contracts - duty of good faith/fair dealing - doctrine of necessary implication

Stamerro v. Stamerro - Superior Court - December 21, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/a13045_05.pdf

This case involves the interpretation and enforcement of a marriage settlement agreement. The appellate court affirmed the trial court's refusal to lower appellant-husband's contractual duty to pay a certain level of alimony.

duty of good faith and fair dealing
Pennsylvania has "accepted the principle in Restatement (Second) of Contracts, sec. 205 that 'every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcements."

The duty of good faith means honesty in fact in the conduct of transaction concerned . The duty of varies somewhat w/context . A complete catalogue of lack of good faith is impossible , but it includes evasion of the spirit of the bargain and lack of diligence

doctrine of necessary implication
This is similar to the doctrine of good faith and fair dealing. Courts employ this doctrine a s a means of avoiding injustice by inferring contract terms that reflect parties' silent intent .

Absent an express term, the doctrine may act to imply a requirement necessitated by reason and justice and to avoid frustation of the intent of the parties

Doctrines of good faith, fair dealing, and necessary implication apply in limited circumstances and cannot trump express contract provisions . They are principles for courts to use to harmonize the reasonable expectations of the parties with the intent of the contractors and the express terms in their contract.

Donald Marritz
MidPenn Legal Services

Freedom of Information Act - waiver of fees

Community Legal Services v. HUD - ED Pa. - December 19, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1502P.pdf

The court granted CLS's motion for summary judgment against HUD on CLS's request to have all fees waived for its Freedom of Information Act (FOIA), 5 USC 552 et seq., request for documents concerning Moving to Work (MTW) Demonstration Program of the Philadelphia Housing Authority, pursuant to PHA's agreement with HUD.

The Court found that CLS had "adequately shown that it satisfied the statutory requirements for a feee waiver" by showing that "disclosure of the requested documents is likely to contribute to public understanding, and that the contribution is likely to be significant."

Donald Marritz
MidPenn Legal Services

custody - expert opinion - discovery/use by opposing party

Lloyd v. Lloyd - Pa. Superior Court - December 20, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/a29038_05.pdf

Mother's discovery and use of report of father's expert permitted under Pa. RCP 4003(a)(3), where father procured report initially but decided not to use report or call expert at trial.

Pa RCP 4003(a)(3) bars discovery of an report of an expert who is not expected to be called as a witness at trial. Father initially indicated that he would call the expert, so the court said that the rule wouldn't apply. In the alternative, the court held that report was discoverable under the rule, because it was the report of a "medical expert," as defined by Rule 4010(b). The court said that an "expert in a child custody case, regardless of who 'hires' the expert, is very similar to a 'independent' medical examiner which is the subject of Rule 4010…An expert, whether hired by a particular party or appointed by the court in custody litigation, is an expert subject to Rule 4010…" The expert's report and findings are "discoverable by a party….regardless of the status of the expert as a witness at trial."

The court also rejected an argument that mother's late motion about getting/using the report violated the trial court's procedural order establishing a schedule and procedure. It approved the trial court's statement that "our analysis is direct and simple…Hire an expert custody evaluator and such opinion evidence will be made known to the court. To do otherwise would be a disservice to the child….[K]nowing such evidence exists and to shield such from disclosure presents a less than full and complete record. We literally can conceive of no circumstance where non-disclosure benefits the child."

Donald Marritz
MidPenn Legal Services

custody - standard of review, expert opinion

King v. King - Pa. Superior Court, December 16, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/A34039_05.pdf

In a factually complicated case, the appellate court affirmed the trial court's grant of primary custody to father, over child's expressed strong preference for mother. There was no discussion at all about the child-preference issue.

standard of review -- The Court said that it was its scope of review was "very broad" but that it was "not this Court's function to determine whether the trial court reached the 'right' decision' rather we must consider whether, 'based on the evidence presented, given due deference to the trial court's weight and credibility determinations,' the trial court erred or abused is discretion in awarding custody to the prevailing party."

expert opinion - The appellate court upheld the trial's court's refusal to follow the recommendation of the custody evaluator, a psychologist, that custody go to mother, stating that the trial court had conducted two full hearings and was "in the unique position of having had the opportunity to observe all of the parties in this matter for a period of at least four years." The trial judge "detailed 96 findings of fact with an excellent analysis and interpretation of the nuances expressed by the witnesses which strongly support his conclusions. Our standard of review does not allow us to alter the court's conclusions provided they are supported by the record or unless they are manifestly unreasonable. The court's decision awarding custody to [father] is supported by the voluminous record before us."

Donald Marritz
MidPenn Legal Services

civil contempt - specificity of order

McNelis, et al. v. Lear, et al. - Pa. Superior Court - December 14, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/e02003_05.pdf

This is a civil contempt case about enforcement of a settlement agreement in a property dispute matter. This may be of interest to family law advocates because of its possible application to PFA civil contempts.

Superior Court reversed lower court finding of contempt, because the lower court had not clearly set out a specific order that appellants had not followed.

The court said that the "order forming the basis for the contempt finding must be definite, clear, and specific, leaving no doubt or uncertainty regarding the prohibited conduct….It is well settled that there are certain elements necessary to support a finding of civil contempt, namely: that the contemnor had notice of the specific order or decree which he disobeyed; that the act constituting the contemnor's violation was volitional; and that the contemnor acted with wrongful intent."

In this case, the lower court had never entered an order directing appellants to do what they had allegedly not done. "Because Appellants were not in violation of a specific court order it was improper for the trial court to find them in contempt."

Donald Marritz
MidPenn Legal Services

employment - discrimination - recent Pa. federal court decisions

1. Washco v. Federal Express Corp. - ED Pa. - November 28, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1434P.pdf
Summary judgment granted to defendant on plaintiff's employment-related claims under Title VII of the Civil Rights Act, 42 USC sec. 1981(a), and the Pennsylvania Human Relations Act (PHRA), 43 P.S. sec. 951 et seq.

2. Foxworth v. Pa. State Police - ED Pa. - November 29, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1436P.pdf
Sumary judgment granted to defendant on employment-related claims under 42 USC sec. 1981, sec. 1983 and sec. 2000e( Title VII) against State Police. Good discussion of how these cases are decided, shifting burden of proof/persuasion, etc.

3. Keys v. City of Philadelphia, ED Pa. - November 29, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1437P.pdf
Summary judgment motions of each party denied on plaintiff's employment-related claims under ADA, 42 USC 12111-12131; Rehabilitation Act, 29 USC sec. 793 st seq.; the Pa. Human Relations Act, 43 P.S. sec. 951 et seq.; 14th Amendment; 42 USC sec. 1983.

4. Embrico, et al. v. United States Steel Corp. - ED Pa. November 30, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1452P.pdf
Defendant's summary judgment motion granted on all claims in this 61-page decision.

Donald Marritz
MidPenn Legal Services

UC - willful misconduct - alcohol

Brannigan v. UCBR - Commonwealth Court - December 8, 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/651CD05_12-8-05.pdf

Claimant disqualified pursuant to sec. 402(e.1), 43 P.S. sec. 802(e.1), which says that a claimant (CL) is ineligible where unemployment is due to discharge or suspension from work for failure to submit and/or pass a drug test which is conducted pursuant to an employer's established policy, provided that the test is not requested or implemented in violation of the law or a collective bargaining agreement.

Claimant was a nursing assistant at a hospital. In March 2003, he had had a positive test for alcohol, agreed to enter an alcohol assistance program, and was told that any future violation would result in his discharge. In September 2004, an OR nurse told the medical director (MD) that CL smelled of alcohol. The MD talked to CL and, based on the smell of alcohol, told him he'd be required to take an alcohol test. He refused the test. Claimant admitted at the hearing that he'd had 3-4 beers at 12:30 a.m. and had been unable to shower before reporting to work at 10:00 a.m

The referee held that the ER failed to show that the CL was aware of the details of the drug policy, which had been changed since the March 2003 incident. The referee also said that the ER failed to follow its policy, because there was no competent evidence that the CL exhibited behavior that showed he was unfit for duty. The Board reversed. It found that the CL was aware of the ER's policy, which says that employees can be give a test as a result of a suspicion of impairment. The Board found that there was credible evidence that CL smelled of alcohol when he got to work.

The Court affirmed the Board's denial of benefits, citing UGI Utilities v. UCBR, 851 A2d 240 (Pa. Cmwlth. 2004). The Board made specific findings that the ER had a substance abuse policy and that the CL violated it. The Court rejected the argument that CL didn't know that refusing the test could result in a dismissal. It said that the "record is replete with evidence that the knew of the drug and alcohol policy" and that he "had signed an agreement specifying that any future violation…would result in termination."

The Court also rejected the argument that "the smell of alcohol alone is insufficient to establish that he was unfit for duty….This Court has held an employee can commit willful misconduct by arriving at work smelling of alcohol even if that employee does not drink at work and is able to perform all required duties," citing Klink v. UCBR, 289 A.2d 494 (Pa. Cmwlth 1972). The Court said that "olfactory evidence that claimant imbibed intoxicating liquor before arriving for work, let alone Claimant's admissions to the same, is enough to support a finding of willful misconduct," citing Lindsay v. UCBR, 789 A.2d 385, 390 (Pa. Cmwlth. 2001).

The Court also cited the following language from Klink: "F. Scott Fitzgerald chronicler of a less serious age that the present, observed that the bouquet of alcohol, not unseemly to a cavalry officer or bond broker, is altogether unfitting to a surgeon or clergyman….In the instant matter, we must determine whether the same standards shall apply to all hospital employees." [Query:
Is this an attempt to again establish a higher standard of conduct for certain employees, in violation of e.g. Navickas v. UCBR, 787 A.2d 284 (Pa. 2001)?]

The Court ended in a somewhat confusing fashion by saying that "[u]nder Employer's policy, an employee suspected of impairment due to alcohol could not be forced to submit to an alcohol screening test; however, such refusal would be reported to Employee Relations for further disposition and action. Claimant knew or should have known of this policy. The Board properly denied benefits in accordance with Section 402(e.1) of the Law." (emphasis added)

Donald Marritz
MidPenn Legal Services

paternity - genetic testing - estoppel

Buccieri v. Campagna - Pa. Superior Court - December 7, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/a35036_05.pdf

Putative father was estopped from getting genetic paternity testing where he knew of mother's pregnancy but had no contact with child for about 8 years. In the meantime, mother had married. She and her and new husband, who wanted to adopt the child, had formed a new family unit. Mother did not desire contact from putative father (PF), but she did nothing to obstruct contact or prevent him from requesting information about her prenancy or offering to assuming a parental role. Her conduct does not constitute the kind of obstructive tactics deplored by state law. PF could easily have monitored the pregnancy and tried to establish contact, but he did nothing.

Donald Marritz
MidPenn Legal Services

custody - contempt - notice of hearing - due process

Everett v. Parker - Pa. Superior Court - December 7, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/s50045_05.pdf

Father filed contempt petition against mother alleging follow the existing custody order. Father did not serve mother with the petition or order for hearing. Rather, he mailed a copy of the petition and hearing order to a) her attorney in another case, by and b) a CYS worker who had been involved with the family.

The mother did not appear at the hearing. The attorney did not appear at the hearing. The CYS worker was present at the hearing and testified that she had given mother a copy of the petition and hearing notice the day before. The court felt this was "sufficient" service and went ahead with the hearing in mother's absence. The court found mother in contempt and transferred majority custody to father.

The appellate court held that service was improper and invalid under the relevant rules of court, Rule 1915.12(a), and due process principles. The notice to mother was "not meaningful" and violated her right to due process. The lower court's transfer of custody to father, absent proper notice to mother, was an abuse of discretion. The proper course would have been for the lower court to continue the case and direct father to make proper service, in the proper format.

Donald Marritz
MidPenn Legal Services

disability - VE hypo inadequate - remand

Baum v. Barnhart - ED Pa. - November 30, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1451P.pdf

Held, the ALJ did not properly evaluate the claimant's residual functional capacity, because of improper hypothetical to the vocational expert. Claimant alleged disability based on back injury, pain, obesity, sleep disorder, depression, carpal tunnel syndrome, etc. Claimant is a younger individual with a h.s. education, prior work as carpenter in construction industry. The ALJ determined that CL could not do his former work and only a limited range of sedentary work.

Although it rejected claimant's position on other issues, the court upheld his claim about the inadequacy of the ALJ's hypo to the vocational expert, which in toto, was as follows: "I think from what the Claimant testified and what it looks like in the 1994 FCA, it looks like they thought he could do sedentary work. So why don't we assume sedentary with a sit/stand option. Are there jobs with that?"

Citing Ramirez v. Barnhart, 372 F3d 546 (3d Cir. 2004) and Chrupcala v. Heckler, 829 F.2d 1269 (3d Cir. 1987), the court said that "great specificity" was required in the hypo to the VE and that pain and other impairments, amply supported by the record, had to be figured in as well.

The court remanded the case for further proceedings pursuant to the fourth sentence of 42 USC 405(g).

Donald Marritz
MidPenn Legal Services

employment - arrest record - expungement

Commonwealth v. Romanik

http://www.courts.state.pa.us/OpPosting/Superior/out/a11026_05.pdf

This case involves the expungement of a criminal arrest record. It has implications for employment and perhaps other areas. N.B. Even thought the issue arose in the context of a criminal case, it appears that even entities which operate under LSC restrictions can do these cases, according to a November 2004 memo by Alan Houseman and Linda Perle of CLASP.

Defendant was a h.s. librarian who sold old issues of National Geographic, which "had been consigned to the trash," on eBay. He used that money ($325) as well as $300 of his own money to buy six used computers for the school library, "where they remain in use to this day." D's mentor had told him that this was a "creative" idea and "did not warn him against pursuing it."

However, the school district made a complaint to the DA, who charged D with library theft and misapplication of entrusted government property. At the preliminary hearing, D agreed to resign from his job in consideration for the DA dropping the charges. D then filed a motion to expunge his arrest record, which the lower court denied.

The Superior Court reversed, holding that the lower court had abused its discretion in not ordering the expungement because, on balance, the harm attendant in keeping the arrest record "far outweighed any possible interest the Commonwealth could have had in retaining such information." The Court held that there is a due process right expungement, in appropriate circumstances, which is "not dependent upon express statutory authority."

The Court also noted that the burden of proof had been misplaced. "[W]hen a charge is withdrawn or nolle prosequied [is this a word?], the burden is always on the Commonwealth to demonstrate why an arrest record should be retained….[T]he Commonwealth bears the burden of affirmatively justifying retention of the arrest record [whether] it did not, could not, or [chose] not to bear its burden of proof beyond a reasonable doubt at trial."

A "non-exclusive list of factors a court should examine in determining whether the Commonwealth has satisfied its burden" include a) the strength of the Commonwealth's case, b) the reasons why it wants to retain the record, c) the petitioner's age, criminal record and employment history, d) the length of time between the arrest and request to expunge, and e) the specific adverse consequences the petitioner may endure should expunction be denied. Applying these factors, the court said that the lower court had "manifestly abused its discretion."

Donald Marritz
MidPenn Legal Services

disability - Title II - claim denied

Truett v. Barnhart - ED Pa. - November 23, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1433P.pdf

Claim for Title II benefits denied.

treating physician opinion - The TP's opinion was rejected, because it was substantially inconsistent with the claimant's own description of her activities of daily living (ADL).
consultative physician opinion - The ALJ's acceptance and rejection of various portions of the CP's opinion was upheld. The court found (without any great discussion) that this was supported by substantial evidence.

no duty to seek clarification from treating physician - The court said that there was adequate evidence on which the ALJ could base his opinion about disability and thus no duty on the part of the ALJ to seek additional or clarifying information from the treating physician. That is only required, under 20 CFR 404.1512, when the information is "inadequate" and the ALJ "cannot reach a conclusion" about whether the applicant is disabled. The existence of conflicting evidence does not, ipso facto, mean that the evidence is inadequate. "Nothing here indicates that the record lacked enough data for the ALJ to make a sound determination."

no severe impairment of right arm or left knee -- The court upheld this finding, since there was "no clinical evidence" to support a finding of a "severe impairment" and substantial evidence to support the ALJ's finding.

Donald Marritz
MidPenn Legal Services

UC - willful misconduct - drugs - substantial evidence

Ruiz v. UCBR - Commonwealth Court - November 30, 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/882CD05_11-30-05.pdf

The referee held that employer (ER) failed to prove that the claimant (CL) had and used drugs on the ER's property. The Board reversed and the court affirmed, holding that the employer (ER) adequately proved claimant's (CL) violation of rule (use of drugs at work) by circumstantial evidence, which was held to be substantial evidence, given the following facts.

The ER witnesses testified that on September 29th, they saw the CL move his car during a break and saw smoke coming out of the car, "as well as the pungent smell of burning marijuana," then "saw something 'flicked out of the passenger's side window.'" One ER witness "retrieved a smoldering butt of a marijuana cigarette from the ground outside the car window." The butt was "entrusted" to the ER's CEO, Abby Hoffman, but was never tested. The ER did not ask the CL to submit to a drug test because they thought it was not necessary, having seen CL smoking and having the butt in their possession. The CL had his own doctor do a drug test on December 11th; the result was negative for drugs. CL did not deny smoking marijuana. The union rep "signed off" on the CL's termination notice. The ER did not bring the marijuana cigarette to the hearing because the notice of hearing "contained a warning not to bring drugs or alcohol onto the premises. The notice did not provide an exception for evidence to be presented." CL's drug test was admitted, but only to show his state of mind and establish that he tried to take a drug test to show he wasn’t smoking marijuana.

The court held that "[c]ircumstantial evidence, if substantial, is sufficient to support and finding of willful misconduct" and that in this case, the "direct and circumstantial evidence was sufficient to support the Board's finding that" CL had and used illegal drugs on company property, in violation of ER rules. "Claimant's arguments, which essentially highlight conflicts between his version of the events and what was recounted by his supervisors, are nothing more than challenges to the Board's determination of credibility and weight of the evidence. We decline Claimant's invitation to reweigh the evidence and accept his version of the facts."

The court also rejected a Harkness challenge, based on the fact that the ER was represented at the hearing by a non-attorney advocate. The CL did not object to this at the hearing and didn't raise the issue until he filed his petition for review in court.

Donald Marritz
MidPenn Legal Services

employment - age discrim. - statute of limitations - equitable tolling

Uber v. Slippery Rock University - Commonwealth Court - November 23, 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/269CD05_11-23-05.pdf

Appellant, a police officer at a university, applied for but was denied a higher position in March 1998. He filed an internal grievance, which was denied in October 1998. In May 1999, he filed a complaint with the Pa. Human Relations Commission, which after investigation dismissed the case in December 1999. In January 2000, he filed a complaint with the EEOC and cross-filed with the PHRC, which closed the investigation in January 2001, after finding no violations. Appellant then filed a complaint in a court of common pleas alleging age discrimination and retaliation under the PHRA, 43 P.S. 955(a) and (d).

The trial court's dismissal of the age discrimination complaint was upheld on appeal. Appellant's complaint with the PHRC was not filed within 180 days of the alleged act of discrimination, as required by the PHRC. His complaint was not subject to equitable tolling by his filing an internal complaint with the university, because: a) he was not actively misled by the defendant; b) there were no extraordinary circumstances that prevented him from asserting his right; c) he did not present his claims in a timely manner but in the wrong forum. An internal complaint with an employer is not what the legislature intended as a substitute for filing a complaint with the PHRC.

On the retaliation claim, appellant failed to show an adverse employment action. A 1999 performance evaluation -- and not his not being hired for the job -- was the only issue before the trial court and the only one preserved for appeal.

Donald Marritz
MidPenn Legal Services

SSI- child - medical evaluation, 42 USC 1382c (a)(3)(I)

Drake v. Barnhart

http://www.paed.uscourts.gov/documents/opinions/05D1393P.pdf

SSI claim of child with deafness in one ear and learning disabilities denied.

- The necessity for accommodations at school does not mean that a child has "marked" limitations.

- Treating physicians's opinion not given controlling weight because not supported by diagnostic testing.

- Failure to obtain medical evaluation - Section 1382c(a)(3)(I) of title 42 satisfied, under Acquiesence Ruling 04-01(9), when state agencvy consultant evaluates the case. The statute requires "an evaluation of each child's case, but nowhere does it mention a hearing-level analysis." The SSA Commissioner's interpretation of the statute "represents a reasonable contruction" under Chevron, 467 U.S. 837, 842-4 91984). "'State agency... psychological consultants...are highly qualified....experts in Social Security disability evaluation,'" and the psychologist in this case "based his assessment on a full review of Plaintiff's medical and scholastic records."

Donald Marritz
MidPenn Legal Services

SSI - child - obesity - sleep apnea

Williams v. Barnhart - ED Pa. - November 21, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1414P.pdf

Claim for benefits denied for 17 y/o child with obstructive sleep apnea and obesity. Child had never been hospitalized and had received medical treatment "only for minor conditions such as allergies and dermatitis." Child's IQ scores were all in the mid-70s range, which is above the disability listing level. Opinion by an MSN not given controlling weight, because not issued by an "acceptable medical source" under 20 CFR 416,.913(a) (licensed physician, licensed/certified psychologisits, licensed optomentrists, licensed podiatrists, qualified speech-language pathologists."

Donald Marritz, staff attorney
MidPenn Legal Services

admin. law - right to stenographic record - 2 Pa. C.S. 504

Mason v. Dept. of Corrections

http://www.courts.state.pa.us/OpPosting/CWealth/out/467CD05_11-21-05.pdf

The substance of this case -- a claim by the DOC that a prisoner should pay for medical treatment given to him, under the Prison Medical Services Act, 61 P.S. 1013 -- is not within our practice.

However, there is an important procedural issue. The DOC held an assessment hearing in the case and entered an order directing the prisoner to pay DOC more than $77,000. However, the testimony at the hearing was not stenographically or electronically recorded. The prisoner appealed, claiming a due process violation by denying him a stenographer at the hearing, a right guaranteed under the Administrative Agency Law, 2 Pa. C.S. sec. 504, which states that "[a]ll testimony shall be stenographically record and a full and complete record shall be kept of the proceedings."

The court held that a failure to make a full and complete record "render[ed] the adjudication invalid," citing Holloway v. Lehman, 671 A.2d 1179 (Pa. Cmwlth. 1996) and Callahan v. State Police, 431 A.1d 946 (Pa. 1981). The case was "remanded for a hearing in accordance with the provisions" of the Administration Agency Law.

Donald Marritz
MidPenn Legal Services

employment - disability discrimination - ADA, PHRA, FMLA, IIED

Kaniuka v. Good Shepherd Home -- ED Pa - November 3, 2005

http://www.paed.uscourts.gov/documents/opinions/05d1358p.pdf


Plaintiff was terminated from her job when she accidentally mixed up her medications, resulting in her being hospitalized and missing work. The employer said she was fired for a) sleeping at work, b) intentionally taking meds not prescribed to her; c) "mental health reasons", and d) "being out on leave."

Plaintiff sued her employer under the ADA, PHRA, FMLA and state common law. The employer moved to dismiss several claims. The court said that a plaintiff need not plead every material fact to survive motion to dismiss, only facts that, in addition to inferences drawn from them, provide a basis for recovery. Claims should not be dismissed unless there it is beyond doubt that the plaintiff can prove no set of facts that would entitled her to relief.

retaliation claims under ADA, 29 USC 12201 et seq., and PHRA, 43 P.S. 951 et seq.
A prima face retaliation claim requires a plaintiff to show a) she engaged in a protected activity, b) the ER took adverse action at the time of or after such activity, and c) there is a causal connection between the two. "Protected activity" includes asking for working conditions that accommodate a disability, or filing a claim for disability discrimination. Taken as a whole, P's complaint here alleges sufficient facts to show that the ER took adverse action against her after she made an accommodation request.

PHRA "aiding and abetting" claim against supervisors
The PHRA generally does not apply against individuals, only employers. However, sec. 955(e) prohibits any person from aid or abetting unlawful discriminatory acts under the PHRA. The allegations and inferences of the complaint sufficiently allege potential supervisor liability to withstand summary judgment.

Family and Medical Leave Act, 29 USC 2610 et seq.
Complaint properly alleged the plaintiff was "employee" and defendant an "employer" under the FMLA

intentional infliction of emotional distress under Pa. common law
Tort claims against employers generally are barred by the Worker's Compensation Law, unless they involve intentionally tortious conduct. However, the plaintiff in such a case must show that the alleged action was taken for purely personal reasons, unrelated to the employment relationship. She did not do so in this case, so that claim was dismissed.

Donald Marritz
MidPenn Legal Services

employment - age discrimination - ADEA and PHRA

Kasali v. J.P. Norgan/Chase Manhattan Mortage Corp. - ED Pa. November 7, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1363P.pdf

Pa. Human Relations Act- 43 PS 51 et seq.
Plaintiff's age discrimination claim under the Pa. Human Relations Act dismissed because of untimely filing -- not w/in 180 days of alleged discriminatory act. P did filed Age Discrimination in Employment (ADEA), 29 USC 621 et seq., claim w/in required 300 days but did not clear and unambiguously ask for dual-filing of PHRA claim, so equitable tolling denied.

Age Discrimination in Employment Act - 29 USC 621 et seq.
Plaintiff established the "not onerous" burden of showing a prima facie age discrimination claim -- over 40, applied and rejected for job for which she was miniminally qualified, in favor of a person younger enough to permit inference of age discrimination. The employer's proferred non-discrminatory reasons were sufficiently countered by Plaintiff's allegations that those reasons were pretextual, so as to raise genuine issue of material fact and survive ER's motion for summary judgment.

Plaintiff's retaliation claim under the ADEA was rejected, since she did not establish a prima facie case -- i.e., retaliatory conduct which affected compensation, terms, conditions or privileges of employment.

Donald Marritz
MidPenn Legal Services

Pennsylvania Bulletin of November 19, 2005

Here is the link to the Pennsylvania Bulletin of November 19, 2005

http://www.pabulletin.com/secure/data/vol35/35-47/index.html

Of possible interest --

- recent statutes
http://www.pabulletin.com/secure/data/vol35/35-47/2114.html

- minor court rules - "incompatible practices" - tech.
amendments
http://www.pabulletin.com/secure/data/vol35/35-47/2116.html

- court rules - misc. amendments - publication on internet
required
http://www.pabulletin.com/secure/data/vol35/35-47/2117.html

- insurance - financial statement filing requirements for 2006
for insurance companies
http://www.pabulletin.com/secure/data/vol35/35-47/2144.html

Donald Marritz
MidPenn Legal Services

Education Law - Burden of Persuasion in IDEA Due Process Hearings

The United States Supreme Court has held, in SCHAFFER V. WEAST (04-698), decided on November 14, 2005, that the burden of persuasion in in an administrative hearing challenging an IEP is properly placed upon the party seeking relief, whether that is the disabled child or the school district.

To ensure disabled children a "free appropriate public education," 20 U.S.C.A. §1400(d)(1)(A), the Individuals with Disabilities Education Act (IDEA or Act) requires school districts to create an "individualized education program" (IEP) for each disabled child, §1414(d), and authorizes parents challenging their child’s IEP to request an "impartial due process hearing," §1415(f), but does not specify which party bears the burden of persuasion at that hearing.

After an IDEA hearing initiated by petitioners, the Administrative Law Judge held that they bore the burden of persuasion and ruled in favor of respondents. The District Court reversed, concluding that the burden of persuasion is on the school district. The Fourth Circuit reversed the District Court, concluding that petitioners had offered no persuasive reason to depart from the normal rule of allocating the burden to the party seeking relief.

In an opinion by Justice O'Conner the Court found:

(a) Because IDEA is silent on the allocation of the burden of persuasion, this Court begins with the ordinary default rule that plaintiffs bear the burden regarding the essential aspects of their claims. Although the ordinary rule admits of exceptions, decisions that place the entire burden of persuasion on the opposing party at the outset of a proceeding–as petitioners urge the Court to do here–are extremely rare. Absent some reason to believe that Congress intended otherwise, the Court will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief.

(b) Petitioners’ arguments for departing from the ordinary default rule are rejected. Petitioners’ assertion that putting the burden of persuasion on school districts will help ensure that children receive a free appropriate public education is unavailing. Assigning the burden to schools might encourage them to put more resources into preparing IEPs and presenting their evidence, but IDEA is silent about whether marginal dollars should be allocated to litigation and administrative expenditures or to educational services.

There is reason to believe that a great deal is already spent on IDEA administration, and Congress has repeatedly amended the Act to reduce its administrative and litigation-related costs. The Act also does not support petitioners’ conclusion, in effect, that every IEP should be assumed to be invalid until the school district demonstrates that it is not. Petitioners’ most plausible argument–that ordinary fairness requires that a litigant not have the burden of establishing facts peculiarly within the knowledge of his adversary, United States v. New York, N. H. & H. R. Co., 355 U.S. 253, 256, n. 5–fails because IDEA gives parents a number of procedural protections that ensure that they are not left without a realistic chance to access evidence or without an expert to match the government.

Stevens, J., filed a concurring opinion. Ginsburg, J., and Breyer, J., filed dissenting opinions. Roberts, C. J., took no part in the consideration or decision of the case.

The Court's decision is available from the Legal Information Institute at Cornell Law School at: http://straylight.law.cornell.edu/supct/html/04-698.ZS.html.

custody - modification - UCCJEA

Wagner v. Wagner - Pa. Superior Court - November 7, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/a31002_05.pdf

Following the parents' divorce in Mercer County, Pennsylvania in 2002, Mother got primary physical custody of the two children by an order of the same court. The parties shared legal custody. Mother, who was in the Army Reserve, maintained her domicile in Florida, where she had a mailing address, driver's license and was registered to vote. She and the children had other significant connections to Florida. Father moved to Ohio. Mother was then transferred to Fort Dix, NJ, and children were sent to live with her stepmother in Florida. When Mother got orders to go to Iraq, Father sought and got a custody order from the Mercer County court. Mother appealed, alleging lack of jurisdiction under the UCCJEA and violation of the Servicemembers' Civil Relief Act, 50 USC App. sec. 501 et seq.,

The Superior Court reversed. Applying 23 Pa. C.S. sec. 5422(a), dealing with modification orders, the court held that the lower court did not have "exclusive, continuing jurisdiction" to modify its original order, because (a) neither parent resided in Pennsylvania, and (b) neither the children nor the parents had "significant connections" with Pennsylvania.

The court also decided that the lower court did not have jurisdiction under sec. 5422(b), because it did not have jurisdiction under the criteria in sec. 5421 to make an initial custody determination. Pennsylvania was not the "home state," since the children were no longer here, and neither parent lived here. Nor did Pennsylvania have jurisdiction under the "significant connections" test, which can only apply if no other state can assume jurisdiction. The court found that the children had more significant connections with Florida than Pennsylvania and remanded the case to the trial court with a direction that it be transferred to Florida.

Donald Marritz
MidPenn Legal Services

physician-patient privilege - blacken the character

Grimminger v. Maitra - Pa. Superior Court - November 4, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/s47039_05.pdf

Held, doctor did not breach common law or statutory duty when he released medical information about a patient to the patient's employer. The doctor had previously sent info to the employer concerning plaintiff's work limitations. Two years later, the employer came to the doctor, showed him a video of plaintiff and asked for the doctor's opinion about plaintiff's work restrictions. The employer offered a new opinion and the employer subsequently fired the plaintiff.

Pennsylvania recognizes a civil cause of action for breach of the physician-patient privilege where "confidential disclosures occurred that were unrelated to any judicial proceedings." Haddad v. Gopal, 787 A.2d 975, 981 (Pa. Super. 2001). This the rule in the majority of jurisdictions. There is also statute, 42 Pa. CS sec. 5929, which prohibits the release of information in a civil matter where that information "shall tend to blacken the character of the patient," unless the patient has consented to the release. Pa. law also recognizes a distinction between information communicated by the patient and information which the doctor gets by examination and observation.

The court's response to each of the plaintiff's arguments was that the information released did not tend to black the patient's character.

Donald Marritz
MidPenn Legal Services

continuances - exercise/abuse of discretion

Gillespie v. Penn DOT - Commonwealth Court - November 2, 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/546CD05_11-2-05.pdf

Held, the trial court erred by refusing to exercise its discretion to consider a request for a continuance based solely on a standing policy that all parties must agree to a continuance.

"Blind adherence" to an establishing policy is the opposite of the required exercise of discretion, which is an informed decision between multiple courses of action. Instead, the court "essentially delegated its decision-making function to the attorneys....We can think of no clearer example of an abuse of discretion than abdication of the judge's role to an interested party. The trial court's continuance policy....is manifestly unreasonable." It was an abuse of discretionto blindly apply the policy and refuse to consider the merits of the moving party's request.

Donald Marritz
MidPenn Legal Services

attorney-client privilege - former client

In re Investigating Grand Jury -- Pa. Superior Court - November 1, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/a25019_05.pdf

In a case said to be of first impression, a criminal defendant's conversation with his former counsel was held to be privileged, even after the representation had ended. The conversation related to the attorney's former representation (about which the defendant was complaining) and was about the case. The court felt that it was likely that the former client "believe[d] that because of their prior relationship, confidentiality remained between them," even though the "conversation did not involved a client seeking legal advice from his lawyer."

Donald Marritz, staff attorney
MidPenn Legal Services

employment - discrimination - PHRA - "employment agency"

Nethken v. Pa. Civil Service Commission - Commonwealth Court - November 1, 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/1064CD05_11-1-05.pdf

The Pa. Civil Services Commission is an "employment agency" under the Pa. Human Relations Act, 43 PS sec. 951 et seq., and can be liable for age discrimination.

Plaintiff stated prima facie case of age discrimination when she was not put on a list of eligibles solely because she graduated from college in 1974, when job posting called for recent grad (1999). Lower court judgment on liability upheld.

D. Marritz
MidPenn Legal Services

HIPAA - HHS privacy rules valid - 3d Cir.

Citizens for Health, et al. v. Leavitt, Secy. of HHS - 3d Cir. - October 3, 2005

http://www.ca3.uscourts.gov/opinarch/042550p.pdf

HHS privacy rules under HIPAA upheld against challenges under Administrative Procedure Act and 1st & 5th Amendments.

admin. law - collateral estoppel/issue preclusion - capricious disregard of competent evidence

The Frog, Switch & Mfg. Co. v. Pa. Human Relations Commn. - Cmwlth. Court - Oct. 27, 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/125CD05_10-27-05.pdf

This is an employment law case, but it has implications in all administrative law cases, hence the cross posting. The Petitioner/Employer appealed from a ruling of the PHRC that it had unlawfully retaliated against a former employee because of his union activities. The employee had also gone through arbitration, resulting in a contrary decision, i.e., that the employer had just cause for disciplining him (but that termination was an excessive punishment).

collateral estoppel/issue preclusion -- In the administrative proceeding before the PHRC, the employer contended that the facts found by the arbitrator were conclusive and binding on the Commission. After an extended (and unnecessary?) discussion about whether collateral estoppel (aka, issue preclusion) was applicable, the court held that the Supreme Court's decision in Bortz v.WCAB, 683 A.2d 259 (Pa. 1996), was controlling. There the court held that a decision of the UCBR did not have preclusive effect in a worker's comp. case, "because every administrative agency...is charged with enforcing its own acts which have different purposes; therefore, one agency's hands would be tied by the findings and conclusions of another without being allowed to make independent findings and conclusions and applying its own expertise to the facts."

The court said that "[because labor arbitrations are akin to 'private administrative agencies' and the Commission is charged...with adjudicating claims under the PHRA...., the General Assembly did not intend any arbitration award to have preclusive effect on claims of discrimination brought pursuant to the PHRA."

capricious disregard -- The court remanded the case back to the Commission, because it had "capriciously disregarded overwhelming critical evidence that could have compelled a different conclusion.," citing Wintermeyer v. WCAB, 812 A.2d 478 (Pa. 2002), and its 8-17-05 decision in Hinkle v. City of Philadelphia,
http://www.courts.state.pa.us/OpPosting/CWealth/out/2071CD04_8-17-05.pdf
In the latter case, the court said that the capricious disregard standard is a "shorthand way of addressing various statutory and constitutional requirements that require...an agency to give reasons for its decision, and when an agency ignored critical overwhelming evidence that constituted an abuse of discretion requiring the decision to be vacated" so that the agency can "explain its action and arrive at a new decision if it so desired. Because an agency has so much discretion when enforcing its statute, capricious disregard, like abuse of discretion, will only be applied in rare instances when the agency palpably has failed to give a proper explanation of overwhelming critical evidence. This is one of the extremely rare cases where the threshold has been reached, because in each and every key finding of causation, it ignored evidence that would have compelled a different conclusion."

Donald Marritz
MidPenn Legal Services

admin. law - standard of proof - preponderance v. clear-and-convincing

Suber v. Pennsylvania Commn. on Crime & Delinquency -- Cmwlth. Court - October 28, 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/265CD05_10-28-05.pdf

Held, the proper standard of proof was "preponderance of the evidence" and not "clear and convincing" in a case involving the removal of a deputy sheriff from an educ./training program, based on allegations that he had cheated on an exam.

The standard of proof in a particular type of case is "based on the level of concern regarding the degree of accuracy in the factual findings made by the trier of fact...The traditional 'preponderance of the evidence' standard allows parties...to share equally in the risk in proving their claims and affirmative defenses. Any other standard expresses a preference for one side's interests."

In most civil and administrative actions, the proper standard of proof is "preponderance of the evidence." (citing cases). "Clear and convincing" is the highest standard of proof in civil law and is "reserved for cases 'where particularly important individual interests or rights are at stake....'" such as termination of parental rights, civil fraud, involuntary commitment, and public figure defamation.

Meeting the "clear and convincing" standard requires that the witnesses be found to be credible, the facts to which they have testified be remembered distinctly, and their testimony be so clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.

The court found that this case was like Ruane v. Shippensburg Univ., 871 A.2d 859 (2005), in which it applied the preponderance standard in a matter involving the suspension of a student for sexual assault. It rejected the analogy to an attorney disbarment case in which the clear-and-convincing standard was applied, ODC v. Duffield, 644 A.2d 1186 (Pa. 1994).

Donald Marritz
MidPenn Legal Services

Pennsylvania Bulletin of October 29, 2005

Here is the link to the Pennsylvania Bulletin of October 29, 2005

http://www.pabulletin.com/secure/data/vol35/35-44/index.html

Items of potential interest include --

-DPW - personal care homes - delayed implementation of some regs
http://www.pabulletin.com/secure/data/vol35/35-44/1981.html

- local court rules - Crawford County -
http://www.pabulletin.com/secure/data/vol35/35-44/1977.html

- local court rules - Lehigh County
http://www.pabulletin.com/secure/data/vol35/35-44/1978.html

- local court rules - Somerset County
http://www.pabulletin.com/secure/data/vol35/35-44/1979.html
http://www.pabulletin.com/secure/data/vol35/35-44/1980.html

lean pickings

Donald Marritz
MidPenn Legal Services

disability - med. equivalency - evidence

Oakes v. Barnhart - ED Pa. - October 18, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1276P.pdf

The court rejected the magistrate's recommendation that summary judgment be granted to plaintiff (P) and, rather, granted s/j to defendant (D).

The magistrate believed that the ALJ's equivalency decision was not supported by substantial evidence, because the ALJ failed to secure the testimony of a medical expert before determining that plaintiff's impairment did not equal a listing. The magistrate recommended that the case be remanded for the taking of medical evidence about whether the combination of P's impairments equaled a listed impairment.

The court rejected this reasoning and agreed with SSA that under its "testing modifications" policy set out at 20 CFR 404.906(b)(2), it had "fundamentally altered" its former long-standing policy by allowing an ALJ to use medical expert testimony when "appropriate," rather than requiring the opinion of a medical consultant to determine if a claimant met or equaled a listed impairment. This testing modification policy applies to cases decided in Pennsylvania and nine other states.

The court held that 20 CFR 404.906(b)(1) and (2) established a "single decisionmaker model" and that the ALJ is not required to seek a medical opinion of the issue of equivalence, although s/he may do so where "appropriate," thus going from a "mandatory to discretionary use of medical experts on the issue of equivalency."

The Court upheld the ALJ decision on (non)equivalency and granted s/j to defendant.

Donald Marritz
MidPenn Legal Services

ADA - employment - regarded as having a disability

Eshelman v. Agere Systems, Inc. - ED Pa. - October 19, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1278P.pdf

The court rejected the defendant's post-trial motion to overturn a jury verdict for plaintiff, whom it found that defendant had "regarded as disabled" under the Americans with Disabilities Act. Plaintiff established that she is an "qualified individual with a disability," 42 USC 12112(a), i.e., a person who with or w/o a reasonable accommodation can perform the essential functions of the job that she holds or wants.

A "disability" is defined as either a) physical/mental impairment that substantially limits one or more major life activities, or b) a record of such impairment, or c) being regarded as having such an impairment.

A person is "regarded as having a disability if a) she has an impairment that doesn't limit any major life function, but is treated by the employer as if it does; b) she has an impairment that does limit her, but only as a result of the attitude of others; or c) has no impairment but is treated as having a substantially limiting impairment., 29 CFR 1630.2(1).

Plaintiff prevailed because she showed that she was discriminated against by her employer, who believed that she was unable to work in a particular class or broad range of jobs, as required in the definition of disability.

Donald Marritz
MidPenn Legal Services

UC - willful misconduct - decision of another agency is not WM per se

Woods Services v. UCBR - Commonwealth Court - October 2, 4 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/784CD05_10-24-05.pdf

Held, determination of county child/youth services (CYS) agency that an employee of a residential treatment facility "abused" one of his clients "does not constitute willful misconduct per se." The finding is enough to terminate a claimant's employment, which the employer had to do to retain its DPW license to run the facility. Without more, however, the CYS determination does not support a finding of willful misconduct. The employer "failed to present any admissible testimony or evidence, independent of the…. determination, to support a finding of willful misconduct."

The employer did only a cursory investigation. Its proffered testimony was hearsay and rejected. Claimant and an eyewitness testified. The Board resolved all credibility issues in favor of the claimant and his witness. "Our review of the record supports the Board's finding the Employer failed to directly link the CYS finding of child abuse to Claimant for purposes of establishing willful misconduct….."

Donald Marritz
MidPenn Legal Services

disability - fibromyalgia - credibility - treating physician

Kurilla v. Barnhart - ED Pa. - October 18, 20

http://www.paed.uscourts.gov/documents/opinions/05D1280P.pdf

Case remanded (sentence four, 42 USC 405(g)) because of ALJ errors on credibility and use of reports of treating physicians.

The ALJ's credibility finding was not supported by substantial evidence or made in accordance with SSR 96-7p, which requires careful consideration of statements about symptoms such as pain, which may suggest a greater impairment than shown by the objective medical evidence alone. This is especially true in the case of fibromyalgia, an impairment which is "mysterious and elusive....because it lacks both a clear etiology and objective diagnostic testing capable of verifying the legitimacy of accompanying symptoms."

The finding and statements of claimant's treatment providers was not given sufficient weight. If they are supported by medical date, they should be accepted absent contradictory medical evidence (citing 3d Cir. precedent). The record about fibromyalgia consisted solely of claimant's complaints and his treating physician's diagnosis that he was disabled. Without any evidence to the contrary than the ALJ's erroneous determination that claimant lacked credibility, the court concluded that the ALJ's rejection of the treating physician's opinion was impermissible, because it was not based on substantial evidence.

The court remanded the case for a new consultative exam about the effects of claimant's fibromyalgia on his RFC and a new RFC assessment by a physician, preferably a rheumatologist who has experience and an expertise in fibromyalgia and its related symptoms.

The court did not simply reverse and grant benefits, because "granting...benefits at Step 4 improperly truncates the sequential evaluation process. Step 5 of the process is necessary to determine whether the claimant could perform a less demanding level of work, such as sedentary work."

Donald Marritz
MidPenn Legal Services

employment - FMLA - advance notice provision

Solovey v. Wyoming Valley Health Care System-Hospital, MD Pa. - October 13, 2005
http://www.pamd.uscourts.gov/opinions/conaboy/04v2683.pdf

Held, that the employer's (ER) policy of requiring two-week advance notice before being able to take an accrued paid vacation day violates the FMLA. Summary judgment granted to plaintiff-employee.

Plaintiff's father was placed in hospice care in June 2003. On June 23, plaintiff left work in mid-shift after learning that her father's condition had worsened. She spent June 23 and 25 with her father and returned to work on June 26th, but left early when she learned that his condition had become critical. She remained out on June 27 and her father died on June 28.

Plaintiff was paid for June 23 and 24 through a policy of "family ill days." The ER deemed the other time missed as FMLA leave but denied her request to use accrued vacation time to cover her other absences, because she had not complied with the collective bargaining agreement (CBA) requirement that she give a two-week notice before taking a vacation in order that the absence qualify for use of paid vacation time. Plaintiff couldn't give such notice, because she didn't know of her need to use it until June 22nd.

The court agreed with plaintiff that sec. 2612 of the FMLA, 29 USC 2612(d)(2)(A), is an express grant allowing her to use accrued vacation w/o the restriction of a two-week notice policy. The statute also holds that a CBA may grant more rights than the FMLA but may not diminish FMLA rights. To adopt the ER's argument would mean that an employee who had ample accrued pain vacation time to substitute for FMLA leave might have to go w/o pay for up to two weeks in the common situation where a serious health situation requiring leave was not foreseeable. This is the kind of economic hardship the FMLA seeks to avoid. It is appropriate to treat a procedural impediment (two-week notice) to using paid leave differently from a substantive right to use the leave (e.g. has the leave time vested? how much has accrued?). The court also found that the ER had no business reason other than its desire to enforce strict adherence to the procedural aspects of the CBA vacation policy to prohibit an employee from taking paid time off during the two-week notice period, when the need for the FMLA leave was not foreseeable.

Donald Marritz, staff attorney
MidPenn Legal Services

employment - wrongful discharge - sexual harassment

Weaver v. Harpster -- Pa. Superior Court, October 21, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/s44032_05.pdf

Plaintiff, an at-will employee, held to have stated a common law cause of action for wrongful discharge based on allegations of sexual harassment, even though the employer (ER) did not meet definition of "employer" under the Pa. Human Relations Act (PHRA) because it had fewer than four employees.

The court rejected the notion that there is never an alternative to the PHRA as an avenue for relief for sexual discrimination. It also held that, under the circumstances, there was a public policy exception to the at-will employment doctrine, because state law -- a statute and the state constitution -- established a "clear public policy against sexual discrimination."

Plaintiff had quit her job because of intolerable work conditions. Her request that the PHRC investigate and take action was rejected because the ER did not meet the statutory definition of "employer." Plaintiff then filed a case in the common pleas court claiming, inter alia, wrongful discharge. The ER's preliminary objections were sustained. The lower court held that the state PHRA provided the exclusive remedy for employment discrimination based on sex, and that since the PHRA provided plaintiff no remedy, she had none.

Donald Marritz, staff attorney
MidPenn Legal Services

UC - VQ - demotion - justification v. substantial change analysis

Diversified Management Care v. UCBR -- Commonwealth Court - October 21, 2005 (2-1 decision)

http://www.courts.state.pa.us/OpPosting/CWealth/out/796CD05_10-21-05.pdf

Claimant (CL) quit her job when she was demoted. There was a reduction in her responsibilities but no reduction in pay or benefits. The employer (ER) demoted CL over an incident in which her son was arrested and faced criminal charges. During this period, she used ER phones to discuss what the UCBR found were "pressing legal and financial matters." There was no ER policy about using phones for personal reasons. The Board found no misconduct or even poor judgment on CL's part.

The ER claimed that the UCBR should have used the "substantial change analysis" to decide the case, and that the CL had failed to show that her job duties had substantially changed as a result of her demotion.

The court cited Allegheny Valley School District v. UCBR, 697 A.2d 243 (Pa. 1997) as setting forth the "appropriate standard" for determining whether a claimant has good cause to quit a job after a demotion. In that case, the court said that the focus in such a case should be "the justification for the demotion." If the demotion was justified, the claimant should get no benefits. If it wasn’t, benefits should be granted. The Commonwealth Court thus upheld the UCBR's application of the justification analysis and its refusal to use the change-of-circumstances analysis.

The Court also upheld the UCBR's reliance on the fact that the ER had no policy prohibiting the way that CL used the phones. The "Board did not err when it based its decision in part on the fact that Employer had no telephone policy, or, more important, that the demotion was unjustified."

Dissenting opinion -- Judge Leavitt filed a dissenting opinion, arguing that the Allegheny Valley case was factually different from instant case. The former involved both a reduction in responsibilities and in salary. The instant case involved only a reduction in responsibilities. The dissent felt that, for that reason, the correct analysis should have been substantial change. She felt that the justification analysis is appropriate if there is a reduction in duties and salary -- whether both of those factors are present so as to constitute a demotion. If so, then the justification analysis is applicable.

Because the instant case only involved a reduction in responsibilities and not in salary, the dissent felt that Allegheny Valley was "distinguishable...and…inapposite. In other words, inquiry into the justification for Claimant's so-called demotion is unnecessary." The Board didn't make findings about substantial change. Without those, and the impact that such changes had on her, "it is impossible to determine whether those changes were substantial and whether 'like circumstances would compel a reasonable person' to voluntarily quit." Judge Leavitt also disagreed with putting the burden on the employer to prove that the demotion was justified, given that in VQ cases, the burden is on the claimant. Overall, the dissent felt that the majority had undermined the goal of the Allegheny Valley court "to avoid intruding upon the ability of employers to make 'valid demotion'….The test should not be whether the Board agrees with the Employer's decision to relieve Claimant of her supervisory responsibilities but whether Employer can show that its stated reasons for a demotion can be factually supported."

Donald Marritz
MidPenn Legal Services

Pennsylvania Bulletin of October 22, 2005

Here is the link to the Pennsylvania Bulletin of October 22, 2005

http://www.pabulletin.com/secure/data/vol35/35-43/index.html

Items of potential interest include ----

- recent statutes
http://www.pabulletin.com/secure/data/vol35/35-43/1937.html

- appellate rules - criminal - stays in capital cases
http://www.pabulletin.com/secure/data/vol35/35-43/1938.html

- local rules - Lehigh County - juvenile cases
http://www.pabulletin.com/secure/data/vol35/35-43/1941.html
http://www.pabulletin.com/secure/data/vol35/35-43/1942.html

- welfare- payments to nursing facilities - final rates for fiscal 2004-5
http://www.pabulletin.com/secure/data/vol35/35-43/1942.html

- welfare - peer groups, peer group medians, peer group prices for various facilities
http://www.pabulletin.com/secure/data/vol35/35-43/1954.html

- revenue - Jolly Holiday Lottery game
http://www.pabulletin.com/secure/data/vol35/35-43/1915.html

- Dept. of Labor & Industry - reorganization chart
http://www.pabulletin.com/secure/data/vol35/35-43/1947.html

- education - IRRC approval of educ. regs. - student rights and responsibilities
http://www.pabulletin.com/secure/data/vol35/35-43/1957.html

Donald Marritz
MidPenn Legal Services

bankruptcy - mobile home - ch. 13 - cram down - realty v. personalty - valuation

Nowlin v. Tammac Corporation - ED Pa. - October 17, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1267P.pdf

Nowlin filed a chapter 13 bankruptcy case and brought an adversary action against the secured holder of her installment loan contract, seeking a cram down its claim to the actual value of her mobile home. The bankruptcy court held that

a) the mobile home was personalty, not realty;
b) the value was $38,000, compared to principal balance at time of trial of $41, 368.28;
c) interest of 8% should apply to the creditor's claim, as opposed to the contract rate of 12.5%.

Nowlin appealed the valuation, which she thought should be lower, as well as the 8% interest rate. The creditor appealed the ruling that the home was personality and not realty.

The district court held that

a) the home was personalty, in the bankruptcy context (detailed discussion of this issue) - This determination allowed the court to bifurcate the creditor's claim into secured and unsecured elements, based on fair market value.
b) the valuation of $38,000 was not clearly erroneous -- somewhere between the $ figures provided by the parties' experts.
c) 8% was the appropriate interest rate to be applied to the crammed down claim, under a
"formula approach" - national prime rate, adjusted according to risk factors.

Donald Marritz
MidPenn Legal Services

debt collection - FDCPA - attorney fees

Moyer v. Turnbrook Associates, Inc. -- ED Pa. - October 17, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1270P.pdf

The court rejected all of defendant's arguments and awarded attorney fees to plaintiff's counsel under the Fair Debt Collection Practices Act, 15 USC 1692 et seq.

size of award - Plaintiff's judgment was for $1,000, the statutory maximum. The judgment was based on defendant's failure to comply with the statutory requirements, "suggesting a significant level of non-compliance. Attorney fees are then mandatory under" Graziano v. Harrison, 950 F.2d 107 (3d Cir. 1991).

timing of request for fees -- Defendant said that plaintiff should have made her claim for fees during arbitration. Federal civil rules require plaintiff to request fees no later than 14 days after the entry of judgment. Plaintiff filed w/in that time.

proper party defendant - post-judgment amendment of pleading - Defendant said that the judgment against the corporate entity was unenforceable against the unincorporated Turnbrook Associates. The court allowed a post-judgment amendment of the pleading, under equitable estoppel principles, because defendant "actively misled" plaintiff when it admitted that it was a N.J. corporation.

Donald Marritz
MidPenn Legal Services

ADA - standing - injury in fact

Kratzer v. Gamma Management - ED Pa. -- October 12, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1259P.pdf
Defendant's motion for summary judgment denied on plaintiffs' ADA claims.

Plaintiffs alleged that they are qualified individuals with disabilities under the Americans with Disabilities Act (ADA), 42 USC sec. 12101 et seq. Defendant corporation is the operator of a Ramada Inn and Conference Center. Plaintiffs said that they visited the Ramada and were denied full, safe and equal access due to barriers and Defendant's lack of compliance with the ADA.

Defendant moved for summary judgment, alleged that plaintiffs do not have standing, because they have never tried to stay at the hotel and have no current plans to hold a conference there. Standing requires an "injury in fact." Plaintiffs did allege that each has personally visited the center, continues to desire to visit, and has attended a conference there. They made very specific allegations about the particular shortcomings of the facility.

The ADA gives remedies to "any person who is being subjected to discrimination on the basis of disability...or who has reasonable grounds for believing that such person is about to be subjected to discrimination" in violation of the ADA, 42 USC sec. 12188(a)(1). The provision also states that "[n]othing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization" covered by the law does not intend to comply with the ADA.

No circuit court appears to have addressed the precise issue here -- whether a plaintiff who has visited a facility and identified alleged compliance problems may, after a new operator has taken over, assert a claim alleging ADA violations that are grounded in a plaintiff's intended future use of the newly operated facility." However, precedent from other circuits has held that the "futility provision" allows a suit so long as the plaintiff establishes knowledge of the barriers and that they would visit the facility but for the barriers. Other circuits have held that a plaintiff who is deterred from patronizing a public accommodation because of defendant's failure to comply with the ADA may be considered to have suffered an injury in fact. Many district courts have held likewise.

Defendant's motion for summary judgment denied.

disability - MS - Listing 11.09(C) - treating physician - credibility

Fisher v. Barnhart - ED Pa. - October 12, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1250P.pdf

Summary judgment granted to Plaintiff/claimant, a 44 y/o woman with multiple sclerosis (MS). She had a h.s. education, some college, and prior work as accounts payable clerk. She alleged disability as of August 1990 and had date last insured (DLI) of December 1991.

remission/consistency of severe symptoms/ fatigue/listed impairment - The ALJ found that claimant had a period of remission before her DLI, and that she did not have a severe impairment as of that date. The court rejected this, nothing that the 3d Circuit has not addressed MS specifically, but citing precedent from the 6th and 9th Circuits holding that MS "can be disabling notwithstanding normal activity in a period of remission....Although a patient may be in remission, she is not necessary symptom free." (citing an ED Mich case). For instance, Plaintiff's physicians testified that she suffered from fatigue, that her MS was "long standing in nature" and "involved extreme fatiguability which is an intrinsic part of the disease" which made her unable to do basic work activities on a "regular and continuing basis" as defined in SSR 96-8p. The "persistent fatigue" and other factors reported by her doctor supporting a finding that she met listing 11.09(c) from a date prior to her DLI to the present.

treating physician report - The ALJ did not give sufficient weight to the report of claimant's treating physicians. The 3d Circuit has said that such reports should be accorded great weight, especially when they reflect expert judgment which is the product of continuing observation over a long period of time. "In fact, 'absent persuasive contradictory evidence, the validity of the claimant's symptoms can be conclusively established by the opinion of the treating physician." (citing ED Pa. case)

ALJ's lay observation/opinion -- The court found that the "ALJ substituted her own lay understanding of Plaintiff's MS, an entirely improper substitution. The Third Circuit has made clear that 'an ALJ is not free to set his own expertise against that of physicians who present competent medical evidence.'" (citing 3d Cir. cases).

credibility/pain/homemaker & childcare activities -- The ALJ found claimant's complaints of pain to be not credible, because she voluntarily left the labor force in 1986, was a homemaker, and cared for her children. The court found this focus on her homemaker status "misplaced" because when she left the workforce, she had not yet suffered the onset of MS. Moreover, her credible testimony, backed by her physicians, was that "her MS-related fatigue was severe while she raised her children" and that she needed her from both her mother and a part-time nursery school for the children.

Donald Marritz
MidPenn Legal Services

child abuse - appeal - timeliness

A.P. v. DPW - Commonwealth Court - October 14, 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/424CD05_10-14-05.pdf

AP petitioned court for review of DPW order dismissing her request to expunge a report of indicated child abuse on the ground that the request was not timely.

The Court did not affirm the admin. adjudication but rather dismissed the appeal, holding that DPW Secretary was without jurisdiction to consider AP's request that she reconsider an earlier decision. "The Department's…order was not a valid order from which Petitioner could appeal," 1 Pa. Code 34.241(a), because the recon. request was not timely.

A local CYS agency filed the original indicated report in September 1999. Petitioner was given notice at that time and told that she had 45 days in which to file a request to amend or destroy the report. AP took no action until 16 months later, when she sent DPW a letter stating that she had been clearing of related criminal charges.

DPW told AP that she could request a hearing if she believed her case should be considered in spite of the late appeal. She did so and a hearing was held a short time later, resulting in a decision in December 2002 denying the request for a nunc pro tunc appeal and an evidentiary hearing on the merits.

That decision gave AP 15 days to ask for reconsideration, but AP did not act until 21 months later, September 2004. The DPW Secretary granted reconsideration and issued a final order on the merits upholding the December 2002 order dismissing APs appeal as untimely.
As stated above, the Court held that the Secretary didn’t have jurisdiction to grant recon. and so dismissed the appeal with prejudice.

The court refers to its recent opinion in C.S. v. DPW, 879 A.2d 1274 (Pa. Cmwlth. 2005) where it held that a nunc pro tunc appeal filed 6 years late should have been granted, because the appeal information in the administrative determination did not accurately set out the notice of statutory appeal rights. However, the court in A.P. does not mention this aspect of the C.S. case, only that part of C.S. that says that the DPW Secretary has the discretion to amend or expunge a finding of abuse at any time, upon good cause shown.

The notice in A.P. was presumably the same as the one in C.S., where it said that the alleged abuser "may have a right to a hearing." (emphasis in original). By contrast, the statute gives an unequivocal right to a hearing. The court said that the law "mandates that an alleged perpetrator who has made a request for a hearing will receive one, and at this hearing, the agency bears the burden of proving child abuse by the alleged perpetrator. This right is essential. Otherwise, citizens can have their ability to work at a job requiring [a clearance] taken away on the basis of an investigator's report alone and not on the basis of a hearing at which the government agency claiming abuse bears the burden of proof. The equivocal notice given by the Department…did not satisfy the exacting requirements of [the statute] and, thus, this breakdown in the administrative process entitles Petitioner to file a nunc pro tunc request for expungement….." Concerning the length of the delay in appealing, the court said that "[w]hether a delay is one day or six years late….does not change the analysis….."

Donald Marritz
MidPenn Legal Services

Pennsylvania Bulletin of October 15, 2005

Here is the link to the Pennsylvania Bulletin of October 15, 2005

http://www.pabulletin.com/secure/data/vol35/35-42/index.html

Items of potential interest include --

- education - exec. order - Training America's Teachers Commission
http://www.pabulletin.com/secure/data/vol35/35-42/1890.html

- IOLTA - proposed regs - pro haec vice admissions
http://www.pabulletin.com/secure/data/vol35/35-42/1891.html

- minor court rules - proposed rules - subpoenas - issuance of blank subpoenas
http://www.pabulletin.com/secure/data/vol35/35-42/1896.html

- court rules - DR cases - modification/change in circumstances
http://www.pabulletin.com/secure/data/vol35/35-42/1892.html

- court rules - DR cases - more support rules
http://www.pabulletin.com/secure/data/vol35/35-42/1893.html

- community and econ. development - emergency shelter grant program
http://www.pabulletin.com/secure/data/vol35/35-42/1903.html

- health - integrated HIV planning council - public meeting
http://www.pabulletin.com/secure/data/vol35/35-42/1909.html

- human relations commission - public hearing opinions
http://www.pabulletin.com/secure/data/vol35/35-42/1922.html

Donald Marritz, staff attorney
MidPenn Legal Services

ADA - state employer - 11th Amendment immunity

Benn v. First Judicial District of Philadelphia - 3d Circuit Court of Appeals - October 12, 2005

http://www.ca3.uscourts.gov/opinarch/013769p.pdf

Plaintiff was a probation/parole officer for the 1st Judicial District of Pa. (Philadelphia). He sued his former employer alleging a violation of the Title I of the Americans with Disabilities Act (ADA), 42 USC 12101 et seq.

Held, the judicial district is an instrumentality of the Commonwealth and entitled to immunity under the 11th Amendment of the U.S. Constitution. The court said that it was "too late in the jurisprudence of the Eleventh Amendment for this court (and perhaps even for the Supreme Court) to interpret that Amendment in light of its explicit language as applicable only to suits against a state brought by citizens of another state. The Supreme Court has consistently held that the Eleventh Amendment immunizes an unconsenting state from suits brought in federal court by its own citizens as well as by citizens of another state." So much for "strict construction" and eschewing "judicial activism."

The court said that Congress can abrogate such immunity pursuant to its authority under sec. 5 of the 14th Amendment provided that it "has unequivocally expressed its intent to do so." Even then, however, the Supreme Court can hold that Congress did not act pursuant to a valid grant of constitutional authority," as it did in another ADA case, Board of Trustees v. Garrett, 531 US 356 (2001).

A suit can also be barred by the 11th amendment where the state is not named as a party, so long as the state is deemed the real party in interest. Held here that under the state supreme court's interpretation of the state constitution, a state judicial district is a state entity, therefore it has 11th Amendment immunity.

Donald Marritz
MidPenn Legal Services

abuse - credibility - police report/medical treatment not required to establish credibility

Karch v. Karch - Pa. Superior Court - October 11, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/A13004_05.pdf

Appellate court upheld trial court's grant of a PFA order.

1. medical treatment not required -- PFA plaintiff need not seek medical treatment for her injury. Neither the PFA act nor case law requires that there be medical evidence or that the plaintiff seek medical treatment in order for plaintiff's testimony to be found credible.

2. Police involvement not necessary. It is well-settled that neither the PFA Act not case law requires that a police report be filed in order to obtain a PFA order. "We wish to make it abundantly clear that this Court will not infer that the failure of the police to act on a report of domestic violence means that the victim is not credible, and we will not place the onus on the victim to force police departments to comply with sec. 6105 [responsibilities of law enforcement agencies] as a prerequisite for obtaining a PFA."

3. The correct burden of proof is a preponderance of the evidence.

4. The evidence was sufficient to grant a PFA order. Wife had prior 30-day PFA order a few months earlier, based on husband's having put his hands around his neck and threatened to snap it.. The newest abuse consisted of his holding his hand in the shape of a gun, touching his wife's head with enough force to cause pain, and telling her "there is your future." Wife also testified that the day after the this incident, one of her car tires had a puncture wound and was flat. The evidence also showed that husband previously had guns in the house and that they had been removed over his "strenuous objections." The court said that "this evidence was more than sufficient to sustain the grant of a PFA."

5. standard of review -- When a claim is presented that the evidence was not sufficient to support a PFA order, the court reviews the evidence in the light most favorable to the petitioner and grants her the benefit of all reasonable inferences. The court defers to the credibility determinations of the trial court as to witnesses who appeared before it.

custody - grandparent rights - Troxel distinguished - Ohio case

Harrold v. Collier - Ohio Supreme Court - October 10, 2005

http://www.sconet.state.oh.us/rod/newpdf/0/2005/2005-ohio-5334.pdf

The Ohio Supreme Court ruled that the grandparents of an 8 year-old girl must be allowed to visit her, even if her father objects, upholding the validity of a state law granting nonparents visitation rights to children. The Court said the Ohio law was narrower than the one struck down in Troxel v. Granville, 530 US 57 (2000) in that, inter alia, it granted right only to parents and other relatives of an unmarried, deceased parent. The Washington law allowed any third party to petition for visitation.

In the Ohio case, the child had lived with her deceased mother and the latter's parents. The mother died when the child was two, and the child continued to live with the maternal grandparents until she was five, when the father was granted primary custody. He refused to allow any contact by the maternal grandparents, who then petition for visitation.

The court said that Ohio courts were obligated to give "special weight" to the wishes of parents when considering visitation for nonparents. Using a strict scrutiny test, the court held that the visitation statute was constitutional and served a compelling governmental interest. The court said that, despite the "special weight" given to a parent's wishes, that Troxel did not require a nonparent to show "overwhelmingly clear circumstances" to support forcing visitation, but rather declined to defined "' the precise scope of the parental due process rights in the visitation context.' "

Unlike the Washington statute, the Ohio law applied only where one parent was deceased and the parents were unmarried; it also gave special consideration to the wishes of the surviving parents. The court said that nothing in Troxel indicated that the presumption that parents act in a child's best interest was irrebuttable that a parent's wishes were to be the sole determinant of a child's best interests, or placed above the child's best interests.

Donald Marritz
MidPenn Legal Services

Pennsylvania Bulletin of October 8, 2005

Here is the link to the Pennsylvania Bulletin of October 8, 2005

http://www.pabulletin.com/secure/data/vol35/35-41/index.html

Items of potential interest include-

- environment- DEP - mercury rule-making public involvement plan
http://www.pabulletin.com/secure/data/vol35/35-41/1851.html

- welfare - DPW - MA preferred drug list
http://www.pabulletin.com/secure/data/vol35/35-41/1863.html

- transportation - DOT - definition of "serious traffic violation"
http://www.pabulletin.com/secure/data/vol35/35-41/1864.html

- IRRC - comments issued - nursing facililties- preadmission reqmts. and civil rights compliance
http://www.pabulletin.com/secure/data/vol35/35-41/1866.html

- PUC - identity theft - order
http://www.pabulletin.com/secure/data/vol35/35-41/1880.html

Donald Marritz
MidPenn Legal Services

employment discrimination - age/disability - statute of limitations

Heater v. Kidspeace - ED Pa. - October 5, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1227P.pdf

Plaintiff exhausted admin. remedies, then filed complaint in state court for age and disability discrimination. The case was eventually removed to federal court, where defendant moved to dismissed on statute of limitations grounds, based on untimely filing and service of the original case in state court.

Held, any alleged errors with this state court process had to be raised in state court, not on motion to dismiss in federal court on statute of limitations grounds..

Donald Marritz
MidPenn Legal Services

immigration status not relevant or discoverable in FLSA/AWPA case -

Galaviz-Zamora v. Brady Farms, Inc. -- USDC WD Mich. Southern Div. (September 23, 2005) - 2005 US Dist. LEXIS 22120

The court granted a protective order barring discovery of information (SSN, tax records, etc.) that were "designed to uncover Plaintiffs' immigration status."

The court held that information about that status was not relevant to any of the issues in the case, which involved the Fair Labor Standards Act (FLSA) and the Agricultural Workers Protection Act (AWPA). The court also mentioned the "detrimental impact resulting from irrelevant inquiries into a worker's immigration status."

Donald Marritz
MidPenn Legal Services

admin. law - federal agency interpretation of statute - "Brand X" decision

AARP v. EEOC - ED Pa. - September 27, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1174P.pdf

The Court rejected AARP's challenge to a regulation proposed by the EEOC to implement the Age Discrimination in Employement Act, 29 USC sec. 621 et seq. The regulation would permit employers who provide health care benefits to retired employees to decrease those benefits when the employees become eligible for Medicare.

The case involved the seminal decision in Chevron USA v. Natural Resource Defense Council, 467 US 837 (1984) and the recent decision in Natl. Cable & Telecommunications Assn. v. Brand X Internet Services (Brand X), 125 SCt 2688 (2005). The AARP argued and the court had previously held that a prior Third Circuit decision had interpreted the ADEA to prohibit the practice in the proposed regulation. The court reversed itself, after reconsidering the case in light of Brand X.

Under Brand X, a court interpretation of a statute bars an agency from later interpreting that statute differently from the court only "if the court has the determined the only permissible meaning of the statute." (emphasis in original). "[O]nly a judicial precedent holding that the statute unambiguously forcloses the agency's interpretation and therefore contains no gap for the agency to fill, displaces a conflicting agency construction….Put differently, Brand X states that the only court decision that forecloses a later, contrary interpretation of a statute by an agency is a decision that determines the only permissible reading of the statute, not merely the best of several alternatives." (emphasis in original)

The court held that the prior Third Circuit decision involved only one possible reading of the statute, not the only permissible one, and that the proposed EEOC regulation was not contrary to the federal Administrative Procedure Act or the ADEA.

Donald Marritz
MidPenn Legal Services

custody - same-sex parents - in loco parentis - standard/burden of proof

Jones v. Boring -- Pa. Superior Court - September 30, 2005

 http://www.courts.state.pa.us/OpPosting/Superior/out/a25041_05.pdf

 

Primary custody of twins awarded to non-biological parent of a separated lesbian couple, based on "clear and convincing evidence" that the children were better off with her.

 

The couple had a relationship starting in 1988.  Boring was impregnated by anonymous sperm donor and had twin boys in 1996.  The couple lived together as a family unit until January 2001, when Boring left Jones' residence, where they had all lived, taking the children with her.

 

Initially the court ordered joint legal custody.  Boring was awarded primary custody and Jones -- whose right to in loco parentis status was clear -- had "relatively typical partial custody....rights."  As time passed however, the court concluded the Jones had shown by clear and convincing evidence that it was in the children's best interest that she have primary custody.

 

The court rejected Boring's argument that Jones had to prove that she, Boring, was "unfit."  The court said that a person who is not a biological parent but stands in loco parentis "does not need to establish that the biological parent is unfit, but instead must establish by clear and convincing evidence that it is in the best interest of the children to maintain that relationship or be with that person." (emphasis in original). 

 

Most telling was Boring's "multi-year effort to exclude Jones from the children's life [sic]....[T]he record is replete with evidence that Boring tried in every way possible to sabotage Jones' relationship with the children."

abuse - contempt - knowledge of PFA order

Commonwealth v. Padilla - Pa. Superior Court - September 28, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/S44034_05.pdf

Defendant was found guilty of contempt for violating a temporary PFA order which had not been served on him but which he knew about from a phone call from the sheriff. During the call, the sheriff told defendant a) that there was an order, b) that it prohibited any contact with the plaintiff, and c) what the consequences were of violating it.

Despite this knowledge, Defendant made several phone threats to the plaintiff, during 5-6 harassing phone calls. Later that same day, Defendant was served with a copy of the temporary PFA order.

To establish indirect criminal contempt, one must show that a) the order was sufficiently clear to the contemnor as to leave no doubt of the conduct prohibited; b) the contemnor had notice of the order; c) the act was prohibited by the order; and d) the intent of the contemnor in committing the act was wrongful.

The only issue in the case was notice. The court held that "the telephone conversations during which Appellant was informed of the emergency order and the repercussions of violating it constitute actual notice or its equivalent even in the absence of personal service." The court discussed due process issues and the " 'special exigencies of abuse cases' ". It also mentioned 23 Pa. C.S. sec. 6016(g), which says the "[f]ailureto serve shall not stay the effect of a valid order."

The court found that "the verbal explanation provided to Appellant over the telephone was adequate to convey notice that a PFA order had been entered against him, and that a violation of that order placed him at risk of criminal penalty. He was, therefore, properly found to have been in indirect criminal contempt of court."

Donald Marritz, staff attorney
MidPenn Legal Services