Jehrio v. UCBR, Commonwealth Court, January 20, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/1699CD05_1-20-06.pdf
This case involves one week, during which the claimant (CL) -- a full-time banquet server -- worked one day, took one day vacation, and no work was available for 5 days. The Board held that the CL was entitled to partial benefits, 43 P.S. sec. 753(u), less her potential earnings on the vacation day, pursuant to UC regs, 35 Pa. Code sec. 65.71
The Court reversed, holding that the regulation and the Board's decision were in conflict with the statute, 43 P.S. 804(d)(1, which directs that partial benefits be reduced by a claimant's actual earnings on the vacation day -- in this case, her vacation pay ($52), which was considerably less that her potential earnings ($218.50 -- hourly wage plus tips), had she worked that day.
Noting the remedial nature of the UC law, the court held that "[i]f the Employer affords employees vacation days, and pays for those vacation days, it would be unfair to penalize those employees and require them to report potential earnings for a day that the Employer agreed they did not have to work. If Employer prevailed, employees could never request a vacation day if work was available to them without being penalized because they would always be required to deduct their potential earnings for the day rather than the vacation pay employer actually paid them."
Donald Marritz
MidPenn Legal Services
Saturday, January 21, 2006
Sunday, January 15, 2006
debt collection - "debt collector" - vicarious liability
Flamm v. Sarner & Associates and John Matusavage -- ED Pa. - January 4, 2006
http://www.paed.uscourts.gov/documents/opinions/06D0022P.pdf
Defendants' motion for summary judgment denied in a case in which Plaintiff sued law firm and Matusavage, whom she alleged was its employee, for M's actions in trying to collect on a judgment for a doctor's bill. Matusavage (M) went to P's employer several times, accused the P of being a "sneaky thief" who had stolen thousands of dollars from the creditor-doctor, that the employer (ER) could be "in trouble" if it had people like P as employees, and that the next time M went to the ER, he would bring a sheriff and P would be arrested.
law firm as "debt collector"
The law firm defendant was held to be a "debt collector" under the Fair Debt Collection Practices Act, 15 USC sec. 1692 et seq, i.e., a person whose principal business it is to collect debt, or who "regularly collects or attempts to collect debts owed to or due to another." The law firm "consistently has a small percentage of debt collections cases....a consistent taking and handling of debt collection cases" The court held that given this and other evidence, a "reasonable jury could find that" the law firm defendants are debt collectors under the FDCPA.
law firm liability for act of employee or indpt. contractor
Plaintiff claimed Matusavage was the law firm's employee. The firm said that M was an independent contractor, and that it was not liable for his actions. The court noted that there is "relatively little case law on the subject of vicarious liability under the FDCPA" but that "there are cases supporting the notion that an entity which itself meets the definition of 'debt collector' may be held vicariously liable for unlawful collection activities carried out by another on its behalf.'" Given this, summary judgment for D on this issue was held to be "inappropriate."
"ascertainable loss" under the state consumer protection law, 73 P.S. sec. 2270.1 et seq.
Defendants claimed that Plaintiff did not suffer an "ascertainable loss of money or property" and thus could not recover damages under the state consumer protection law, now known as Fair Credit Extension Uniformity Act (FCEUA), 73 P.S. sec. 2270.1 et seq. Noting that Plaintiff had stated a claim under the FDCPA, the court summarily rejected this claim, stating that "[i]t remains for [plaintiff] to present to a jury her 'ascertainable damages' for which she may recover 'actual damages or one hundred dollars ($100), which is greater.'"
defamation and civil conspiracy
The court also rejected defendants' summary judgment motion on these issues, noting a "genuine issue of material fact" on the defamation claim, and that "[q]uestions are raised which prevent" such action on the conspiracy claim.
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/06D0022P.pdf
Defendants' motion for summary judgment denied in a case in which Plaintiff sued law firm and Matusavage, whom she alleged was its employee, for M's actions in trying to collect on a judgment for a doctor's bill. Matusavage (M) went to P's employer several times, accused the P of being a "sneaky thief" who had stolen thousands of dollars from the creditor-doctor, that the employer (ER) could be "in trouble" if it had people like P as employees, and that the next time M went to the ER, he would bring a sheriff and P would be arrested.
law firm as "debt collector"
The law firm defendant was held to be a "debt collector" under the Fair Debt Collection Practices Act, 15 USC sec. 1692 et seq, i.e., a person whose principal business it is to collect debt, or who "regularly collects or attempts to collect debts owed to or due to another." The law firm "consistently has a small percentage of debt collections cases....a consistent taking and handling of debt collection cases" The court held that given this and other evidence, a "reasonable jury could find that" the law firm defendants are debt collectors under the FDCPA.
law firm liability for act of employee or indpt. contractor
Plaintiff claimed Matusavage was the law firm's employee. The firm said that M was an independent contractor, and that it was not liable for his actions. The court noted that there is "relatively little case law on the subject of vicarious liability under the FDCPA" but that "there are cases supporting the notion that an entity which itself meets the definition of 'debt collector' may be held vicariously liable for unlawful collection activities carried out by another on its behalf.'" Given this, summary judgment for D on this issue was held to be "inappropriate."
"ascertainable loss" under the state consumer protection law, 73 P.S. sec. 2270.1 et seq.
Defendants claimed that Plaintiff did not suffer an "ascertainable loss of money or property" and thus could not recover damages under the state consumer protection law, now known as Fair Credit Extension Uniformity Act (FCEUA), 73 P.S. sec. 2270.1 et seq. Noting that Plaintiff had stated a claim under the FDCPA, the court summarily rejected this claim, stating that "[i]t remains for [plaintiff] to present to a jury her 'ascertainable damages' for which she may recover 'actual damages or one hundred dollars ($100), which is greater.'"
defamation and civil conspiracy
The court also rejected defendants' summary judgment motion on these issues, noting a "genuine issue of material fact" on the defamation claim, and that "[q]uestions are raised which prevent" such action on the conspiracy claim.
Donald Marritz
MidPenn Legal Services
Saturday, January 14, 2006
housing discrimination - race - predatory lending
McGlawn v. Pa. Human Relations Commn. - Cmwlth. Court - January 13, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/2763CD04_1-13-06.pdf
In a case of first impression, the court held that the Pa. Human Relations Act (PHRA), 43 P.S. 955(h), extends to a sub-prime mortgage broker's predatory lending activities such as reverse redlining. The court relied on federal precedent under the Fair Housing Act, 42 USC 3605, which is very similar to the PHRA, Hargraves v. Capital City Mortgage Corp., 140 F.Supp. 2d (DDC 2000). The court found that the evidence showed that the broker's lending practices and terms were predatory and unfair and that the broker intentionally targeted the plaintiff and the class because of their race, and that the practices had a disparate impart on the basis of race.
predatory character of the loans
The case has an extensive discussion of predatory lending, defining it as including: a) unreasonably high interest rates (more than point points above prime); b) loans based on the value of the asset securing the loan rather than the borrower's ability to repay; c) excessive loan servicing fees; d) targeting of a certain population on unfair or onerous terms which do not meet the borrower's needs; e) a strong likelihood that the borrower will be unable to repay the loan; f) balloon payments; g) prepayment penalties; etc etc.
broker liability
The court rejected the broker's argument that the it should not be liable because it had not approved the loans or actually loaned money. The court noted that the broker was "significantly involved in making the loan" as the middleman who creates the loan opportunity. The customer relies on the broker and expect that the broker will be able to get the best available deal. The borrower deals exclusively with the broker and never actually meets the lender; in the borrower's mind, the broker is the lender. A mortgage broker owes a fiduciary duty to its customers. In re Barker, 251 B.R. 250 (ED Pa. 2000). The PHRA applies to brokers. The broker's activities were a substantial part of the loan transactions at issue.
discrimination
There was substantial evidence, including extensive advertising in the African-American community, a) that the broker intentionally targeted a protected class and b) that its policies and practices had a disparate impart on the basis of race. The PHRC established a prima facie case and rebuttable presumption of discrimination which the broker failed to rebut with some legitimate non-discriminatory reasons for its actions or that its lending practices were legitimate.
damages
The court affirmed the part of the PHRA damage award consisting of monies paid to the broker out of the loan proceeds for items benefiting the broker but not the lender. The court reversed the damage award for the difference between the total interest on the predatory loan v. what the borrowers would pay on a loan at the prevailing rate, due to problems with defining the time frame and the proper credit rates that would be available to the borrowers. However, the court held that the borrowers were entitled to recover damages of this nature. The court also upheld the PHRA's authority to award damages for embarrassment and humiliation, as well as the PHRA's award of a civil penalty to each borrower/complainant.
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/CWealth/out/2763CD04_1-13-06.pdf
In a case of first impression, the court held that the Pa. Human Relations Act (PHRA), 43 P.S. 955(h), extends to a sub-prime mortgage broker's predatory lending activities such as reverse redlining. The court relied on federal precedent under the Fair Housing Act, 42 USC 3605, which is very similar to the PHRA, Hargraves v. Capital City Mortgage Corp., 140 F.Supp. 2d (DDC 2000). The court found that the evidence showed that the broker's lending practices and terms were predatory and unfair and that the broker intentionally targeted the plaintiff and the class because of their race, and that the practices had a disparate impart on the basis of race.
predatory character of the loans
The case has an extensive discussion of predatory lending, defining it as including: a) unreasonably high interest rates (more than point points above prime); b) loans based on the value of the asset securing the loan rather than the borrower's ability to repay; c) excessive loan servicing fees; d) targeting of a certain population on unfair or onerous terms which do not meet the borrower's needs; e) a strong likelihood that the borrower will be unable to repay the loan; f) balloon payments; g) prepayment penalties; etc etc.
broker liability
The court rejected the broker's argument that the it should not be liable because it had not approved the loans or actually loaned money. The court noted that the broker was "significantly involved in making the loan" as the middleman who creates the loan opportunity. The customer relies on the broker and expect that the broker will be able to get the best available deal. The borrower deals exclusively with the broker and never actually meets the lender; in the borrower's mind, the broker is the lender. A mortgage broker owes a fiduciary duty to its customers. In re Barker, 251 B.R. 250 (ED Pa. 2000). The PHRA applies to brokers. The broker's activities were a substantial part of the loan transactions at issue.
discrimination
There was substantial evidence, including extensive advertising in the African-American community, a) that the broker intentionally targeted a protected class and b) that its policies and practices had a disparate impart on the basis of race. The PHRC established a prima facie case and rebuttable presumption of discrimination which the broker failed to rebut with some legitimate non-discriminatory reasons for its actions or that its lending practices were legitimate.
damages
The court affirmed the part of the PHRA damage award consisting of monies paid to the broker out of the loan proceeds for items benefiting the broker but not the lender. The court reversed the damage award for the difference between the total interest on the predatory loan v. what the borrowers would pay on a loan at the prevailing rate, due to problems with defining the time frame and the proper credit rates that would be available to the borrowers. However, the court held that the borrowers were entitled to recover damages of this nature. The court also upheld the PHRA's authority to award damages for embarrassment and humiliation, as well as the PHRA's award of a civil penalty to each borrower/complainant.
Donald Marritz
MidPenn Legal Services
Sunday, January 08, 2006
employment - ADEA - FRCivP 6(e) - applic. to EEOC right-to-sue letters
DeFrancesco v. Weir Hazleton - ED Pa. - December 20, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1513P.pdf
Plaintiff filed an age discrimination complaint in court on the 92nd day after his EEOC right-to-sue letter was mailed to him. The lower court initially applied FRCivP 6(e), which provides for an extra 3 days to file when a document is mailed.
On a motion for reconsideration by the defendant-employer, however, the district court noted that a 2001 amendment to Rule 6(e) made it applicable only to pleadings, motions, and other court papers, i.e., not a document such as an EEOC right-to-sue letter.
The court held that the weight of judicial authority would justify continued application of the 3-day mailing to EEOC right-so-sue letters, given its consistent continued application even after the amendment to Rule 6(e), but pointed out a "tension...between Rule 6(e)'s amendment...and its continued application to EEOC right-to-sue letters....[W]e are presented with a jurisprudential Mobius strip.
The district court certified the case for interlocutory appeal to the 3d Circuit to answer the question: "Does Federal Rule of Civil Procedure 6(e), as amended effective December 1, 2001, continue to apply to EEOC right-to-sue letters?"
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1513P.pdf
Plaintiff filed an age discrimination complaint in court on the 92nd day after his EEOC right-to-sue letter was mailed to him. The lower court initially applied FRCivP 6(e), which provides for an extra 3 days to file when a document is mailed.
On a motion for reconsideration by the defendant-employer, however, the district court noted that a 2001 amendment to Rule 6(e) made it applicable only to pleadings, motions, and other court papers, i.e., not a document such as an EEOC right-to-sue letter.
The court held that the weight of judicial authority would justify continued application of the 3-day mailing to EEOC right-so-sue letters, given its consistent continued application even after the amendment to Rule 6(e), but pointed out a "tension...between Rule 6(e)'s amendment...and its continued application to EEOC right-to-sue letters....[W]e are presented with a jurisprudential Mobius strip.
The district court certified the case for interlocutory appeal to the 3d Circuit to answer the question: "Does Federal Rule of Civil Procedure 6(e), as amended effective December 1, 2001, continue to apply to EEOC right-to-sue letters?"
Donald Marritz
MidPenn Legal Services
Friday, January 06, 2006
consumer - TILA - disclosures - creditor v. 3d party
Vallies v. Sky Bank - 3d Cir. - January 5, 2006
http://www.ca3.uscourts.gov/opinarch/051002p.pdf
Held: Single creditor bank must make all TILA disclosures and cannot rely on independent disclosure of required information by a third party seller, a car dealer
Creditor bank violated the TILA when it excluded certain debt cancellation fees from the calculation of the finance charge w/o disclosing the amount of the fees and that cancellation coverage was optional, despite the fact that the disclosures were ultimately made by a non-creditor third party, a car dealer from whom plaintiff bought a vehicle. The car dealer and bank acted independently of each other. The dealer was not the bank's agent.
The TILA in plain terms mandates that the "creditor" to make the required disclosures. The Act "clearly vests the duty of disclosure on the, and only on the, actual creditor and not on any third party to the credit transaction." The "creditor, and the creditor alone, is required to disclose...required information." The "clear language and meaning of the TILA [requires] that all disclosures be made by a single creditor....the actual creditor and not some third party." The "TILA places a clear and affirmative duty on the actual creditor itself to disclose any and all required information....[W]here the creditor fails to disclose this information, it has violated TILA regardless of the ultimate receipt of information." The court rejected the notion that its conclusion was "hypertechnical...or overly formalistic. The creditor need only follow the law...."
Donald Marritz
MidPenn Legal Services
http://www.ca3.uscourts.gov/opinarch/051002p.pdf
Held: Single creditor bank must make all TILA disclosures and cannot rely on independent disclosure of required information by a third party seller, a car dealer
Creditor bank violated the TILA when it excluded certain debt cancellation fees from the calculation of the finance charge w/o disclosing the amount of the fees and that cancellation coverage was optional, despite the fact that the disclosures were ultimately made by a non-creditor third party, a car dealer from whom plaintiff bought a vehicle. The car dealer and bank acted independently of each other. The dealer was not the bank's agent.
The TILA in plain terms mandates that the "creditor" to make the required disclosures. The Act "clearly vests the duty of disclosure on the, and only on the, actual creditor and not on any third party to the credit transaction." The "creditor, and the creditor alone, is required to disclose...required information." The "clear language and meaning of the TILA [requires] that all disclosures be made by a single creditor....the actual creditor and not some third party." The "TILA places a clear and affirmative duty on the actual creditor itself to disclose any and all required information....[W]here the creditor fails to disclose this information, it has violated TILA regardless of the ultimate receipt of information." The court rejected the notion that its conclusion was "hypertechnical...or overly formalistic. The creditor need only follow the law...."
Donald Marritz
MidPenn Legal Services
Thursday, January 05, 2006
recent ED Pa. disability decisions
Summary judgment granted to SSA in all of the following cases
1. Proffit v. Barnhart - ED Pa. December 30, 2005 -
http://www.paed.uscourts.gov/documents/opinions/06D0014P.pdf
Plaintiff's medical evidence was not extensive and fairly old. Court upheld ALJ's finding the P's subjective complaints were not credible and not supported by objective medical evidence, citing 20 CFR 404.1529(b), (c)(2) and Hartranft v. Apfel, 131 F.3d 358, 362 (3d Cir. 1999)
2. Wright v. Barnhart - ED Pa. - December 28, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1540P.pdf
The court upheld the ALJ's determination that the claimant's depression was not a severe impairment. Noting the threshold for severity is low, the court nonetheless said that the plaintiff "must still provide evidence sufficient to show that her impairment has a minimal effect of her ability to work." Holding that P here didn’t do so, the court noted that the treating physician's opinion was based "largely on the claimant's own account of her symptoms and limitations." The court also rejected the argument that the ALJ should have asked for further info from the treating physician, holding the there was sufficient evidence on which to make a decision. Finally, the claimant's complaints about pain were discounted because it was handled by "conservative treatment….there was a lack of medical evidence showing that she experienced more than moderate levels of pain or other daily symptoms…"
3. Brubaker v. Barnhart - ED Pa. - December 29, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1537P.pdf
a) The ALJ adequately developed the record and fulfilled his heightened duty to the pro se claimant.
b) The claimant did not demonstrate good cause for not having presented evidence to the ALJ at the time of the hearing
c) The ALJ properly rejected the treating doctor's opinion on the ultimate issue of employability, which is reserved for SSA
d) The ALJ properly explained his credibility determination -- this is the weakest part of the opinion. The court held that "although indirectly, the ALJ did explain his credibility determination by incorporating the body of his entire decision….Because I can infer from the decision what the ALJ relied upon in making his credibility determination, I find his conclusion…follows the spirit of the law…." Doesn’t the ALJ have to give a more specific reason for a credibility determination.?
e) The hypothetical posed to the VE adequately set out all credibly established limitations.
f) The ALJ considered claimant's impairments in combination.
Donald Marritz
MidPenn Legal Services
1. Proffit v. Barnhart - ED Pa. December 30, 2005 -
http://www.paed.uscourts.gov/documents/opinions/06D0014P.pdf
Plaintiff's medical evidence was not extensive and fairly old. Court upheld ALJ's finding the P's subjective complaints were not credible and not supported by objective medical evidence, citing 20 CFR 404.1529(b), (c)(2) and Hartranft v. Apfel, 131 F.3d 358, 362 (3d Cir. 1999)
2. Wright v. Barnhart - ED Pa. - December 28, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1540P.pdf
The court upheld the ALJ's determination that the claimant's depression was not a severe impairment. Noting the threshold for severity is low, the court nonetheless said that the plaintiff "must still provide evidence sufficient to show that her impairment has a minimal effect of her ability to work." Holding that P here didn’t do so, the court noted that the treating physician's opinion was based "largely on the claimant's own account of her symptoms and limitations." The court also rejected the argument that the ALJ should have asked for further info from the treating physician, holding the there was sufficient evidence on which to make a decision. Finally, the claimant's complaints about pain were discounted because it was handled by "conservative treatment….there was a lack of medical evidence showing that she experienced more than moderate levels of pain or other daily symptoms…"
3. Brubaker v. Barnhart - ED Pa. - December 29, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1537P.pdf
a) The ALJ adequately developed the record and fulfilled his heightened duty to the pro se claimant.
b) The claimant did not demonstrate good cause for not having presented evidence to the ALJ at the time of the hearing
c) The ALJ properly rejected the treating doctor's opinion on the ultimate issue of employability, which is reserved for SSA
d) The ALJ properly explained his credibility determination -- this is the weakest part of the opinion. The court held that "although indirectly, the ALJ did explain his credibility determination by incorporating the body of his entire decision….Because I can infer from the decision what the ALJ relied upon in making his credibility determination, I find his conclusion…follows the spirit of the law…." Doesn’t the ALJ have to give a more specific reason for a credibility determination.?
e) The hypothetical posed to the VE adequately set out all credibly established limitations.
f) The ALJ considered claimant's impairments in combination.
Donald Marritz
MidPenn Legal Services
disability - obesity - Listing 9.09 v. SSR 00-3p
Branson v. Barnhart -- ED Pa. - December 29, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1538P.pdf
The court ordered this case to be remanded. Plaintiff's claim had been filed while the Listing 9.09 was still in effect, i.e., prior to the effective date of the new SSR 00-3p. The court found merit in Plaintiff's argument that the SSR should not be applied retroactively to pending claims, citing conflicting cases from other circuits. The court found "persuasive those cases which reason that the Adminstration does not have the authority to engage in retroactive rulemaking….without express congressional authorization" and rejected the language of the SSR which states that it applies to cases filed before October 25, 1999, and still pending on that date. The court held that the claim should have been evaluated under Listing 9.09 and remanded the case.
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1538P.pdf
The court ordered this case to be remanded. Plaintiff's claim had been filed while the Listing 9.09 was still in effect, i.e., prior to the effective date of the new SSR 00-3p. The court found merit in Plaintiff's argument that the SSR should not be applied retroactively to pending claims, citing conflicting cases from other circuits. The court found "persuasive those cases which reason that the Adminstration does not have the authority to engage in retroactive rulemaking….without express congressional authorization" and rejected the language of the SSR which states that it applies to cases filed before October 25, 1999, and still pending on that date. The court held that the claim should have been evaluated under Listing 9.09 and remanded the case.
Donald Marritz
MidPenn Legal Services
Thursday, December 22, 2005
contracts - duty of good faith/fair dealing - doctrine of necessary implication
Stamerro v. Stamerro - Superior Court - December 21, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/a13045_05.pdf
This case involves the interpretation and enforcement of a marriage settlement agreement. The appellate court affirmed the trial court's refusal to lower appellant-husband's contractual duty to pay a certain level of alimony.
duty of good faith and fair dealing
Pennsylvania has "accepted the principle in Restatement (Second) of Contracts, sec. 205 that 'every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcements."
The duty of good faith means honesty in fact in the conduct of transaction concerned . The duty of varies somewhat w/context . A complete catalogue of lack of good faith is impossible , but it includes evasion of the spirit of the bargain and lack of diligence
doctrine of necessary implication
This is similar to the doctrine of good faith and fair dealing. Courts employ this doctrine a s a means of avoiding injustice by inferring contract terms that reflect parties' silent intent .
Absent an express term, the doctrine may act to imply a requirement necessitated by reason and justice and to avoid frustation of the intent of the parties
Doctrines of good faith, fair dealing, and necessary implication apply in limited circumstances and cannot trump express contract provisions . They are principles for courts to use to harmonize the reasonable expectations of the parties with the intent of the contractors and the express terms in their contract.
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/a13045_05.pdf
This case involves the interpretation and enforcement of a marriage settlement agreement. The appellate court affirmed the trial court's refusal to lower appellant-husband's contractual duty to pay a certain level of alimony.
duty of good faith and fair dealing
Pennsylvania has "accepted the principle in Restatement (Second) of Contracts, sec. 205 that 'every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcements."
The duty of good faith means honesty in fact in the conduct of transaction concerned . The duty of varies somewhat w/context . A complete catalogue of lack of good faith is impossible , but it includes evasion of the spirit of the bargain and lack of diligence
doctrine of necessary implication
This is similar to the doctrine of good faith and fair dealing. Courts employ this doctrine a s a means of avoiding injustice by inferring contract terms that reflect parties' silent intent .
Absent an express term, the doctrine may act to imply a requirement necessitated by reason and justice and to avoid frustation of the intent of the parties
Doctrines of good faith, fair dealing, and necessary implication apply in limited circumstances and cannot trump express contract provisions . They are principles for courts to use to harmonize the reasonable expectations of the parties with the intent of the contractors and the express terms in their contract.
Donald Marritz
MidPenn Legal Services
Wednesday, December 21, 2005
Freedom of Information Act - waiver of fees
Community Legal Services v. HUD - ED Pa. - December 19, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1502P.pdf
The court granted CLS's motion for summary judgment against HUD on CLS's request to have all fees waived for its Freedom of Information Act (FOIA), 5 USC 552 et seq., request for documents concerning Moving to Work (MTW) Demonstration Program of the Philadelphia Housing Authority, pursuant to PHA's agreement with HUD.
The Court found that CLS had "adequately shown that it satisfied the statutory requirements for a feee waiver" by showing that "disclosure of the requested documents is likely to contribute to public understanding, and that the contribution is likely to be significant."
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1502P.pdf
The court granted CLS's motion for summary judgment against HUD on CLS's request to have all fees waived for its Freedom of Information Act (FOIA), 5 USC 552 et seq., request for documents concerning Moving to Work (MTW) Demonstration Program of the Philadelphia Housing Authority, pursuant to PHA's agreement with HUD.
The Court found that CLS had "adequately shown that it satisfied the statutory requirements for a feee waiver" by showing that "disclosure of the requested documents is likely to contribute to public understanding, and that the contribution is likely to be significant."
Donald Marritz
MidPenn Legal Services
custody - expert opinion - discovery/use by opposing party
Lloyd v. Lloyd - Pa. Superior Court - December 20, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/a29038_05.pdf
Mother's discovery and use of report of father's expert permitted under Pa. RCP 4003(a)(3), where father procured report initially but decided not to use report or call expert at trial.
Pa RCP 4003(a)(3) bars discovery of an report of an expert who is not expected to be called as a witness at trial. Father initially indicated that he would call the expert, so the court said that the rule wouldn't apply. In the alternative, the court held that report was discoverable under the rule, because it was the report of a "medical expert," as defined by Rule 4010(b). The court said that an "expert in a child custody case, regardless of who 'hires' the expert, is very similar to a 'independent' medical examiner which is the subject of Rule 4010…An expert, whether hired by a particular party or appointed by the court in custody litigation, is an expert subject to Rule 4010…" The expert's report and findings are "discoverable by a party….regardless of the status of the expert as a witness at trial."
The court also rejected an argument that mother's late motion about getting/using the report violated the trial court's procedural order establishing a schedule and procedure. It approved the trial court's statement that "our analysis is direct and simple…Hire an expert custody evaluator and such opinion evidence will be made known to the court. To do otherwise would be a disservice to the child….[K]nowing such evidence exists and to shield such from disclosure presents a less than full and complete record. We literally can conceive of no circumstance where non-disclosure benefits the child."
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/a29038_05.pdf
Mother's discovery and use of report of father's expert permitted under Pa. RCP 4003(a)(3), where father procured report initially but decided not to use report or call expert at trial.
Pa RCP 4003(a)(3) bars discovery of an report of an expert who is not expected to be called as a witness at trial. Father initially indicated that he would call the expert, so the court said that the rule wouldn't apply. In the alternative, the court held that report was discoverable under the rule, because it was the report of a "medical expert," as defined by Rule 4010(b). The court said that an "expert in a child custody case, regardless of who 'hires' the expert, is very similar to a 'independent' medical examiner which is the subject of Rule 4010…An expert, whether hired by a particular party or appointed by the court in custody litigation, is an expert subject to Rule 4010…" The expert's report and findings are "discoverable by a party….regardless of the status of the expert as a witness at trial."
The court also rejected an argument that mother's late motion about getting/using the report violated the trial court's procedural order establishing a schedule and procedure. It approved the trial court's statement that "our analysis is direct and simple…Hire an expert custody evaluator and such opinion evidence will be made known to the court. To do otherwise would be a disservice to the child….[K]nowing such evidence exists and to shield such from disclosure presents a less than full and complete record. We literally can conceive of no circumstance where non-disclosure benefits the child."
Donald Marritz
MidPenn Legal Services
Tuesday, December 20, 2005
custody - standard of review, expert opinion
King v. King - Pa. Superior Court, December 16, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/A34039_05.pdf
In a factually complicated case, the appellate court affirmed the trial court's grant of primary custody to father, over child's expressed strong preference for mother. There was no discussion at all about the child-preference issue.
standard of review -- The Court said that it was its scope of review was "very broad" but that it was "not this Court's function to determine whether the trial court reached the 'right' decision' rather we must consider whether, 'based on the evidence presented, given due deference to the trial court's weight and credibility determinations,' the trial court erred or abused is discretion in awarding custody to the prevailing party."
expert opinion - The appellate court upheld the trial's court's refusal to follow the recommendation of the custody evaluator, a psychologist, that custody go to mother, stating that the trial court had conducted two full hearings and was "in the unique position of having had the opportunity to observe all of the parties in this matter for a period of at least four years." The trial judge "detailed 96 findings of fact with an excellent analysis and interpretation of the nuances expressed by the witnesses which strongly support his conclusions. Our standard of review does not allow us to alter the court's conclusions provided they are supported by the record or unless they are manifestly unreasonable. The court's decision awarding custody to [father] is supported by the voluminous record before us."
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/A34039_05.pdf
In a factually complicated case, the appellate court affirmed the trial court's grant of primary custody to father, over child's expressed strong preference for mother. There was no discussion at all about the child-preference issue.
standard of review -- The Court said that it was its scope of review was "very broad" but that it was "not this Court's function to determine whether the trial court reached the 'right' decision' rather we must consider whether, 'based on the evidence presented, given due deference to the trial court's weight and credibility determinations,' the trial court erred or abused is discretion in awarding custody to the prevailing party."
expert opinion - The appellate court upheld the trial's court's refusal to follow the recommendation of the custody evaluator, a psychologist, that custody go to mother, stating that the trial court had conducted two full hearings and was "in the unique position of having had the opportunity to observe all of the parties in this matter for a period of at least four years." The trial judge "detailed 96 findings of fact with an excellent analysis and interpretation of the nuances expressed by the witnesses which strongly support his conclusions. Our standard of review does not allow us to alter the court's conclusions provided they are supported by the record or unless they are manifestly unreasonable. The court's decision awarding custody to [father] is supported by the voluminous record before us."
Donald Marritz
MidPenn Legal Services
Thursday, December 15, 2005
civil contempt - specificity of order
McNelis, et al. v. Lear, et al. - Pa. Superior Court - December 14, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/e02003_05.pdf
This is a civil contempt case about enforcement of a settlement agreement in a property dispute matter. This may be of interest to family law advocates because of its possible application to PFA civil contempts.
Superior Court reversed lower court finding of contempt, because the lower court had not clearly set out a specific order that appellants had not followed.
The court said that the "order forming the basis for the contempt finding must be definite, clear, and specific, leaving no doubt or uncertainty regarding the prohibited conduct….It is well settled that there are certain elements necessary to support a finding of civil contempt, namely: that the contemnor had notice of the specific order or decree which he disobeyed; that the act constituting the contemnor's violation was volitional; and that the contemnor acted with wrongful intent."
In this case, the lower court had never entered an order directing appellants to do what they had allegedly not done. "Because Appellants were not in violation of a specific court order it was improper for the trial court to find them in contempt."
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/e02003_05.pdf
This is a civil contempt case about enforcement of a settlement agreement in a property dispute matter. This may be of interest to family law advocates because of its possible application to PFA civil contempts.
Superior Court reversed lower court finding of contempt, because the lower court had not clearly set out a specific order that appellants had not followed.
The court said that the "order forming the basis for the contempt finding must be definite, clear, and specific, leaving no doubt or uncertainty regarding the prohibited conduct….It is well settled that there are certain elements necessary to support a finding of civil contempt, namely: that the contemnor had notice of the specific order or decree which he disobeyed; that the act constituting the contemnor's violation was volitional; and that the contemnor acted with wrongful intent."
In this case, the lower court had never entered an order directing appellants to do what they had allegedly not done. "Because Appellants were not in violation of a specific court order it was improper for the trial court to find them in contempt."
Donald Marritz
MidPenn Legal Services
Thursday, December 08, 2005
employment - discrimination - recent Pa. federal court decisions
1. Washco v. Federal Express Corp. - ED Pa. - November 28, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1434P.pdf
Summary judgment granted to defendant on plaintiff's employment-related claims under Title VII of the Civil Rights Act, 42 USC sec. 1981(a), and the Pennsylvania Human Relations Act (PHRA), 43 P.S. sec. 951 et seq.
2. Foxworth v. Pa. State Police - ED Pa. - November 29, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1436P.pdf
Sumary judgment granted to defendant on employment-related claims under 42 USC sec. 1981, sec. 1983 and sec. 2000e( Title VII) against State Police. Good discussion of how these cases are decided, shifting burden of proof/persuasion, etc.
3. Keys v. City of Philadelphia, ED Pa. - November 29, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1437P.pdf
Summary judgment motions of each party denied on plaintiff's employment-related claims under ADA, 42 USC 12111-12131; Rehabilitation Act, 29 USC sec. 793 st seq.; the Pa. Human Relations Act, 43 P.S. sec. 951 et seq.; 14th Amendment; 42 USC sec. 1983.
4. Embrico, et al. v. United States Steel Corp. - ED Pa. November 30, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1452P.pdf
Defendant's summary judgment motion granted on all claims in this 61-page decision.
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1434P.pdf
Summary judgment granted to defendant on plaintiff's employment-related claims under Title VII of the Civil Rights Act, 42 USC sec. 1981(a), and the Pennsylvania Human Relations Act (PHRA), 43 P.S. sec. 951 et seq.
2. Foxworth v. Pa. State Police - ED Pa. - November 29, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1436P.pdf
Sumary judgment granted to defendant on employment-related claims under 42 USC sec. 1981, sec. 1983 and sec. 2000e( Title VII) against State Police. Good discussion of how these cases are decided, shifting burden of proof/persuasion, etc.
3. Keys v. City of Philadelphia, ED Pa. - November 29, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1437P.pdf
Summary judgment motions of each party denied on plaintiff's employment-related claims under ADA, 42 USC 12111-12131; Rehabilitation Act, 29 USC sec. 793 st seq.; the Pa. Human Relations Act, 43 P.S. sec. 951 et seq.; 14th Amendment; 42 USC sec. 1983.
4. Embrico, et al. v. United States Steel Corp. - ED Pa. November 30, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1452P.pdf
Defendant's summary judgment motion granted on all claims in this 61-page decision.
Donald Marritz
MidPenn Legal Services
UC - willful misconduct - alcohol
Brannigan v. UCBR - Commonwealth Court - December 8, 2005
http://www.courts.state.pa.us/OpPosting/CWealth/out/651CD05_12-8-05.pdf
Claimant disqualified pursuant to sec. 402(e.1), 43 P.S. sec. 802(e.1), which says that a claimant (CL) is ineligible where unemployment is due to discharge or suspension from work for failure to submit and/or pass a drug test which is conducted pursuant to an employer's established policy, provided that the test is not requested or implemented in violation of the law or a collective bargaining agreement.
Claimant was a nursing assistant at a hospital. In March 2003, he had had a positive test for alcohol, agreed to enter an alcohol assistance program, and was told that any future violation would result in his discharge. In September 2004, an OR nurse told the medical director (MD) that CL smelled of alcohol. The MD talked to CL and, based on the smell of alcohol, told him he'd be required to take an alcohol test. He refused the test. Claimant admitted at the hearing that he'd had 3-4 beers at 12:30 a.m. and had been unable to shower before reporting to work at 10:00 a.m
The referee held that the ER failed to show that the CL was aware of the details of the drug policy, which had been changed since the March 2003 incident. The referee also said that the ER failed to follow its policy, because there was no competent evidence that the CL exhibited behavior that showed he was unfit for duty. The Board reversed. It found that the CL was aware of the ER's policy, which says that employees can be give a test as a result of a suspicion of impairment. The Board found that there was credible evidence that CL smelled of alcohol when he got to work.
The Court affirmed the Board's denial of benefits, citing UGI Utilities v. UCBR, 851 A2d 240 (Pa. Cmwlth. 2004). The Board made specific findings that the ER had a substance abuse policy and that the CL violated it. The Court rejected the argument that CL didn't know that refusing the test could result in a dismissal. It said that the "record is replete with evidence that the knew of the drug and alcohol policy" and that he "had signed an agreement specifying that any future violation…would result in termination."
The Court also rejected the argument that "the smell of alcohol alone is insufficient to establish that he was unfit for duty….This Court has held an employee can commit willful misconduct by arriving at work smelling of alcohol even if that employee does not drink at work and is able to perform all required duties," citing Klink v. UCBR, 289 A.2d 494 (Pa. Cmwlth 1972). The Court said that "olfactory evidence that claimant imbibed intoxicating liquor before arriving for work, let alone Claimant's admissions to the same, is enough to support a finding of willful misconduct," citing Lindsay v. UCBR, 789 A.2d 385, 390 (Pa. Cmwlth. 2001).
The Court also cited the following language from Klink: "F. Scott Fitzgerald chronicler of a less serious age that the present, observed that the bouquet of alcohol, not unseemly to a cavalry officer or bond broker, is altogether unfitting to a surgeon or clergyman….In the instant matter, we must determine whether the same standards shall apply to all hospital employees." [Query:
Is this an attempt to again establish a higher standard of conduct for certain employees, in violation of e.g. Navickas v. UCBR, 787 A.2d 284 (Pa. 2001)?]
The Court ended in a somewhat confusing fashion by saying that "[u]nder Employer's policy, an employee suspected of impairment due to alcohol could not be forced to submit to an alcohol screening test; however, such refusal would be reported to Employee Relations for further disposition and action. Claimant knew or should have known of this policy. The Board properly denied benefits in accordance with Section 402(e.1) of the Law." (emphasis added)
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/CWealth/out/651CD05_12-8-05.pdf
Claimant disqualified pursuant to sec. 402(e.1), 43 P.S. sec. 802(e.1), which says that a claimant (CL) is ineligible where unemployment is due to discharge or suspension from work for failure to submit and/or pass a drug test which is conducted pursuant to an employer's established policy, provided that the test is not requested or implemented in violation of the law or a collective bargaining agreement.
Claimant was a nursing assistant at a hospital. In March 2003, he had had a positive test for alcohol, agreed to enter an alcohol assistance program, and was told that any future violation would result in his discharge. In September 2004, an OR nurse told the medical director (MD) that CL smelled of alcohol. The MD talked to CL and, based on the smell of alcohol, told him he'd be required to take an alcohol test. He refused the test. Claimant admitted at the hearing that he'd had 3-4 beers at 12:30 a.m. and had been unable to shower before reporting to work at 10:00 a.m
The referee held that the ER failed to show that the CL was aware of the details of the drug policy, which had been changed since the March 2003 incident. The referee also said that the ER failed to follow its policy, because there was no competent evidence that the CL exhibited behavior that showed he was unfit for duty. The Board reversed. It found that the CL was aware of the ER's policy, which says that employees can be give a test as a result of a suspicion of impairment. The Board found that there was credible evidence that CL smelled of alcohol when he got to work.
The Court affirmed the Board's denial of benefits, citing UGI Utilities v. UCBR, 851 A2d 240 (Pa. Cmwlth. 2004). The Board made specific findings that the ER had a substance abuse policy and that the CL violated it. The Court rejected the argument that CL didn't know that refusing the test could result in a dismissal. It said that the "record is replete with evidence that the knew of the drug and alcohol policy" and that he "had signed an agreement specifying that any future violation…would result in termination."
The Court also rejected the argument that "the smell of alcohol alone is insufficient to establish that he was unfit for duty….This Court has held an employee can commit willful misconduct by arriving at work smelling of alcohol even if that employee does not drink at work and is able to perform all required duties," citing Klink v. UCBR, 289 A.2d 494 (Pa. Cmwlth 1972). The Court said that "olfactory evidence that claimant imbibed intoxicating liquor before arriving for work, let alone Claimant's admissions to the same, is enough to support a finding of willful misconduct," citing Lindsay v. UCBR, 789 A.2d 385, 390 (Pa. Cmwlth. 2001).
The Court also cited the following language from Klink: "F. Scott Fitzgerald chronicler of a less serious age that the present, observed that the bouquet of alcohol, not unseemly to a cavalry officer or bond broker, is altogether unfitting to a surgeon or clergyman….In the instant matter, we must determine whether the same standards shall apply to all hospital employees." [Query:
Is this an attempt to again establish a higher standard of conduct for certain employees, in violation of e.g. Navickas v. UCBR, 787 A.2d 284 (Pa. 2001)?]
The Court ended in a somewhat confusing fashion by saying that "[u]nder Employer's policy, an employee suspected of impairment due to alcohol could not be forced to submit to an alcohol screening test; however, such refusal would be reported to Employee Relations for further disposition and action. Claimant knew or should have known of this policy. The Board properly denied benefits in accordance with Section 402(e.1) of the Law." (emphasis added)
Donald Marritz
MidPenn Legal Services
Wednesday, December 07, 2005
paternity - genetic testing - estoppel
Buccieri v. Campagna - Pa. Superior Court - December 7, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/a35036_05.pdf
Putative father was estopped from getting genetic paternity testing where he knew of mother's pregnancy but had no contact with child for about 8 years. In the meantime, mother had married. She and her and new husband, who wanted to adopt the child, had formed a new family unit. Mother did not desire contact from putative father (PF), but she did nothing to obstruct contact or prevent him from requesting information about her prenancy or offering to assuming a parental role. Her conduct does not constitute the kind of obstructive tactics deplored by state law. PF could easily have monitored the pregnancy and tried to establish contact, but he did nothing.
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/a35036_05.pdf
Putative father was estopped from getting genetic paternity testing where he knew of mother's pregnancy but had no contact with child for about 8 years. In the meantime, mother had married. She and her and new husband, who wanted to adopt the child, had formed a new family unit. Mother did not desire contact from putative father (PF), but she did nothing to obstruct contact or prevent him from requesting information about her prenancy or offering to assuming a parental role. Her conduct does not constitute the kind of obstructive tactics deplored by state law. PF could easily have monitored the pregnancy and tried to establish contact, but he did nothing.
Donald Marritz
MidPenn Legal Services
custody - contempt - notice of hearing - due process
Everett v. Parker - Pa. Superior Court - December 7, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/s50045_05.pdf
Father filed contempt petition against mother alleging follow the existing custody order. Father did not serve mother with the petition or order for hearing. Rather, he mailed a copy of the petition and hearing order to a) her attorney in another case, by and b) a CYS worker who had been involved with the family.
The mother did not appear at the hearing. The attorney did not appear at the hearing. The CYS worker was present at the hearing and testified that she had given mother a copy of the petition and hearing notice the day before. The court felt this was "sufficient" service and went ahead with the hearing in mother's absence. The court found mother in contempt and transferred majority custody to father.
The appellate court held that service was improper and invalid under the relevant rules of court, Rule 1915.12(a), and due process principles. The notice to mother was "not meaningful" and violated her right to due process. The lower court's transfer of custody to father, absent proper notice to mother, was an abuse of discretion. The proper course would have been for the lower court to continue the case and direct father to make proper service, in the proper format.
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/s50045_05.pdf
Father filed contempt petition against mother alleging follow the existing custody order. Father did not serve mother with the petition or order for hearing. Rather, he mailed a copy of the petition and hearing order to a) her attorney in another case, by and b) a CYS worker who had been involved with the family.
The mother did not appear at the hearing. The attorney did not appear at the hearing. The CYS worker was present at the hearing and testified that she had given mother a copy of the petition and hearing notice the day before. The court felt this was "sufficient" service and went ahead with the hearing in mother's absence. The court found mother in contempt and transferred majority custody to father.
The appellate court held that service was improper and invalid under the relevant rules of court, Rule 1915.12(a), and due process principles. The notice to mother was "not meaningful" and violated her right to due process. The lower court's transfer of custody to father, absent proper notice to mother, was an abuse of discretion. The proper course would have been for the lower court to continue the case and direct father to make proper service, in the proper format.
Donald Marritz
MidPenn Legal Services
disability - VE hypo inadequate - remand
Baum v. Barnhart - ED Pa. - November 30, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1451P.pdf
Held, the ALJ did not properly evaluate the claimant's residual functional capacity, because of improper hypothetical to the vocational expert. Claimant alleged disability based on back injury, pain, obesity, sleep disorder, depression, carpal tunnel syndrome, etc. Claimant is a younger individual with a h.s. education, prior work as carpenter in construction industry. The ALJ determined that CL could not do his former work and only a limited range of sedentary work.
Although it rejected claimant's position on other issues, the court upheld his claim about the inadequacy of the ALJ's hypo to the vocational expert, which in toto, was as follows: "I think from what the Claimant testified and what it looks like in the 1994 FCA, it looks like they thought he could do sedentary work. So why don't we assume sedentary with a sit/stand option. Are there jobs with that?"
Citing Ramirez v. Barnhart, 372 F3d 546 (3d Cir. 2004) and Chrupcala v. Heckler, 829 F.2d 1269 (3d Cir. 1987), the court said that "great specificity" was required in the hypo to the VE and that pain and other impairments, amply supported by the record, had to be figured in as well.
The court remanded the case for further proceedings pursuant to the fourth sentence of 42 USC 405(g).
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1451P.pdf
Held, the ALJ did not properly evaluate the claimant's residual functional capacity, because of improper hypothetical to the vocational expert. Claimant alleged disability based on back injury, pain, obesity, sleep disorder, depression, carpal tunnel syndrome, etc. Claimant is a younger individual with a h.s. education, prior work as carpenter in construction industry. The ALJ determined that CL could not do his former work and only a limited range of sedentary work.
Although it rejected claimant's position on other issues, the court upheld his claim about the inadequacy of the ALJ's hypo to the vocational expert, which in toto, was as follows: "I think from what the Claimant testified and what it looks like in the 1994 FCA, it looks like they thought he could do sedentary work. So why don't we assume sedentary with a sit/stand option. Are there jobs with that?"
Citing Ramirez v. Barnhart, 372 F3d 546 (3d Cir. 2004) and Chrupcala v. Heckler, 829 F.2d 1269 (3d Cir. 1987), the court said that "great specificity" was required in the hypo to the VE and that pain and other impairments, amply supported by the record, had to be figured in as well.
The court remanded the case for further proceedings pursuant to the fourth sentence of 42 USC 405(g).
Donald Marritz
MidPenn Legal Services
Thursday, December 01, 2005
employment - arrest record - expungement
Commonwealth v. Romanik
http://www.courts.state.pa.us/OpPosting/Superior/out/a11026_05.pdf
This case involves the expungement of a criminal arrest record. It has implications for employment and perhaps other areas. N.B. Even thought the issue arose in the context of a criminal case, it appears that even entities which operate under LSC restrictions can do these cases, according to a November 2004 memo by Alan Houseman and Linda Perle of CLASP.
Defendant was a h.s. librarian who sold old issues of National Geographic, which "had been consigned to the trash," on eBay. He used that money ($325) as well as $300 of his own money to buy six used computers for the school library, "where they remain in use to this day." D's mentor had told him that this was a "creative" idea and "did not warn him against pursuing it."
However, the school district made a complaint to the DA, who charged D with library theft and misapplication of entrusted government property. At the preliminary hearing, D agreed to resign from his job in consideration for the DA dropping the charges. D then filed a motion to expunge his arrest record, which the lower court denied.
The Superior Court reversed, holding that the lower court had abused its discretion in not ordering the expungement because, on balance, the harm attendant in keeping the arrest record "far outweighed any possible interest the Commonwealth could have had in retaining such information." The Court held that there is a due process right expungement, in appropriate circumstances, which is "not dependent upon express statutory authority."
The Court also noted that the burden of proof had been misplaced. "[W]hen a charge is withdrawn or nolle prosequied [is this a word?], the burden is always on the Commonwealth to demonstrate why an arrest record should be retained….[T]he Commonwealth bears the burden of affirmatively justifying retention of the arrest record [whether] it did not, could not, or [chose] not to bear its burden of proof beyond a reasonable doubt at trial."
A "non-exclusive list of factors a court should examine in determining whether the Commonwealth has satisfied its burden" include a) the strength of the Commonwealth's case, b) the reasons why it wants to retain the record, c) the petitioner's age, criminal record and employment history, d) the length of time between the arrest and request to expunge, and e) the specific adverse consequences the petitioner may endure should expunction be denied. Applying these factors, the court said that the lower court had "manifestly abused its discretion."
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/a11026_05.pdf
This case involves the expungement of a criminal arrest record. It has implications for employment and perhaps other areas. N.B. Even thought the issue arose in the context of a criminal case, it appears that even entities which operate under LSC restrictions can do these cases, according to a November 2004 memo by Alan Houseman and Linda Perle of CLASP.
Defendant was a h.s. librarian who sold old issues of National Geographic, which "had been consigned to the trash," on eBay. He used that money ($325) as well as $300 of his own money to buy six used computers for the school library, "where they remain in use to this day." D's mentor had told him that this was a "creative" idea and "did not warn him against pursuing it."
However, the school district made a complaint to the DA, who charged D with library theft and misapplication of entrusted government property. At the preliminary hearing, D agreed to resign from his job in consideration for the DA dropping the charges. D then filed a motion to expunge his arrest record, which the lower court denied.
The Superior Court reversed, holding that the lower court had abused its discretion in not ordering the expungement because, on balance, the harm attendant in keeping the arrest record "far outweighed any possible interest the Commonwealth could have had in retaining such information." The Court held that there is a due process right expungement, in appropriate circumstances, which is "not dependent upon express statutory authority."
The Court also noted that the burden of proof had been misplaced. "[W]hen a charge is withdrawn or nolle prosequied [is this a word?], the burden is always on the Commonwealth to demonstrate why an arrest record should be retained….[T]he Commonwealth bears the burden of affirmatively justifying retention of the arrest record [whether] it did not, could not, or [chose] not to bear its burden of proof beyond a reasonable doubt at trial."
A "non-exclusive list of factors a court should examine in determining whether the Commonwealth has satisfied its burden" include a) the strength of the Commonwealth's case, b) the reasons why it wants to retain the record, c) the petitioner's age, criminal record and employment history, d) the length of time between the arrest and request to expunge, and e) the specific adverse consequences the petitioner may endure should expunction be denied. Applying these factors, the court said that the lower court had "manifestly abused its discretion."
Donald Marritz
MidPenn Legal Services
Wednesday, November 30, 2005
disability - Title II - claim denied
Truett v. Barnhart - ED Pa. - November 23, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1433P.pdf
Claim for Title II benefits denied.
treating physician opinion - The TP's opinion was rejected, because it was substantially inconsistent with the claimant's own description of her activities of daily living (ADL).
consultative physician opinion - The ALJ's acceptance and rejection of various portions of the CP's opinion was upheld. The court found (without any great discussion) that this was supported by substantial evidence.
no duty to seek clarification from treating physician - The court said that there was adequate evidence on which the ALJ could base his opinion about disability and thus no duty on the part of the ALJ to seek additional or clarifying information from the treating physician. That is only required, under 20 CFR 404.1512, when the information is "inadequate" and the ALJ "cannot reach a conclusion" about whether the applicant is disabled. The existence of conflicting evidence does not, ipso facto, mean that the evidence is inadequate. "Nothing here indicates that the record lacked enough data for the ALJ to make a sound determination."
no severe impairment of right arm or left knee -- The court upheld this finding, since there was "no clinical evidence" to support a finding of a "severe impairment" and substantial evidence to support the ALJ's finding.
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1433P.pdf
Claim for Title II benefits denied.
treating physician opinion - The TP's opinion was rejected, because it was substantially inconsistent with the claimant's own description of her activities of daily living (ADL).
consultative physician opinion - The ALJ's acceptance and rejection of various portions of the CP's opinion was upheld. The court found (without any great discussion) that this was supported by substantial evidence.
no duty to seek clarification from treating physician - The court said that there was adequate evidence on which the ALJ could base his opinion about disability and thus no duty on the part of the ALJ to seek additional or clarifying information from the treating physician. That is only required, under 20 CFR 404.1512, when the information is "inadequate" and the ALJ "cannot reach a conclusion" about whether the applicant is disabled. The existence of conflicting evidence does not, ipso facto, mean that the evidence is inadequate. "Nothing here indicates that the record lacked enough data for the ALJ to make a sound determination."
no severe impairment of right arm or left knee -- The court upheld this finding, since there was "no clinical evidence" to support a finding of a "severe impairment" and substantial evidence to support the ALJ's finding.
Donald Marritz
MidPenn Legal Services
UC - willful misconduct - drugs - substantial evidence
Ruiz v. UCBR - Commonwealth Court - November 30, 2005
http://www.courts.state.pa.us/OpPosting/CWealth/out/882CD05_11-30-05.pdf
The referee held that employer (ER) failed to prove that the claimant (CL) had and used drugs on the ER's property. The Board reversed and the court affirmed, holding that the employer (ER) adequately proved claimant's (CL) violation of rule (use of drugs at work) by circumstantial evidence, which was held to be substantial evidence, given the following facts.
The ER witnesses testified that on September 29th, they saw the CL move his car during a break and saw smoke coming out of the car, "as well as the pungent smell of burning marijuana," then "saw something 'flicked out of the passenger's side window.'" One ER witness "retrieved a smoldering butt of a marijuana cigarette from the ground outside the car window." The butt was "entrusted" to the ER's CEO, Abby Hoffman, but was never tested. The ER did not ask the CL to submit to a drug test because they thought it was not necessary, having seen CL smoking and having the butt in their possession. The CL had his own doctor do a drug test on December 11th; the result was negative for drugs. CL did not deny smoking marijuana. The union rep "signed off" on the CL's termination notice. The ER did not bring the marijuana cigarette to the hearing because the notice of hearing "contained a warning not to bring drugs or alcohol onto the premises. The notice did not provide an exception for evidence to be presented." CL's drug test was admitted, but only to show his state of mind and establish that he tried to take a drug test to show he wasn’t smoking marijuana.
The court held that "[c]ircumstantial evidence, if substantial, is sufficient to support and finding of willful misconduct" and that in this case, the "direct and circumstantial evidence was sufficient to support the Board's finding that" CL had and used illegal drugs on company property, in violation of ER rules. "Claimant's arguments, which essentially highlight conflicts between his version of the events and what was recounted by his supervisors, are nothing more than challenges to the Board's determination of credibility and weight of the evidence. We decline Claimant's invitation to reweigh the evidence and accept his version of the facts."
The court also rejected a Harkness challenge, based on the fact that the ER was represented at the hearing by a non-attorney advocate. The CL did not object to this at the hearing and didn't raise the issue until he filed his petition for review in court.
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/CWealth/out/882CD05_11-30-05.pdf
The referee held that employer (ER) failed to prove that the claimant (CL) had and used drugs on the ER's property. The Board reversed and the court affirmed, holding that the employer (ER) adequately proved claimant's (CL) violation of rule (use of drugs at work) by circumstantial evidence, which was held to be substantial evidence, given the following facts.
The ER witnesses testified that on September 29th, they saw the CL move his car during a break and saw smoke coming out of the car, "as well as the pungent smell of burning marijuana," then "saw something 'flicked out of the passenger's side window.'" One ER witness "retrieved a smoldering butt of a marijuana cigarette from the ground outside the car window." The butt was "entrusted" to the ER's CEO, Abby Hoffman, but was never tested. The ER did not ask the CL to submit to a drug test because they thought it was not necessary, having seen CL smoking and having the butt in their possession. The CL had his own doctor do a drug test on December 11th; the result was negative for drugs. CL did not deny smoking marijuana. The union rep "signed off" on the CL's termination notice. The ER did not bring the marijuana cigarette to the hearing because the notice of hearing "contained a warning not to bring drugs or alcohol onto the premises. The notice did not provide an exception for evidence to be presented." CL's drug test was admitted, but only to show his state of mind and establish that he tried to take a drug test to show he wasn’t smoking marijuana.
The court held that "[c]ircumstantial evidence, if substantial, is sufficient to support and finding of willful misconduct" and that in this case, the "direct and circumstantial evidence was sufficient to support the Board's finding that" CL had and used illegal drugs on company property, in violation of ER rules. "Claimant's arguments, which essentially highlight conflicts between his version of the events and what was recounted by his supervisors, are nothing more than challenges to the Board's determination of credibility and weight of the evidence. We decline Claimant's invitation to reweigh the evidence and accept his version of the facts."
The court also rejected a Harkness challenge, based on the fact that the ER was represented at the hearing by a non-attorney advocate. The CL did not object to this at the hearing and didn't raise the issue until he filed his petition for review in court.
Donald Marritz
MidPenn Legal Services
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