PLAN Legal Update: 05/01/2005

Thursday, May 26, 2005

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

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

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

Donald Marritz, MidPenn Legal Services

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

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

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

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

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

Donald Marritz, MidPenn Legal Services

Tuesday, May 24, 2005

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

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

Discussion of issue of where children should attend school

Parties share legal custody. Mother has primary physical custody.

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

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

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

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

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

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

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

Don Marritz, MidPenn Legal Services

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

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

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

Lower court found him guilty of contempt.

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

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

Don Marritz, MidPenn Legal Services

Monday, May 23, 2005

Pa. Bulletin of May 21, 2005

Pa. Bulletin of May 14, 2005

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

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

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

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

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

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

Unemployment Compensation/TRA case -- Glover v. UCBR

From: Don Marritz, MidPenn Legal Services

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

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

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

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

Monday, May 09, 2005

Pa. Bulletin of May 7, 2005

Friday, May 06, 2005

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

Submitted by Don Marritz, MidPenn Legal Services:

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

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

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

Tuesday, May 03, 2005

PA Bulletin of April 30, 2005

Here are some items of interest from the PA Bulletin of April 30, 2005 as compiled by Don Marritz, MidPenn Legal Services:

Here's the link
http://www.pabulletin.com/secure/data/vol35/35-18/index.html

Recent statutes
http://www.pabulletin.com/secure/data/vol35/35-18/826.html

Appellate procedure - proposed amendment to Rule 341 - final orders
http://www.pabulletin.com/secure/data/vol35/35-18/827.html

Court rules -- omnibus local court rules - Clearfield County
http://www.pabulletin.com/secure/data/vol35/35-18/832.html

Court rules - Phila. County - standard interrogatories - arbitration - MV and premises liability cases
http://www.pabulletin.com/secure/data/vol35/35-18/831.html

Court rules - proposed rule - computer-generated signatures - Rule 76
http://www.pabulletin.com/secure/data/vol35/35-18/828.html

Court rules - proposed rule - sheriff's deeds - Rule 3135
http://www.pabulletin.com/secure/data/vol35/35-18/829.html

Court rules - proposed rule - appeals - arbitration
http://www.pabulletin.com/secure/data/vol35/35-18/830.html

Health - HIV community prevention planning committee public mtg
http://www.pabulletin.com/secure/data/vol35/35-18/849.html

Independent Regulatory Review Commission - regulations approved
http://www.pabulletin.com/secure/data/vol35/35-18/860.html

Aging - Pa. Council on Aging - change of meeting date
http://www.pabulletin.com/secure/data/vol35/35-18/870.html