Pennsylvania Bulletin of December 9, 2006

http://www.pabulletin.com/secure/data/vol36/36-49/index.html

Cmwlth. Court - emergency applications - internal operating procedures
http://www.pabulletin.com/secure/data/vol36/36-49/2403.html

health - home care agencies/registries - draft licensing regulations
http://www.pabulletin.com/secure/data/vol36/36-49/2413.html

DOT - alcohol highway safety schools/DUI program coordinators
These regulations implement 75 Pa.C.S. § 1549(b), which requires each county, multicounty judicial district or group of counties combined under a single DUI program to establish and maintain a course of instruction regarding the problems associated with alcohol or controlled substance use, or both, and driving.
http://www.pabulletin.com/secure/data/vol36/36-49/2412.html

employment - lie detectors - firefighters

City of Pittsburgh v. Bachner et al. - Commonwealth Court - November 30, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/2539CD05_11-30-06.pdf

Applicants for firefighter positions with city challenged "just cause" determinations under 53 P.S. 23493.1(a) to reject their applications, and the use of lie detector tests involved in the city's passing over their applications for employment as firefighters

Held, just cause provision gives a right to placement on hiring list, unless there is just cause for disqualification, but just cause provision does not give candidates the right to challenge information gathering procedures to determine if just cause exists.

Here, the applicants' right to placement was affected ony by information they provided, and they retained the right to challenge their disqualifications and argue that they are not supported by just cause. The court discussed the Lie Detector Test Law, 18 Pa. C.S. 7321, which generally prohibits the use of lie detectors in employment situations, except in matters involving public law enforcement personnel or people whose job gives them access to narcotics or dangerour drugs, 18 Pa. C.S. 7321(b). The latter was conceded in this case.

employment - application - false information - police job

Salters v. State Police - Commonwealth Coourt - November 29, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/761CD06_11-29-06.pdf

A false statement on an application for police certification was alone enough to disqualify an applicant, in spite of the police chief's alleged advice to applicant to lie. Applicant was required to get a psych. evaluation. The first one showed that he was a "psychological risk." A second one had no such finding. Applicant mentioned only the second evaluation on his certification application, on which he made a verified statement that there had been no other psych. evaluations.

Amendments to the charges made more than 30 days in advance of the hearing wre held to not violate due process/notice requirements, citing general admin. rules of procedures, 1 Pa. Code 35.1 et seq., and the relative simplicity of the issues. The court also rejected applicant's argument that only agency heads who are attorneys can adjudicate administrative decisions.

UC - sec. 401(d)- availablity for work - alien worker - expired work authorization

Ruiz v. UCBR - Commonwealth Court - November 20, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1343CD06_11-20-06.pdf

An alien who does not have a current valid work authorization is not legally available for work and is not eligible for UC benefits under sec. 401(d)(1) of the UC Law, 43 P.S. sec. 801(d)(1).

"A claimant who registers for work is presumed [to be] able [to] and available for work....Nevertheless, to be available for work, a claimant must be ready and able to accept employment, and be actually and currently attached to the labor force."

"Immigration is a matter of exclusive federal jurisdiction. Accordinly, where the USCIS denies or revokes an alien's work authorization, the determination is binding on the states and can be assailed only before a federal agency or in a federal court....Significantly, when an alien does not possess a current or valid USCIS work authorization, he cannot accept employment. 8CFR sec. 274.12(c). Moreover, it is unlawful for an employer to hire, recruit, or continue to employ an alient who is (or has become) an "unauthorized alien." 8 USC sec. 1324a(a)(1)-(2).

This decision confirms the dictum in Jimoh v. UCBR, 902 A.2d 608, 612 n.7 (Pa. Cmwlth. 2006), concerning sec. 401(d).

Pennsylvania Bulletin of November 18, 2006

http://www.pabulletin.com/secure/data/vol36/36-46/index.html

PUC - practice & procedure - interpretation of rules on party status, rights, obligations
http://www.pabulletin.com/secure/data/vol36/36-46/2266.html

Governor - notice of veto of HB 236 - promulgation of regulations
http://www.pabulletin.com/secure/data/vol36/36-46/2259.html

courts - local rules - Philadelphia - motion for summary judgment - Rule *1035.2(a)http://www.pabulletin.com/secure/data/vol36/36-46/2260.html

IRRC - notice of filing of final rule - commercial manure hauler/broker certification
http://www.pabulletin.com/secure/data/vol36/36-46/2284.html

child witness - taint - clear and convincing evidence

Commonwealth v. Cesar - Superior Court - November 14, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/s06009_06.pdf

The court discussed how to deal with the issue of the possible tainting of the testimony of a child. The Defendant claimed that the child's evidence had been tainted by improper coaching by a parent, an asst. DA, and someone from the victim-witness office.

The court discussed the problem of taint, stating that the "core belief underlying the theory...is that a child's memory is peculiarly susceptible to suggestibility so that when called to testify a child may have difficult distinguishing fact from fantasy. Taint is the implantation of false memories or the distortion of real memories caused by interview techniques...that are so unduly suggestive and coercive as to infect the memory of the child, rending that child incompetent to testify."

The court said that a taint investigation is triggered by "some evidence of taint. Once some evidence of taint is presented, the... hearing [about the child's competency to testify] must be expanded to explore this specific question. During the hearing the party alleging taint bears the burden of production of evidence of taint and the burden of persuasion to show taint by clear and convincing evidence. Pennsylvania has always maintained that since competency is the presumption, the moving party must carry the burden of overcoming that presumption...[A]s with all questions of competency, the resolution of a taint challenge...is a matter addressed to the discretion of the trial court."

Pennsylvania Bulletin of November 11, 2006

http://www.pabulletin.com/secure/data/vol36/36-45/index.html

recent statutes and vetoes
http://www.pabulletin.com/secure/data/vol36/36-45/2193.html

court rules - execution sale - real property - Pa. R.C.P 3129.3 http://www.pabulletin.com/secure/data/vol36/36-45/2195.html

court rules - proposed - divorce - answer/denial - Pa. RCP 1920.14 http://www.pabulletin.com/secure/data/vol36/36-45/2194.html

LIHEAP - availability of 2007 plan
http://www.pabulletin.com/secure/data/vol36/36-45/2224.html

Pennsylvania Bulletin of November 4, 2006

http://www.pabulletin.com/secure/data/vol36/36-44/index.html

court rules - Allegheny County-
http://www.pabulletin.com/secure/data/vol36/36-44/2149.html

Commonwealth Court - televising on PCN
http://www.pabulletin.com/secure/data/vol36/36-44/2147.html

Orphans' Court Rules - omnibus amendments
http://www.pabulletin.com/secure/data/vol36/36-44/2190.html

court rules - support - allocation of additional expenses - Rule 1910.16-6
http://www.pabulletin.com/secure/data/vol36/36-44/2148.html

IRRC- actions taken
http://www.pabulletin.com/secure/data/vol36/36-44/2174.html

agriculture - wine marketing/research - referendum
http://www.pabulletin.com/secure/data/vol36/36-44/2153.html

Pennsylvania Bulletin of October 28, 2006

http://www.pabulletin.com/secure/data/vol36/36-43/index.html

court rules - appellate rules - "final order" - Rule 341
http://www.pabulletin.com/secure/data/vol36/36-43/2102.html

labor - minimum wage increase - training wage - statements of policy
http://www.pabulletin.com/secure/data/vol36/36-43/2115.html

Pennsylvania Bulletin of October 7, 2006

http://www.pabulletin.com/secure/data/vol36/36-40/index.html

court rules - proposed - custody - modification - proposal to require allegation of substantial change of circumstances and overrule Karris decision, 544 A.2d 1328 (Pa. 1988)
http://www.pabulletin.com/secure/data/vol36/36-40/1960.html

court rules - appellate rules - briefs on reargument/remand/reconsideration
http://www.pabulletin.com/secure/data/vol36/36-40/1958.html

Commonwealth Court - proceedings - guidelines for broadcasting, photographing, recording
http://www.pabulletin.com/secure/data/vol36/36-40/1959.html

welfare - WIC - maximum prices, competitive prices
http://www.pabulletin.com/secure/data/vol36/36-40/1977.html

welfare - WIC - store peer group system
http://www.pabulletin.com/secure/data/vol36/36-40/1978.html

welfare - WIC - minimum inventory requirements
http://www.pabulletin.com/secure/data/vol36/36-40/1979.html

horses - breeding fund program
http://www.pabulletin.com/secure/data/vol36/36-40/1967.html

wages - "employer" - "employee"

Hirsch v. EPL Technologies, et al. - Superior Court - October 16, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a12012_06.pdf

Corporate officer found personally liable, along with the corporation itself, for unpaid wages to another corporate officer, because the individual defendant was "actively involved in corporate policy-making" while the plaintiff --although he had the title of a corporate officer -- was not.

The court held that a person's "title alone does not bar him from suing" under the Wage Payment and Collection Law (WPCL), 43 P.S. sec. 260.1 et seq. Noting the the WPCL does not define "employee," the court looked to the UC Law and Worker's Comp. Law rather than agency law to determine the right of a corporate officer to seek wages from his corporate employer and other individuals in the corporation who exercised policy-making functions, even if they do not have knowledge of the improper non-payment. "[S]cienter...is not required for civil liability [but] evidence of an active role in decision making is....."

Persons who are considered to be an "employer" in some context are still permitted to use the WPCL to hold their similarly situated fellow employers liable for unpaid wages," so long at the plaintiff does not exercise policy-making functions. "While evidence of status as a corporate officer...may be relevant, it is not necessarily dispositive of a party's status as an 'employer' under the WPCL."

The court reached this decision, noting that the purpose of the WPCL is to "removed some of the obstacles employees face in litigation by providing them with a statutory remedy when an employer breaches its contractual obligation to pay wages. The WPCL does not create an employee's substantive right to compensation; rather, it only establishes an employee's right to enforce payment of wages and compensation to which an employee is otherwise entitled by the terms of an agreement."

admin. law - equitable class action - exhaustion of admin. remedies

Beattie v. Allegheny County - Pennsylvania Supreme Court - October 11, 2006

majority http://www.courts.state.pa.us/OpPosting/Supreme/out/J-87B-2005mo.pdf
concurring http://www.courts.state.pa.us/OpPosting/Supreme/out/J-87B-2005mo.pdf

Taxpayers permitted to bypass administrative procedures -- i.e., not required to exhaust administrative remedies - and bring an "equitable class action" challenged the county real estate assessment system which they alleged had "systemic flaws" and violated the uniformity clause of the state constitution, Article VIII, sec. 1.

This was held to be one of those "rare cases, as exception to the exhaustion rule" because "the balance between an administrative agency's exercise of its expertise and its ability to offer complete redress for an alleged wrong of egregious constitutional dimension falls in favor of proceeding in equity in the trial court."

In order to invoke equity jurisdiction, a plaintiff must satisfy a two-part test: "the taxpayers must (1) raise a substantial constitutional issue, and (2) lack an adequate remedy through the [statutory] administrative appeal process."

The court discussed the legislature's "power to channel all issues, including constitutional ones, into a specified route of appeal, such as an administrative appeal" but recognized "an exception for certain types of constitutional questions that the administrative process was ill-suited to resolve...[B]ypassing the agency process within the framework of a direct attack on the enabling statute is inherently less likely to do violence to the agency's role as fact-finder and applier of specialized expertise that in the context of an 'as applied' challenge." The court discussed the "admonition that, 'where relying solely on the statutory appeal mechanism would result in a 'multiplicity of duplicative lawsuits and, in contrast, an action in equity would provide a tidy global resolution,' the legal remedy should be deemed inadequate." In such a case, a "complaint can be facially tested against constitutional norms unaided by agency expertise...."

In a concurring opinion, Chief Justice Cappy said that the majority's test was "incomplete" and missed an "important factor" in the court's exhaustion-of-remedies doctrine - whether administrative input would be helpful. The justice felt that the majority failed to give the agency's role sufficient deference, because of agency expertise or because an agency interpretation would be desirable.

pleadings - amendment

Chaney v. Meadville Medical Center - Superior Court - October 19, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a22017_06.pdf

The administratrix of a decedent's estate sought to amend the complaint in a wrongful death action. During the course of its appellate review, the Superior Court said that:

- Amendments to pleadings are permitted at any time, including before, during and after trial.
- Leave to amend pleadings is to be liberally granted
- Leave to amend should be granted when it will not "unduly prejudice or surprise the adverse party"
- "Undue prejudice" is something more than a detriment to the other party, since any amendment would likely have the effect of harming the adverse party's interest.
- The policy underlying the rule of liberal leave is to insure that parties get to have their cases decided on the substantive case present, and not on legal formalities
- However, an amendment introducing a new cause of action will not be permitted after the statute of limitations has run. Only if the proposed amendment merely amplifies, as opposed to altering, the cause of action already averred, will it be allowed if the statute of limitations has run

debt collection - false/misleading threats to take action

Brown, et al. v. Card Service Center - 3d Circuit - September 29, 2006

http://www.ca3.uscourts.gov/opinarch/054160p.pdf

Plaintiff stated a claim for relief when she alleged that the Defendant collection agency violated the Fair Debt Collection Practices Act, 15 USC 1692 et seq., by sending her a letter stating that her failure to make payments arrangements within 5 days "could result in our forwarding this account to our attorney with directions to continue collection efforts," where Plaintiff alleged that such attorney referrals were rarely if ever made.

The court applied the "least sophisticated debtor" (LSD) standard in determining whether the debt collector's statement was a "threat to take any action that...is not intended to be taken" under 15 USC 1692e(5) (false or misleading representations). The LSD standard protects "all consumers, the gullible as well as the shrewd, the trusting as well as the suspicious," and "prevents liability for bizarre or idiosyncratic interpretations of collections notices by preserving a quotient of reasonableness and presuming a basis level of understanding and willingness to read with care.""

The 3d Circuit reversed the district court, which had held that a debtor should have understood the conditional word "could" as simply advising the debtor of options available to the debt collector. The appellate court disagreed, stating that it was deceptive for the collector to "assert that it could take an action that it had no intention of taking and has never or very rarely taken before." (emphasis in original) The "least sophisticated debtor might get the impression that litigation or referral to a...lawyer would be imminent if he or she did not respond within five days. We do not believe that such a reading would be 'bizarre or idiosyncratic'....."

Pennsylvania Bulletin of October 7, 2006

http://www.pabulletin.com/secure/data/vol36/36-40/index.html

court rules - proposed - custody - modification - comments due January 12, 2007
proposal to require allegation of substantial change of circumstances and overrule Karris - 544 A.2d 1328 (Pa. 1988) - http://www.pabulletin.com/secure/data/vol36/36-40/1960.html

court rules - appellate rules - briefs on reargument/remand/reconsideration
http://www.pabulletin.com/secure/data/vol36/36-40/1958.html

Commonwealth Court - proceedings - guidelines for broadcasting, photographing, recording
http://www.pabulletin.com/secure/data/vol36/36-40/1959.html

welfare - WIC - maximum prices, competitive prices
http://www.pabulletin.com/secure/data/vol36/36-40/1977.html

welfare - WIC - store peer group system
http://www.pabulletin.com/secure/data/vol36/36-40/1978.html

welfare - WIC - minimum inventory requirements
http://www.pabulletin.com/secure/data/vol36/36-40/1979.html

horses - breeding fund program
http://www.pabulletin.com/secure/data/vol36/36-40/1967.html

Workers' Comp. - failure to maintain insurance

Commonwealth v. Corban Corporation - Superior Court - October 4, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a12030_06.pdf

Failure to maintain worker's compensation insurance is a crime under 77 P.S. 501, for which the statute of limitations is five (5) years,under 77 P.S. 1039.12.

driver's license - suspension - multiple convictions - merger

Drabic v. Penn DOT - Pennsylvania Supreme Court - September 27, 2006

majority http://www.courts.state.pa.us/OpPosting/Supreme/out/J-53-2006mo.pdf
dissent http://www.courts.state.pa.us/OpPosting/Supreme/out/J-53-2006do1.pdf
dissent http://www.courts.state.pa.us/OpPosting/Supreme/out/J-53-2006do2.pdf

In a 4-3 decision, the court held that civil driver's license suspensions merge in accordance with the merger of the underlying criminal convictions on which the suspensions are based. The court held that its decision was based on long-standing precedent and on the plain language of the statute 75 Pa. C.S.1532, which "directs that only a single suspension can be imposed upon a single-criminal episode." The result in this case was the merger of the suspension based on the driver's DUI conviction into the suspension based on his conviction of homicide by vehicle-DUI and a consequent reduction in his suspension by 2 1/2 years.

custody - religion - free exercise - advocating polygamy

Shepp v. Shepp - Pennsylvania Supreme Court - September 27, 2006 majority

http://www.courts.state.pa.us/OpPosting/Supreme/out/J-97-2004mo.pdfconcurring http://www.courts.state.pa.us/OpPosting/Supreme/out/J-97-2004co.pdfdissenting http://www.courts.state.pa.us/OpPosting/Supreme/out/J-97-2004do.pdf

Analyzing the case under the U.S. rather than Pennsylvania Constitution (whose religion clauses, Article I, sections 3 and 4, are set out at the end of this summary), the state supreme court held that a father's teaching the parties' 13 year-old daughter about plural marriage and polygamy under Mormon Fundamentalism was protected by the free exercise clause of the U.S. Constitution, since there was no interest of "the highest order" that overrode father's First Amendment rights. The court said that it was "clear that the Commonwealth's interest in promoting compliance with the [state] statute criminalizing bigamy is not an interest of the 'highest order' that would supersede the interest of a parent in speaking to a child about a deeply held aspect of his faith" so long as that speech is not "causing or will cause harm to a child's welfare."

The trial court had prohibited the father from teaching the minor child about polygamy and plural marriages, even while finding "no evidence of a grave threat to the child" from such speech by the father. The Superior Court, 821 A.2d 635 (Pa. Super. 2003), found that conclusion "both erroneous and unreasonable" in light of the evidence, including the testimony of one of mother's children from another marriage that father had told her she'd go to hell if she failed to practice polygamy and that father and child (age 14) should marry because they were living under the same roof -- testimony which the trial court found credible.

The Supreme Court found that the Superior Court had engaged in "speculation that Father's statements to his stepdaughter might lead to insistence that his own child engage in polygamy" and in doing so had "improperly substituted its judgment for that of the trial court."

The Supreme Court "emphasize[d] that the illegality of the proposed conduct on its own is not sufficient to warrant the restriction " about teaching the virtues of plural marriage where there was "no finding that discussing such matters constitutes a grave threat of harm to the child...." In these circumstances, the court held that "there is insufficient basis for the court to infringe on a parent's constitutionally protected right to speak to a child about religion as he or she sees fit.....Because such harm was not established in this case, there was no constitutional basis for the state's intrusion in the form of the trials court's order placing a prohibition on Father's speech."

The concurring opinion (Eakin, J.) expressed "misgivings about the application of the strict scrutiny test," claiming the case didn't involve government infringement of any fundamental right. Justice Eakin also was concerned about the majority in effect making the the father's religious rights superior to the mother's "fundamental right to raise [her child] without learning about plural marriage," which the majority opinion rendered "substantially less valuable" than the father's. The justice felt that the parent's opposing rights had a "cross-out" effect on one another.

The dissent (Baer, J.) felt that there was adequate support in the record to uphold the restrictions on father's teaching the child about plural marriage, in that he had "crossed the line between expression and conduct," since he "had every intention" of following through on his beliefs "and, unchecked, would do whatever he could, in his position of considerable authority as Child's parent, to lead Child into a life of polygamy while still of tender years" -- a "factual finding....entirely supported by the evidence of record...." The dissent said that "parental decisions are entitled to no peculiar respect if they 'will jeopardize the health or safety of the child, or have a potential for significant social burdens.' "

Pennsylvania Constitution

Article I, sec. 3 - Religious Freedom - All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect or support any place of worship or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship.

Article I, sec. 4 - Religion - No person who acknowledges the being of a God and a future state of rewards and punishments shall, on account of his religious sentiments, be disqualified to hold any office or place of trust or profit under this Commonwealth.

Pennsylvania Bulletin of September 30, 2006

http://www.pabulletin.com/secure/data/vol36/36-39/index.html

address confidentiality program - domestic/sexual violenence victims
statement of policy - Office of Victim Advocate
http://www.pabulletin.com/secure/data/vol36/36-39/1908.html

courts - appellate rules - papers - margins, type size
http://www.pabulletin.com/secure/data/vol36/36-39/1899.html

courtd - appellate rules - proposed -trial court opinion in support of order
http://www.pabulletin.com/secure/data/vol36/36-39/1900.html

courts - MDJ courts - fee schedule
http://www.pabulletin.com/secure/data/vol36/36-39/1897.html

courts - rules - proposed - joinder of additional defendants - comments due 11-09-06
http://www.pabulletin.com/secure/data/vol36/36-39/1901.html

sign language interpreters - registration - IRRC notice of comments issued
http://www.pabulletin.com/secure/data/vol36/36-39/1943.html

child abuse reporting requirements - notice of filing of final rules - public meeting 10-19-06
http://www.pabulletin.com/secure/data/vol36/36-39/1944.html

chiropractors - patient records - proposed regulations
http://www.pabulletin.com/secure/data/vol36/36-39/1904.html

admin. law - late appeal - filing by email

McClean v. UCBR - Commonwealth Court - September 27, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/716CD06_9-27-06.pdf

An appeal from a referee decision to the UCBR was not timely filed where it was sent by email within the 15-day appeal period but not received by UCBR within that period under 43 P.S. sec. 822 and 34 Pa. Code sec. 101.82(b)(4)

The email was sent well within the appeal period but apparently not received by the UCBR until after the 15-day appeal period had run. The claimant's attorney sent another appeal by regular mail, but that was filed one day late. The Board rejected the appeal on the ground that it did not have jurisdiction.

The statute, 43 P.S. sec. 822, http://members.aol.com/StatutesP4/43.Cp.14.5.html, says that a referee decision is final unless an appeal is filed "within first days after the date of such decision."

The regulation, 34 Pa. Code 101.82(b)(4), http://www.pacode.com/secure/data/034/chapter101/s101.82.html, allows the filing of an appeal by electronic transmission but stipulates that the "date of filing is the receipt date recorded by the Department appeal office....A party filing an appeal by electronic transmission is responsible for using the proper format and for delay, disruption, interruption of electronic signals and readability of the documents and accepts that risk that the appeal may not be properly or timely filed." (emphasis in original)

The court said that the "fifteen-day time limit is mandatory" and that the Board lacks jurisdiction to consider an untimely appeal, citing Shea v. UCBR, 898 A.2d 31, 33 (Pa. Cmwlth. 2006). "The Department...has established strict, unambiguous requirements for filing an appeal." Vereb v. UCBR, 676 A.2d 1290, 1294 (Pa. Cmwlth. 1996).

The court said that there were no grounds for an nunc pro tunc appeal, J.A. v. DPW, 873 A.2d 782, 785 (Pa. Cmwlth. 2005)

The court also held that the provision of Pa. C.R.P. 205.4(e)(2) regarding electronic filing do not apply to administrative actions.

Deficiency Judgment Act - 42 Pa. C.S 8103

Muñoz v. Sovereign Bank - ED Pa. - September 18, 2006

http://www.paed.uscourts.gov/documents/opinions/06D1173P.pdf

Judgment creditor's motion to dismiss denied on plaintiff-debtor's action under the Pennsylvania Deficiency Judgment Act, 42 Pa. C.S. 8103. The creditor foreclosed on debtor's business property, which it purchased at execution sale. The debtor then received substantial money from the consensual judicial sale of debtor's home. Debtor then sued under the DJA, and creditor moved to dismiss.

The DJA requires that before a creditor who has bought its debtor's real property in execution proceeding seeks to collect the balance alleged to be due, the creditor must petition the court to fix the fair market value of the real property sold, 42 Pa. C.S. sec. 8103(a). The creditor did not file such a petition in this case.

"The Act prevent creditors from purchasing a debtor's real property, often at below market value, and continuing to execute on the debtor's other property to satisfy the judgment, without considering the fair market value of the previously executed-upon property, when determining the balance due on the judgment."

A judgment creditor must file its petition to fix fair market value within 6 months of the execution sale at which it buys the property, 42 Pa. C.S. sec. 5522(b)(2). If the creditor fails to do that, the debtor may petition the court, which "shall direct the clerk to mark the judgment satisfied, released and discharged" if the debtor alleges and proves "the fact of the sale, and that no petition has been filed within the time limited by section 5522 to fix the fair market value of the property sold...."

The judgment creditor did not file a timely petition to fix fair market value in this case. Its "obligations under the Act were triggered by the receipt of the deed" for the debtor's commercial property. It could not act against the residential property without first petitioning the court even if the debtor purported to agree, since any agreement to waive the benefits of the Deficiency Judgment Act "shall be void." 42 Pa. C.S. 8103(e).

federal courts- qualified immunity

Thomas v. Independence Township, et al. - Third Circuit - September 14, 2006

http://www.ca3.uscourts.gov/opinarch/052275p.pdf

The court upheld the district court's refusal to grant defendants' 12(b)(6) motion to dismiss on the ground that that they had qualified immunity (q/i).

The court said that the q/I determination "must be made in light of the specific factual context of the case, and when a complaint fashioned under the simplified notice pleading standard of the Federal Rules does not provide the necessary factual predicate for such a determination, the district court should grant a defense motion...[or sua sponte order] a more definite statement regarding the facts underlying the plaintiff's claim for relief" pursuant to F.R. Civ. P. 12(e).

A "plaintiff has no pleading burden to anticipate or overcome a qualified immunity defense, and a mere absence of detailed factual allegations supporting a plaintiff's claim for relief under sec. 1983 does not warrant dismissal of the complaint or establish defendants' immunity." The court rejected defendants' "novel argument" that the complaint did not include allegations that would negate a q/i defense. This argument "conflates qualified immunity with the merits of a plaintiff's cause of action under sec. 1983," something which was rejected in Gomez v. Toledo, 446 U.S. 635, 635-6 (1980) and re-affirmed in Crawford-El v. Britton, 523 U.S. 574, 595 (1998).

PFA - in-law "family/household member" - "abuse"

McCance v. McCance - Superior Court - September 20, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a22033_06.pdf

in-law as "family or household member"
The court held that defendant's sister-in-law (married to his brother) had standing to bring a PFA action against him, because she was a "family or household member," that is, a person who was "related by...affinity" to the defendant. The court noted "today's world of split families burgeoning beyond the confines of local, county, and state lines...." and that "a remedial mechanism in the form of a PFA order is the appropriate vehicle to keep [ people ] "civil one toward the other." Interpreting affinity to include an in-law relationship "does not do violence to the purpose of the Act, which is to forestall escalation of disputes among family members where injury may be on the horizon."

abuse - " fear of imminent serious bodily injury "
The abuse in this case took place after a custody hearing when Plaintiff, the child's aunt, was transporting the child to Defendant's home. When she got there, Defendant initiated a confrontation during which he yelled obscenities and verbal threats at Plaintiff and struck her car so hard that $1000 in repairs were needed. The court also noted that the Defendant "had anger issues, a drinking problem and was physical with other individuals in the past." In this context, both the trial and appellate courts found that Plaintiff's fear was "real, reasonable and imminent which warrants protection under the PFA Act....[V]erbal chiding, intimidating demeanor (blocking [plaintiff's] vehicular access), threat of retaliation, and striking of [plaintiff's] vehicle to the point of damaging it coalesce to constitute abusive behavior prohibited by 23 Pa. C.S. 6102(a)(2) (...placing another in reasonable fear of imminent serious bodily injury....As a result, the issuance of the PFA order was proper."

"professional witness" - bias

Cooper v. Schoffstall - Pennsylvania Supreme Court - September 7, 2006

majority - http://www.courts.state.pa.us/OpPosting/Supreme/out/J-51-2005mo.pdf
concurring - http://www.courts.state.pa.us/OpPosting/Supreme/out/J-51-2005co.pdf

The court held that, under state law, discovery was available to determine if a doctor was a "professional witness" whose pattern of compensation in past cases could raise the "inference of the possibility that the witness has slanted his testimony...so he could be hired to testify in future cases."

The court said that the "appropriate, threshold showing to establish cause for supplemental discovery related to potential favoritism of a non-party witness retained for trial preparation is of reasonable grounds to believe that the witness may have entered the professional witness category. In other words, the proponent of the discovery should demonstrate a significant pattern of compensation that would support a reasonable inference that the witness might color, shade, or slant his testimony in light of the substantial financial incentives."

If such a showing could be made, the party would be allow to depose the witness by written interrogatories concerning: a) the compensation in the pending case; b) the character of the witnesses' litigation-related activities, and in particular, the approximate percentage devoted to specific types of litigation and/or work on behalf of a particular litigant; c) the number of cases in the past 1-3 years; d) the approximate portion of the witness's overall professional work devoted to litigation-related services; e) the approximate income from such services.

Query: Is this an issue which could be raised in SSD/SSI cases?

admin. law - full hearing - issues

Cambria Co. Home v. DPW - Commonwealth Court - June 5, 2006 (ordered reported 9-14-06)

http://www.courts.state.pa.us/OpPosting/CWealth/out/1463CD05_9-14-06.pdf

This case concerns a DPW audit of a county nursing home. During the course of its opinion, the court noted (in n. 12) that under DPW regs and 2 Pa. C.S. secs. 501-508 , a party to an administrative process has the right to a full evidentiary hearing, but only as to those issues which are properly before it and have been adequately raised.

public housing - conditional eviction

Allegheny Co. Housing Authority v. Johnson - Superior Court - September 14, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a22002_06.pdf

County Housing Authority filed eviction action against tenant (T) with multiple lease violations (fighting, noise, extra tenants, fire, etc.). The trial court found that although the CHA had established that T had violated the terms of the lease and had engaged in "serious and repeated violations of the material terms of the lease, the CHA could not execute on its judgment for possession so long at the T submitted weekly verification that he was attending an MH/MR program and was attending at least three AA meetings per week.

The Commonwealth Court reversed, finding that T's "behavior unequivocally amounted to 'serious and repeated violations of the material terms of the lease" and holding that the CHA was entitled to evict him, unconditionally and immediately.

Pennsylvania Bulletin of September 16, 2006

http://www.pabulletin.com/secure/data/vol36/36-37/index.html

Inpt. Reg. Review Commn. (IRRC) - notice of comments issued (several DPW regs)
http://www.pabulletin.com/secure/data/vol36/36-37/1824.html

Governor - proclamation of disaster emergency
http://www.pabulletin.com/secure/data/vol36/36-37/1796.html

Courts - orphans court - registration of foreign adoptions
http://www.pabulletin.com/secure/data/vol36/36-37/1797.html

Courts- local rules - Beaver County - electronic filing
http://www.pabulletin.com/secure/data/vol36/36-37/1798.html

Courts - local - Northamption - Diversionary program for bad check offenders
http://www.pabulletin.com/secure/data/vol36/36-37/1799.html

DPW - MA - payment for services of teaching physicians
http://www.pabulletin.com/secure/data/vol36/36-37/1805.html

admin. law - local agency - standard of review

Nevling v. Borough of Pleasant Hills - Commonwealth Court - June 26, 2006 (designated to be reported 9-12-06)

http://www.courts.state.pa.us/OpPosting/CWealth/out/45CD06_9-12-06.pdf

The common pleas court "exceeded its limited standard of review" when it overruled borough council's decision -- including credibility and factual findings -- to deny former police officer disability pension benefits under the borough's pension plan, where a full and complete record was made before the local agency, and the agency's findings were supported by substantial evidence.

At the hearing before the borough council under the local agency law, 2 Pa. C.S. sec. 551 et seq., the only items of evidence were written reports of examining physicians for each party. Those reports were admitted without objection. The borough council credited the report of the borough physician over that of the officer's physician.

The officer appealed to the court of common pleas under the local agency law., 2 Pa. C.S. sec. 751 et seq. The parties stipulated that a "full and complete record was made before Borough Council" and the "trial court did not accept additional evidence." The trial court "made its own determinations concerning credibility and evidentiary weight" and found that "the evidence in this matter clearly and unequivocally establishes that [the officer] qualifies for a disability pension benefit under the plan."

The borough appealed to Commonwealth Court, which said that when a full and complete record is made before the local agency, the reviewing court's standard of review is limited to determining whether there has been an error of law or constitutional violation, or where findings of fact are not supported by substantial evidence. "A reviewing court…must accept the credibility determinations made by the local agency which hears the testimony, evaluates the credibility of the witnesses, and serves as a fact-finder….The reviewing court is not to substitute its judgment for that of the local agency….Assuming the record demonstrates the existence of substantial evidence, the court is bound by the local agency's findings…..[B]ecause all of Borough Council's findings are supported by Borough's Physician's credited report…the trial court exceeded its limited standard of review."

PFA and custody

Lawrence v. Bordner - Superior Court - September 6, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/S37011_06.pdf

A court can review and override an existing custody order in a separate PFA case, under 23 Pa. C.S. 6108(a)(4).

In this case, the trial court dismissed a PFA case, without prejudice, even though there was considerable evidence that the defendant-father had abused his teenage daughter (choking, throwing against wall, encouraging her to drink vodka, etc.). The trial court considered it "improper" to try to modify an existing custody order in a separate PFA case and refused an oral petition to modify the custody order. It "abruptly determined that [plaintiff] was not entitled to a final protection from abuse order for [her child] and limited appellant to a custody action as her exclusive remedy for the alleged abuse [that father] inflicted" on the daughter.

The Superior Court recognized that it has "not uniformly construed" the custody section of the PFA law, comparing its decisions in Rosenberg v. Rosenberg, 504 A.2d 350, 351 n.1 (1986), and Dye v. McCoy, 621 A.2d 144, 145 (1993). The court came down finally in the Dye v. McCoy camp, in which case it had held that a PFA court can modify an existing custody order. "To hold otherwise would have the effect of emasculating the central and extraordinary feature of the PFA which is to prospectively control and prevent domestic violence."

However, the court warned (in n. 4) that "it is not our intention to set a precedent under which it will be deemed proper in future matters to utilize the PFA rather than a Petition for Special Relief in Custody, as the proper avenue for a party to pursue in a circumstance similar to that herein. While a counseled party should be instructed to file a Petition for Special Relief in Custody, we are providing a party who initially files a PFA with a means of obtaining protection and lower courts with the ability to amend an existing Custody Order to effect the same."

Editorial note: I found this opinion very confusing and poorly written.

parol evidence - real estate contracts

Lutzky v. Petcove - ED Pa - August 21, 2006

http://www.paed.uscourts.gov/documents/opinions/06D1054P.pdf

Plaintiffs permitted to use parol evidence in fraud claim on real estate contract. The parol evidence rule bars oral evidence about the terms of a written contact "when prior statements and representations (1) contradict, conflict, add, modify or vary the terms of a contract and (2) fall within the scope of the integrated agreement…..In Pennsylvania, an exception to the parol evidence rule exists for 'real estate inspection cases.'"

These cases require a court to "balance the extent of the party's knowledge of objectionable conditions derived from a reasonable inspection against the extent of the coverage of the contract's integration clause in order to determine whether than party could justifiably rely upon oral representations without insisting on further contractual protection or the deletion of the overly broad integration clause."

employment - FMLA - waiver of rights

Dougherty v. TEVA Pharmaceuticals USA - ED Pa. - August 29, 2006

http://www.paed.uscourts.gov/documents/opinions/06D1100P.pdf

The court held that a purported waiver of Plaintiff's FMLA rights was invalid under a DOL regulation, 29 CFR 825.220(d) and the 4th Cir. decision in Taylor v. Progress Energy, 415 F.3d 364 (2005) and similar cases.

The court rejected a contrary decision in Faris v. Williams WPC, 332 F.3d 316 (5th Cir. 2003), that the anti-waiver provision applied only to current employees and only prohibited prospective waivers of rights.

In this case, plaintiff's employment had been terminated at the time she signed the disputed release/waiver.

admin. law - standard of proof - circumstantial evidence

A.B. v. Slippery Rock School District - Commonwealth Court - August 31, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/695CD06_8-31-06.pdf

In this school expulsion case, the court (at n. 5) affirmed that the "level of proof required to establish a case" before an administrative agency or other quasi-judicial body is a preponderance of the evidence, citing Lansberry v. PUC, 578 A.2d 600 (Pa. Cmwlth. 1990).

The court also said (at n. 8 and related text) that circumstantial evidence can be used to satisfy that burden.

federal courts - standing - abstention

Taliaferro v. Darby Township Zoning Board - 3rd Cir. - August 10, 2006

http://www.ca3.uscourts.gov/opinarch/052253p.pdf

This is an exclusionary zoning case that contains short summaries of a) federal standing law, including when a litigant can bring a case on behalf of a third party, and b) two kinds of absention, Younger and Rooker-Feldman.

employment - Title VII - retaliation

Burlington Northern & Santa Fe Railway v. White - U.S. Supreme Court - June 22, 2006

http://www.supremecourtus.gov/opinions/05pdf/05-259.pdf

In what one of the plaintiff's lawyers called an "exceptionally important decision," the court held 9-0 that a person pursuing an anti-retaliation claim under Title VII, 42 U.S.C . sec.. 2000e-2(a),against an employer need only prove a "materially adverse" employment action that "might have dissuaded a reasonable worker" from complaining about discrimination. The anti-retaliation provision protects an employee who has made a charge, testified, assisted orparticipated in a Title VII proceeding or investigation, sec. 2000e-3(a).

The court rejected the employer's claim that retaliation should only include actions that affect an employee's compensation, terms, conditions or privileges of employment. The court found that the anti-retaliation provision was broader that the anti-discrimination provision and is "not limited to discriminatory actions that affect the terms and conditions of employment," holding that Congress wanted to "deter the many forms that effective retaliation can take" in the workplace and beyond.

The court said the context and common sense matter and that it was not imposing a "general civility code" on the workplace. Rather, the court's decision and standard would "screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining."

This new standard was applied in Walsh v. Irvin Stern's Costumes, Inc. - ED Pa. - 8-15-06
http://www.paed.uscourts.gov/documents/opinions/06D1024P.pdf

Pennsylvania Bulletin of September 2, 2006

http://www.pabulletin.com/secure/data/vol36/36-35/index.html

Appellate Rules - misc. proposed amendments - comments due by October 23, 2006
http://www.pabulletin.com/secure/data/vol36/36-35/1718.html

Court Rules - proposed - PFA forms - comments due by October 27, 2006
http://www.pabulletin.com/secure/data/vol36/36-35/1719.html

state right-to-know law - non-citizen request - privileges and immunities

Lee v. Minner - 3rd Circuit - August 16, 2006

http://www.ca3.uscourts.gov/opinarch/053329p.pdf

Delaware's freedom of information law -- the equivalent of Pennsylvania's Right to Know Law, 65 P.S. sec. 66.1, et seq. -- was held to violate the privileges and immunities clause of the U.S. Constitution by restricting the right of citizens of other states to access, inspect and copy public documents.

Delaware's attorney general rejected the request of a N.Y. citizen for documents based on Delaware law, which said that "any cititzen of the state" could inspect and copy records. The AG wrote to the requester that his address indicated that he was not a citizen of Delaware and so denied his request.

The court held that the citizens-only provision violated Article IV, sec. 2, of the US Constitution, which provides that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. This provision was "designed to 'fuse into one national a collection of independent sovereign states…and its object was to place the citizens of each state upon the same footing…so far as the advantages resulting from citizenship in those States are concerned….The section, in effect, prevents a State from discriminating against citizens of other states in favor of its own" unless there is a "substantial reasons for the discriminatory pracftice, and the practice bears a substantial relation to the state's objectives."

Pennsylvania's right to know law, 65 P.S., sec. 66.1, similarly defines "requester" as a "person who is a resident of the Commonwealth and requests a record pursuant to this act."

fraud - silence/concealment - duty to disclose

Lutzky v. Petcove - ED Pa - August 21, 2006

http://www.paed.uscourts.gov/documents/opinions/06D1054P.pdf

Motion to dismiss of third party defendant, a real estate agent, denied. Plaintiff adequately pleaded fraud, predicated on a defendant's having withheld material information about the condition of real property. Concealment or silence may constitute fraud where there is a duty to speak, which exists here under the state real estate disclosure law, 69 P.S. sec. 7310, and case law that makes a seller's agent potentially liable.

FMLA - "eligible employee" - length of employment

Flannery v. Nextgen Healthcare - ED Pa. - August 10, 2006

http://www.paed.uscourts.gov/documents/opinions/06d1001p.pdf

Plaintiff was not an "eligible employee" under the FMLA, 29 USC 2612(a), since he had not been employed at least 12 months at the time his leave began. "[A]t least one year must span the period between the date when the employee was hired and when the medical leave begins."

FMLA - accrual of benefits

Sommer v. The Vanguard Group - 3d Circuit - August 234, 2006
http://www.ca3.uscourts.gov/opinarch/054034p.pdf

Plaintiff was entitled only to partial bonus payment, prorated on the basis of the time he was absent on an FMLA leave. Granting prorated rather than full benefits did not violate the FMLA, 29 USC sec. 2601 et seq. Under the terms of the employment agreement, the bonus was a "production" bonus rather than an "absence of occurrence" bonus, i.e., it was based on hours worked, not on the non-occurrence of a specified event. To hold other "would violate the very terms of the FMLA" which states that "the leavetaker shall not be entitled to the "accrual of any seniority or employment benefits during any period of leave" other than one to which he would have been entitled absent the leave.

abuse - contempt - appeal - final order

Takosky v. Henning - Superior Court - August 25, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/s43012_06.pdf

Defendant's appeal from a finding of contempt was quashed. Although the trial court had found him in contempt, it had not imposed any sanctions or punishment. "It is well settled that unless sanctions or imprisonment is [sic] imposed, an Order declaring a party to be in contempt is held to be interlocutory and not appealable."

appeal - late appeal - nunc pro tunc

City of Philadelphia v. Tirrill - Commonwealth Court - August 23, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/78CD06_8-23-06.pdf

This case is about a potbellied pig. It is also about filing an appeal nunc pro tunc (NPT). The city filed a complaint against Occupant for having a farm animal - a Vietnamese potbellied pig - in his residence, contrary to the city health code. The trial court found that the pig was a "farm animal" and entered an order in November 2005. The Court sua sponte dismissed Occupant's appeal, because it was not filed until 36 days after the court order -- beyond the 30-day appeal period.

Occupant filed a leave to appeal NPT, 29 days after the court's dismissal order. Commonwealth Court affirmed in a 6-1 decision. Noting the Occupant did not offer any explanation about the 29-day delay in filing his NPT application, the court dismissed the appeal, since the application for relief was not filed promptly, within a reasonable time, once he knew of the need to take action.

"[A]ppeal periods are jurisdictional and may not be extended as a matter of grace or mere indulgence; othewise there would benon finality to judicial action….[T]he attractiveness of an argument on the merits is of no moment because the tribunal is without power to grant the requested relief" even with the appeal is filed one day late.

"Under extraordinary circumstances, however, a court may extend the appeal period by granting equitable relief in the form of a nunc pro tunc or 'now for then' appeal." This can happen where a) there has been fraud; b) there has been a breakdown in the court's operations; or c) non-negligent circumstances relating to either the appellant or his attorney caused the briefly untimely appeal.

In the latter instance, there is generally a due process requirement for the court to conduct an evidentiary hearing to allow the appellant an opportunity to prove the existence of those circumstances. Here the court noted that it was "troubling" that the Occupant did not ask for a hearing and also that "this Court did not offer them an opportunity to make a record supporting their claims." The court said, however, that a hearing was not necessary because Occupant "failed to file a prompt application for relief."

The dissent would have granted Occupant a hearing to offter an explanation for the delay in asking for NPT relief, since the court did not mention this issue in its order directing en banc argument in the case.

domestic relations - notice - incarcerated persons

http://www.pabulletin.com/secure/data/vol36/36-34/1668.html

The amended official note to Rule 1930.4 (effective immediately) says that "service upon an incarcerated person in a domestic relations action must also include notice of any hearing in such action, and specific notice of the incarcerated individual's right to apply to the court for a writ of habeas corpus ad testificandum to enable him or her to participate in the hearing. The writ is available where an incarcerated individual wishes to testify as provided by statute or rule, as well as where the individual's testimony is sought by another. Vanaman v. Cowgill, 363 Pa. Super. 602, 526 A.2d 1226 (1987). See 23 Pa.C.S.A. § 4342(j) and Rule 1930.3. In determining whether a writ of habeas corpus ad testificandum should be issued, a court must weigh the factors set forth in Salemo v. Salemo, 381 Pa. Super. 632, 554 A.2d 563 (1989)."

Pennsylvania Bulletin of August 26, 2006

http://www.pabulletin.com/secure/data/vol36/36-34/index.html

courts - rules - custody, divorce, support - effective immediately
http://www.pabulletin.com/secure/data/vol36/36-34/1668.html
NB - The amended official note to Rule 1930.4 says that "service upon an incarcerated person in a domestic relations action must also include notice of any hearing in such action, and specific notice of the incarcerated individual's right to apply to the court for a writ of habeas corpus ad testificandum to enable him or her to participate in the hearing. The writ is available where an incarcerated individual wishes to testify as provided by statute or rule, as well as where the individual's testimony is sought by another. Vanaman v. Cowgill, 363 Pa. Super. 602, 526 A.2d 1226 (1987). See 23 Pa.C.S.A. § 4342(j) and Rule 1930.3. In determining whether a writ of habeas corpus ad testificandum should be issued, a court must weigh the factors set forth in Salemo v. Salemo, 381 Pa. Super. 632, 554 A.2d 563 (1989)."

courts - local rules
Beaver - electronic filing - http://www.pabulletin.com/secure/data/vol36/36-34/1669.html
Carbon - arbbitration http://www.pabulletin.com/secure/data/vol36/36-34/1672.html
Lackawanna - domestic cases http://www.pabulletin.com/secure/data/vol36/36-34/1674.html
Susquehanna - arbitration - http://www.pabulletin.com/secure/data/vol36/36-34/1679.html

welfare - disproportionate share payments - high MA hospitals
http://www.pabulletin.com/secure/data/vol36/36-34/1696.html

custody - grandparents' rights

Hiller v. Fausey - Pennsylvania Supreme Court - August 22, 2006

majority - http://www.aopc.org/OpPosting/Supreme/out/J-53-2005mo.pdf
concurrence - http://www.aopc.org/OpPosting/Supreme/out/J-53-2005co.pdf
dissent - http://www.aopc.org/OpPosting/Supreme/out/J-53-2005do.pdf

In a 6-1 decision, the Supreme Court denied a due process challenge to the constitutionality of the state statute, 23 Pa. C.S. 5311, governing partial custody or visitation to grandparents upon the death of the grandparent's child, i.e., the grandchild's parent. The statute gives a court the power to grant reasonable partial custody or visitation where granting custody would be in the child's best interest and would not interfere with the parent-child relationship.

Over the objection of the father, the trial court granted partial custody (one weekend per month and one week in the summer) to maternal grandmother (MGM) of an 8 y/o boy who had had a close and loving relationship with the MGM. The trial court determined that, absent a court order, the father would not provide the MGM any opportunity to see the child, with whom she'd been closely involved, especially during the last two year's of his mother's illness. The court found that the child and MGM "showed a great deal of affection toward one another and shared a very close relationship."

Applying the decision in Troxel v. Granville, 530 U.S. 57 (2000), the trial and appellate courts found that the MGM had rebutted the presumption that father's decision to strictly limit MGM's contact would be in the child's best interest and that such contact would not interfere with the parent-child relationship. Both Superior Court and the Supreme Court noted that the Pennsylvania statute was "significantly narrower" than the Washington statute, termed "breathtakingly broad" by the U.S. Supreme Court.

The state supreme court applied a strict scrutiny analysis, given the fundamental nature of a parent's right to make decisions about one's children, but held that the infringement allowed under sec. 5311 was narrowly tailored to serve a compelling state interest - protecting the health and emotional welfare of children under its parens patriae powers. Stating that such a benefit does not always accrue with contact by grandparents, the court refused to close its mind "to the possibility that in some instances a court may overturn even the [presumptively correct] decisions of a fit parent to exclude a grandparent from a grandchild's life, especially where the grandparent's child is deceased and the grandparent relationship is longstanding and significant to the grandchild."

The court refused to require grandparents to prove that not granting them partial custody would harm the child, saying that such a standard "would set the bar too high." The court said that due process demanded only what the statute required -- a finding that contact with the grandparent would be in the child's best interest and not significantly interfere in the parent-child relationship, even given of the "special weight" given to a parent's presumptively correct decision about custody.

The concurring justice urged "even greater forward movement" toward the recognition of the rights of children in custody cases and said that "it is time to regard the best interest of the child as a fundamental and momentous right," urging the Court "to provide some guidance toward ascertaining a child's fundamental best interests."

The dissent said that grandparents should have to prove that lack of contact with them would cause harm to the child.

employment - wages - attorney fees

Voracek v. Crown Castle USA - Superior Court - August 22, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a13009_06.pdf

The appellate court upheld the grant of attorney fees to plaintiff's counsel in a case where the trial court awarded wages, pursuant to a contractual severance agreement. Part of the case involved mutual mistake and a reformation of the parties actual written agreement, which had mistakenly omitted the severance agreement.

The court rejected the argument that "because the trial court's decision was based on a finding of mutual mistake and not on a violation of the [wage payment and collection law,] there is no basis for a statutory award of attorneys' fees." The court said that to "ensure that employees who are successful in their actions against an employer are made whole again, the statute mandates an award of attorneys' fees in addition to any judgment awarded to a plaintiff….43 P.S. sec. 260.9a(f)."

contracts - mutual mistake - reformation

Voracek v. Crown Castle USA - Superior Court - August 22, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a13009_06.pdf

Clear and convincing evidence showed a mutual mistake when, after extensive negotiations and agreement about the inclusion of a specific contract provision, the parties' final written agreement omitted that provision.

In spite of an "unambiguous integration clause providing that the agreement superseded any and all prior agreements," the trial court properly admitted extrinsic evidence pursuant to the "doctrine of mutual mistake of fact…[which] occurs when the written instrument fails to set forth the true agreement of the parties." That extrinsic evidence showed that the parties intended to have the omitted provision as part of the agreement.

A contract may be reformed in such circumstances if "(1) the misconception entered into the contemplation of both parties as a condition of assent, and (2) the parties can be placed in their former position regarding the subject matter of the contract."

The evidence supporting the application of the doctrine "must be clear and convincing."

UC - voluntary quit - elimination of health care benefits

Brunswick Hotel & Conference Center v. UCBR - Commonwealth Court - August 23, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/464CD06_8-23-06.pdf

Claimant had good cause to quit her job when employer eliminated health care benefits that had previously been provided to her. Claimant continued to work for 8 months after this happened, showing that she made a reasonable effort to preserve her job.

The court contrasted this case, involving a total elimination of health care benefits, with cases where the cost of health insurance had increased -- Steinberg v. UCBR, 624 A2d 237 (Pa. Cmwlth. 1993) and Chavez v. UCBR, 738 A2d 77 (Pa. Cmwlth. 1999). Even in those cases, benefits were granted where the increased cost was a "substantial unilateral change," noting however that there was "no talismanic percentage for determining a change so substantial as to warrant" good cause to quit.

mandamus - ministerial duty v. discretionary act

Chadwick v. Office of Coroner - Commonwealth Court - August 17, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/605CD05_8-17-06.pdf

Mother of deceased sued the county coroner to try to force him to change his conclusion about the cause of the death of plaintiff's brother, which the coroner had held was suicide. The court held that mandamus does not lie to order a public official to exercise his discretion in a particular way. It can generally only be used to compel the offiicail to perform acts which are required or obliged to be performed, and which do not involve an exercise of discretion. The court noted that a "refusal to exercise discretion may be addressed in a mandamus action" but that was fundamentally different from the case where discretion has been exercised and the plaintiff disagrees with the decision, i.e., how it was exercised.

disability - ALJ decision - findings and reasons

Woodson v. Barnhart - ED Pa. - August 14, 2006

http://www.paed.uscourts.gov/documents/opinions/06D1039P.pdf

The ALJ's SSD/SSI decision was upheld concerning a) rejection of the treating physician's opinion and b) the evaluation of the claimant's credibility, but the case was remanded because the ALJ "failed to specifically evaluate" the claimant's subjective complaints of "severe fatigue," about which the ALJ made only the general statements that the claimant's testimony about this was "exaggerated." The "ALJ is obligated to provide reasons for his...findings -- supported by record evidence -- that are sufficiendtly specific to show the ALJ's reasoning and the weight he gave to teh Plaintiff's statements...According, I must remand this case to the ALJ for reconsideration and a clear and logical statement of the facts supporting his conclusions."

employment - Title VII - retaliation

Walsh v. Irvin Stern's Costumes, Inc. - ED Pa. - August 15, 2006

http://www.paed.uscourts.gov/documents/opinions/06D1024P.pdf

The court granted plaintiff's motion to reinstate her Title VII retaliation claim, which was based on her allegation that the employer a) fired her 3 weeks after she told management that she was pregnant and b) had threatened to seek criminal charges against her unless she withdrew her discrimination claim.

The court noted that the 3d Circuit case law, on which its prior dismissal had been based, had been "specifically and squarely" overturned by the US Supreme Court, in Burlington Northern & Santa Fe Rwy. v. White, 548 U.S. ___, 126 S.Ct. 2405 (2006) which "articulated a new, less stringent test for Title VII retaliation cases."

The prior dismissal was based on Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997), where the court held that in order to satisfy the "adverse employment action" element of a Title VII case, the employer's retaliatory action had to affect the plaintiff's current or future employment. This holding was specifically abrogated in Burlington Northern , where the court held that "a plaintiff need only show the employer's actions 'would have been materially adverse to a reasonable employee or job applicant.' " 126 S.Ct. at 2409.

Pennsylvania Bulletin of August 19, 2006

http://www.pabulletin.com/secure/data/vol36/36-33/index.html

I did not see anything of particular interest to the legal aid community in this edition of the Pennsylvania Bulletin -- but, to quote P. Sternberg, "just my opinion."

writs of prohibition - King's Bench - Pa. Supreme Court

Mayer v. Garman - Pa. Supreme Court - August 4, 2006

Majority - http://www.courts.state.pa.us/OpPosting/Supreme/out/J-140-2006mo.pdf
Concurring - http://www.courts.state.pa.us/OpPosting/Supreme/out/J-140-2006co.pdf

Exercising its "inherent King's Bench supervisory power over inferior tribunals," the state supreme court vacated the trial court's order directing that the assets of a non-party to a divorce case be frozen.

The non-party was the "paramour" of the defendant/husband divorce; she lived in Hong Kong. No original process was ever served on her. The lower court sua sponte ordered her joinder in the case, reciting an "overarching mandate…to 'effectuate economic justice.' "

The Supreme Court issued a writ of prohibition against the lower court, which it determined had acted ultra vires, without compliance with the joinder rules, Pa. RCP 2251-2255, and in violation of due process principles giving potential parties formal notice and an opportunity to object to joinder. The court held that that test to apply the writ -- which is to be used with "great caution and forbearance" -- had been satisfied: there was no adequate remedy at law, and the requested relief was necessary to "secure order and regularity in judicial proceedings."

appeals - preservation of issues

B.C. v. Penn Manor School District - Commonwealth Court - August 13, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1150CD05_8-15-06.pdf

"[W]hen an issue was not raised below, it will not be addresed for the first time in this court. Pa. R.A.P. 1551. To preserve an issue for review, a litigant must make a timely objection at the hearing before the lower tribunal....Furthermore, the Rules of Appellate Procedure require a petitioner to set forth the location in the record where the issue was raised and preserved below. See Pa. R.A.P. 2117(c) (requiring the statement of the case in an appellate brief to identify the place and manner in which the issues were raised and preserved below); and Pa. R.A.P. 2119(c) (requiring argument in an appellate brief to identify where the issues were raised below.)"

"commonwealth agency" - definition

Banacol Marketing Corp. v. Phila. Regional Port Authority et al. - Cmwlth. Court - Aug. 11, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/17CD06_8-11-06.pdf

Plaintiff/Appellant sued the Phila. Regional Port Authority (PRPA) in common pleas court, which sustained PRPA's preliminary objections to the court's jurisdiction, finding that PRPA was a "commonwealth agency" and that Plaintiff's case should have been filed with the Board of Claims, 62 Pa. C.S. sec. 1724(a)(3). Commonwealth Court affirmed.

The court said that a "commonwealth agency" -- for jurisdictional purposes -- is one which operates on a statewide basis and is predominantly controlled by the state. In this case, the PRPA was created by the General Assembly; its members are appointed by the Governor and the leaders of the General Assembly, and thus is a "commonwealth agency." By contrast, a "local agency" operates wthin a single county or municipality and is governed in large part by that local entity.

settlement agreements - existence/effect - dispute - hearing

Brannam v. Reedy - Commonwealth Court - August 14, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/2590CD05_8-14-06.pdf

A dispute about the existence or binding effect of a settlement agreement must be resolved by conducting an evidentiary hearing on the points in dispute. This is the case even where there is a written agreement signed by counsel, if it is alleged that counsel lacked authority to act. It was error for the lower court to have found "facts" based on the judge's personal experience rather than on the testimony of witnesses at a hearing, even where the judge claims "intimate knowlege" of the facts as a result of a prehearing conference.

employment - PHRC - settlement agreement - enforcement

Blue Comet Diner v. PHRC - Commonwealth Court - July 28, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/465CD05_7-28-06.pdf

In a 5-2 decision, the court held that a predetermination Settlement Agreement could not be enforced by the Pennsylvania Human Relations Commission without the PHRC having held a hearing and having made a finding that the employer had actually violated the PHRA, 43 P.S. 951 et seq.

The dissents argued that there was a valid regulatory procedure under 16 Pa. Code sec, 42.73 to cover this situation and that the majority's disposition would "adversely impact upon the Commission's ability to resolved discrimination complaints through conciliation and persuasion, " in addition to contravening the stated purposed of the statute. In addition, the dissents objected to the fact that the court had raised this issue sua sponte, arguing that it had been waived by the appellant, who had not raised it in proceedings below, and that the issue was not jurisdictional, citing Mechensky v. PHRC, 578 A.2d 589 (Pa. Cmwlth. 1990) and Reidel v. HRC of Reading, 739 A.2d 121 (Pa. 1999).

Reversed and remanded, http://www.aopc.org/OpPosting/Supreme/out/878mal2006.pdf - September 5, 2007, based on Reidel v. HRC of City of Reading, 739 A.2d 121 (Pa. 1999)

welfare - MH/MR- PFDS waiver

Gray v. DPW - Commonwealth Court - July 28, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/119CD06_7-28-06.pdf

The court upheld the denial of a mother's petition to pay her for her care of her 21-year-old moderately mentally retarded son under the Personal Family Direct Support (PFDS) Waiver Program.

The PFDS program was developed to enhance services to people with mental retardation living at home with their families or in their own homes, provided that, in the case of people over 18, there was no "qualified provider who is not a family member...available" to provide services or only at "an extraorginarily higher cost" than the fee negotiated with a family member.

The court held that there was substantial evidence to support DPW's finding that there were qualified non-family providers in the community capable to giving services to the son, at a reasonable cost.

Mother's claim that the regulation only applied to children under 18 was not considered, because it was only raised for the first time on appeal, and not during administrative proceedings.

custody - relocation - children's best interest

Fuehrer v. Fuehrer - Superior Court - August 2, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/a19007_06.pdf

The Superior Court affirmed the grant of primary custody of the parents' two daughters, ages 6 and 9, to mother/appellee but reversed the trial court's allowance of mother's petition for relocation to the Netherlands.

Applying the Gruber factors set out in 583 A.2d 434 (Pa. Super. 1990), the court held that the proposed move to the Netherlands would only benefit the mother's potential love interest with a man she had met in an internet chat room. Although the trial court emphasized the mother's lack of good judgment, it did not consider whether the move would be in the children's best interest, ignoring the father's good relationship with the children and the fact that they were flourishing in their present environment. The court said that children who are very young need frequent contact with the non-custodial parent and that months without physical contact would disrupt the parent-child relationship.

The court contrasted the case of Goldfarb v. Goldfarb, 861 A2d 340, in which mother's petition to relocated to Israel was granted, since family had lived in Israel before, they would be returning to familiar culture, mother had extensive family support there, and 2 of 3 children had been born there.

contracts - forfeiture - subtantial performance

Atlantic LB, Inc. v. Vrbicek - Superior Court - August 4, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/a21008_06.pdf

Given the terms of the lease in this case, the commercial tenant was held to be not in default and entitled to exercise an option to buy. The trial court "properly utilized the doctrine of substantal performance...to avoid an unacceptable forfeiture."

The lease had a "time is of the essense" clause, and the tenants were chronically late in paying rent over several extended periods. However, under terms of the lease, "nonpayment alone was insufficient...to constitute an automatic default." The lease had a specific term stating that continued failure to perform for 10 days after written notice of nonperformance was given was a default. In each of two instances, the tenants cured the rent defaults within the 10 days periods and no rent was owing at the time the landlord brought the case.

Although "Pennsylvania law permits forfeiture of a tenant's rights for non-payment of rent...[a] court should not enforce forfeiture 'when the contract has been carried out or its literal fulfillment has been prevented by oversight or uncontrollable circumstances." The "doctrine of substantial performance has been created as an instrument of justice intended to avoid forfeiture because of technical, inadvertent or unimportant questions....The doctrine is 'intended for the protection and relief of those who have faithfully and honestly endeavored to perform their contracts in all material and substantial particulars."

The court stressed that the doctrine was applicable in this case "because of the language of the agreement as written....[T]his decision is not intended to be used indiscriminately as authority in all commercial leases for nonpayment of sums due. To the contrary, we emphasise the importance of careful attention to how these agreements are drafted and to the terms of the agreements as drafted" -- noting again that in this case, default was defined as failure to cure within 10 days of notice of default.

fictitious names - capacity to sue

Stash and Sons v. New Hollard Credit Company - Superior Court - August 2, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/s24042_06.pdf

"[T]hose who deal with an unregistered party and accept the benefits of business transactions, having full knowledge of the party's true identify notwithstanding the fictious name, are estopped to deny the party's capacity to sue...If such a person knows with who he is dealing and is not deceived, he cannot assert the lack of capacity to sue under the Fictitious Names Act (FNA)," 54 Pa. C.S. 331.

The FNA says that an entity which has failed to register its fictitious name "shall not be permitted to maintain any action in a tribunal" in Pennsylvania and that, before such an entity can institute a lawsuit, it must register the name and pay a fine. The court held that this provision was penal in nature and should not be extended beyond the purposes for which it was enacted -- a) to protect people giving credit in reliance on the fictitious name and b) to establish the identities of the people operating the business. In this case, it was clear that all of this information was known, thus estopping the appellant/defendant from claiming harm and contesting the appellee/plaintiff's capacity to sue.

Pennsylvania Bulletin of August 12, 2006

The link http://www.pabulletin.com/secure/data/vol36/36-32/index.html

- courts- appellate rules - proposed - interlocutory appeals as of right - PRAP 311
http://www.pabulletin.com/secure/data/vol36/36-32/1532.html

- courts - civil rules - proposed - foreclosure - mortgages on both personal/real property - UCC 9604(a) - http://www.pabulletin.com/secure/data/vol36/36-32/1533.html

- courts - civil rules - proposed - videotape depositions - Rule 4017.1
http://www.pabulletin.com/secure/data/vol36/36-32/1534.html

- Indpt. Reg. Review Commn. - notice of comments - child care facilities
http://www.pabulletin.com/secure/data/vol36/36-32/1558.html

Pennsylvania Bulletin of August 5, 2006

The link http://www.pabulletin.com/secure/data/vol36/36-31/index.html

- court rules - local - Philadelphia - transcripts http://www.pabulletin.com/secure/data/vol36/36-31/1486.html

- education - child care curriculum grants
http://www.pabulletin.com/secure/data/vol36/36-31/1498.html

- health - children- safe sleep promotion - mini-grants http://www.pabulletin.com/secure/data/vol36/36-31/1508.html

- Governor - directives - Directives Management System http://www.pabulletin.com/secure/data/vol36/36-31/1496.html

- PUC- passenger services and property/household goods carriers http://www.pabulletin.com/secure/data/vol36/36-31/1493.html

- PUC- biennial report concerning Chapter 14 http://www.pabulletin.com/secure/data/vol36/36-31/1527.html

paternity by estoppel

Moyer v. Gresh - Superior Court - July 26, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a18031_06.pdf

Superior Court affirmed the trial court's dismissal of the natural father (NF) of a 16 year-old boy. MM, as a party in plaintiff/appellee's case asking for primary custody, on the grounds that plaintiff's paternity of MM was established by estoppel.

Plaintiff "was the only father that MM knew during the first nine years of his life" and continued to be actively involved (including carrying health insurance for the child) after Plaintiff and MM's natural mother separated and she married the child's biological father. MM refers to Plaintiff as his father when talking to friends and calls both father in the presence of each. MM said that he wants to live primarily with Plaintiff. The trial court resolved credibility issues in favor of Plaintiff.

The court applied the doctrine of paternity by estoppel (PBE) and upheld the dismissal NF as a party, even though DNA tests established NF as MM's natural father. Under the doctrine of PBE, DNA and blood tests "may be irrelevant." The doctrine is "designed to protect the best interests of minor children by allowing them to be secure in knowing who their parents are....It is grounded in a fairness principle that those who mislead a child as to the identity of his natural father cannot hen turn around and disprove their own fiction to the detriment of the child." The court found that this result was "also in accord with MM's best interests....MM considers Plaintiff to be his father and wishes to live primarily with him."

Here, appellant NF "voluntarily relinquished his parents rights and duties to Plaintiff during the first nine years of MM's life, and allowed Plaintiff to continue supporting MM when MM was living with" natural mother and NF, the appellants

Pennsylvania Bulletin of July 29, 2006

Link to index http://www.pabulletin.com/secure/data/vol36/36-30/index.html

- mortgages - mortgage loans - conduct of licensees - proposed rulemaking - public hearing Sept. 12 http://www.pabulletin.com/secure/data/vol36/36-30/1446.html

- Rules of Evidence - Rule 104 - prelim. questions - proposed revision of comment - comments due 9-6-06 - http://www.pabulletin.com/secure/data/vol36/36-30/1433.html

- Rules of Evidence - Rules 601- competency - proposed revision of comment - comments due 9-5-06 http://www.pabulletin.com/secure/data/vol36/36-30/1434.html

- welfare - MA - fee schedule revisions
http://www.pabulletin.com/secure/data/vol36/36-30/1461.html

- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-30/1432.html

- MDJ rules - appeal - correction to note to Rule 1002 - LT cases - $ v. possession http://www.pabulletin.com/secure/data/vol36/36-30/1438.html

- MDJ rules - proposed amendments - comments due September 1, 2006
(1) IFP - (2) execution of $ judgments - (3) time, method of appeal (4) bond for appeal
(5) services of papers on appeal (6) striking appeal (7) procedure on appeal (8) supersedeas
http://www.pabulletin.com/secure/data/vol36/36-30/1437.html

- Rules of Civil Procedure - Rule 1910.1 - support - Act 43 of 2005http://www.pabulletin.com/secure/data/vol36/36-30/1436.html

- Rules of Civil Procedure - arbitration - consumer credit transactionshttp://www.pabulletin.com/secure/data/vol36/36-30/1435.html

employment - health insurance - COBRA - adequate notice

Mershon v. Woodburne Family Practice - ED Pa - July 19, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0895P.pdf

Plaintiff had problems during her pregnancy. The employer decided that she had abandoned her job and sent her a COBRA notice, 29 USC sec. 1165, in early November saying that her coverage expired at the end of November.

Plaintiff sued for a) Pregnancy Discrimination, 42 USC 2000e et seq., b) discrimination under the state PHRA. 42 Pa. C.S. 951 et seq, and c) the COBRA statute.

The court granted the motion to dismiss the claims under the pregnancy and state PHRA laws, holding that Plaintiff had failed to allege that the employer treated pregnancy-related absences were treated any differently from other medical absences.

However, the court denied the motion to dismiss the COBRA claim. The statute requires that an employee have at least 60 days in which to make a COBRA decision to elect continued coverage, 29 USC sec. 1165. The 60 days had not expired when Plaintiff learned of her dismissal. The statute requires a continuation of coverage from the date of the qualifying event -- whether her failure return to work or her dismissal by the employer -- through the election period, 29 USC 1161. The employer's premature cancellation of coverage in this case -- more than a month before it should have done so -- resulted in uninsured medical expenses and costs to the state in the form of MA benefits. Branch v. G. Bernd Co, 955 F2d 1574 (1582 (5th Cir. 1992), holding the employer liable for the employee's medical expenses.

adoption - standing of aunt/uncle - agency consent to standing

In re Adoption of J.E.F. - Pennsylvania Supreme Court - July 18, 2006

majority - http://www.courts.state.pa.us/OpPosting/Supreme/out/J-5A-5C-2006mo.pdf
concurring - http://www.courts.state.pa.us/OpPosting/Supreme/out/J-5A-5C-2006co.pdf

Aunt and uncle of three children in the legal custody of a child welfare agency have standing to petition for adoption, despite agency's preference for other adoptive parents (foster parents) and the agency's refusal to consent to aunt/uncle's participation. The Adoption Act does not give agencies any "gatekeeping authority" over adoption petitions. It is the court rather than an agency or other entity which has the ultimate responsibility to determine what will be in the best interests of the adoptees.

termination of parental rights - change in permanency plan

In re Adoption of S.E.G. - Pa. Supreme Court - July 18, 2006

majority - http://www.courts.state.pa.us/OpPosting/Supreme/out/J-16-2006mo.pdf
concurring- http://www.courts.state.pa.us/OpPosting/Supreme/out/J-16-2006co.pdf

Child welfare agency brought petition to termination parental rights without having formally its permanency plan from reunification to adoption. Held, such a formal change in plan is not a condition precedent to an agency bring a petition to terminate parental rights.

contracts - unjust enrichment

Cooper v. East Penn School District - Commonwealth Court - July 26, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/2430CD05_7-26-06.pdf

"Unjust enrichment is an equitable doctrine implying that a contract exists when a party is found to have unfairly benefited by another's actions....However, unjust enrichment is inapplicable where the parties' relaltionship is founded upon a written agreement, regardless of how 'harsh the provisions of such contracfts may seem in light of the subsequent happenings.'"

FLSA - overtime pay - executive employees

Davis v. Mountaire Farms - 3d Circuit - July 20, 2006

http://www.ca3.uscourts.gov/opinarch/053982p.pdf

Summary judgment for the employer reversed. The lower court had held that plaintiff-employees were exempt employees under sec. 213(a)(1) of the Fair Labor Standards Act, 29 USC sec. 213(a)(1), and thus not entitled to overtime pay under the FLSA., 29 USC sec. 201 et seq.

Plaintiffs were "crew leaders" who supervised other employees known as "chicken catchers." They had some supervisory responsibilities but these did not include hiring and firing or making ultimate decisions or actions about things like vacations, holidays, or discipline. Plaintiffs often worked more than 40 hours a week, but the employer refused to pay the overtime, claiming they were exempt executive employees. The crew leaders were hourly employees until 2002, at which time they became salaried, but there was no change in their duties or responsbilities.

The court held that FLSA exemptions are construed against the employer, which has the burden of proof to establish that its employees come within the scope of an overtime exemption.
The employer has to satify all four factors under 29 CFR sec. 541.100(a), the most important one in this case concerned the "authority to hire or fire other employees."

Noting that "the case law on this is is very fact specific and not consistent," and that there were "genuine issues of material fact," the court said that it did "not believe that Mountaire had established its case as a matter of law" and remanded the matter.

disability - remand - limited remand order

Scandone v. Barhhart - ED Pa. - July 18, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0880P.pdf

Plaintiff appealed an order finding her disabled as of April 1, 2004. The defendant lost hearing tape and asked for a remand. The Court granted Plaintiff's request to prohibit a de novo adjudication finding Plaintiff not disabled or disabled any later than April 1, 2004.

The Court said that it would be "unfair to Plaintiff to permit the Commissioner to misplace the hearing tape and then 'reconstruct the record' by holding a new hearing before the ALJ, potentially reversing Plaintiff's prior favorable decision...The case will be remanded...for further administrative proceedings, but the determination that Plaintiff has been disabled since April 1, 2004, will not be subject to de novo adjudication."