Sell v. Barnhart - ED Pa. - March 28, 2007
http://www.paed.uscourts.gov/documents/opinions/07D0401P.pdf
This case was remanded because the ALJ did not give proper weight to the disability determination of another agency, the Veterans Administration.
The "Third Circuit has held that a determination made by another agency that a person is 'disabled' is entitled to 'substantial weight.' [citing cases.] The ALJ, however only gave the VA's determination 'probative' weight....Moreover, the ALJ did not provide a detailed explanation for rejecting the VA's determination.
The case was remanded "for the sole purpose of giving the Veteran's [sic] Administration's finding that Plaintiff was 100% disabled during the relevant period 'substantial' rather than merely 'probative' weight. If the Commission decides to reject the VA's determination under the 'substantial weight' standard, the Commissioner must give a detailed explanation for rejecting that determination."
Tuesday, April 03, 2007
Friday, March 30, 2007
Pennsylvania Bulletin of March 31, 2007
http://www.pabulletin.com/secure/data/vol37/37-13/index.html
court rules - mortgage foreclosure - execution on personal property - UCC sec. 9404(a)
http://www.pabulletin.com/secure/data/vol37/37-13/537.html
IRRC - regulations approved - welfare - special MA and home health agency services
http://www.pabulletin.com/secure/data/vol37/37-13/564.html
court rules - mortgage foreclosure - execution on personal property - UCC sec. 9404(a)
http://www.pabulletin.com/secure/data/vol37/37-13/537.html
IRRC - regulations approved - welfare - special MA and home health agency services
http://www.pabulletin.com/secure/data/vol37/37-13/564.html
Thursday, March 29, 2007
disability - all evidence - forest/trees - treating physician
Martinez-Ortiz v. Astrue - ED Pa. - March 27, 2007
http://www.paed.uscourts.gov/documents/opinions/07D0389P.pdf
This disability case was remanded because
- treating physician - The ALJ did not give proper weight to the treating physician's opinion, which is "normally entitled to significant weight, and...cannot be disregarded 'for no reason or for the wrong reason.'"
- expression of opinion about disability - The ALJ improperly rejected the opinion of a treating physician whom he said was trying to qualify the claimant for benefits. The court responded by saying the "a treating doctor's opinion cannot be rejected because it discusses whether the plaintiff is disabled."
- all of the evidence - The ALJ failed to evaluate the claimant's overall condition and "instead relied upon certain discrete findings of physicians...and used those findings to reject" the treating physician's opinion. "In doing so, the ALJ unacceptably focused on the trees to the exclusion of the forest."
http://www.paed.uscourts.gov/documents/opinions/07D0389P.pdf
This disability case was remanded because
- treating physician - The ALJ did not give proper weight to the treating physician's opinion, which is "normally entitled to significant weight, and...cannot be disregarded 'for no reason or for the wrong reason.'"
- expression of opinion about disability - The ALJ improperly rejected the opinion of a treating physician whom he said was trying to qualify the claimant for benefits. The court responded by saying the "a treating doctor's opinion cannot be rejected because it discusses whether the plaintiff is disabled."
- all of the evidence - The ALJ failed to evaluate the claimant's overall condition and "instead relied upon certain discrete findings of physicians...and used those findings to reject" the treating physician's opinion. "In doing so, the ALJ unacceptably focused on the trees to the exclusion of the forest."
courts - appeals - filing by fax
Estate of Karschner - Superior Court - February 28, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/s38031_06.pdf
The appellate court stated (in what may be dicta) that, under the rules of civil and appellate procedure, filing an appeal by fax is not proper. "The Rules of Civil Procedure categorically prohibit the 'filing of legal papers with the prothonotary by facsimile transmission. Pa. RCP 205.3(a), note. The question then becomes whether that prohibition [in the note] informs our treatment of a filing required by the rules of this Court. We find that it does." The court found support for its ruling in the internal operating procedures of the Supreme Court, which limit fax transmissions to emergency motions only. See, 210 Pa. Code sec. 63.6(c).
Despite this, the appellate court considered the merits of the case, because 1) the appellant mailed a notice of appeal, which was received by the appellant court within about 40 days of the entry of the final order in the docket of the trial court (although not within the 30 days required by Pa.RAP 903(a); and 2) the prothonotary of the trial court never made an entry in the docket that the required notation under Pa. RCP 236(b) -- that appropriate notice of the entry of the trial court judgment had been given to the parties. Since that entry was not made, the 30-day appeal period for filing an appeal was held to have never begun, hence the appellate court's decision on the merits. Still, it would seem to be better practice not to rely on a notice of appeal which is filed by fax in the appellate court.
Is not Pennsylvania procedure a thing to behold at times? Or is this just an isolated phenomenon and an unjust basis on which the judge our state practice -- like New Jersey's reputation, based solely and wrongfully on a relatively small uninhabitable, grotesque area of land just outside NYC, instead of on all its beautiful, non-grotesque places to which Pennsylvanians and others flee for fun?
http://www.courts.state.pa.us/OpPosting/Superior/out/s38031_06.pdf
The appellate court stated (in what may be dicta) that, under the rules of civil and appellate procedure, filing an appeal by fax is not proper. "The Rules of Civil Procedure categorically prohibit the 'filing of legal papers with the prothonotary by facsimile transmission. Pa. RCP 205.3(a), note. The question then becomes whether that prohibition [in the note] informs our treatment of a filing required by the rules of this Court. We find that it does." The court found support for its ruling in the internal operating procedures of the Supreme Court, which limit fax transmissions to emergency motions only. See, 210 Pa. Code sec. 63.6(c).
Despite this, the appellate court considered the merits of the case, because 1) the appellant mailed a notice of appeal, which was received by the appellant court within about 40 days of the entry of the final order in the docket of the trial court (although not within the 30 days required by Pa.RAP 903(a); and 2) the prothonotary of the trial court never made an entry in the docket that the required notation under Pa. RCP 236(b) -- that appropriate notice of the entry of the trial court judgment had been given to the parties. Since that entry was not made, the 30-day appeal period for filing an appeal was held to have never begun, hence the appellate court's decision on the merits. Still, it would seem to be better practice not to rely on a notice of appeal which is filed by fax in the appellate court.
Is not Pennsylvania procedure a thing to behold at times? Or is this just an isolated phenomenon and an unjust basis on which the judge our state practice -- like New Jersey's reputation, based solely and wrongfully on a relatively small uninhabitable, grotesque area of land just outside NYC, instead of on all its beautiful, non-grotesque places to which Pennsylvanians and others flee for fun?
Monday, March 26, 2007
admin. law - policies v. regulations
Eastwood Nursing & Rehab. Center v. DPW - 910 A.2d 134 (Pa. Cmwlth. 2006)
http://www.courts.state.pa.us/OpPosting/CWealth/out/1421CD05_11-3-06.pdf
DPW issued a Statement of Policy (SOP), which the petitioner argued was an improper and ineffective unpromulgated regulation. "It is well settled law that an agency's substantive regulations, when properly enacted under the Commonwealth Documents Law (CDL), [45 P.S. sec. 1102-1602] have the force and effect of law and enjoy a general presumption of reasonableness....The CDL defines a 'regulation' as 'any rule or regulation, or order in the nature of a rule or regulation, promulgated by an agency under statutory authority in the administration of any statute administered by or relating to the agency....' 45 P.S. § 1102(12). When an agency issues a regulation, the CDL requires the agency to provide notice of a proposed rule to the public, receive comments from interested parties, and hold hearings when appropriate. 45 P.S. §§ 1201, 1202...."
"Conversely, an interpretive rule, referred to in Section 102 of the CDL as a"statement of policy," is defined as: 'any document, except an adjudication or a regulation, promulgated by an agency which sets forth substantive or procedural personal or property rights, privileges, immunities, duties, liabilities or obligations of the public or any part thereof, and includes, without limiting the generality of the foregoing, any document interpreting or implementing any act of Assembly enforced or administered by such agency. 45 P.S. § 1102(13). In other words, a statement of policy is 'one that tracks a statute and does not expand upon its plain meaning; such a rule need not be issued in accord with the CDL.' " (emphasis added)
In PHRC v. Norristown Area School District, 374 A.2d 671, 679 (Pa. 1977), the Supreme Court "articulated the distinction between substantive rules which must be promulgated through rule-making procedures and statements of policy which require no such procedures" as follows: The critical distinction between a substantive rule and a general statement of policy is the different practical effect that these two types of pronouncements have in subsequent administrative proceedings. . . . A properly adopted substantive rule establishes a standard of conduct which has the force of law. . . . The underlying policy embodied in the rule is not generally subject to challenge before the agency. general statement of policy, on the other hand, does not establish a 'binding norm'. [It is not finally determinative of the issues or rights to which it is addressed. The agency cannot apply or rely upon a general statement of policy as law because a general statement of policy only announces what the agency seeks to establish as policy.] A policy statement announces the agency's tentative intentions for the future. When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued. "
The statement of policy is an "informational device...[which] erves several beneficial functions. By providing a formal method by which an agency can express its views, the general statement of policy encourages public dissemination of the agency's policies prior to their actual application in particular situations. Thus the agency's initial views do not remain secret but are disclosed well in advance of their actual application. Additionally, the publication of a general statement of policy facilitates long range planning within the regulated industry and promotes uniformity in areas of national concern.
"A regulation is a governmental agency's exercise of delegated legislative power to create a mandatory standard of beha-vior. A regulation is binding on a reviewing court if it conforms to the grant of delegated power, is issued in accordance with proper procedures, and is reasonable. In contrast, a statement of policy is a governmental agency's statutory interpretation which a court may accept or reject depending upon how accurately the agency's interpretation reflects the meaning of the statute.....
"Pennsylvania follows the 'binding norm test' to assess whether an agency's pronouncement is a regulation or a statement of policy..... 'A binding norm' means that the agency is bound by the statement until the agency repeals it, and if the statement is binding on the agency, it is a regulation . [I]n determining whether an agency action is a regulation or a statement of policy, one must look to the extent to which the challenged pronouncement leaves the agency free to exercise discretion to follow or not follow the announced policy in an individual case...... In ascertaining whether an agency has established a binding norm, the reviewing court must consider: (1) the plain language of the provision; (2) the manner in which the agency has implemented the provision; and, (3) whether the agency's discretion is restricted by the provision. "
http://www.courts.state.pa.us/OpPosting/CWealth/out/1421CD05_11-3-06.pdf
DPW issued a Statement of Policy (SOP), which the petitioner argued was an improper and ineffective unpromulgated regulation. "It is well settled law that an agency's substantive regulations, when properly enacted under the Commonwealth Documents Law (CDL), [45 P.S. sec. 1102-1602] have the force and effect of law and enjoy a general presumption of reasonableness....The CDL defines a 'regulation' as 'any rule or regulation, or order in the nature of a rule or regulation, promulgated by an agency under statutory authority in the administration of any statute administered by or relating to the agency....' 45 P.S. § 1102(12). When an agency issues a regulation, the CDL requires the agency to provide notice of a proposed rule to the public, receive comments from interested parties, and hold hearings when appropriate. 45 P.S. §§ 1201, 1202...."
"Conversely, an interpretive rule, referred to in Section 102 of the CDL as a"statement of policy," is defined as: 'any document, except an adjudication or a regulation, promulgated by an agency which sets forth substantive or procedural personal or property rights, privileges, immunities, duties, liabilities or obligations of the public or any part thereof, and includes, without limiting the generality of the foregoing, any document interpreting or implementing any act of Assembly enforced or administered by such agency. 45 P.S. § 1102(13). In other words, a statement of policy is 'one that tracks a statute and does not expand upon its plain meaning; such a rule need not be issued in accord with the CDL.' " (emphasis added)
In PHRC v. Norristown Area School District, 374 A.2d 671, 679 (Pa. 1977), the Supreme Court "articulated the distinction between substantive rules which must be promulgated through rule-making procedures and statements of policy which require no such procedures" as follows: The critical distinction between a substantive rule and a general statement of policy is the different practical effect that these two types of pronouncements have in subsequent administrative proceedings. . . . A properly adopted substantive rule establishes a standard of conduct which has the force of law. . . . The underlying policy embodied in the rule is not generally subject to challenge before the agency. general statement of policy, on the other hand, does not establish a 'binding norm'. [It is not finally determinative of the issues or rights to which it is addressed. The agency cannot apply or rely upon a general statement of policy as law because a general statement of policy only announces what the agency seeks to establish as policy.] A policy statement announces the agency's tentative intentions for the future. When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued. "
The statement of policy is an "informational device...[which] erves several beneficial functions. By providing a formal method by which an agency can express its views, the general statement of policy encourages public dissemination of the agency's policies prior to their actual application in particular situations. Thus the agency's initial views do not remain secret but are disclosed well in advance of their actual application. Additionally, the publication of a general statement of policy facilitates long range planning within the regulated industry and promotes uniformity in areas of national concern.
"A regulation is a governmental agency's exercise of delegated legislative power to create a mandatory standard of beha-vior. A regulation is binding on a reviewing court if it conforms to the grant of delegated power, is issued in accordance with proper procedures, and is reasonable. In contrast, a statement of policy is a governmental agency's statutory interpretation which a court may accept or reject depending upon how accurately the agency's interpretation reflects the meaning of the statute.....
"Pennsylvania follows the 'binding norm test' to assess whether an agency's pronouncement is a regulation or a statement of policy..... 'A binding norm' means that the agency is bound by the statement until the agency repeals it, and if the statement is binding on the agency, it is a regulation . [I]n determining whether an agency action is a regulation or a statement of policy, one must look to the extent to which the challenged pronouncement leaves the agency free to exercise discretion to follow or not follow the announced policy in an individual case...... In ascertaining whether an agency has established a binding norm, the reviewing court must consider: (1) the plain language of the provision; (2) the manner in which the agency has implemented the provision; and, (3) whether the agency's discretion is restricted by the provision. "
public employment - right of accompaniment by union rep.
Commonwealth, Office of Administration v. PLRB - Supreme Court - Feb. 20, 2007
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-14-2006mo.pdf
Under the state Public Employee Relations Act, 43 P.S. 1101.101 et seq., a public employee has the right to be accompanied by a union representative during an interview in which the employee reasonably fears that discipline may be imposed by the employer. Such a right of accompaniment during an investigatory interview includes the employee's choice of a union representative, when the representative is reasonably available and there are no extenuating circumstances.
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-14-2006mo.pdf
Under the state Public Employee Relations Act, 43 P.S. 1101.101 et seq., a public employee has the right to be accompanied by a union representative during an interview in which the employee reasonably fears that discipline may be imposed by the employer. Such a right of accompaniment during an investigatory interview includes the employee's choice of a union representative, when the representative is reasonably available and there are no extenuating circumstances.
admin. law - agency interpretation of statute
Malt Beverages Distributors Assn. v. Liquor Control Board - Cmwlth. Court- Feb. 23, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/896CD06_2-23-07.pdf
While courts traditionally accord the interpretation of the agency charged with administation of a statute some deference, the meaning of a statute is essentially a question of law for the court. Generally an administrative agency's interpretation of a statute for which it has enforcement responsibility is entitled to substantial deference. However, where an administative interpretation is inconsistent with the statute itself, or where the statutes's meaning is unambiguous, such an interpretation carries little or no weight.
http://www.courts.state.pa.us/OpPosting/CWealth/out/896CD06_2-23-07.pdf
While courts traditionally accord the interpretation of the agency charged with administation of a statute some deference, the meaning of a statute is essentially a question of law for the court. Generally an administrative agency's interpretation of a statute for which it has enforcement responsibility is entitled to substantial deference. However, where an administative interpretation is inconsistent with the statute itself, or where the statutes's meaning is unambiguous, such an interpretation carries little or no weight.
admin. law - agency interpretation of its own regulations
Tire Jockey Services, Inc. v. Dept. of Environmental Protection - Pa. S.Ct. - February 20, 2007
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-30-2005mo.pdf
There is a two-step analysis when reviewing an agency's interpretation of its governing regulations: (1) whether the interpretation is erroneous or inconsistent with the regulations, and 2) whether the regulation is consistent with the statute under which it was promulgated.
When an agency adopts a regulation pursuant to it own legislative rule-making power, as opposed to its interpretive rule-making power, it is valid and binding on courts as a statute, so long as it is a) adopted within the agency's granted power, b) issued pursuant to proper procedure, and c) reasonable.
When a court reviews a regulation issued pursuant to an agency's legislative rule-making power, the court may not substitute its own judgment for that of the agency to demonstrate that the agency has exceeded its administrative authority. It is not enough that the prescribed system may appear to be unwise or burdensome of inferior to another. Lack of wisdom in exercising agency power is not equivalent to abuse. What has been ordered must appear to be so entirely at odds with fundamental principles as to be the expression of a whim rather than an exercise of judgment.
Regarding the reasonableness prong, appellate courts accord deference to agencies and reverse agency determinations only if they were made in bad faith or they constituted a manifest or flagrant abuse of discretion or a purely arbitrary execution of the agency's duties or functions.
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-30-2005mo.pdf
There is a two-step analysis when reviewing an agency's interpretation of its governing regulations: (1) whether the interpretation is erroneous or inconsistent with the regulations, and 2) whether the regulation is consistent with the statute under which it was promulgated.
When an agency adopts a regulation pursuant to it own legislative rule-making power, as opposed to its interpretive rule-making power, it is valid and binding on courts as a statute, so long as it is a) adopted within the agency's granted power, b) issued pursuant to proper procedure, and c) reasonable.
When a court reviews a regulation issued pursuant to an agency's legislative rule-making power, the court may not substitute its own judgment for that of the agency to demonstrate that the agency has exceeded its administrative authority. It is not enough that the prescribed system may appear to be unwise or burdensome of inferior to another. Lack of wisdom in exercising agency power is not equivalent to abuse. What has been ordered must appear to be so entirely at odds with fundamental principles as to be the expression of a whim rather than an exercise of judgment.
Regarding the reasonableness prong, appellate courts accord deference to agencies and reverse agency determinations only if they were made in bad faith or they constituted a manifest or flagrant abuse of discretion or a purely arbitrary execution of the agency's duties or functions.
Thursday, March 01, 2007
UC - willful misconduct - corrections officer
Department of Corrections v. UCBR - Commonwealth Court - February 28, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/1205CD06_2-28-07.pdf
A corrections officer who heard rumors of a planned attack on an inmate was guilty of willful misconduct for not reporting the rumors and not intervening when he heard the inmate being beaten. The officer's fear of reprisals and fear for his own safety did not constitute good cause for his actions.
The Court said that its conscience was shocked by the Board's conclusion "that a corrections officer who refuses to report a threat of violence against an inmate and refuses to render aid to an inmate being beaten could use fear for his own personal safety as good cause justification for his refusal to render aid....We can do nothing but express our outrage" that the DOC's Office of Professional Responsibility was aware of and condoned claimant's conduct and that of others in his situation.
Citing its decision in Williams v. UCBR, 648 A.2d 1321 (Pa. Cmwlth. 1994), the court noted its prior holdings that a "corrections officer, like law enforcement officials, occupy positions of great responsibility and trust, and thus, must adhere to demanding standards, which are higher than those applied to many other professions."
As noted in a concurring opinion, this statement is in direct conflict with the Supreme Court's decision in Navickas v. UCBR, 778 A.2d 284, 290-1 (Pa. 2001), where the court rejected a higher standard of care for a health care worker, stating that that is a "question...of policy...not posed by the Unemployment Compensation Law we are called upon to construe. The Act sets for a single governing standard of willful misconduct, one that does not draw distinctions based upon the type or nature of the employee involved."
http://www.courts.state.pa.us/OpPosting/CWealth/out/1205CD06_2-28-07.pdf
A corrections officer who heard rumors of a planned attack on an inmate was guilty of willful misconduct for not reporting the rumors and not intervening when he heard the inmate being beaten. The officer's fear of reprisals and fear for his own safety did not constitute good cause for his actions.
The Court said that its conscience was shocked by the Board's conclusion "that a corrections officer who refuses to report a threat of violence against an inmate and refuses to render aid to an inmate being beaten could use fear for his own personal safety as good cause justification for his refusal to render aid....We can do nothing but express our outrage" that the DOC's Office of Professional Responsibility was aware of and condoned claimant's conduct and that of others in his situation.
Citing its decision in Williams v. UCBR, 648 A.2d 1321 (Pa. Cmwlth. 1994), the court noted its prior holdings that a "corrections officer, like law enforcement officials, occupy positions of great responsibility and trust, and thus, must adhere to demanding standards, which are higher than those applied to many other professions."
As noted in a concurring opinion, this statement is in direct conflict with the Supreme Court's decision in Navickas v. UCBR, 778 A.2d 284, 290-1 (Pa. 2001), where the court rejected a higher standard of care for a health care worker, stating that that is a "question...of policy...not posed by the Unemployment Compensation Law we are called upon to construe. The Act sets for a single governing standard of willful misconduct, one that does not draw distinctions based upon the type or nature of the employee involved."
Friday, February 23, 2007
Pennsylvania Bulletin of February 24, 2007
http://www.pabulletin.com/secure/data/vol37/37-8/index.html
court rules - exemption of certain funds (social security, et al.) from execution
http://www.pabulletin.com/secure/data/vol37/37-8/304.html
court rules - PFA forms - Rule 1905 - effective May 7, 2007
http://www.pabulletin.com/secure/data/vol37/37-8/303.html
court rules - exemption of certain funds (social security, et al.) from execution
http://www.pabulletin.com/secure/data/vol37/37-8/304.html
court rules - PFA forms - Rule 1905 - effective May 7, 2007
http://www.pabulletin.com/secure/data/vol37/37-8/303.html
Monday, February 12, 2007
child abuse - expungement - hearsay - finding that child is "unavailable"
C.E. v. Dept. of Public Welfare - Commonwealth Court - February 12, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/232CD06_2-12-07.pdf
Hearsay statements of child victim were not admissible, absent findings by the ALJ that the hearsay satisfied the requirements of the statute, 42 Pa. C.S. 5986. See, A.Y. v. DPW, 641 A.2d 1148, 1153 (Pa. 1994) and In the Interest of Tina K., 568 A.2d 210 (Pa. Super. 1989).
In particular, the ALJ never made a finding that the child was "unavailable" to testify, that is, "whether testifying would cause her emotional distress to the extent that her ability to communicate would be substantially impaired." The lack of such a finding is not a "mere failure by the ALJ to use the 'magic words' in 42 Pa. C.S. 5986. It is a clear requirement of the statute. Moreover, the evidence in this case included statements by the child that she was not afraid of the Petitioner, that she felt good and was not afraid to be at the hearing.
Although the Commonwealth Court did not mention it, the Superior Court reached a similar result in construing a related statute, 42 Pa. C.S. 5986.1, in Cmwlth. v. Kriner, January 2, 2007 - http://www.courts.state.pa.us/OpPosting/Superior/out/e03003_06.pdf , where it held that the hearsay statement of a child victim/witness under 12 years of age is admissible under 42 Pa. C.S. 5985.1 to prove certain criminal offenses if, inter alia, the child is "'unavailable" as a witness. The statute defines "unavailable" as "serious emotional distress that would substantially impair the child's ability to communicate." This definition is exclusive. There is "no other manner, method, procedure or definition of what constitutes unavailability." Thus, the death of a child witness does not come within this statutory definition of unavailability.
There was also an issue of witness competency. Although it was not considered in deciding the case, the court set out (in n. 8) the criteria for deciding whether a child in a competent witness, citing Commonwealth v. McMaster, 666 A.2d 724, 727 (Pa. Super. 1995).
http://www.courts.state.pa.us/OpPosting/CWealth/out/232CD06_2-12-07.pdf
Hearsay statements of child victim were not admissible, absent findings by the ALJ that the hearsay satisfied the requirements of the statute, 42 Pa. C.S. 5986. See, A.Y. v. DPW, 641 A.2d 1148, 1153 (Pa. 1994) and In the Interest of Tina K., 568 A.2d 210 (Pa. Super. 1989).
In particular, the ALJ never made a finding that the child was "unavailable" to testify, that is, "whether testifying would cause her emotional distress to the extent that her ability to communicate would be substantially impaired." The lack of such a finding is not a "mere failure by the ALJ to use the 'magic words' in 42 Pa. C.S. 5986. It is a clear requirement of the statute. Moreover, the evidence in this case included statements by the child that she was not afraid of the Petitioner, that she felt good and was not afraid to be at the hearing.
Although the Commonwealth Court did not mention it, the Superior Court reached a similar result in construing a related statute, 42 Pa. C.S. 5986.1, in Cmwlth. v. Kriner, January 2, 2007 - http://www.courts.state.pa.us/OpPosting/Superior/out/e03003_06.pdf , where it held that the hearsay statement of a child victim/witness under 12 years of age is admissible under 42 Pa. C.S. 5985.1 to prove certain criminal offenses if, inter alia, the child is "'unavailable" as a witness. The statute defines "unavailable" as "serious emotional distress that would substantially impair the child's ability to communicate." This definition is exclusive. There is "no other manner, method, procedure or definition of what constitutes unavailability." Thus, the death of a child witness does not come within this statutory definition of unavailability.
There was also an issue of witness competency. Although it was not considered in deciding the case, the court set out (in n. 8) the criteria for deciding whether a child in a competent witness, citing Commonwealth v. McMaster, 666 A.2d 724, 727 (Pa. Super. 1995).
Monday, February 05, 2007
parol evidence rule
Ragnar Benson, Inc. v. Hempfield Township Munic. Authority - Superior Court - Jan. 30, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/s65001_06.pdf
If a written contract is unambiguous and purports to be the entire agreement of the parties, and there is no claim of fraud or mistake, then oral testimony and prior written agreements or other writings are not admissible to explain or vary the terms of the contract. This is what is referred to as the parol evidence rule. See, e.g., Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425 (Pa. 2004) for a "comprehensive review" of the rule.
http://www.courts.state.pa.us/OpPosting/Superior/out/s65001_06.pdf
If a written contract is unambiguous and purports to be the entire agreement of the parties, and there is no claim of fraud or mistake, then oral testimony and prior written agreements or other writings are not admissible to explain or vary the terms of the contract. This is what is referred to as the parol evidence rule. See, e.g., Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425 (Pa. 2004) for a "comprehensive review" of the rule.
Friday, February 02, 2007
false imprisonment
In the Interest of M.G. - Superior Court - January 30, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/a36004_06.pdf
The court upheld the delinquency adjudiction of a juvenile accused of false imprisonment, where he followed his cousin into her bedroom, shut and locked the door, and stood between her and the door during an incident which lasted "at most, two minutes."
"In determining the magnitude of the restraint necessary for false imprisonment, this Court has recognized that false imprisonment covers restraints which are less serious than those necessary for the offenses of kidnapping [18 Pa. C.S. 2901(a)] and unlawful restraint [18 Pa. C.S. 2902(a)].
"In determining whether the restraint at issue interfered with [the victim's] liberty 'substantially,' we give the word 'substantially' its plain meaning....Thus, we determine the Legislature intended false imprisonment to cover restraints where an individual's liberty is interfered with in an ample or considerable manner."
It did not matter that the restraint took place in the victim's own bedroom. "Whether in her own home or elsewhere, Appellant restrained [the victim] and kept her in an area where she did not wish to remain. Removing [a victim] from her home or luring her to an unfamiliar place are simply not elements required for false imprisonment."
"Making threats, intimidating and/or using physical force are not stated elements of false imprisonment, although they may be the tool used by an offender in 'restraining another unlawfully.'"
http://www.courts.state.pa.us/OpPosting/Superior/out/a36004_06.pdf
The court upheld the delinquency adjudiction of a juvenile accused of false imprisonment, where he followed his cousin into her bedroom, shut and locked the door, and stood between her and the door during an incident which lasted "at most, two minutes."
"In determining the magnitude of the restraint necessary for false imprisonment, this Court has recognized that false imprisonment covers restraints which are less serious than those necessary for the offenses of kidnapping [18 Pa. C.S. 2901(a)] and unlawful restraint [18 Pa. C.S. 2902(a)].
"In determining whether the restraint at issue interfered with [the victim's] liberty 'substantially,' we give the word 'substantially' its plain meaning....Thus, we determine the Legislature intended false imprisonment to cover restraints where an individual's liberty is interfered with in an ample or considerable manner."
It did not matter that the restraint took place in the victim's own bedroom. "Whether in her own home or elsewhere, Appellant restrained [the victim] and kept her in an area where she did not wish to remain. Removing [a victim] from her home or luring her to an unfamiliar place are simply not elements required for false imprisonment."
"Making threats, intimidating and/or using physical force are not stated elements of false imprisonment, although they may be the tool used by an offender in 'restraining another unlawfully.'"
custody - paternity - standing - presumption
E.W. v. T.S. and C.S - Superior Court - January 31, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/a37030_06.pdf
A man who claimed to be the father of a child did not have standing to seek a declaration of his paternity or ask for custody of a 3 year old child, as against mother (T.S.) and her husband (C.S.), where
- mother and husband were married before conception, at time of conception and birth, etc.
- mother and husband never separated, filed for divorce, etc., and want to maintain their marriage
- husband was named as father on birth certificate
- husband has always assumed paternity and treated child as his own
"The presumption that a child born during the marriage is a child of the husband is always the starting point in a contest involving the parentage of a child born during coverture. Moreover, the strength of the presumption...is a child of the marriage is grounded in the Commonwealth's interest in protecting the family unit. Although the presumption may be rebutted by clear and convincing evidence of husband's non-access, impotency, or sterility, the presumption is irrebuttable where mother, child, and husband live together as an intact family and husband assumed parental responsibility for the child."
Justice Newman's opinion that there is a conflict between these principles and the Uniform Act on Blood Tests has never commanded a majority of the Court. See, Strauser v. Stahr, 726 A.2d 1052, 1056 n. 2 (Pa. 1999)
http://www.courts.state.pa.us/OpPosting/Superior/out/a37030_06.pdf
A man who claimed to be the father of a child did not have standing to seek a declaration of his paternity or ask for custody of a 3 year old child, as against mother (T.S.) and her husband (C.S.), where
- mother and husband were married before conception, at time of conception and birth, etc.
- mother and husband never separated, filed for divorce, etc., and want to maintain their marriage
- husband was named as father on birth certificate
- husband has always assumed paternity and treated child as his own
"The presumption that a child born during the marriage is a child of the husband is always the starting point in a contest involving the parentage of a child born during coverture. Moreover, the strength of the presumption...is a child of the marriage is grounded in the Commonwealth's interest in protecting the family unit. Although the presumption may be rebutted by clear and convincing evidence of husband's non-access, impotency, or sterility, the presumption is irrebuttable where mother, child, and husband live together as an intact family and husband assumed parental responsibility for the child."
Justice Newman's opinion that there is a conflict between these principles and the Uniform Act on Blood Tests has never commanded a majority of the Court. See, Strauser v. Stahr, 726 A.2d 1052, 1056 n. 2 (Pa. 1999)
Pennsylvania Bulletin of February 3, 2007
http://www.pabulletin.com/secure/data/vol37/37-5/index.html
courts - juvenile records - proposed amendments - public availability -
http://www.pabulletin.com/secure/data/vol37/37-5/157.html
court rules - support - amendments
http://www.pabulletin.com/secure/data/vol37/37-5/155.html
governor - regulatory agenda -
"The agendas are compiled to provide members of the regulated community advanced notice of regulatory activity. It is the intention of the Administration that these agendas will serve to increase public participation in the regulatory process."
http://www.pabulletin.com/secure/data/vol37/37-5/186.html
courts - juvenile records - proposed amendments - public availability -
http://www.pabulletin.com/secure/data/vol37/37-5/157.html
court rules - support - amendments
http://www.pabulletin.com/secure/data/vol37/37-5/155.html
governor - regulatory agenda -
"The agendas are compiled to provide members of the regulated community advanced notice of regulatory activity. It is the intention of the Administration that these agendas will serve to increase public participation in the regulatory process."
http://www.pabulletin.com/secure/data/vol37/37-5/186.html
Tuesday, January 30, 2007
UC- employee v. independent contractor
Beacon Flag Car Co. v. UCBR - 910 A.2d 103 (Pa. Cmwlth. 2006)
http://www.courts.state.pa.us/OpPosting/CWealth/out/928CD06_10-31-06.pdf
Claimant held to be a self-employed independent contractor rather than an employee and thus not eligible for UC benefits.
The Claimant -- who did not appear at or participate in the referee hearing -- provided flag car services to clients of Beacon Flag Co. (BFC) under an "independent contractor agreement." A flag car (aka pilot or escort car) accompanies oversized loads on trips. Drivers such as claimant are free to accept or decline any offered trip from BFC and are encouraged to promote their own business. Some drivers have their own vehicles; some rent them from the a business owned by the ER's husband. The drivers get no training. They are given 1099 income tax forms rather than W-2 forms.
The UCBR determined that claimant and others were under BFC's direction or control. The court reversed, based on the decision in Viktor, Ltd. v. Dept. of Labor and Industry, 892 A.2d 781 (Pa. 2006), which decision "was ignored by both the referee and UCBR."
The courts refer to sec. 4(el)(2)(B) of the UC Law, 43 P.S. sec. 753 (el)(2)(B) in these cases. That provision "presumes that an individual is an employee, as opposed to an independent contractor, but this presumption may be overcome if the putative employer sustains its burden of showing that the claimant was free from the control and direction in the performance of his service and that, as to such service, was customarily engaged in an independent trade or business....Unless both of these showings are made, the presumption stands that one who performs services for wages is an employee."
"The first element -- the issue of control -- is based upon a showing of control, not only with regard to the work to be done, but also with regard to the manner of performing it."
"As to the second element -- whether Claimant conducts his driving services as an 'independently established' business -- the courts have identified two factors as important in making this evaluation: (1) whether the individual was capable of performing the activities in question for anyone who wished to avail themselves of the services; and (2) whether the nature of the business compelled the individual to look to only a single employer for the continuation of such services."
The existence of a non-complete clause in the Indpt. Contractor Agreement is not dispositive. The "mere existence" of such a clause does not render the party agreeing to it an employee of the other party. Electrolux Corp. v. Bureau of Tax Operations, 705 A.2d 1357 (Pa. Cmwlth), appeal discontinued, 724 A.2d 936 (Pa. 1998). All factors must be considered. The "unique facts of each cases must be examined in order to resolve the question of employee versus independent contractor status."
http://www.courts.state.pa.us/OpPosting/CWealth/out/928CD06_10-31-06.pdf
Claimant held to be a self-employed independent contractor rather than an employee and thus not eligible for UC benefits.
The Claimant -- who did not appear at or participate in the referee hearing -- provided flag car services to clients of Beacon Flag Co. (BFC) under an "independent contractor agreement." A flag car (aka pilot or escort car) accompanies oversized loads on trips. Drivers such as claimant are free to accept or decline any offered trip from BFC and are encouraged to promote their own business. Some drivers have their own vehicles; some rent them from the a business owned by the ER's husband. The drivers get no training. They are given 1099 income tax forms rather than W-2 forms.
The UCBR determined that claimant and others were under BFC's direction or control. The court reversed, based on the decision in Viktor, Ltd. v. Dept. of Labor and Industry, 892 A.2d 781 (Pa. 2006), which decision "was ignored by both the referee and UCBR."
The courts refer to sec. 4(el)(2)(B) of the UC Law, 43 P.S. sec. 753 (el)(2)(B) in these cases. That provision "presumes that an individual is an employee, as opposed to an independent contractor, but this presumption may be overcome if the putative employer sustains its burden of showing that the claimant was free from the control and direction in the performance of his service and that, as to such service, was customarily engaged in an independent trade or business....Unless both of these showings are made, the presumption stands that one who performs services for wages is an employee."
"The first element -- the issue of control -- is based upon a showing of control, not only with regard to the work to be done, but also with regard to the manner of performing it."
"As to the second element -- whether Claimant conducts his driving services as an 'independently established' business -- the courts have identified two factors as important in making this evaluation: (1) whether the individual was capable of performing the activities in question for anyone who wished to avail themselves of the services; and (2) whether the nature of the business compelled the individual to look to only a single employer for the continuation of such services."
The existence of a non-complete clause in the Indpt. Contractor Agreement is not dispositive. The "mere existence" of such a clause does not render the party agreeing to it an employee of the other party. Electrolux Corp. v. Bureau of Tax Operations, 705 A.2d 1357 (Pa. Cmwlth), appeal discontinued, 724 A.2d 936 (Pa. 1998). All factors must be considered. The "unique facts of each cases must be examined in order to resolve the question of employee versus independent contractor status."
Wednesday, January 24, 2007
disability - grid - non-exertional impairment
Poulos v. Commissioner of Social Security - 3rd Circuit - January 24, 2007
http://www.ca3.uscourts.gov/opinarch/054637p.pdf
The ALJ determined that the claimant had both exertional and non-exertional limitations and "subsequently concluded, without reference to any vocational evidence, that a) Appellant's exertional and nonexertional limitations did not 'significantly compromise' the sedentary occupational base" and, thus, that b) the medical-vocational guidelines--the Grid--could be applied to deny appellant's claim.
The court held that the ALJ erred in doing this and that his "reliance on the Guidelines in the presence of Appellant's nonexertional limitations constitutes reversible error under Sykes v. Apfel, 228 F.3d 259 (3d Cir. 2000), where the court rejected the same argument that SSA made here -- that the guidelines can be relied on even in the presence of a nonexertional limitation, "so long as the limitation does not significantly diminish the range of work that could otherwise be exertionally possible."
The court "squarely rejected this argument in Sykes" and did so here as well. Absent a rulemaking establishing the fact of an undiminished occupational base, SSA cannot determine that a nonexertional impairment does not significantly erode a claimant's occupational basis unless SSA either a) takes additional evidence establishing as much, or b) provides notice to the claimant of its intent to take official notice of this fact and provides the claimant an opportunity to counter the conclusion.
The court remanded the case because the record had not been fully developed and reminded the ALJ of his duty to do so.
The court also reminded the ALJ "that under the Supreme Court's decision in Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 803 (1999), he is not entitled to consider potential accommodations by employers in determining the availability of jobs in the national economy that Appellant can perform."
http://www.ca3.uscourts.gov/opinarch/054637p.pdf
The ALJ determined that the claimant had both exertional and non-exertional limitations and "subsequently concluded, without reference to any vocational evidence, that a) Appellant's exertional and nonexertional limitations did not 'significantly compromise' the sedentary occupational base" and, thus, that b) the medical-vocational guidelines--the Grid--could be applied to deny appellant's claim.
The court held that the ALJ erred in doing this and that his "reliance on the Guidelines in the presence of Appellant's nonexertional limitations constitutes reversible error under Sykes v. Apfel, 228 F.3d 259 (3d Cir. 2000), where the court rejected the same argument that SSA made here -- that the guidelines can be relied on even in the presence of a nonexertional limitation, "so long as the limitation does not significantly diminish the range of work that could otherwise be exertionally possible."
The court "squarely rejected this argument in Sykes" and did so here as well. Absent a rulemaking establishing the fact of an undiminished occupational base, SSA cannot determine that a nonexertional impairment does not significantly erode a claimant's occupational basis unless SSA either a) takes additional evidence establishing as much, or b) provides notice to the claimant of its intent to take official notice of this fact and provides the claimant an opportunity to counter the conclusion.
The court remanded the case because the record had not been fully developed and reminded the ALJ of his duty to do so.
The court also reminded the ALJ "that under the Supreme Court's decision in Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 803 (1999), he is not entitled to consider potential accommodations by employers in determining the availability of jobs in the national economy that Appellant can perform."
Wednesday, January 17, 2007
employment - nurses - licenses - suspension - violation of VRP agreement
Wittorf v. Board of Nursing - Cmwlth. Court - October 12, 2006 (publication ordered 01-10-07)
http://www.courts.state.pa.us/OpPosting/CWealth/out/338CD06_1-10-07.pdf
The Court upheld the decision of the State Board of Nursing to suspend the license of a nurse who had violated a consent agreement which he entered under the Voluntary Rehabilitation Program (VRP), 63 P.S. sec. 224.1(c).
The nurse entered the VRP agreement after he had been charged with DUI, a 2nd degree misdemeanor. The criminal case was resolved without a finding of guilt, when Wittorf successfully completed an ARD program, after which his criminal record was expunged.
The Bureau of Professional & Occupational Affairs then took action concerning his nursing license. It offered him a chance to enter the VRP in lieu of disciplinary charges being brought against him. In the VRP agreement, Wittorf stipulated that a) he was unable to practice nursing with reasonable skill and safety, due to his abuse of and dependency on alcohol. and b) that he had suffered from alcohol abuse or dependency for two years. Under the VRP agreement, Wittorf's license was suspended, but the suspension was stayed in favor of probation, conditioned on, inter alia, his complete abstention from the use of alcohol and his documented regular attendance and active participation in a support program.
The Bureau petitioned to suspend Wittorf's license when he later violated the VRP agreement by testing positive for alcohol several times and failing to submit support group attendance records after being requested to do so. At a hearing, Wittorf did not dispute violating the VRP agreement. Instead he argued that the Board had no authority to force him to enter into a VRP agreement, because he had only been charged with a misdemeanor, and the statute, 63 P.S. sec. 224(a)(5), only authorized suspension if the offense was a felony.
The Court held that Wittorf's argument ignored the Board's independent authority under 63 P.S. sec. 224(a)(2), 224(b)(4) and 224.1(c) to a) suspend or revoke a nurses license or, in the alternative, or to b) require a VRP program, when a nurse us "unable to practice....with reasonable skill and safety to patients by reason of....dependence upon alcohol...."
http://www.courts.state.pa.us/OpPosting/CWealth/out/338CD06_1-10-07.pdf
The Court upheld the decision of the State Board of Nursing to suspend the license of a nurse who had violated a consent agreement which he entered under the Voluntary Rehabilitation Program (VRP), 63 P.S. sec. 224.1(c).
The nurse entered the VRP agreement after he had been charged with DUI, a 2nd degree misdemeanor. The criminal case was resolved without a finding of guilt, when Wittorf successfully completed an ARD program, after which his criminal record was expunged.
The Bureau of Professional & Occupational Affairs then took action concerning his nursing license. It offered him a chance to enter the VRP in lieu of disciplinary charges being brought against him. In the VRP agreement, Wittorf stipulated that a) he was unable to practice nursing with reasonable skill and safety, due to his abuse of and dependency on alcohol. and b) that he had suffered from alcohol abuse or dependency for two years. Under the VRP agreement, Wittorf's license was suspended, but the suspension was stayed in favor of probation, conditioned on, inter alia, his complete abstention from the use of alcohol and his documented regular attendance and active participation in a support program.
The Bureau petitioned to suspend Wittorf's license when he later violated the VRP agreement by testing positive for alcohol several times and failing to submit support group attendance records after being requested to do so. At a hearing, Wittorf did not dispute violating the VRP agreement. Instead he argued that the Board had no authority to force him to enter into a VRP agreement, because he had only been charged with a misdemeanor, and the statute, 63 P.S. sec. 224(a)(5), only authorized suspension if the offense was a felony.
The Court held that Wittorf's argument ignored the Board's independent authority under 63 P.S. sec. 224(a)(2), 224(b)(4) and 224.1(c) to a) suspend or revoke a nurses license or, in the alternative, or to b) require a VRP program, when a nurse us "unable to practice....with reasonable skill and safety to patients by reason of....dependence upon alcohol...."
welfare - NMP-MA - ongoing v. monthly program
Brobst v. DPW - Commonwealth Court 09-26-06, publication ordered 01-10-07
http://www.courts.state.pa.us/OpPosting/CWealth/out/121CD06_1-10-07.pdf
The court upheld DPW's decision that the appellant was eligible for the monthly NMP-MA spend-down program but not the ongoing NMP-MA spend-down program, because a) her monthly expenses exceeded the specified income limits and b) her medical expenses were covered under the NMP-MA program, and so could not be deducted from her income.
The ongoing program allows a recipient to "received uninterrupted medical coverage for the full month. 55 Pa.Code sec. 181.13." The monthly program applies where income, after appropriate deductions, is still above the specified income limits, requiring the individual to "spend a certain amount on expenses every month before medical assistance can be available to cover the remaining expenses for the month, 55 Pa. Code sec. 181.13....[M]edical expenses covered by NMP-MA may not be deducted from monthly income....only expenses not covered by NMP-MA....."
The court held that the DPW program under 55 Pa. Code 181.13 was a valid application of the "flexible income test" required under Title XIX of the Social Security Act, 42 USC sec. 1396 et seq.
http://www.courts.state.pa.us/OpPosting/CWealth/out/121CD06_1-10-07.pdf
The court upheld DPW's decision that the appellant was eligible for the monthly NMP-MA spend-down program but not the ongoing NMP-MA spend-down program, because a) her monthly expenses exceeded the specified income limits and b) her medical expenses were covered under the NMP-MA program, and so could not be deducted from her income.
The ongoing program allows a recipient to "received uninterrupted medical coverage for the full month. 55 Pa.Code sec. 181.13." The monthly program applies where income, after appropriate deductions, is still above the specified income limits, requiring the individual to "spend a certain amount on expenses every month before medical assistance can be available to cover the remaining expenses for the month, 55 Pa. Code sec. 181.13....[M]edical expenses covered by NMP-MA may not be deducted from monthly income....only expenses not covered by NMP-MA....."
The court held that the DPW program under 55 Pa. Code 181.13 was a valid application of the "flexible income test" required under Title XIX of the Social Security Act, 42 USC sec. 1396 et seq.
appeals - interlocutory appeal - collateral order - discovery
Feldman v. Ide - Superior Court - January 9, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/a33037_06.pdf
For an order to be deemed collateral and subject to interlocutory review
- The order must be separate and distinct from the main cause of action
- The right involved must be too important for review to be denied, i.e., the right is deeply rooted in public policy such that it goes beyond the controversy at hand, such as privacy.
- The question presented must be such that if review is postponed until judgment, the claim will be irreparably lost.
In a discovery controversy, there must be no effective means of review if the order were to be carried out. An order directing a doctor hired by the insurer of a tort plaintiff to produce documents about his income in worker's comp. and personal injury cases was held to be collateral and thus subject to interlocutory. However, the discovery order was upheld pursuant to the decision in Cooper v. Shoffstall, 905 A.2d, 482 (Pa. 2006).
http://www.courts.state.pa.us/OpPosting/Superior/out/a33037_06.pdf
For an order to be deemed collateral and subject to interlocutory review
- The order must be separate and distinct from the main cause of action
- The right involved must be too important for review to be denied, i.e., the right is deeply rooted in public policy such that it goes beyond the controversy at hand, such as privacy.
- The question presented must be such that if review is postponed until judgment, the claim will be irreparably lost.
In a discovery controversy, there must be no effective means of review if the order were to be carried out. An order directing a doctor hired by the insurer of a tort plaintiff to produce documents about his income in worker's comp. and personal injury cases was held to be collateral and thus subject to interlocutory. However, the discovery order was upheld pursuant to the decision in Cooper v. Shoffstall, 905 A.2d, 482 (Pa. 2006).
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