donald Marritz
MidPenn Legal Services

real estate - sales - disclosure - adjacent group home

Colaizzi v. Beck - Superior Court - March 1, 2006

www.courts.state.pa.us/OpPosting/Superior/out/a41023_05.pdf

Held, it was not a violation of the consumer protection law, 73 P.S. 201-1 et seq., or common law fraud for a seller of real property to fail to disclose to buyer that the adjacent property was the site of a group home for mentally-challenged adults.

Sellers signed a disclosure form under the Real Estate Seller Disclosure Law, 68 Pa. C.S. 7301 et seq., which said that he were not aware of "any condition that would affect the use and/or enjoyment of the property or the fair market value and/or title of the property." The appellate court reject that buyer argument that the lower court erred by focusing solely on the subject property rather than considering adjacent properties. The court said that there was no authority for such a reading of the law. "Moreover, even if we were persuaded by Appellant's argument, we find that the existence of a group home for mentally-challenged adults on the adjacent property does not constitution a 'legal issue'" under the RESDL.

Donald Marritz
MidPenn Legal Services

child witness - Tender Years Hearsay Act - psych. exam

Commonwealth v. Shearer - Superior Court - March 1, 2006

www.courts.state.pa.us/OpPosting/Superior/out/e04010R_02.pdf

Superior Court reversed the trial court's order that a child-victim be examined by a private psychologist retained by alleged abuser prior to a competency determination by trial court under the Tender Years Hearsay Act, 42 Pa. C.S. 5985.1.

The appellate court said that it was "beyond doubt that a court-ordered psychiatric examination intrudes into an important aspect of human privacy concerns….While trial courts must regularly make competency rulings, a court-ordered psychological examination should never be the starting point for such a determination…..Such an examination should not be ordered unless the record demonstrates the existence of a 'compelling reason' for the examination….The fact that a witness is an alleged child victim of sexual abuse does not, in and of itself, negate the requirement of demonstrating the necessity for court-ordered psychological examination."

The court agreed with the Commonwealth that there was no evidence showing that the child witness "suffers from any mental condition that would require a psychiatric examination before a competency hearing can be conducted."

Donald Marritz
MidPenn Legal Services

disability - depression - onset date - evidence

Payton v. Barnhart - ED Pa. - February 24, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0223P.pdf

The ALJ's determination of onset date in closed period case was inconsistent with the medical evidence and not supported by substantial evidence where the sole support of the ALJ decision was a "'non-examining' State Agency 'checklist.'"

The evidence showed that claimant's depression "did not suddenly become a severe impairment" on the date found by the ALJ but existed prior to that point, as established by the medical evidence.

The court reversed the ALJ decision rather than remanding the case, because the administrative record was "fully developed and…substantial evidence on the record as a whole indicates that the cliamant is disabled and entitled to benefits."

Donald Marritz
MidPenn Legal Services

Pennsylvania Bulletin of February 28, 2006

Here's the link http://www.pabulletin.com/secure/data/vol36/36-8/index.html

Of possible interest-

- welfare - MA program fee schedule - procedure code changes
http://www.pabulletin.com/secure/data/vol36/36-8/346.html

- attorneys - discipline - rules of disciplinary enforcement - amendments
http://www.pabulletin.com/secure/data/vol36/36-8/322.html

- court rules - proposed - pleadings, format - comments due March 8th
http://www.pabulletin.com/secure/data/vol36/36-8/323.html

- juvenile court judges' commission - statement of policy - admin. of restitution funds
http://www.pabulletin.com/secure/data/vol36/36-8/329.html

- revenue - mystery multiplier bingo instant lottery game
http://www.pabulletin.com/secure/data/vol36/36-8/348.html

custody - international - Hague Convention

In re Application of Adan - Third Circuit - Febrary 14, 2006

http://www.ca3.uscourts.gov/opinarch/053045p.pdf

District Court ordered return of parties' daughter to Argentinian father, whom appellant-mother had accused of abusing her and daughter. The 3d Circuit ordered a stay of the return order and remanded the case back to the district court -- which it said had created a "woefully incomplete" record -- for detailed fact-finding about the abuse, the ability of Argentinian authorities to protect the child, etc.

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

Donald Marritz
MidPenn Legal Services

Class Action Notice Landscaping H-2B Case

To: Advocates for Workers

The United States District Court for the Eastern District of Pennsylvania nationwide FLSA opt-in class action notice on behalf of H-2B workers against The Brickman Group, Ltd. is available at the following web location:
http://friendsfw.org/H-2B/Brickman/Class_Notice.pdf

The consent form must be returned prior to July 15, 2006. A copy of the consent form is available for printing at:
http://friendsfw.org/H-2B/Brickman/Brickman_Consent.pdf

Brickman is one of the largest employer's of H-2B landscaping workers. The class includes more than 2,000 persons from Mexico and more than 100 persons from Guatemala. The lawsuit is based upon the continuing failure to comply with Arriaga, et al. v. Florida Pacific Farms, LLC, et al., 305 F.3d 1228 (11th Cir. 2002)

The Defendant's U.S. operations where in numerous different status. Addresses supplied as last known US addresses for foreign H-2B workers include persons in the following states (in declining numbers of persons for 2005) : MD; MI; PA; IN; MO; OH; NJ; VA; NY; CO; TX; CT; FL; DE; TN; IL; CA; MA; NC

Interested persons should contact Friends of Farmworkers staff attorney Manuel Boigues, mboigues@friendsfw.org, telephone (215) 733-0878, ext. 130.

Co-counsel include:

Edward Tuddenham
and
Rachel Micah-Jones
Centro de los Derechos del Migrante
Calle Víctor Rosales #164
Col. Centro, Zacatecas, Zac., Méx.
C.P. 98000
Tel: 011 (52) 492 925 2510
Fax: 011 (52) 492 925 2511
Free call from Mexico 01-800-59-01-773
Free call within the US: 1 - (800) 401-5901


From: Art Read, Friends of Farmworkers

contracts - oral settlement agreement - enforceability

Krebs v. United Refining Co. - Superior Court - February 16, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a21034_05.pdf

An oral settlement agreement can be enforceable, even where the parties cannot agree about reducing it to writing. However, the claim to enforce was denied in this case, because there was no agreement as to essential terms. The nature and extent of mutual obligations were not certain, and there was no agreement about material and necessary details of the parties' alleged bargain. A trial court cannot fill in missing terms and enforce an agreement of its own devising.

Donald Marritz
MidPenn Legal Services

UC - voluntary quit - leaving the work site

Iaconelli v. UCBR - Commonwealth Court - February 16, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1443CD05_2-16-06.pdf

Claimant was held to have quit her job when she left the work site and did not thereafter try to return to contact the employer. She "did not take any steps to preserve her employment relationship."

"An employee merely leaving the work premises is not enough to determine intent to voluntarily terminate her employment….A claimant must have a conscious intention to terminate her employment….An employee who leaves her employment w/o informing her employer when or if she is planning to return may be held to have voluntarily quit….However, the majority of these cases allow for a reasonable period of time in which an employee has the opportunity to manifest an intent to quit and the employer has the opportunity to contact the employee or vice-[sic]versa."

Donald Marritz
MidPenn Legal Services

UC - findings - complete/specific

Central Dauphin School District v. UCBR - Commonwealth Court - February 15, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1453CD05_2-15-06.pdf

This is a voluntary quit case in which a teacher left her job because of serious student discipline problems. The court remanded the case back to the UCBR for further findings of fact on a) Claimant's credibility and b) whether the employer provided her "appropriate and sufficient support" in resolving the student discipline problems

The court said that the student behavior, if it took place, "would certainly create circumstances that produced real and substantial pressure to terminate employment… if the facts are found as outlined in the record. However, without specific fact finding we can not [sic] exercise proper appellate review." (emphasis added)

The Board "never ruled on the credibility of Claimant vis-a-vis the alleged conduct" outlined in her testimony or whether the employer provided her "appropriate and sufficient support" in resolving the problem.

Donald Marritz
MidPenn Legal Services

paternity by estoppel

Gebler v. Gatti - Pennsylvania Superior Court - February 2, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/s52014_05.pdf

The trial court's finding of paternity by estoppel (PBE) was reversed (2-1). The parties were never married, Defendant-appellant held the child out as his own for 18 months, "under Mother's misrepresentation that he was the only one having sexual relations with Mother at the time of conception." Defendant ceased acting as the child's father when he got a private DNA test and learned that he was not the child's biological father. The appellate court said that the doctrine of PBE is "aimed at achieving fairness" by holding parties to the prior conduct. It held that to apply the doctrine here "would defy principles of equity...." One judge dissented.

Donald Marritz
MidPenn Legal Services

consumer protection - pleading - fraud v. misrepresentation - contract under seal - limitations

Christopher v. First Mutual Corp. - ED Pa. - January 20, 2006

http://www.paed.uscourts.gov/documents/opinions/06d0073p.pdf

pleading - fraudulent v. deceptive conduct
The district court found that under the catchall provision of the state consumer protection law, 73 P.S. sec. 201-2(xxi), which prohibits "fraudulent or deceptive conduct which created a likelihood of confusion or misunderstanding," it is "no longer necessary for a plaintiff to plead all of the elements of common law fraud to recover" under that provision, where a plaintiff is claiming deception rather than fraud.

It was noted that "courts have divided on whether a plaintiff must meet the heightened fraud pleading requirement," Skurnowicz v. Lucci, 798 A.2d 788 (Pa. Ssuper. 2002) or a less strict requirement, Flores v. Shapiro & Kreisman, 246 F.Supp.2d 427, 432 (ED Pa. 2002), and that the state supreme court had not yet addressed the issue.

statute of limitations - contract under seal
The court also held that the 20-year statute of limitations applied where the document contained the typed words "In witness whereof, I hereunto set my hand and official seal" and the word "seal" was next to each witness signature, 42 Pa. C.S. sec. 5525(a)(8) (contract under seal).

Donald Marritz, staff attorney
MidPenn Legal Services

UC- suitable work - refusal of temporary work w/pay cut

Department of Education v. UCBR - Commonwealth Court - January 27, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1478CD05_1-27-06.pdf

Held, that claimant (CL) did not refuse suitable work, 43 PS 753(t), and was not disqualified under 43 PS 802(a) where:

a) she had only been unemployed two weeks at the time of the employer's job offer;
b) the offer was for temporary work;
c) CL had "favorable prospects of obtaining new [permanent] employment" ;
d) CL had just been placed on a civil service list for a permanent position;
e) the offer would have involved a 26% reduction in pay and loss of benefits;
f) ER did not inform the OES [sic] of the job offer, as required by 43 P.S.sec. 802(a)*

Pennsylvania courts "have developed a balancing test, considering the reduction in pay on one hand against he duration of unemployment on the other, with the weight of the former decreasing as the latter increases." The "'most important factor in this type of case is the length of time that the claimant has been unemployed.' "

The court said that our "supreme court has repeatedly recognized that a claimant is entitled to a 'reasonable opportunity' to find employment commensurate with her training and experience" and held that, under all of the above circumstances, CL had good cause for refusing the ER's offer.

Donald Marritz
MidPenn Legal Services

* This is footnote to say that this apparently dispositive issue was only mentioned in a footnote.

employment - ADA - medical exam/inquiry

Ward v. Merck & Co., Inc. - ED Pa. - January 9, 2006

http://www.paed.uscourts.gov/documents/opinions/06d0034p.pdf

Summary judgment granted to employer (ER) on Plaintiff's claim that he was terminated from his job in violation of the provision of the Americans with Disabilities Act, 42 USC sec. 12111(d), that prohibits a medical exam or inquiry about a disability, its nature or severity, "unless such examination or inquiry is shown to be job-related and consistent with business necessity."

The court found that there was "more than sufficient evidence" to justify the ER's medical inquiry in this case, where there were allegations that Plaintiff's job behavior and performance deteriorated badly.

Donald Marritz
MidPenn Legal Services

consumer - insurance - duty of insured to cooperate in investigation of claim

Murphy v. Federal Insurance Company - ED Pa. - January 18, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0056P.pdf

Defendant's motion for summary judgment granted. Plaintiff breached his contract when he unreasonably refused to cooperate in the insurer's investigation of his claim, to the prejudice of the insurer.

Interpretation of an insurance contract is a question of law. Where a policy is ambiguous, it should be construed against the insurer. If the terms are clear and not ambiguous, the court must give effect to the plain language. Here there was a clear contractual duty of the insured to cooperate in the investigation. His refusal to do so had a prejudicial effect on the insurer.

Donald Marritz
MidPenn Legal Services

UC - willful misconduct - refusal to obey ER direction - insubordination

ATM Corp. of America v. UCBR - Commonwealth Court - January 23, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1560CD05_1-23-06.pdf

Held, refusal of Claimant (CL) to agree to request of employer (ER) for background check was insubordination and willful misconduct.

CL had been an accounting clerk for ER for 4 years w/o incident. In February 2005, ER adopted a new policy and directed CL and all others in the accounting dept. to sign a consent for a background check. There was no ER rule at the time of CL's hire about such checks, although there was a rule about insubordination. CL refused to sign, claiming that the request was overbroad and unreasonably intrusive. ER advised CL that her continued refusal would be grounds for dismissal for insubordination. CL's job involved handling sensitive information, including credit card info, social security numbers, addresses, loan info, etc., and gave her access to large sums of money. There was a specific ER concern about identity theft.

The Court held that CL's refusal to consent to the background check violated the ER rule about insubordination, and that CL did not have good cause for her refusal, thus making her actions willful misconduct. It said that it was "beyond peradventure that Employer has a legitimate need to protect the confidential information of its customers to which accounting department employees, including Claimant, have daily access. A background check is a "reasonable way to protect that confidential information, particularly where demanded by Employer's financial partners and customers. Such background checks are not unique, which is why their occurrence must be disclosed by employers under the Fair Credit Reporting Act [15 USC sec. 1681a(h)]....[T]he Authorization Form conformed to the requirement of federal law." The court said the if a background check of the type identified in the FCRA was "too intrusive on Claimant, it is difficult to imagine for what employment positions it would ever be appropriate." The ER direction was "reasonable under the circumstances, and Claimant's refusal to cooperate was willful misconduct." In addition, the court said that the CL's failure to articulate specific reasons for her refusal "was itself a form of insubordination."

Donald Marritz
MidPenn Legal Services

employment - public - speech - retaliaton - sec. 1983 - qualified immunity

Springer v. Henry - Third Circuit - January 18, 2006

http://www.ca3.uscourts.gov/opinarch/044124p.pdf

Lower court judgment under 42 USC 1983 affirmed for doctor who had been terminated from his job at a state hospital in retaliation for his criticism of the hospital administration (patient care and safety issues). Defendant's claim of qualified immunity rejected, since law prohibiting such termination was clear at the time.

Donald Marritz
MidPenn Legal Services

ADA - $ damages - immunity

U.S. v. Georgia , U.S. Supreme Court - January 10, 2006

http://www.supremecourtus.gov/opinions/05pdf/04-1203.pdf

Held, To the extent that Title II of the Americans with Disabilities Act (ADA), 42 USC 12131 et seq., creates a private cause of action for money damages against states for conduct that actually violates sec. 1 of the 14th Amendment, it validly abrogates the state's sovereign immunity. The case involved a prisoner who claimed that prison officials deliberately refused to accommodate his disability related needs.

The majority opinion focused on possible violations of the 8th Amendment, applicable to the states through the 14th Amendment. The majority noted a disagreement on the Court "regarding the scope of Congress's 'prophylactic' enforcement powers under sec. 5 of the Fourteenth Amendment," but held that "no one doubts that sec. 5 grants Congress the power to 'enforce...the provisions' of the Amendment by creating private remedies against the States for actual violations of those provisions." (emphasis in original)

The concurring opinion of Justice Stevens emphasized that other constitutional rights may also be applicable in the disabled prisoner context, including the right of access to courts (Tennessee v. Lane, 541 U.S. 509 (2004)), abridgement of religious liberties, undue censorship, interference with access to the judicial process, and procedural due process. Justice Stevens also noted that "the state defendants have correctly chosen not to challenge the Eleventh Circuit's holding that Title II is constitutional insofar as it authorizes prospective injunctive relief against the State."

Donald Marritz
MidPenn Legal Services