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
Thursday, December 22, 2005
Wednesday, December 21, 2005
Freedom of Information Act - waiver of fees
Community Legal Services v. HUD - ED Pa. - December 19, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1502P.pdf
The court granted CLS's motion for summary judgment against HUD on CLS's request to have all fees waived for its Freedom of Information Act (FOIA), 5 USC 552 et seq., request for documents concerning Moving to Work (MTW) Demonstration Program of the Philadelphia Housing Authority, pursuant to PHA's agreement with HUD.
The Court found that CLS had "adequately shown that it satisfied the statutory requirements for a feee waiver" by showing that "disclosure of the requested documents is likely to contribute to public understanding, and that the contribution is likely to be significant."
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1502P.pdf
The court granted CLS's motion for summary judgment against HUD on CLS's request to have all fees waived for its Freedom of Information Act (FOIA), 5 USC 552 et seq., request for documents concerning Moving to Work (MTW) Demonstration Program of the Philadelphia Housing Authority, pursuant to PHA's agreement with HUD.
The Court found that CLS had "adequately shown that it satisfied the statutory requirements for a feee waiver" by showing that "disclosure of the requested documents is likely to contribute to public understanding, and that the contribution is likely to be significant."
Donald Marritz
MidPenn Legal Services
custody - expert opinion - discovery/use by opposing party
Lloyd v. Lloyd - Pa. Superior Court - December 20, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/a29038_05.pdf
Mother's discovery and use of report of father's expert permitted under Pa. RCP 4003(a)(3), where father procured report initially but decided not to use report or call expert at trial.
Pa RCP 4003(a)(3) bars discovery of an report of an expert who is not expected to be called as a witness at trial. Father initially indicated that he would call the expert, so the court said that the rule wouldn't apply. In the alternative, the court held that report was discoverable under the rule, because it was the report of a "medical expert," as defined by Rule 4010(b). The court said that an "expert in a child custody case, regardless of who 'hires' the expert, is very similar to a 'independent' medical examiner which is the subject of Rule 4010…An expert, whether hired by a particular party or appointed by the court in custody litigation, is an expert subject to Rule 4010…" The expert's report and findings are "discoverable by a party….regardless of the status of the expert as a witness at trial."
The court also rejected an argument that mother's late motion about getting/using the report violated the trial court's procedural order establishing a schedule and procedure. It approved the trial court's statement that "our analysis is direct and simple…Hire an expert custody evaluator and such opinion evidence will be made known to the court. To do otherwise would be a disservice to the child….[K]nowing such evidence exists and to shield such from disclosure presents a less than full and complete record. We literally can conceive of no circumstance where non-disclosure benefits the child."
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/a29038_05.pdf
Mother's discovery and use of report of father's expert permitted under Pa. RCP 4003(a)(3), where father procured report initially but decided not to use report or call expert at trial.
Pa RCP 4003(a)(3) bars discovery of an report of an expert who is not expected to be called as a witness at trial. Father initially indicated that he would call the expert, so the court said that the rule wouldn't apply. In the alternative, the court held that report was discoverable under the rule, because it was the report of a "medical expert," as defined by Rule 4010(b). The court said that an "expert in a child custody case, regardless of who 'hires' the expert, is very similar to a 'independent' medical examiner which is the subject of Rule 4010…An expert, whether hired by a particular party or appointed by the court in custody litigation, is an expert subject to Rule 4010…" The expert's report and findings are "discoverable by a party….regardless of the status of the expert as a witness at trial."
The court also rejected an argument that mother's late motion about getting/using the report violated the trial court's procedural order establishing a schedule and procedure. It approved the trial court's statement that "our analysis is direct and simple…Hire an expert custody evaluator and such opinion evidence will be made known to the court. To do otherwise would be a disservice to the child….[K]nowing such evidence exists and to shield such from disclosure presents a less than full and complete record. We literally can conceive of no circumstance where non-disclosure benefits the child."
Donald Marritz
MidPenn Legal Services
Tuesday, December 20, 2005
custody - standard of review, expert opinion
King v. King - Pa. Superior Court, December 16, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/A34039_05.pdf
In a factually complicated case, the appellate court affirmed the trial court's grant of primary custody to father, over child's expressed strong preference for mother. There was no discussion at all about the child-preference issue.
standard of review -- The Court said that it was its scope of review was "very broad" but that it was "not this Court's function to determine whether the trial court reached the 'right' decision' rather we must consider whether, 'based on the evidence presented, given due deference to the trial court's weight and credibility determinations,' the trial court erred or abused is discretion in awarding custody to the prevailing party."
expert opinion - The appellate court upheld the trial's court's refusal to follow the recommendation of the custody evaluator, a psychologist, that custody go to mother, stating that the trial court had conducted two full hearings and was "in the unique position of having had the opportunity to observe all of the parties in this matter for a period of at least four years." The trial judge "detailed 96 findings of fact with an excellent analysis and interpretation of the nuances expressed by the witnesses which strongly support his conclusions. Our standard of review does not allow us to alter the court's conclusions provided they are supported by the record or unless they are manifestly unreasonable. The court's decision awarding custody to [father] is supported by the voluminous record before us."
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/A34039_05.pdf
In a factually complicated case, the appellate court affirmed the trial court's grant of primary custody to father, over child's expressed strong preference for mother. There was no discussion at all about the child-preference issue.
standard of review -- The Court said that it was its scope of review was "very broad" but that it was "not this Court's function to determine whether the trial court reached the 'right' decision' rather we must consider whether, 'based on the evidence presented, given due deference to the trial court's weight and credibility determinations,' the trial court erred or abused is discretion in awarding custody to the prevailing party."
expert opinion - The appellate court upheld the trial's court's refusal to follow the recommendation of the custody evaluator, a psychologist, that custody go to mother, stating that the trial court had conducted two full hearings and was "in the unique position of having had the opportunity to observe all of the parties in this matter for a period of at least four years." The trial judge "detailed 96 findings of fact with an excellent analysis and interpretation of the nuances expressed by the witnesses which strongly support his conclusions. Our standard of review does not allow us to alter the court's conclusions provided they are supported by the record or unless they are manifestly unreasonable. The court's decision awarding custody to [father] is supported by the voluminous record before us."
Donald Marritz
MidPenn Legal Services
Thursday, December 15, 2005
civil contempt - specificity of order
McNelis, et al. v. Lear, et al. - Pa. Superior Court - December 14, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/e02003_05.pdf
This is a civil contempt case about enforcement of a settlement agreement in a property dispute matter. This may be of interest to family law advocates because of its possible application to PFA civil contempts.
Superior Court reversed lower court finding of contempt, because the lower court had not clearly set out a specific order that appellants had not followed.
The court said that the "order forming the basis for the contempt finding must be definite, clear, and specific, leaving no doubt or uncertainty regarding the prohibited conduct….It is well settled that there are certain elements necessary to support a finding of civil contempt, namely: that the contemnor had notice of the specific order or decree which he disobeyed; that the act constituting the contemnor's violation was volitional; and that the contemnor acted with wrongful intent."
In this case, the lower court had never entered an order directing appellants to do what they had allegedly not done. "Because Appellants were not in violation of a specific court order it was improper for the trial court to find them in contempt."
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/e02003_05.pdf
This is a civil contempt case about enforcement of a settlement agreement in a property dispute matter. This may be of interest to family law advocates because of its possible application to PFA civil contempts.
Superior Court reversed lower court finding of contempt, because the lower court had not clearly set out a specific order that appellants had not followed.
The court said that the "order forming the basis for the contempt finding must be definite, clear, and specific, leaving no doubt or uncertainty regarding the prohibited conduct….It is well settled that there are certain elements necessary to support a finding of civil contempt, namely: that the contemnor had notice of the specific order or decree which he disobeyed; that the act constituting the contemnor's violation was volitional; and that the contemnor acted with wrongful intent."
In this case, the lower court had never entered an order directing appellants to do what they had allegedly not done. "Because Appellants were not in violation of a specific court order it was improper for the trial court to find them in contempt."
Donald Marritz
MidPenn Legal Services
Thursday, December 08, 2005
employment - discrimination - recent Pa. federal court decisions
1. Washco v. Federal Express Corp. - ED Pa. - November 28, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1434P.pdf
Summary judgment granted to defendant on plaintiff's employment-related claims under Title VII of the Civil Rights Act, 42 USC sec. 1981(a), and the Pennsylvania Human Relations Act (PHRA), 43 P.S. sec. 951 et seq.
2. Foxworth v. Pa. State Police - ED Pa. - November 29, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1436P.pdf
Sumary judgment granted to defendant on employment-related claims under 42 USC sec. 1981, sec. 1983 and sec. 2000e( Title VII) against State Police. Good discussion of how these cases are decided, shifting burden of proof/persuasion, etc.
3. Keys v. City of Philadelphia, ED Pa. - November 29, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1437P.pdf
Summary judgment motions of each party denied on plaintiff's employment-related claims under ADA, 42 USC 12111-12131; Rehabilitation Act, 29 USC sec. 793 st seq.; the Pa. Human Relations Act, 43 P.S. sec. 951 et seq.; 14th Amendment; 42 USC sec. 1983.
4. Embrico, et al. v. United States Steel Corp. - ED Pa. November 30, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1452P.pdf
Defendant's summary judgment motion granted on all claims in this 61-page decision.
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1434P.pdf
Summary judgment granted to defendant on plaintiff's employment-related claims under Title VII of the Civil Rights Act, 42 USC sec. 1981(a), and the Pennsylvania Human Relations Act (PHRA), 43 P.S. sec. 951 et seq.
2. Foxworth v. Pa. State Police - ED Pa. - November 29, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1436P.pdf
Sumary judgment granted to defendant on employment-related claims under 42 USC sec. 1981, sec. 1983 and sec. 2000e( Title VII) against State Police. Good discussion of how these cases are decided, shifting burden of proof/persuasion, etc.
3. Keys v. City of Philadelphia, ED Pa. - November 29, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1437P.pdf
Summary judgment motions of each party denied on plaintiff's employment-related claims under ADA, 42 USC 12111-12131; Rehabilitation Act, 29 USC sec. 793 st seq.; the Pa. Human Relations Act, 43 P.S. sec. 951 et seq.; 14th Amendment; 42 USC sec. 1983.
4. Embrico, et al. v. United States Steel Corp. - ED Pa. November 30, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1452P.pdf
Defendant's summary judgment motion granted on all claims in this 61-page decision.
Donald Marritz
MidPenn Legal Services
UC - willful misconduct - alcohol
Brannigan v. UCBR - Commonwealth Court - December 8, 2005
http://www.courts.state.pa.us/OpPosting/CWealth/out/651CD05_12-8-05.pdf
Claimant disqualified pursuant to sec. 402(e.1), 43 P.S. sec. 802(e.1), which says that a claimant (CL) is ineligible where unemployment is due to discharge or suspension from work for failure to submit and/or pass a drug test which is conducted pursuant to an employer's established policy, provided that the test is not requested or implemented in violation of the law or a collective bargaining agreement.
Claimant was a nursing assistant at a hospital. In March 2003, he had had a positive test for alcohol, agreed to enter an alcohol assistance program, and was told that any future violation would result in his discharge. In September 2004, an OR nurse told the medical director (MD) that CL smelled of alcohol. The MD talked to CL and, based on the smell of alcohol, told him he'd be required to take an alcohol test. He refused the test. Claimant admitted at the hearing that he'd had 3-4 beers at 12:30 a.m. and had been unable to shower before reporting to work at 10:00 a.m
The referee held that the ER failed to show that the CL was aware of the details of the drug policy, which had been changed since the March 2003 incident. The referee also said that the ER failed to follow its policy, because there was no competent evidence that the CL exhibited behavior that showed he was unfit for duty. The Board reversed. It found that the CL was aware of the ER's policy, which says that employees can be give a test as a result of a suspicion of impairment. The Board found that there was credible evidence that CL smelled of alcohol when he got to work.
The Court affirmed the Board's denial of benefits, citing UGI Utilities v. UCBR, 851 A2d 240 (Pa. Cmwlth. 2004). The Board made specific findings that the ER had a substance abuse policy and that the CL violated it. The Court rejected the argument that CL didn't know that refusing the test could result in a dismissal. It said that the "record is replete with evidence that the knew of the drug and alcohol policy" and that he "had signed an agreement specifying that any future violation…would result in termination."
The Court also rejected the argument that "the smell of alcohol alone is insufficient to establish that he was unfit for duty….This Court has held an employee can commit willful misconduct by arriving at work smelling of alcohol even if that employee does not drink at work and is able to perform all required duties," citing Klink v. UCBR, 289 A.2d 494 (Pa. Cmwlth 1972). The Court said that "olfactory evidence that claimant imbibed intoxicating liquor before arriving for work, let alone Claimant's admissions to the same, is enough to support a finding of willful misconduct," citing Lindsay v. UCBR, 789 A.2d 385, 390 (Pa. Cmwlth. 2001).
The Court also cited the following language from Klink: "F. Scott Fitzgerald chronicler of a less serious age that the present, observed that the bouquet of alcohol, not unseemly to a cavalry officer or bond broker, is altogether unfitting to a surgeon or clergyman….In the instant matter, we must determine whether the same standards shall apply to all hospital employees." [Query:
Is this an attempt to again establish a higher standard of conduct for certain employees, in violation of e.g. Navickas v. UCBR, 787 A.2d 284 (Pa. 2001)?]
The Court ended in a somewhat confusing fashion by saying that "[u]nder Employer's policy, an employee suspected of impairment due to alcohol could not be forced to submit to an alcohol screening test; however, such refusal would be reported to Employee Relations for further disposition and action. Claimant knew or should have known of this policy. The Board properly denied benefits in accordance with Section 402(e.1) of the Law." (emphasis added)
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/CWealth/out/651CD05_12-8-05.pdf
Claimant disqualified pursuant to sec. 402(e.1), 43 P.S. sec. 802(e.1), which says that a claimant (CL) is ineligible where unemployment is due to discharge or suspension from work for failure to submit and/or pass a drug test which is conducted pursuant to an employer's established policy, provided that the test is not requested or implemented in violation of the law or a collective bargaining agreement.
Claimant was a nursing assistant at a hospital. In March 2003, he had had a positive test for alcohol, agreed to enter an alcohol assistance program, and was told that any future violation would result in his discharge. In September 2004, an OR nurse told the medical director (MD) that CL smelled of alcohol. The MD talked to CL and, based on the smell of alcohol, told him he'd be required to take an alcohol test. He refused the test. Claimant admitted at the hearing that he'd had 3-4 beers at 12:30 a.m. and had been unable to shower before reporting to work at 10:00 a.m
The referee held that the ER failed to show that the CL was aware of the details of the drug policy, which had been changed since the March 2003 incident. The referee also said that the ER failed to follow its policy, because there was no competent evidence that the CL exhibited behavior that showed he was unfit for duty. The Board reversed. It found that the CL was aware of the ER's policy, which says that employees can be give a test as a result of a suspicion of impairment. The Board found that there was credible evidence that CL smelled of alcohol when he got to work.
The Court affirmed the Board's denial of benefits, citing UGI Utilities v. UCBR, 851 A2d 240 (Pa. Cmwlth. 2004). The Board made specific findings that the ER had a substance abuse policy and that the CL violated it. The Court rejected the argument that CL didn't know that refusing the test could result in a dismissal. It said that the "record is replete with evidence that the knew of the drug and alcohol policy" and that he "had signed an agreement specifying that any future violation…would result in termination."
The Court also rejected the argument that "the smell of alcohol alone is insufficient to establish that he was unfit for duty….This Court has held an employee can commit willful misconduct by arriving at work smelling of alcohol even if that employee does not drink at work and is able to perform all required duties," citing Klink v. UCBR, 289 A.2d 494 (Pa. Cmwlth 1972). The Court said that "olfactory evidence that claimant imbibed intoxicating liquor before arriving for work, let alone Claimant's admissions to the same, is enough to support a finding of willful misconduct," citing Lindsay v. UCBR, 789 A.2d 385, 390 (Pa. Cmwlth. 2001).
The Court also cited the following language from Klink: "F. Scott Fitzgerald chronicler of a less serious age that the present, observed that the bouquet of alcohol, not unseemly to a cavalry officer or bond broker, is altogether unfitting to a surgeon or clergyman….In the instant matter, we must determine whether the same standards shall apply to all hospital employees." [Query:
Is this an attempt to again establish a higher standard of conduct for certain employees, in violation of e.g. Navickas v. UCBR, 787 A.2d 284 (Pa. 2001)?]
The Court ended in a somewhat confusing fashion by saying that "[u]nder Employer's policy, an employee suspected of impairment due to alcohol could not be forced to submit to an alcohol screening test; however, such refusal would be reported to Employee Relations for further disposition and action. Claimant knew or should have known of this policy. The Board properly denied benefits in accordance with Section 402(e.1) of the Law." (emphasis added)
Donald Marritz
MidPenn Legal Services
Wednesday, December 07, 2005
paternity - genetic testing - estoppel
Buccieri v. Campagna - Pa. Superior Court - December 7, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/a35036_05.pdf
Putative father was estopped from getting genetic paternity testing where he knew of mother's pregnancy but had no contact with child for about 8 years. In the meantime, mother had married. She and her and new husband, who wanted to adopt the child, had formed a new family unit. Mother did not desire contact from putative father (PF), but she did nothing to obstruct contact or prevent him from requesting information about her prenancy or offering to assuming a parental role. Her conduct does not constitute the kind of obstructive tactics deplored by state law. PF could easily have monitored the pregnancy and tried to establish contact, but he did nothing.
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/a35036_05.pdf
Putative father was estopped from getting genetic paternity testing where he knew of mother's pregnancy but had no contact with child for about 8 years. In the meantime, mother had married. She and her and new husband, who wanted to adopt the child, had formed a new family unit. Mother did not desire contact from putative father (PF), but she did nothing to obstruct contact or prevent him from requesting information about her prenancy or offering to assuming a parental role. Her conduct does not constitute the kind of obstructive tactics deplored by state law. PF could easily have monitored the pregnancy and tried to establish contact, but he did nothing.
Donald Marritz
MidPenn Legal Services
custody - contempt - notice of hearing - due process
Everett v. Parker - Pa. Superior Court - December 7, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/s50045_05.pdf
Father filed contempt petition against mother alleging follow the existing custody order. Father did not serve mother with the petition or order for hearing. Rather, he mailed a copy of the petition and hearing order to a) her attorney in another case, by and b) a CYS worker who had been involved with the family.
The mother did not appear at the hearing. The attorney did not appear at the hearing. The CYS worker was present at the hearing and testified that she had given mother a copy of the petition and hearing notice the day before. The court felt this was "sufficient" service and went ahead with the hearing in mother's absence. The court found mother in contempt and transferred majority custody to father.
The appellate court held that service was improper and invalid under the relevant rules of court, Rule 1915.12(a), and due process principles. The notice to mother was "not meaningful" and violated her right to due process. The lower court's transfer of custody to father, absent proper notice to mother, was an abuse of discretion. The proper course would have been for the lower court to continue the case and direct father to make proper service, in the proper format.
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/s50045_05.pdf
Father filed contempt petition against mother alleging follow the existing custody order. Father did not serve mother with the petition or order for hearing. Rather, he mailed a copy of the petition and hearing order to a) her attorney in another case, by and b) a CYS worker who had been involved with the family.
The mother did not appear at the hearing. The attorney did not appear at the hearing. The CYS worker was present at the hearing and testified that she had given mother a copy of the petition and hearing notice the day before. The court felt this was "sufficient" service and went ahead with the hearing in mother's absence. The court found mother in contempt and transferred majority custody to father.
The appellate court held that service was improper and invalid under the relevant rules of court, Rule 1915.12(a), and due process principles. The notice to mother was "not meaningful" and violated her right to due process. The lower court's transfer of custody to father, absent proper notice to mother, was an abuse of discretion. The proper course would have been for the lower court to continue the case and direct father to make proper service, in the proper format.
Donald Marritz
MidPenn Legal Services
disability - VE hypo inadequate - remand
Baum v. Barnhart - ED Pa. - November 30, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1451P.pdf
Held, the ALJ did not properly evaluate the claimant's residual functional capacity, because of improper hypothetical to the vocational expert. Claimant alleged disability based on back injury, pain, obesity, sleep disorder, depression, carpal tunnel syndrome, etc. Claimant is a younger individual with a h.s. education, prior work as carpenter in construction industry. The ALJ determined that CL could not do his former work and only a limited range of sedentary work.
Although it rejected claimant's position on other issues, the court upheld his claim about the inadequacy of the ALJ's hypo to the vocational expert, which in toto, was as follows: "I think from what the Claimant testified and what it looks like in the 1994 FCA, it looks like they thought he could do sedentary work. So why don't we assume sedentary with a sit/stand option. Are there jobs with that?"
Citing Ramirez v. Barnhart, 372 F3d 546 (3d Cir. 2004) and Chrupcala v. Heckler, 829 F.2d 1269 (3d Cir. 1987), the court said that "great specificity" was required in the hypo to the VE and that pain and other impairments, amply supported by the record, had to be figured in as well.
The court remanded the case for further proceedings pursuant to the fourth sentence of 42 USC 405(g).
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1451P.pdf
Held, the ALJ did not properly evaluate the claimant's residual functional capacity, because of improper hypothetical to the vocational expert. Claimant alleged disability based on back injury, pain, obesity, sleep disorder, depression, carpal tunnel syndrome, etc. Claimant is a younger individual with a h.s. education, prior work as carpenter in construction industry. The ALJ determined that CL could not do his former work and only a limited range of sedentary work.
Although it rejected claimant's position on other issues, the court upheld his claim about the inadequacy of the ALJ's hypo to the vocational expert, which in toto, was as follows: "I think from what the Claimant testified and what it looks like in the 1994 FCA, it looks like they thought he could do sedentary work. So why don't we assume sedentary with a sit/stand option. Are there jobs with that?"
Citing Ramirez v. Barnhart, 372 F3d 546 (3d Cir. 2004) and Chrupcala v. Heckler, 829 F.2d 1269 (3d Cir. 1987), the court said that "great specificity" was required in the hypo to the VE and that pain and other impairments, amply supported by the record, had to be figured in as well.
The court remanded the case for further proceedings pursuant to the fourth sentence of 42 USC 405(g).
Donald Marritz
MidPenn Legal Services
Thursday, December 01, 2005
employment - arrest record - expungement
Commonwealth v. Romanik
http://www.courts.state.pa.us/OpPosting/Superior/out/a11026_05.pdf
This case involves the expungement of a criminal arrest record. It has implications for employment and perhaps other areas. N.B. Even thought the issue arose in the context of a criminal case, it appears that even entities which operate under LSC restrictions can do these cases, according to a November 2004 memo by Alan Houseman and Linda Perle of CLASP.
Defendant was a h.s. librarian who sold old issues of National Geographic, which "had been consigned to the trash," on eBay. He used that money ($325) as well as $300 of his own money to buy six used computers for the school library, "where they remain in use to this day." D's mentor had told him that this was a "creative" idea and "did not warn him against pursuing it."
However, the school district made a complaint to the DA, who charged D with library theft and misapplication of entrusted government property. At the preliminary hearing, D agreed to resign from his job in consideration for the DA dropping the charges. D then filed a motion to expunge his arrest record, which the lower court denied.
The Superior Court reversed, holding that the lower court had abused its discretion in not ordering the expungement because, on balance, the harm attendant in keeping the arrest record "far outweighed any possible interest the Commonwealth could have had in retaining such information." The Court held that there is a due process right expungement, in appropriate circumstances, which is "not dependent upon express statutory authority."
The Court also noted that the burden of proof had been misplaced. "[W]hen a charge is withdrawn or nolle prosequied [is this a word?], the burden is always on the Commonwealth to demonstrate why an arrest record should be retained….[T]he Commonwealth bears the burden of affirmatively justifying retention of the arrest record [whether] it did not, could not, or [chose] not to bear its burden of proof beyond a reasonable doubt at trial."
A "non-exclusive list of factors a court should examine in determining whether the Commonwealth has satisfied its burden" include a) the strength of the Commonwealth's case, b) the reasons why it wants to retain the record, c) the petitioner's age, criminal record and employment history, d) the length of time between the arrest and request to expunge, and e) the specific adverse consequences the petitioner may endure should expunction be denied. Applying these factors, the court said that the lower court had "manifestly abused its discretion."
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/a11026_05.pdf
This case involves the expungement of a criminal arrest record. It has implications for employment and perhaps other areas. N.B. Even thought the issue arose in the context of a criminal case, it appears that even entities which operate under LSC restrictions can do these cases, according to a November 2004 memo by Alan Houseman and Linda Perle of CLASP.
Defendant was a h.s. librarian who sold old issues of National Geographic, which "had been consigned to the trash," on eBay. He used that money ($325) as well as $300 of his own money to buy six used computers for the school library, "where they remain in use to this day." D's mentor had told him that this was a "creative" idea and "did not warn him against pursuing it."
However, the school district made a complaint to the DA, who charged D with library theft and misapplication of entrusted government property. At the preliminary hearing, D agreed to resign from his job in consideration for the DA dropping the charges. D then filed a motion to expunge his arrest record, which the lower court denied.
The Superior Court reversed, holding that the lower court had abused its discretion in not ordering the expungement because, on balance, the harm attendant in keeping the arrest record "far outweighed any possible interest the Commonwealth could have had in retaining such information." The Court held that there is a due process right expungement, in appropriate circumstances, which is "not dependent upon express statutory authority."
The Court also noted that the burden of proof had been misplaced. "[W]hen a charge is withdrawn or nolle prosequied [is this a word?], the burden is always on the Commonwealth to demonstrate why an arrest record should be retained….[T]he Commonwealth bears the burden of affirmatively justifying retention of the arrest record [whether] it did not, could not, or [chose] not to bear its burden of proof beyond a reasonable doubt at trial."
A "non-exclusive list of factors a court should examine in determining whether the Commonwealth has satisfied its burden" include a) the strength of the Commonwealth's case, b) the reasons why it wants to retain the record, c) the petitioner's age, criminal record and employment history, d) the length of time between the arrest and request to expunge, and e) the specific adverse consequences the petitioner may endure should expunction be denied. Applying these factors, the court said that the lower court had "manifestly abused its discretion."
Donald Marritz
MidPenn Legal Services
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