PLAN Legal Update

Monday, June 20, 2005

Pa. Bulletin of June 18, 2005

Link: http://www.pabulletin.com/secure/data/vol35/35-25/index.html

Of possible interest:

Courts - orphans court - proposed rules - "e-forms"
http://www.pabulletin.com/secure/data/vol35/35-25/1170.html

Health - WIC - maximum allowable prices
http://www.pabulletin.com/secure/data/vol35/35-25/1184.html

Welfare - subsidized child care eligibility - new regulations
http://www.pabulletin.com/secure/data/vol35/35-25/1206.html

Human relations commission - public hearing opinion - sex discrimination case
http://www.pabulletin.com/secure/data/vol35/35-25/1193.html

Don Marritz, MidPenn Legal Services

Pa. Bulletin of June 11, 2005

Link: http://www.pabulletin.com/secure/data/vol35/35-24/index.html

Of possible interest:

Attorneys - discipline - rules - amendments
http://www.pabulletin.com/secure/data/vol35/35-24/1113.html

Courts - local rules - Juniata and Perry Counties
http://www.pabulletin.com/secure/data/vol35/35-24/1118.html

Evidences - rules - character evidence - criminal cases - Rule 404 - amendments
http://www.pabulletin.com/secure/data/vol35/35-24/1114.html

Don Marritz, MidPenn Legal Services

Thursday, June 16, 2005

Evidence - admissibility of instant messages

In the Interest of FP
Superior Court June 15, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/s10004_05.pdf

Held: Messages proper admitted under circumstances of the case.

Don Marritz, MidPenn Legal Services

UC case - willful misconduct - computers

Blicha v. UCBR - June 15, 2005
http://www.courts.state.pa.us/OpPosting/CWealth/out/1855CD04_6-15-05.pdf

Held: There was substantial evidence to find that claimant had downloaded pornography on his work computer, in violation of work rule, despite lack of witness to testify to visual sighting of the improper use. Over 150 pornographic images were found on the computer. Evidence showed that they were accessed during work hours using cl's computer with his log-in and password.

Don Marritz, MidPenn Legal Services

Tuesday, June 14, 2005

Commonwealth Court Holds Private School Student Eligible for Section 504 Services

Lower Merion School District v. Student Doe and Parents Doe
http://www.courts.state.pa.us/OpPosting/CWealth/out/1979CD04_6-14-05.pdf

For the first time, the Commonwealth Court has ruled that a private school student who is also enrolled in the public school district is entitled to receive occupational therapy services under Section 504 of the Rehabilitation Act and its Pennsylvania implementing regulations, despite the fact the student was not eligible for special education services under the Individuals with Disabilities Education Act.

In so holding the Court found that the mandate in Section 504 and its federal implementing regulations clearly require that a public school district provide a free appropriate public education to each qualified student in its jurisdiction and that an appropriate education constitutes provision of regular or special education and related aids and services that are designed to meet the individual needs of handicapped persons.

In re: Private Criminal Complaint - Pa. Super. - June 6, 2005

This case discusses trial and appellate standards of review of DA decision not to accept a private criminal complaint.

http://www.courts.state.pa.us/OpPosting/Superior/out/e03002_04.pdf

Don Marritz
MidPenn Legal Services

UC case - Voluntary Quit - Sexual Harassment

Collier Stone Company v. UCBR - Cmwlth Court - June 7, 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/2587CD04_6-7-05.pdf

Court upheld Board finding of good cause to quit because of sexual harassment.

Don Marritz
MidPenn Legal Services

Monday, June 06, 2005

Custody - Grandparents v. Parent

Jordan v. Jackson - Pa. Superior Court
http://www.courts.state.pa.us/OpPosting/Superior/out/A03037_05.pdf

Court affirmed grant of primary custody to natural mother, despite her considerable recent problems.

Grandparents failed to overcome scales "tipped hard" in favor of natural mother.

Consumer Case - Implied Warranty of Mechantibility

Krack v. Action Motors, 867 A2d 86 (CT 2005)

Held -- dealer who sells used cars breaches implied warranty of merchantibility when it innocently sells car with salvage history, charging buyer price of non-salvaged car
fault is not an element of a case for breach of implied warranty of merchantibility…purpose of implied warranty is not to assign blame

Donald Marritz, MidPenn Legal Services

Pa. Bulletin of June 4, 2005

Here's the link
http://www.pabulletin.com/secure/data/vol35/35-23/index.html

Of possible interest--

Minor court rules - amendments - misc.
http://www.pabulletin.com/secure/data/vol35/35-23/1077.html

Support rules - amendments
http://www.pabulletin.com/secure/data/vol35/35-23/1075.html

Community services block grant - state plan - hearing
http://www.pabulletin.com/secure/data/vol35/35-23/1084.html

Weatherization - state plan - hearing
http://www.pabulletin.com/secure/data/vol35/35-23/1085.html

Welfare - pharmacy services
http://www.pabulletin.com/secure/data/vol35/35-23/1098.html

Donald Marritz, Attorney
MidPenn Legal Services

Pa. Bulletin of May 28, 2005

Thursday, May 26, 2005

Urbano v. Stat Courier Inc et al. -- Pa. Superior Court May 23, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/a05007_05.pdf

Written agreement stating that person is an indpt. contractor is not controlling where there is other evidence of the parties' relationship. Written agreement is just one of the factors to be considered.

Donald Marritz, MidPenn Legal Services

Cable & Associates Insurance Agency v. Commercial National Bank -- Pa. Super. May 20, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/A12004_05.pdf

There is no separate lender-borrower duty of good faith. Whatever such duty exists arises under contract law, etc.

A lender's decision to exercise its contractual rights is not a breach of the duty of good faith. A lender has no duty to give up its rights under contract or statute.

The opinion contains a good discussion of the general concept of good faith under sec. 205 of the Restatement (Second) of Contracts, and the UCC, 13 Pa. CS 1203

Donald Marritz, MidPenn Legal Services

Tuesday, May 24, 2005

Child Custody - Fox v. Garzilli - Pa. Superior Court - May 13, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/A01043_05.pdf

Discussion of issue of where children should attend school

Parties share legal custody. Mother has primary physical custody.

Held, children should transfer and attend school in mother's district.

-- Trial court (TC) gave too little weight to fact that mother has primary physical custody.

-- Fact that children were doing well in father's district could not prevent mother from asking for change, where initial order was entered by agreement and without prejudice to either party asking for change. Mother agreed initially to father's district because children were already there at the time.

-- Requiring children to remain in father's district would result in substantial transportation responsbility and "burdensome commute" on mother.

-- Allowing children to go to school in district where they live would have favorable impact on their ability to establish friendships

-- Children are young, and to change schools now would be "proactive" and help avoid later problems.

-- Trial court should not have admitted hearsay testimony about children's preference

Don Marritz, MidPenn Legal Services

PFA Contempt - Commonwealth v. Haigh - Pa. Super. May 2, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/s52017_04.pdf

Defendant talked to Plaintiff (asked her about her health) during contempt hearing, in open court.

Lower court found him guilty of contempt.

Superior Court reversed. Held, no wrongful intent in talking to Plaintiff/wife in courtroom, while D shackled, P protected by deputy sheriff, P testified that she wasn’t afraid.

Issue of whether indirect criminal contempt could be found where act took place in the presence of the court was mentioned (in bold type) but never resolved.

Don Marritz, MidPenn Legal Services

Monday, May 23, 2005

Pa. Bulletin of May 21, 2005

Pa. Bulletin of May 14, 2005

Here are some items of interest from the PA Bulletin of May 14, 2005 as compiled by Don Marritz, MidPenn Legal Services:

Table of Contents Link: http://www.pabulletin.com/secure/data/vol35/35-20/index.html

Pa. Supreme Court - internal procedures - labeling opinions
http://www.pabulletin.com/secure/data/vol35/35-20/923.html

Bar admission rules - limited license attorneys
http://www.pabulletin.com/secure/data/vol35/35-20/922.html

Education - disabled - IDEA-B grant application by state
http://www.pabulletin.com/secure/data/vol35/35-20/945.html

Health - mini-grants to eliminate barriers to community inclusion of children with special health needs
http://www.pabulletin.com/secure/data/vol35/35-20/953.html
http://www.pabulletin.com/secure/data/vol35/35-20/954.html

Unemployment Compensation/TRA case -- Glover v. UCBR

From: Don Marritz, MidPenn Legal Services

Decision: http://www.courts.state.pa.us/OpPosting/CWealth/out/924CD04_5-13-05.pdf

Summary: A few days after the claimant started TRA training, he began working two part-time jobs, in which he earned a total of about $175 per week, $6.00/week more than his partial benefit credit.

Claimant's application for TRA benefits was denied, based on a finding that he had not "exhausted all rights to any " UC insurance benefits. The Board decided that he would be eligible for regular state UC benefits, based on his earnings from his part-time jobs, should he apply for them.

The Court upheld the UCBR, holding that the claimant was "entitled" to state UC benefits and thus did not satisfy the exhaustion requirement under the TRA, 19 USC 2291(a)(3)(B

Monday, May 09, 2005

Pa. Bulletin of May 7, 2005

Friday, May 06, 2005

J.A. v. DPW - March 1, 2005 - nunc pro tunc appeals

Submitted by Don Marritz, MidPenn Legal Services:

This is child abuse expungement case doesn’t deal with the merits of the alleged abuse.

Rather, it was decided on the basis of whether JA -- who claimed that she had not received DPW's final administrative adjudication -- could file a late, nunc pro tunc, appeal.

http://www.courts.state.pa.us/OpPosting/CWealth/out/1939CD04_5-5-05.pdf