Dougherty v. TEVA Pharmaceuticals USA - ED Pa. - August 29, 2006
http://www.paed.uscourts.gov/documents/opinions/06D1100P.pdf
The court held that a purported waiver of Plaintiff's FMLA rights was invalid under a DOL regulation, 29 CFR 825.220(d) and the 4th Cir. decision in Taylor v. Progress Energy, 415 F.3d 364 (2005) and similar cases.
The court rejected a contrary decision in Faris v. Williams WPC, 332 F.3d 316 (5th Cir. 2003), that the anti-waiver provision applied only to current employees and only prohibited prospective waivers of rights.
In this case, plaintiff's employment had been terminated at the time she signed the disputed release/waiver.
Tuesday, September 05, 2006
Monday, September 04, 2006
admin. law - standard of proof - circumstantial evidence
A.B. v. Slippery Rock School District - Commonwealth Court - August 31, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/695CD06_8-31-06.pdf
In this school expulsion case, the court (at n. 5) affirmed that the "level of proof required to establish a case" before an administrative agency or other quasi-judicial body is a preponderance of the evidence, citing Lansberry v. PUC, 578 A.2d 600 (Pa. Cmwlth. 1990).
The court also said (at n. 8 and related text) that circumstantial evidence can be used to satisfy that burden.
http://www.courts.state.pa.us/OpPosting/CWealth/out/695CD06_8-31-06.pdf
In this school expulsion case, the court (at n. 5) affirmed that the "level of proof required to establish a case" before an administrative agency or other quasi-judicial body is a preponderance of the evidence, citing Lansberry v. PUC, 578 A.2d 600 (Pa. Cmwlth. 1990).
The court also said (at n. 8 and related text) that circumstantial evidence can be used to satisfy that burden.
federal courts - standing - abstention
Taliaferro v. Darby Township Zoning Board - 3rd Cir. - August 10, 2006
http://www.ca3.uscourts.gov/opinarch/052253p.pdf
This is an exclusionary zoning case that contains short summaries of a) federal standing law, including when a litigant can bring a case on behalf of a third party, and b) two kinds of absention, Younger and Rooker-Feldman.
http://www.ca3.uscourts.gov/opinarch/052253p.pdf
This is an exclusionary zoning case that contains short summaries of a) federal standing law, including when a litigant can bring a case on behalf of a third party, and b) two kinds of absention, Younger and Rooker-Feldman.
employment - Title VII - retaliation
Burlington Northern & Santa Fe Railway v. White - U.S. Supreme Court - June 22, 2006
http://www.supremecourtus.gov/opinions/05pdf/05-259.pdf
In what one of the plaintiff's lawyers called an "exceptionally important decision," the court held 9-0 that a person pursuing an anti-retaliation claim under Title VII, 42 U.S.C . sec.. 2000e-2(a),against an employer need only prove a "materially adverse" employment action that "might have dissuaded a reasonable worker" from complaining about discrimination. The anti-retaliation provision protects an employee who has made a charge, testified, assisted orparticipated in a Title VII proceeding or investigation, sec. 2000e-3(a).
The court rejected the employer's claim that retaliation should only include actions that affect an employee's compensation, terms, conditions or privileges of employment. The court found that the anti-retaliation provision was broader that the anti-discrimination provision and is "not limited to discriminatory actions that affect the terms and conditions of employment," holding that Congress wanted to "deter the many forms that effective retaliation can take" in the workplace and beyond.
The court said the context and common sense matter and that it was not imposing a "general civility code" on the workplace. Rather, the court's decision and standard would "screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining."
This new standard was applied in Walsh v. Irvin Stern's Costumes, Inc. - ED Pa. - 8-15-06
http://www.paed.uscourts.gov/documents/opinions/06D1024P.pdf
http://www.supremecourtus.gov/opinions/05pdf/05-259.pdf
In what one of the plaintiff's lawyers called an "exceptionally important decision," the court held 9-0 that a person pursuing an anti-retaliation claim under Title VII, 42 U.S.C . sec.. 2000e-2(a),against an employer need only prove a "materially adverse" employment action that "might have dissuaded a reasonable worker" from complaining about discrimination. The anti-retaliation provision protects an employee who has made a charge, testified, assisted orparticipated in a Title VII proceeding or investigation, sec. 2000e-3(a).
The court rejected the employer's claim that retaliation should only include actions that affect an employee's compensation, terms, conditions or privileges of employment. The court found that the anti-retaliation provision was broader that the anti-discrimination provision and is "not limited to discriminatory actions that affect the terms and conditions of employment," holding that Congress wanted to "deter the many forms that effective retaliation can take" in the workplace and beyond.
The court said the context and common sense matter and that it was not imposing a "general civility code" on the workplace. Rather, the court's decision and standard would "screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining."
This new standard was applied in Walsh v. Irvin Stern's Costumes, Inc. - ED Pa. - 8-15-06
http://www.paed.uscourts.gov/documents/opinions/06D1024P.pdf
Friday, September 01, 2006
Pennsylvania Bulletin of September 2, 2006
http://www.pabulletin.com/secure/data/vol36/36-35/index.html
Appellate Rules - misc. proposed amendments - comments due by October 23, 2006
http://www.pabulletin.com/secure/data/vol36/36-35/1718.html
Court Rules - proposed - PFA forms - comments due by October 27, 2006
http://www.pabulletin.com/secure/data/vol36/36-35/1719.html
Appellate Rules - misc. proposed amendments - comments due by October 23, 2006
http://www.pabulletin.com/secure/data/vol36/36-35/1718.html
Court Rules - proposed - PFA forms - comments due by October 27, 2006
http://www.pabulletin.com/secure/data/vol36/36-35/1719.html
Monday, August 28, 2006
state right-to-know law - non-citizen request - privileges and immunities
Lee v. Minner - 3rd Circuit - August 16, 2006
http://www.ca3.uscourts.gov/opinarch/053329p.pdf
Delaware's freedom of information law -- the equivalent of Pennsylvania's Right to Know Law, 65 P.S. sec. 66.1, et seq. -- was held to violate the privileges and immunities clause of the U.S. Constitution by restricting the right of citizens of other states to access, inspect and copy public documents.
Delaware's attorney general rejected the request of a N.Y. citizen for documents based on Delaware law, which said that "any cititzen of the state" could inspect and copy records. The AG wrote to the requester that his address indicated that he was not a citizen of Delaware and so denied his request.
The court held that the citizens-only provision violated Article IV, sec. 2, of the US Constitution, which provides that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. This provision was "designed to 'fuse into one national a collection of independent sovereign states…and its object was to place the citizens of each state upon the same footing…so far as the advantages resulting from citizenship in those States are concerned….The section, in effect, prevents a State from discriminating against citizens of other states in favor of its own" unless there is a "substantial reasons for the discriminatory pracftice, and the practice bears a substantial relation to the state's objectives."
Pennsylvania's right to know law, 65 P.S., sec. 66.1, similarly defines "requester" as a "person who is a resident of the Commonwealth and requests a record pursuant to this act."
http://www.ca3.uscourts.gov/opinarch/053329p.pdf
Delaware's freedom of information law -- the equivalent of Pennsylvania's Right to Know Law, 65 P.S. sec. 66.1, et seq. -- was held to violate the privileges and immunities clause of the U.S. Constitution by restricting the right of citizens of other states to access, inspect and copy public documents.
Delaware's attorney general rejected the request of a N.Y. citizen for documents based on Delaware law, which said that "any cititzen of the state" could inspect and copy records. The AG wrote to the requester that his address indicated that he was not a citizen of Delaware and so denied his request.
The court held that the citizens-only provision violated Article IV, sec. 2, of the US Constitution, which provides that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. This provision was "designed to 'fuse into one national a collection of independent sovereign states…and its object was to place the citizens of each state upon the same footing…so far as the advantages resulting from citizenship in those States are concerned….The section, in effect, prevents a State from discriminating against citizens of other states in favor of its own" unless there is a "substantial reasons for the discriminatory pracftice, and the practice bears a substantial relation to the state's objectives."
Pennsylvania's right to know law, 65 P.S., sec. 66.1, similarly defines "requester" as a "person who is a resident of the Commonwealth and requests a record pursuant to this act."
fraud - silence/concealment - duty to disclose
Lutzky v. Petcove - ED Pa - August 21, 2006
http://www.paed.uscourts.gov/documents/opinions/06D1054P.pdf
Motion to dismiss of third party defendant, a real estate agent, denied. Plaintiff adequately pleaded fraud, predicated on a defendant's having withheld material information about the condition of real property. Concealment or silence may constitute fraud where there is a duty to speak, which exists here under the state real estate disclosure law, 69 P.S. sec. 7310, and case law that makes a seller's agent potentially liable.
http://www.paed.uscourts.gov/documents/opinions/06D1054P.pdf
Motion to dismiss of third party defendant, a real estate agent, denied. Plaintiff adequately pleaded fraud, predicated on a defendant's having withheld material information about the condition of real property. Concealment or silence may constitute fraud where there is a duty to speak, which exists here under the state real estate disclosure law, 69 P.S. sec. 7310, and case law that makes a seller's agent potentially liable.
FMLA - "eligible employee" - length of employment
Flannery v. Nextgen Healthcare - ED Pa. - August 10, 2006
http://www.paed.uscourts.gov/documents/opinions/06d1001p.pdf
Plaintiff was not an "eligible employee" under the FMLA, 29 USC 2612(a), since he had not been employed at least 12 months at the time his leave began. "[A]t least one year must span the period between the date when the employee was hired and when the medical leave begins."
http://www.paed.uscourts.gov/documents/opinions/06d1001p.pdf
Plaintiff was not an "eligible employee" under the FMLA, 29 USC 2612(a), since he had not been employed at least 12 months at the time his leave began. "[A]t least one year must span the period between the date when the employee was hired and when the medical leave begins."
FMLA - accrual of benefits
Sommer v. The Vanguard Group - 3d Circuit - August 234, 2006
http://www.ca3.uscourts.gov/opinarch/054034p.pdf
Plaintiff was entitled only to partial bonus payment, prorated on the basis of the time he was absent on an FMLA leave. Granting prorated rather than full benefits did not violate the FMLA, 29 USC sec. 2601 et seq. Under the terms of the employment agreement, the bonus was a "production" bonus rather than an "absence of occurrence" bonus, i.e., it was based on hours worked, not on the non-occurrence of a specified event. To hold other "would violate the very terms of the FMLA" which states that "the leavetaker shall not be entitled to the "accrual of any seniority or employment benefits during any period of leave" other than one to which he would have been entitled absent the leave.
http://www.ca3.uscourts.gov/opinarch/054034p.pdf
Plaintiff was entitled only to partial bonus payment, prorated on the basis of the time he was absent on an FMLA leave. Granting prorated rather than full benefits did not violate the FMLA, 29 USC sec. 2601 et seq. Under the terms of the employment agreement, the bonus was a "production" bonus rather than an "absence of occurrence" bonus, i.e., it was based on hours worked, not on the non-occurrence of a specified event. To hold other "would violate the very terms of the FMLA" which states that "the leavetaker shall not be entitled to the "accrual of any seniority or employment benefits during any period of leave" other than one to which he would have been entitled absent the leave.
abuse - contempt - appeal - final order
Takosky v. Henning - Superior Court - August 25, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/s43012_06.pdf
Defendant's appeal from a finding of contempt was quashed. Although the trial court had found him in contempt, it had not imposed any sanctions or punishment. "It is well settled that unless sanctions or imprisonment is [sic] imposed, an Order declaring a party to be in contempt is held to be interlocutory and not appealable."
http://www.courts.state.pa.us/OpPosting/Superior/out/s43012_06.pdf
Defendant's appeal from a finding of contempt was quashed. Although the trial court had found him in contempt, it had not imposed any sanctions or punishment. "It is well settled that unless sanctions or imprisonment is [sic] imposed, an Order declaring a party to be in contempt is held to be interlocutory and not appealable."
Friday, August 25, 2006
appeal - late appeal - nunc pro tunc
City of Philadelphia v. Tirrill - Commonwealth Court - August 23, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/78CD06_8-23-06.pdf
This case is about a potbellied pig. It is also about filing an appeal nunc pro tunc (NPT). The city filed a complaint against Occupant for having a farm animal - a Vietnamese potbellied pig - in his residence, contrary to the city health code. The trial court found that the pig was a "farm animal" and entered an order in November 2005. The Court sua sponte dismissed Occupant's appeal, because it was not filed until 36 days after the court order -- beyond the 30-day appeal period.
Occupant filed a leave to appeal NPT, 29 days after the court's dismissal order. Commonwealth Court affirmed in a 6-1 decision. Noting the Occupant did not offer any explanation about the 29-day delay in filing his NPT application, the court dismissed the appeal, since the application for relief was not filed promptly, within a reasonable time, once he knew of the need to take action.
"[A]ppeal periods are jurisdictional and may not be extended as a matter of grace or mere indulgence; othewise there would benon finality to judicial action….[T]he attractiveness of an argument on the merits is of no moment because the tribunal is without power to grant the requested relief" even with the appeal is filed one day late.
"Under extraordinary circumstances, however, a court may extend the appeal period by granting equitable relief in the form of a nunc pro tunc or 'now for then' appeal." This can happen where a) there has been fraud; b) there has been a breakdown in the court's operations; or c) non-negligent circumstances relating to either the appellant or his attorney caused the briefly untimely appeal.
In the latter instance, there is generally a due process requirement for the court to conduct an evidentiary hearing to allow the appellant an opportunity to prove the existence of those circumstances. Here the court noted that it was "troubling" that the Occupant did not ask for a hearing and also that "this Court did not offer them an opportunity to make a record supporting their claims." The court said, however, that a hearing was not necessary because Occupant "failed to file a prompt application for relief."
The dissent would have granted Occupant a hearing to offter an explanation for the delay in asking for NPT relief, since the court did not mention this issue in its order directing en banc argument in the case.
http://www.courts.state.pa.us/OpPosting/CWealth/out/78CD06_8-23-06.pdf
This case is about a potbellied pig. It is also about filing an appeal nunc pro tunc (NPT). The city filed a complaint against Occupant for having a farm animal - a Vietnamese potbellied pig - in his residence, contrary to the city health code. The trial court found that the pig was a "farm animal" and entered an order in November 2005. The Court sua sponte dismissed Occupant's appeal, because it was not filed until 36 days after the court order -- beyond the 30-day appeal period.
Occupant filed a leave to appeal NPT, 29 days after the court's dismissal order. Commonwealth Court affirmed in a 6-1 decision. Noting the Occupant did not offer any explanation about the 29-day delay in filing his NPT application, the court dismissed the appeal, since the application for relief was not filed promptly, within a reasonable time, once he knew of the need to take action.
"[A]ppeal periods are jurisdictional and may not be extended as a matter of grace or mere indulgence; othewise there would benon finality to judicial action….[T]he attractiveness of an argument on the merits is of no moment because the tribunal is without power to grant the requested relief" even with the appeal is filed one day late.
"Under extraordinary circumstances, however, a court may extend the appeal period by granting equitable relief in the form of a nunc pro tunc or 'now for then' appeal." This can happen where a) there has been fraud; b) there has been a breakdown in the court's operations; or c) non-negligent circumstances relating to either the appellant or his attorney caused the briefly untimely appeal.
In the latter instance, there is generally a due process requirement for the court to conduct an evidentiary hearing to allow the appellant an opportunity to prove the existence of those circumstances. Here the court noted that it was "troubling" that the Occupant did not ask for a hearing and also that "this Court did not offer them an opportunity to make a record supporting their claims." The court said, however, that a hearing was not necessary because Occupant "failed to file a prompt application for relief."
The dissent would have granted Occupant a hearing to offter an explanation for the delay in asking for NPT relief, since the court did not mention this issue in its order directing en banc argument in the case.
domestic relations - notice - incarcerated persons
http://www.pabulletin.com/secure/data/vol36/36-34/1668.html
The amended official note to Rule 1930.4 (effective immediately) says that "service upon an incarcerated person in a domestic relations action must also include notice of any hearing in such action, and specific notice of the incarcerated individual's right to apply to the court for a writ of habeas corpus ad testificandum to enable him or her to participate in the hearing. The writ is available where an incarcerated individual wishes to testify as provided by statute or rule, as well as where the individual's testimony is sought by another. Vanaman v. Cowgill, 363 Pa. Super. 602, 526 A.2d 1226 (1987). See 23 Pa.C.S.A. § 4342(j) and Rule 1930.3. In determining whether a writ of habeas corpus ad testificandum should be issued, a court must weigh the factors set forth in Salemo v. Salemo, 381 Pa. Super. 632, 554 A.2d 563 (1989)."
The amended official note to Rule 1930.4 (effective immediately) says that "service upon an incarcerated person in a domestic relations action must also include notice of any hearing in such action, and specific notice of the incarcerated individual's right to apply to the court for a writ of habeas corpus ad testificandum to enable him or her to participate in the hearing. The writ is available where an incarcerated individual wishes to testify as provided by statute or rule, as well as where the individual's testimony is sought by another. Vanaman v. Cowgill, 363 Pa. Super. 602, 526 A.2d 1226 (1987). See 23 Pa.C.S.A. § 4342(j) and Rule 1930.3. In determining whether a writ of habeas corpus ad testificandum should be issued, a court must weigh the factors set forth in Salemo v. Salemo, 381 Pa. Super. 632, 554 A.2d 563 (1989)."
Pennsylvania Bulletin of August 26, 2006
http://www.pabulletin.com/secure/data/vol36/36-34/index.html
courts - rules - custody, divorce, support - effective immediately
http://www.pabulletin.com/secure/data/vol36/36-34/1668.html
NB - The amended official note to Rule 1930.4 says that "service upon an incarcerated person in a domestic relations action must also include notice of any hearing in such action, and specific notice of the incarcerated individual's right to apply to the court for a writ of habeas corpus ad testificandum to enable him or her to participate in the hearing. The writ is available where an incarcerated individual wishes to testify as provided by statute or rule, as well as where the individual's testimony is sought by another. Vanaman v. Cowgill, 363 Pa. Super. 602, 526 A.2d 1226 (1987). See 23 Pa.C.S.A. § 4342(j) and Rule 1930.3. In determining whether a writ of habeas corpus ad testificandum should be issued, a court must weigh the factors set forth in Salemo v. Salemo, 381 Pa. Super. 632, 554 A.2d 563 (1989)."
courts - local rules
Beaver - electronic filing - http://www.pabulletin.com/secure/data/vol36/36-34/1669.html
Carbon - arbbitration http://www.pabulletin.com/secure/data/vol36/36-34/1672.html
Lackawanna - domestic cases http://www.pabulletin.com/secure/data/vol36/36-34/1674.html
Susquehanna - arbitration - http://www.pabulletin.com/secure/data/vol36/36-34/1679.html
welfare - disproportionate share payments - high MA hospitals
http://www.pabulletin.com/secure/data/vol36/36-34/1696.html
courts - rules - custody, divorce, support - effective immediately
http://www.pabulletin.com/secure/data/vol36/36-34/1668.html
NB - The amended official note to Rule 1930.4 says that "service upon an incarcerated person in a domestic relations action must also include notice of any hearing in such action, and specific notice of the incarcerated individual's right to apply to the court for a writ of habeas corpus ad testificandum to enable him or her to participate in the hearing. The writ is available where an incarcerated individual wishes to testify as provided by statute or rule, as well as where the individual's testimony is sought by another. Vanaman v. Cowgill, 363 Pa. Super. 602, 526 A.2d 1226 (1987). See 23 Pa.C.S.A. § 4342(j) and Rule 1930.3. In determining whether a writ of habeas corpus ad testificandum should be issued, a court must weigh the factors set forth in Salemo v. Salemo, 381 Pa. Super. 632, 554 A.2d 563 (1989)."
courts - local rules
Beaver - electronic filing - http://www.pabulletin.com/secure/data/vol36/36-34/1669.html
Carbon - arbbitration http://www.pabulletin.com/secure/data/vol36/36-34/1672.html
Lackawanna - domestic cases http://www.pabulletin.com/secure/data/vol36/36-34/1674.html
Susquehanna - arbitration - http://www.pabulletin.com/secure/data/vol36/36-34/1679.html
welfare - disproportionate share payments - high MA hospitals
http://www.pabulletin.com/secure/data/vol36/36-34/1696.html
custody - grandparents' rights
Hiller v. Fausey - Pennsylvania Supreme Court - August 22, 2006
majority - http://www.aopc.org/OpPosting/Supreme/out/J-53-2005mo.pdf
concurrence - http://www.aopc.org/OpPosting/Supreme/out/J-53-2005co.pdf
dissent - http://www.aopc.org/OpPosting/Supreme/out/J-53-2005do.pdf
In a 6-1 decision, the Supreme Court denied a due process challenge to the constitutionality of the state statute, 23 Pa. C.S. 5311, governing partial custody or visitation to grandparents upon the death of the grandparent's child, i.e., the grandchild's parent. The statute gives a court the power to grant reasonable partial custody or visitation where granting custody would be in the child's best interest and would not interfere with the parent-child relationship.
Over the objection of the father, the trial court granted partial custody (one weekend per month and one week in the summer) to maternal grandmother (MGM) of an 8 y/o boy who had had a close and loving relationship with the MGM. The trial court determined that, absent a court order, the father would not provide the MGM any opportunity to see the child, with whom she'd been closely involved, especially during the last two year's of his mother's illness. The court found that the child and MGM "showed a great deal of affection toward one another and shared a very close relationship."
Applying the decision in Troxel v. Granville, 530 U.S. 57 (2000), the trial and appellate courts found that the MGM had rebutted the presumption that father's decision to strictly limit MGM's contact would be in the child's best interest and that such contact would not interfere with the parent-child relationship. Both Superior Court and the Supreme Court noted that the Pennsylvania statute was "significantly narrower" than the Washington statute, termed "breathtakingly broad" by the U.S. Supreme Court.
The state supreme court applied a strict scrutiny analysis, given the fundamental nature of a parent's right to make decisions about one's children, but held that the infringement allowed under sec. 5311 was narrowly tailored to serve a compelling state interest - protecting the health and emotional welfare of children under its parens patriae powers. Stating that such a benefit does not always accrue with contact by grandparents, the court refused to close its mind "to the possibility that in some instances a court may overturn even the [presumptively correct] decisions of a fit parent to exclude a grandparent from a grandchild's life, especially where the grandparent's child is deceased and the grandparent relationship is longstanding and significant to the grandchild."
The court refused to require grandparents to prove that not granting them partial custody would harm the child, saying that such a standard "would set the bar too high." The court said that due process demanded only what the statute required -- a finding that contact with the grandparent would be in the child's best interest and not significantly interfere in the parent-child relationship, even given of the "special weight" given to a parent's presumptively correct decision about custody.
The concurring justice urged "even greater forward movement" toward the recognition of the rights of children in custody cases and said that "it is time to regard the best interest of the child as a fundamental and momentous right," urging the Court "to provide some guidance toward ascertaining a child's fundamental best interests."
The dissent said that grandparents should have to prove that lack of contact with them would cause harm to the child.
majority - http://www.aopc.org/OpPosting/Supreme/out/J-53-2005mo.pdf
concurrence - http://www.aopc.org/OpPosting/Supreme/out/J-53-2005co.pdf
dissent - http://www.aopc.org/OpPosting/Supreme/out/J-53-2005do.pdf
In a 6-1 decision, the Supreme Court denied a due process challenge to the constitutionality of the state statute, 23 Pa. C.S. 5311, governing partial custody or visitation to grandparents upon the death of the grandparent's child, i.e., the grandchild's parent. The statute gives a court the power to grant reasonable partial custody or visitation where granting custody would be in the child's best interest and would not interfere with the parent-child relationship.
Over the objection of the father, the trial court granted partial custody (one weekend per month and one week in the summer) to maternal grandmother (MGM) of an 8 y/o boy who had had a close and loving relationship with the MGM. The trial court determined that, absent a court order, the father would not provide the MGM any opportunity to see the child, with whom she'd been closely involved, especially during the last two year's of his mother's illness. The court found that the child and MGM "showed a great deal of affection toward one another and shared a very close relationship."
Applying the decision in Troxel v. Granville, 530 U.S. 57 (2000), the trial and appellate courts found that the MGM had rebutted the presumption that father's decision to strictly limit MGM's contact would be in the child's best interest and that such contact would not interfere with the parent-child relationship. Both Superior Court and the Supreme Court noted that the Pennsylvania statute was "significantly narrower" than the Washington statute, termed "breathtakingly broad" by the U.S. Supreme Court.
The state supreme court applied a strict scrutiny analysis, given the fundamental nature of a parent's right to make decisions about one's children, but held that the infringement allowed under sec. 5311 was narrowly tailored to serve a compelling state interest - protecting the health and emotional welfare of children under its parens patriae powers. Stating that such a benefit does not always accrue with contact by grandparents, the court refused to close its mind "to the possibility that in some instances a court may overturn even the [presumptively correct] decisions of a fit parent to exclude a grandparent from a grandchild's life, especially where the grandparent's child is deceased and the grandparent relationship is longstanding and significant to the grandchild."
The court refused to require grandparents to prove that not granting them partial custody would harm the child, saying that such a standard "would set the bar too high." The court said that due process demanded only what the statute required -- a finding that contact with the grandparent would be in the child's best interest and not significantly interfere in the parent-child relationship, even given of the "special weight" given to a parent's presumptively correct decision about custody.
The concurring justice urged "even greater forward movement" toward the recognition of the rights of children in custody cases and said that "it is time to regard the best interest of the child as a fundamental and momentous right," urging the Court "to provide some guidance toward ascertaining a child's fundamental best interests."
The dissent said that grandparents should have to prove that lack of contact with them would cause harm to the child.
Thursday, August 24, 2006
employment - wages - attorney fees
Voracek v. Crown Castle USA - Superior Court - August 22, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/a13009_06.pdf
The appellate court upheld the grant of attorney fees to plaintiff's counsel in a case where the trial court awarded wages, pursuant to a contractual severance agreement. Part of the case involved mutual mistake and a reformation of the parties actual written agreement, which had mistakenly omitted the severance agreement.
The court rejected the argument that "because the trial court's decision was based on a finding of mutual mistake and not on a violation of the [wage payment and collection law,] there is no basis for a statutory award of attorneys' fees." The court said that to "ensure that employees who are successful in their actions against an employer are made whole again, the statute mandates an award of attorneys' fees in addition to any judgment awarded to a plaintiff….43 P.S. sec. 260.9a(f)."
http://www.courts.state.pa.us/OpPosting/Superior/out/a13009_06.pdf
The appellate court upheld the grant of attorney fees to plaintiff's counsel in a case where the trial court awarded wages, pursuant to a contractual severance agreement. Part of the case involved mutual mistake and a reformation of the parties actual written agreement, which had mistakenly omitted the severance agreement.
The court rejected the argument that "because the trial court's decision was based on a finding of mutual mistake and not on a violation of the [wage payment and collection law,] there is no basis for a statutory award of attorneys' fees." The court said that to "ensure that employees who are successful in their actions against an employer are made whole again, the statute mandates an award of attorneys' fees in addition to any judgment awarded to a plaintiff….43 P.S. sec. 260.9a(f)."
contracts - mutual mistake - reformation
Voracek v. Crown Castle USA - Superior Court - August 22, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/a13009_06.pdf
Clear and convincing evidence showed a mutual mistake when, after extensive negotiations and agreement about the inclusion of a specific contract provision, the parties' final written agreement omitted that provision.
In spite of an "unambiguous integration clause providing that the agreement superseded any and all prior agreements," the trial court properly admitted extrinsic evidence pursuant to the "doctrine of mutual mistake of fact…[which] occurs when the written instrument fails to set forth the true agreement of the parties." That extrinsic evidence showed that the parties intended to have the omitted provision as part of the agreement.
A contract may be reformed in such circumstances if "(1) the misconception entered into the contemplation of both parties as a condition of assent, and (2) the parties can be placed in their former position regarding the subject matter of the contract."
The evidence supporting the application of the doctrine "must be clear and convincing."
http://www.courts.state.pa.us/OpPosting/Superior/out/a13009_06.pdf
Clear and convincing evidence showed a mutual mistake when, after extensive negotiations and agreement about the inclusion of a specific contract provision, the parties' final written agreement omitted that provision.
In spite of an "unambiguous integration clause providing that the agreement superseded any and all prior agreements," the trial court properly admitted extrinsic evidence pursuant to the "doctrine of mutual mistake of fact…[which] occurs when the written instrument fails to set forth the true agreement of the parties." That extrinsic evidence showed that the parties intended to have the omitted provision as part of the agreement.
A contract may be reformed in such circumstances if "(1) the misconception entered into the contemplation of both parties as a condition of assent, and (2) the parties can be placed in their former position regarding the subject matter of the contract."
The evidence supporting the application of the doctrine "must be clear and convincing."
UC - voluntary quit - elimination of health care benefits
Brunswick Hotel & Conference Center v. UCBR - Commonwealth Court - August 23, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/464CD06_8-23-06.pdf
Claimant had good cause to quit her job when employer eliminated health care benefits that had previously been provided to her. Claimant continued to work for 8 months after this happened, showing that she made a reasonable effort to preserve her job.
The court contrasted this case, involving a total elimination of health care benefits, with cases where the cost of health insurance had increased -- Steinberg v. UCBR, 624 A2d 237 (Pa. Cmwlth. 1993) and Chavez v. UCBR, 738 A2d 77 (Pa. Cmwlth. 1999). Even in those cases, benefits were granted where the increased cost was a "substantial unilateral change," noting however that there was "no talismanic percentage for determining a change so substantial as to warrant" good cause to quit.
http://www.courts.state.pa.us/OpPosting/CWealth/out/464CD06_8-23-06.pdf
Claimant had good cause to quit her job when employer eliminated health care benefits that had previously been provided to her. Claimant continued to work for 8 months after this happened, showing that she made a reasonable effort to preserve her job.
The court contrasted this case, involving a total elimination of health care benefits, with cases where the cost of health insurance had increased -- Steinberg v. UCBR, 624 A2d 237 (Pa. Cmwlth. 1993) and Chavez v. UCBR, 738 A2d 77 (Pa. Cmwlth. 1999). Even in those cases, benefits were granted where the increased cost was a "substantial unilateral change," noting however that there was "no talismanic percentage for determining a change so substantial as to warrant" good cause to quit.
Monday, August 21, 2006
mandamus - ministerial duty v. discretionary act
Chadwick v. Office of Coroner - Commonwealth Court - August 17, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/605CD05_8-17-06.pdf
Mother of deceased sued the county coroner to try to force him to change his conclusion about the cause of the death of plaintiff's brother, which the coroner had held was suicide. The court held that mandamus does not lie to order a public official to exercise his discretion in a particular way. It can generally only be used to compel the offiicail to perform acts which are required or obliged to be performed, and which do not involve an exercise of discretion. The court noted that a "refusal to exercise discretion may be addressed in a mandamus action" but that was fundamentally different from the case where discretion has been exercised and the plaintiff disagrees with the decision, i.e., how it was exercised.
http://www.courts.state.pa.us/OpPosting/CWealth/out/605CD05_8-17-06.pdf
Mother of deceased sued the county coroner to try to force him to change his conclusion about the cause of the death of plaintiff's brother, which the coroner had held was suicide. The court held that mandamus does not lie to order a public official to exercise his discretion in a particular way. It can generally only be used to compel the offiicail to perform acts which are required or obliged to be performed, and which do not involve an exercise of discretion. The court noted that a "refusal to exercise discretion may be addressed in a mandamus action" but that was fundamentally different from the case where discretion has been exercised and the plaintiff disagrees with the decision, i.e., how it was exercised.
disability - ALJ decision - findings and reasons
Woodson v. Barnhart - ED Pa. - August 14, 2006
http://www.paed.uscourts.gov/documents/opinions/06D1039P.pdf
The ALJ's SSD/SSI decision was upheld concerning a) rejection of the treating physician's opinion and b) the evaluation of the claimant's credibility, but the case was remanded because the ALJ "failed to specifically evaluate" the claimant's subjective complaints of "severe fatigue," about which the ALJ made only the general statements that the claimant's testimony about this was "exaggerated." The "ALJ is obligated to provide reasons for his...findings -- supported by record evidence -- that are sufficiendtly specific to show the ALJ's reasoning and the weight he gave to teh Plaintiff's statements...According, I must remand this case to the ALJ for reconsideration and a clear and logical statement of the facts supporting his conclusions."
http://www.paed.uscourts.gov/documents/opinions/06D1039P.pdf
The ALJ's SSD/SSI decision was upheld concerning a) rejection of the treating physician's opinion and b) the evaluation of the claimant's credibility, but the case was remanded because the ALJ "failed to specifically evaluate" the claimant's subjective complaints of "severe fatigue," about which the ALJ made only the general statements that the claimant's testimony about this was "exaggerated." The "ALJ is obligated to provide reasons for his...findings -- supported by record evidence -- that are sufficiendtly specific to show the ALJ's reasoning and the weight he gave to teh Plaintiff's statements...According, I must remand this case to the ALJ for reconsideration and a clear and logical statement of the facts supporting his conclusions."
employment - Title VII - retaliation
Walsh v. Irvin Stern's Costumes, Inc. - ED Pa. - August 15, 2006
http://www.paed.uscourts.gov/documents/opinions/06D1024P.pdf
The court granted plaintiff's motion to reinstate her Title VII retaliation claim, which was based on her allegation that the employer a) fired her 3 weeks after she told management that she was pregnant and b) had threatened to seek criminal charges against her unless she withdrew her discrimination claim.
The court noted that the 3d Circuit case law, on which its prior dismissal had been based, had been "specifically and squarely" overturned by the US Supreme Court, in Burlington Northern & Santa Fe Rwy. v. White, 548 U.S. ___, 126 S.Ct. 2405 (2006) which "articulated a new, less stringent test for Title VII retaliation cases."
The prior dismissal was based on Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997), where the court held that in order to satisfy the "adverse employment action" element of a Title VII case, the employer's retaliatory action had to affect the plaintiff's current or future employment. This holding was specifically abrogated in Burlington Northern , where the court held that "a plaintiff need only show the employer's actions 'would have been materially adverse to a reasonable employee or job applicant.' " 126 S.Ct. at 2409.
http://www.paed.uscourts.gov/documents/opinions/06D1024P.pdf
The court granted plaintiff's motion to reinstate her Title VII retaliation claim, which was based on her allegation that the employer a) fired her 3 weeks after she told management that she was pregnant and b) had threatened to seek criminal charges against her unless she withdrew her discrimination claim.
The court noted that the 3d Circuit case law, on which its prior dismissal had been based, had been "specifically and squarely" overturned by the US Supreme Court, in Burlington Northern & Santa Fe Rwy. v. White, 548 U.S. ___, 126 S.Ct. 2405 (2006) which "articulated a new, less stringent test for Title VII retaliation cases."
The prior dismissal was based on Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997), where the court held that in order to satisfy the "adverse employment action" element of a Title VII case, the employer's retaliatory action had to affect the plaintiff's current or future employment. This holding was specifically abrogated in Burlington Northern , where the court held that "a plaintiff need only show the employer's actions 'would have been materially adverse to a reasonable employee or job applicant.' " 126 S.Ct. at 2409.
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