UC - willful misconduct - good cause

Docherty v. UCBR - Commonwealth Court - May 9, 2006

http://www.aopc.org/OpPosting/CWealth/out/1952CD05_5-9-06.pdf

Claimant (CL) did not commit willful misconduct where
- CL was phlebotomist in hospital
- hospital had confidentiality policy
- policy required employees to safeguard information from unauthorized viewing or listening - CL was discharged for violating the policy under the following facts:

- CL was drawing blood in a 2-patient room
- one patient was 5 year-old female
- patient's mother specifically asked CL why he was drawing blood
- the mother asked this question in the presence of patient's roommate and latter's mother.
- CL said that blood would be used for a rapid HIV and hepatitis test
- mother complained that CL vocalized a response that could be heard by others in room
- CL did not invite anyone into the room and did not respond loudly
- there is no evidence that the roommate or roommate's mother overheard CL's response

Held, claimant had good cause (a question of law) to violate the ER's rule/policy, since his actions were "justifiable and reasonable under the circumstances." Frumento, 351 A.2d 631 (Pa. 1976). Resolution of these issues requires consideration of "all of the circumstances, including the reasons for the [claimant's] noncompliance with the employer's directives." Navickas, 778 A2d 284 (Pa. 2001).

domestic - gun permit - conviction of DV crime

Wolak v. State Police - Commonwealth Court - Feb. 27, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1373CD05_5-9-06.pdf

The court affirmed the denial by state police of appellant's application for a gun permit based on sec. 922 of the Federal Gun Control Act of 1968, 18 USC 922, which precludes a person convicted of a misdemeanor crime of domestic violence from possessing a firearm.

Appellant was charged with various offenses after having discharged a shotgun in his house. His wife alleged and the criminal complaint stated that he had fired the weapon at her while she was coming up the steps.

All charges were dismissed at an MDJ hearing, except for reckless endangerment. Then pursuant to an agreement with the district attorney, all of the original charges were dropped, and appellant pleaded guilty to disorderly conduct, an misdemeanor of the third degree, 18 Pa. C.S. 5503. The record did not show what subsection of sec. 5503 was involved, and the plea colloquy did not contain any facts, but there was "nothing indicating that the underlying factual averments in the complaint and information were modified. . . only that the charge itself was changed. Thus, the averments made in support of the reckless endangerment charge became the operative averments in support of the disorderly conduct charge. The plea was made with respect to the averments in the Complaint."

The court held that appellant had committed a "misdemeanor crime of domestic violence," since (a) the crime was a misdemeanor under state law, and (b) it had as an element "the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse," 18 USC sec. 921)(a)(33)(A).

family - dependency - failure to ensure protection of child

In the Matter of E.B. - Superior Court- May 3, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/s70041_05.pdf

Clear and convincing evidence supported the finding that the child was dependent, due to fact that parent could not be "relied upon to enforce an existing stay-away order" involving the parent's paramour, who had made sexual advances toward the child.

consumer - state consumer protection law - credit reporting agency

Abusaab v. Equifax Information Services - ED Pa - May 4, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0554P.pdf

An arbitration award against Plaintiff was reversed on appeal, but the defendant credit reporting agency persisted in listing the judgment as "satisfied" instead of having been reversed and removed.

Plaintiff sued under Fair Credit Reporting Act, 15 USC 1681 et seq., and brought state law claims for negligence, defamation, false light, as well as a Consumer Protection Law (CPL) claim.
Defendant moved to dismiss all claims.

The Court refused, except as to the CPL claim, holding that the law does not cover credit reporting agencies, since there is no sale, purchase or lease of good or services between the parties.

Supreme Court of Pennsylvania Adopts New Procedural Rules to Address Changes to PFA Law

The Supreme Court of Pennsylvania has issued new rules of civil procedure to guide implementation of the new amendments to the Protection From Abuse Act. The newly enacted Act 66 of 2005 expands and accelerates PFA victim protections.

Changes to the Protection From Abuse Act that take effect May 9 include those that authorize county judges to order defendants with Protection From Abuse orders against them to surrender all firearms and other weapons within 24 hours - when the court determines such action is necessary to protect a victim. Defendants who do not surrender a firearm when ordered would face a misdemeanor charge. The Act also provides for alternative methods of relinquishment, such as transferring firearms to a licensed dealer.

The new Act also allows the president judge of a Court of Common Pleas to appoint a part-time or full-time master for emergency relief who may hear PFA petitions when a judge is not available. Other changes include an increase in the minimum fine for violation of a PFA order from $100 to $300.

A complete copy of the new rules, along with an explanatory report on the changes, is available on the Pennsylvania Judiciary Web site at the links below.

Order
Rule

Full AOPC Press Release

consumer - debt collection - failure to dispute debt doesn't "verify" it

Nelson v. Select Financial Services, Inc. - ED Pa. - April 28, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0538P.pdf

A debt collector's letter which states that the debtor's lack of response to the intial collection letter "verifies the validity of this debt" was held to violate sec. 1692e of the Fair Debt Collection Practices Act, which prohibits "any false, deceptive, or misleading representation in connection with the collection of any debt."

Applying the "least sophisticated debtor" standard, the court found that the letter "falsely represented to [the debtor] that her inaction definitively confirmed the authenticity of the debt, in violation of Sections 1692e and 1692e(10)."

The court noted the difference between (a) the statutorily-required language that a debt "will be assumed to be valid by the debt collector" unless disputed by the debtor within 30 days and (b) the statement that the debtor's lack of response an intial collection letter with such a "will be assumed" notice verifies the debt.

Pennsylvania Bulletin of April 29, 2006

http://www.pabulletin.com/secure/data/vol36/36-17/index.html


- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-17/696.html

- federal poverty guidelines - 2006
http://www.pabulletin.com/secure/data/vol36/36-17/716.html

- PUC - practice and procedure before the commission
http://www.pabulletin.com/secure/data/vol36/36-17/746.html

- game commission - wild turkeys - hunting and trapping
http://www.pabulletin.com/secure/data/vol36/36-17/700.html

consumer - insurance - cancellation - mailbox rule - intent to cancel

Russock v. AAA Mid-Atlantic Insurance Co. and Citizens Bank - Superior Court- April 17, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a01034_06.pdf

Premium payments were to be made, according to insurer's instructions, through an on-line remittance service of the bank. Payment renewal date was June 13. Insured electronically requested the bank to issue payment on June 3. Bank issued and mailed the check on June 10. Check arrived at insurer's office on June 17, 4 days after the due date of June 13. Insurer issued a notice of cancellation on June 17 but nonetheless cashed insured's check. On June 20, insured had an accident on June 20 and submitted a claim, which was rejected.

Insurer's claim that the payment was late was rejected based on application of the mailbox rule, which holds that payment is deemed received when mailed, "[w]here the use of the mails as a means of acceptance is a;uthorized or implied from the surrounding circumstances...Here the use of the mails to submit premiums was not merely authorized, but required."

Insurer's affirmative defense that insured intended to cancel the policy was rejected. In order to prove that defense, the insurer has the burden to prove insured "had a clear and precise intent to cancel the policy prior to the loss....i.e., knowledge of payment due and refusal to pay." Those condition "do not exist where.... arrangements for payment are made, the payment itself is placed in transit to the payee who has dictated the method of transport, and the check is cashed."

UC - appeal - timeliness

Shea v. UCBR - Commonwealth Court - April 21, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/2042CD05_4-21-06.pdf

Claimant's appeal of referee decision was held to be untimely under 34 Pa. Code 101.82(b)(1), where the appeal was mailed within appeal period but was returned for insufficient postage, then was re-mailed three days after end of appeal period.

custody - standing - "gestational mother"

J.F. v. D.B. - Superior Court - Aril 21, 2006

http://www.aopc.org/OpPosting/Superior/out/A41034_05.pdf

Third-party "gestational mother" (GM)/"gestational carrier" who is not children's biological mother does not have standing, as against unconsenting Father a) to seek or challenge custody of triplets born of the embryo of Father's sperm and the egg of "egg donor" J.R., or b) to seek the termination of J.R.'s parental rights.

GM's actions were contrary to a surrogacy agreement of GM, Father, and Father's long-term companion, E.D. Father and E.D. planned to raise the children by an agreement arranged to a private surrogacy agency. However, the court "decline[d] to comment on the validity of surrogacy contracts, either specifically in this case or generally in this Commonwealth. That task is for the legislature."

Pennsylvania Bulletin of April 22, 2006

http://www.pabulletin.com/secure/data/vol36/36-16/index.html

- weatherization - state plan - public hearing - May 10
http://www.pabulletin.com/secure/data/vol36/36-16/662.html

- LIHEAP - proposed plan 2006-7 - public hearing schedule
http://www.pabulletin.com/secure/data/vol36/36-16/679.html

- PUC - telephones - extended local service area - proposed regulations
http://www.pabulletin.com/secure/data/vol36/36-16/657.html

employment - FMLA - 11th Amendment

Febres v. Camden Board of Education - 3d Cir. - April 18, 2006

http://www.ca3.uscourts.gov/opinarch/051178p.pdf

Held: a local board of education is not an "arm of the state" under the 11th Amendment in a suit under the self-care provision of the Family and Medical Leave Act (FMLA), 29 USC 2612 (a)(1)(D). The court applied the test set out in Fitchik v. N.J. Transit Rail Operations, 873 F.2d 655, 659 (3d Cir. 1989), which "has been reiterated and applied many times since."

SSA Publishes Final Rule Establishing New Administrative Review Process for Adjudicating Initial Disability Claims

The Social Security Administration has published a final rule establishing its new disability determination process, known as the Disability Service Improvement (DSI) process. The rule explains SSA's new procedures for adjudicating the disability portion of initial claims for Social Security disability insurance (DI) benefits and for supplemental security income (SSI) based on disability or blindness.

SSA states that the purpose of the rule is to improve the accuracy, consistency, and fairness of its disability determination process and to make the right decision as early in the process as possible.

Under this rule, the administrative review process consists of several steps, which must be requested within certain time periods. When an application is filed for benefits, SSA will make an initial determination on the claim, and in certain circumstances refer the claim for a quick disability determination (QDD). If the applicant is dissatisfied with the initial determination, they may request review by a Federal reviewing official. If they are dissatisfied with the Federal reviewing official's decision, they may request a hearing before an administrative law judge.

The administrative law judge's decision becomes SSA's final decision, unless the claim is referred to the Decision Review Board (DRB). When the DRB reviews the claim and issues a decision, that decision is SSA's final decision. If the applicant is dissatisfied with the final decision, they may seek judicial review in Federal district court.

View the Final Rule

disability - continuance - lack of counsel - perfunctory hearing

Curry v. Barnhart - ED Pa. - April 13, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0458P.pdf

The court remanded the case for a de novo hearing where
- claimant was a 60 y/o illiterate person
- first attorney agreed to represent claimant only if he got a continuance
- first attorney got a continuance, but in the interim claimant got a second attorney
- second attorney got the hearing continued again, but then decided not to represent claimant
- second attorney went to hearing only to say he wasn't representing claimant
- ALJ asked the claimant if he had any objection to having the hearing; claimant did not object
- There was "no attempt to explain to petitioner the pros and cons of proceeding without legal representation"
- The "ALJ hearing was perfunctory at best
- The claimant "did not knowingly and intelligently waive his right to be represented by counsel"
- "[B]asic fairness dictates that the case be remanded...with representation of the petitioner by counsel."

Pennsylvania Bulletin of April 15, 2006

http://www.pabulletin.com/secure/data/vol36/36-15/index.html

Of possible interest --

- Commonwealth contracts - Governor's executive order - non-discrimination
http://www.pabulletin.com/secure/data/vol36/36-15/598.html

- attorneys - discipline - criminal convictions
http://www.pabulletin.com/secure/data/vol36/36-15/600.html

- courts - rules - electronic filing - technical amendments
http://www.pabulletin.com/secure/data/vol36/36-15/602.html

- public utilities - natural gas suppliers and n/g distribution companies - permanent standards of conduct
http://www.pabulletin.com/secure/data/vol36/36-15/603.html

- welfare - payment for nursing facility services
http://www.pabulletin.com/secure/data/vol36/36-15/623.html
http://www.pabulletin.com/secure/data/vol36/36-15/624.html

CJP Files Class Action Over Attachment of Social Security Funds

The Community Justice Project and private counsel from Harrisburg, Joseph K. Goldberg, have filed a class action lawsuit on behalf of a sixty-seven year-old Coalport (Clearfield County) man. The suit was filed in the United States District Court in Johnstown against Clearfield County Prothonotary William A. Shaw and CSB Bank.

In his suit, John J. Dransfield claims that he lives on Social Security payments directly deposited into his bank account and that his account, at CSB Bank in Coalport was frozen for more than a month in the fall of 2005, so he could not use his Social Security money to pay his bills. Mr. Dransfield also claims that CSB Bank took a total of $340 from the Social Security money in his account to pay itself legal fees associated with freezing his account.

The lawsuit claims that CSB’s action in taking the Social Security funds from his account and the Prothonotary’s action in issuing a writ of execution authorizing the account to be attached violated federal law that prohibits both execution and attachment of Social Security and Supplemental Security Income payments.

In his Complaint, Mr. Dransfield does not deny he owes creditor money and that a judgment has been entered against him, but he claims he is making small monthly payments and that the creditor is not permitted to collect the debt from his Social Security funds.

The lawsuit was filed as a class action on behalf of Mr. Dransfield and all other persons in Clearfield County who have Social Security or Supplemental Security Income payments directly deposited into their bank accounts and who have judgments entered against them. The complaint asks the court to prohibit the attachment of Social Security funds and to order CSB to refund charges it has made against Social Security funds belonging to any of its customers in the United States District Court in Johnstown.

The Complaint and Motion for Class Certification filed in the case are located in the PLS Brief and Information Bank at the link below.

Attachment of SSA Benefits

employment - personnel files - inspection - 43 P.S. 1321 et seq.

University of Pittsburgh v. Dept. of Labor & Industry - Commonwealth Court - April 12, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1440CD05_4-12-06.pdf

An employee can get access to her/his personnel file under the Personnel File Inspect Act, 43 P.S. 1321 et seq. In this case, however, access to outside references for an academic tenure evaluation was denied. The court said that such documents were excluded from the definition of "personnel file," since they were "letters of reference."

appeal - lack of transcript - reconstruction - PRAP 1923

In the Interest of G.T. - Superior Court - April 10, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a04009_06.pdf

Appellant father contested the termination of his parental rights, claiming, inter alia, that the part of the hearing transcript was missing. The court rejected that argument, noting that father did nothing to try to recreate the missing parts of the transcript as best he could, which was his duty under PRAP 1923 http://www.pacode.com/secure/data/210/chapter19/s1923.html (Statement in Absence of Transcript) and which opposing counsel offered to draft. The court also held that there was a sufficient factual basis for the lower court's decision, even in the absence of parts of the transcript.

employment - age discrim. - PHRA - release

Griest v. Pennsylvania State University - Superior Court - April 4, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a05001_06.pdf

Former employee's agreement/release barred him, on its face, from making any claims under the Pennsylvania Human Relations Act. Nonetheless, he filed a claim based on age discrimination in a common pleas action, which the trial court dismissed on the basis of the release, citing Long v.Sears, 105 F3d 1529 (3d Cir. 1997) and Wastak v. Lehigh Valley Health Network, 342 F3d 281 (3d Cir. 2003).

The appellate court affirmed, holding that
- the release agreement did not violate any state public policy;
- the technical requirements of the federal Older Worker's Benefits Protection Act (OWBPA) concerning waiver of federal ADEA rights, 29 USC 626(f)(1), were not relevant to a state cause of action under the PHRA;
- a release not procured by fraud, duress or mutual mistake is binding between the parties.

Pennsylvania Bulletin of April 8, 2006

http://www.pabulletin.com/secure/data/vol36/36-14/index.html

- utilities - biennial report to legislature and governor on Chapter 14
http://www.pabulletin.com/secure/data/vol36/36-14/588.html

- state employees - code of conduct - disclosure of $ interests
http://www.pabulletin.com/secure/data/vol36/36-14/561.html

- governor's veto message - SB 745 - asbestos cases
http://www.pabulletin.com/secure/data/vol36/36-14/562.html

- attorneys - bar admission rules
http://www.pabulletin.com/secure/data/vol36/36-14/563.html

- local court rules
Philadelphia - http://www.pabulletin.com/secure/data/vol36/36-14/565.html
Carbon - http://www.pabulletin.com/secure/data/vol36/36-14/566.html