employment - ADA - reasonable accommodation - retaliation

Kauffman v. GMAC Mortgage Corp. - ED Pa. - May 17, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0610P.pdf

Plaintiff's ADA claims against her employer dimissed on summary judgment motion.

Plaintiff had a severe allergy to perfumes -- a "disability" under the ADA, 42 USC 12101 et seq. The court held that plaintiff was not a "qualified individual" because she failed to sustain her burden of showing that a "reasonable accommodation, allowing her to perform the essential functions of her job, is possible." The evidence showed "many attempts" by the employer to alleviate plaintiff's problem. A completely scent-free environment was held to be "impractical....virtually impossible....unreasonable."

Plaintiff's retaliation claim was also rejected, because she did not meet the "burden of establishing a causal conection between her protected activity [an email to her employer complainting of harassment and unequal treatment] and her termination."

employment - discrimination - exhaustion of admin. remedies

EEOC v. Conectiv - ED Pa. - May 24, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0640P.pdf

A plaintiff cannot file an individual employment discrimination action under Title VII, 42 USC 2000e et seq., for racial discrimination unless s/he has first filed charge with the EEOC or PHRC. The "single-filing rule" -- which allows a non-filing plaintiff to join a class action -- does not apply here, because plaintiff did not intervene, as of right or by permission, in the EEOC class action against the employer. Thus "failure to exhaust his administrative remedies is fatal to his individual Title VII action."

damages - calculation - flexibility

Dept. of General Services v. US Mineral Products Co. - Supreme Court - May 25, 2006

http://www.courts.state.pa.us/OpPosting/Supreme/out/J-81-2004mo.pdf

In the course of deciding the proper measure of damages concerning the chemical contamination of the former PennDOT building, the court said that it "has rejected fixed and formulaic rules when it is determined that they are not setting an appropriate, compensatory standard.....and there are many nuances and significant latitude associated with valuation for the purpose of calculating damages."

UC- strike v. lockout

Presbyterian Senior Care v. UCBR - Commonwealth Court - May 23, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1621CD05_5-23-06.pdf

The court reversed a UCBR decision that a strike had become a lockout, noting (a) the absence of a "critical finding" that the union was willing to return to the status quo and (b) the union's failure to satisfy the "futility doctrine" -- that an offer by the union to return to work would definitely not have been accepted by management.

admin. law - exhaustion of admin. remedies

Northern Area Personal Care Home Admin. Assn. v. DPW - Cmwlth Court - May 24, 2006

http://www.aopc.org/OpPosting/CWealth/out/503MD05_5-24-06.pdf

Petitioners filed an original action in Commonwealth Court challenging and seeking pre-enforcement review of new personal care home regulations.

DPW's argument that Petitioner failed to exhaust administrative remedies was rejected. Citing Arsenal Coal Co. v. DER, 477 A.2d 1333 (Pa. 1984), the court held that equitable relief is available where there is not "an adequate statutory remedy."

Factors discussed in Arsenal Coal include -- whether the effect of submitting to the regs will be direct and immediate, the resulting hardship, the burden of submitting to the regulations (cost and inefficiency), the availability of pre-enforcement review in the regulations themselves.

employment - Title VII - ministerial exception - First Amendment

Petruska v. Gannon University - Third Circuit - May 24, 2006

http://www.ca3.uscourts.gov/opinarch/051222p.pdf

"The ministerial exception...exempts religious organizations from employment discrimination suits brought by ministers." It "was created to protect church autonomy and avoid entangling government in religious affairs."

The court adopted "a carefully tailored version of the ministerial exception. Where otherwise illegal discrimination is based on religious belief, religious doctrine, or the internal regulations of a church, the First Amendment exempts religious institutions from Title VII....But where a church discriminates for reasons unrelated to religion, we hold that the Constitution does not foreclose Title VII suits. Employment discrimination unconnected to religious belief, religious doctrine, or the internal regulations of a church is simply the exercise of intolerance, not the free exercise of religion that the Constitution protects. Furthermore, in adjudicating suits that do not involve religious rationales for employment action, courts need not consider questions of religious belief, religious doctrine, or internal church regulations, a process that would violate the Establishment Clause by entangling courts in religious affairs."

contempt - talking to witness during break in examination

Yoskowitz v. Yazdanfar - Superior Court - May 24, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a07024_06.pdf

The appellate court reversed a finding of criminal contempt under 42 Pa. C.S. 4132(3) resulting from an attorney having talked to a witness during a break in the witness's testimony.

The trial court relied on Hall v. Clifton Precision, 150 FRD 525, 528 (ED Pa. 1993), given the lack of state court precedent (rules, cases, etc) on the issue. The trial court noted an "appearance of impropriety" that rendered the witness's testimony "suspect."

The Superior Court said that there was not "sufficient evidence to prove beyond a reasonable doubt that [thej attorney] intended to significantly disrupt the...trial proceedings" and that the "court was in recess when the conversation occurred." The court reversed the finding of contempt "[b]ecause the record fails to reflect the requisite proof beyond a reasonable doubt...."

Note: Despite this decision, I think it's a very bad idea to talk to a witness during a break in the witness's examination. It may not be criminal contempt, but I think it is still improper. It raises serious ethical and other issues.

Pennsylvania Bulletin of May 27, 2006

Here's the link to the Pennsylvania Bulletin of May 27, 2006

http://www.pabulletin.com/secure/data/vol36/36-21/index.html

Of possible interest:
- governor - veto - SB 997 - discussion of "pay as you go" budget
http://www.pabulletin.com/secure/data/vol36/36-21/918.html

- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-21/919.html

- Human Relations Commission - public hearing opinions
http://www.pabulletin.com/secure/data/vol36/36-21/943.html

- IRRC - notiice of filing of final rules
http://www.pabulletin.com/secure/data/vol36/36-21/945.html

- potatoes - referendum on potato research program - it continues! - 85.4% v. 14.6%
http://www.pabulletin.com/secure/data/vol36/36-21/934.html

Pennsylvania Bulletin of May 20, 2006

http://www.pabulletin.com/secure/data/vol36/36-20/index.html

- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-20/861.html

- attorneys - disciplininary board - regs
http://www.pabulletin.com/secure/data/vol36/36-20/862.html

- courts - local rules - Carbon County - PFAs
http://www.pabulletin.com/secure/data/vol36/36-20/863.html

- medicine - acupuncture - advance notice of final rulemaking http://www.pabulletin.com/secure/data/vol36/36-20/869.html

contracts - integration clause

Glassmere Fuel Service, Inc. v. Clear - Superior Court - May 15, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a34027_05.pdf

Plaintiff sued Defendant for its failure to comply with an agreement that would have turned D's convenience store into a BP gas station. Plaintiff alleged the Defendant "failed to obtain financing in violation of an 'implied term' of the agreement. Defendant noted that the agreement did not expressly require it to obtain financing and that the agreement's integration clause barred Plaintiff's action.

Held, integration clause barred inconsistent parol evidence of alleged prior representations, unless the representations were omitted because of fraud, accident or mistake. Where contract terms are clear and unambiguous, there is no need to consider other evidence to aid in interpretation.

The doctrine of necessary implication does not apply unless it is "necessary to prevent injustice and it is abundantly clear that the parties intended to be bound by" the alleged missing term, which was not found to be the case here. Plaintiff had other remedies for Defendant's failure to fulfill the contract.

UC- willful misconduct - drug test

Turner v. UCBR - Commonwealth Court - May 16, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/871CD05_5-16-06.pdf

In a 4-3 decision, claimant (CL) was held to have violated the drug disqualification section of the UC Law, 43 PS 802(e.1), where his unemployment was "due to discharge....from work due to failure to submit and/or pass a drug test conducted pursuant to an employer's established substance abuse policy."

The UC Service Center had ruled on the basis of sec. 801(e.1), but the referee and Board ruled on the basis on 402(e), the general willful misconduct section. The Court ultimately ruled CL ineligible in the basis of sec. 801(e.1), pursuant to a series of cases holding that it can affirm an agency decision on other grounds, where those grounds appear on the record of the case.

CL argued that the ER's policy only prohibited drug use while he was on duty, and that there was no proof of that. The court rejected that argument, noting that "while a literal reading of one portion of employer's policy supports claimant's argument...., viewing the entire policy in context belies this claim....'Claimant's submission to the condition of random drug testing is sufficient to infer Claimant's understanding that he had to abstain from any drug use....' Szostek v. UCBR, 541 A2d 48, 50 (Pa. Cmwlth. 1988).' The random testing provision....enforces the requirement that employees not only refrain from on-duty drug use but also be free from drugs remaining in employee's systems while on-duty. Otherwise the test would serve no purpose, because a positive test would be meaningless, or at least could result in no consequences absent independent direct proof of on-duty use. Thus, we conclude that claimant's positive test for marijuana constituted a violation of employer's substance abuse policy."

The court also held that the "testimony of the supervisor of those persons who are actually performing the drug testing of a urine specimen is sufficient to establish the reliability and trustworthiness of the evidence under" the business records as evidence act, 42 Pa. C.S. 6108(b), citing Artis v. UCBR, 699 A.2d 849, 852 (Pa. Cmwlth. 1997). The court said that the testimony of the vice-president and director of toxicology of the lab that did the drug test "provided very detailed and sufficient information relating to the preparation of claimant's drug test result and justified not only a presumption about the trustworthiness of this record but its admission."

Judges Colins and Pelligrini dissented "[b]ecause of cross-examination, the toxicologist admitted the he could not tell from the test results whether the claimant used marijuana or was under the influence of marijuana while on duty," stating that without that evidence "there is not substantial evidence to support the conclusion that claimant violated the employer's drug policy."

Judge Friedman concurred and dissented, citing the same testimony of the toxicologist. She said that the record was "devoid of evidence establishing that Claimant used drugs while on duty, as prohibited by" the ER's policy, and that the Board thus erred in affirming the referee's decision based on 401(e). She "strongly object[ed] to the majority's analysis insofar as it eschews a literal reading of Employer's rules in favor of a broad interpretation of Employer's policy as a whole," noting the a rule violation must be knowing and deliberate. "[k]nowledge of the work rule or policy is a prerequisite to a knowing and deliberation [sic] violation of the same....I believe that this court violates long-standing principles of law when it engages in any 'interpretation' of an employer's rule or policy." However, she "reluctantly" concurred because the Court has the power to affirm on other grounds, i.e., sec. 402(e.1), which appear on the record.

This decision seem consistent with the Court's recent apparent willingness to bend the usual rules in drug cases. See, e.g., UGI Utilities, 851 A.2d 240 (Pa. Cmwlth. 2004) and Ruiz v. UCBR - Commonwealth Court - November 30, 2005, http://www.courts.state.pa.us/OpPosting/CWealth/out/882CD05_11-30-05.pdf

consumer - credit reporting - debt collection

Wesley v. Calvary Investments - ED Pa. - May 9, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0572P.pdf

Defendant's alleged compliance with Fair Credit Reporting Act does not relieve it of complying with obligations under the Fair Debt Collection Practices Act.

Pennsylvania Bulletin of May 13, 2006

http://www.pabulletin.com/secure/data/vol36/36-19/index.html

- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-19/832.html

- state dept. of agriculture - right-to-know procedures
http://www.pabulletin.com/secure/data/vol36/36-19/838.html

grandparent - standing - dependency - custody

In the Interest of L.C., II - Superior Court - May 11, 2006

http://www.aopc.org/OpPosting/Superior/out/S02045_06.pdf

Held, grandmother was not a proper party and did not have standing to participate in a juvenile case at which the grandson's dependency was adjudicated.

Participation in juvenile cases is restricted to parties, i.e., a) parents of the child; b) the legal custodian of the child; and c) the person whose care and control of the child is at issue.

Grandmother did not fit any of these categories, although she had had custody of the child for 14 years, until July 2003, when custody was granted to child's mother and partial custody (one weekend per month) granted to g/m.

The juvenile law, 42 Pa. C.S. 6301-65, mandates that the adjudication and disposition of a dependent child must be addressed separately and in sequential order. A dependency determiantion is a prerequisite to a custody disposition.

The court said that its conclusion about standing in the adjudication of dependency "does not mean the Grandmother would lack standing to seek custody of her grandson," once dependency was established, citing R.M. v. Baxter,, 777 A,2d 446 (Pa. 2001), and In re Adoption of Hess, 608 A.2d 10 (Pa. 1992) (emphasis in original).

child abuse - cause of abuse - presumption

In re: D.T. - Commonwealth Court - May 9, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1602CD05_5-9-06.pdf

Request to expunge indicated report of child abuse denied.

Appellant was the paramour of the mother of an 18 month-old child who suffered 2nd degree burns on both feet, which a doctor testified were "typical immersion scald burns." The evidence showed that at the time of his injury, the child was either in the custody of his mother or her paramour, but there was no "independent substantial competent evidence" that appellant was the person that caused the burns."

The court approved DPW's reliance on 23 Pa. C.S. 6381(d) [prima facie evidence of abuse], which provides that "[e]vidence that a child has suffered child abuse of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the welfare of the child shall be prima facie evidence of child abuse by the parents or other person responsible for the welfare of the child."

Citing the decision of In the Interest of J.R.W., 631 A.2d 1019 (Pa. Super. 1993), the court held that while the "existence of child abuse" had to be proven by clear and convincing evidence, proof of "the identity of the perpetrator of that abuse....need only be established by prima facie evidence that the abuse normally would not have occurred except by reason of acts or omissions of the caretakers...." (emphasis in original)

The "presumption can be rebutted, like other statutory presumptions, with countervailing competent, substantial evidence," which did not exist here. Appellant's testimony was found not credible, in part because he lied about not having a prior criminal record.

UC - willful misconduct - good cause

Docherty v. UCBR - Commonwealth Court - May 9, 2006

http://www.aopc.org/OpPosting/CWealth/out/1952CD05_5-9-06.pdf

Claimant (CL) did not commit willful misconduct where
- CL was phlebotomist in hospital
- hospital had confidentiality policy
- policy required employees to safeguard information from unauthorized viewing or listening - CL was discharged for violating the policy under the following facts:

- CL was drawing blood in a 2-patient room
- one patient was 5 year-old female
- patient's mother specifically asked CL why he was drawing blood
- the mother asked this question in the presence of patient's roommate and latter's mother.
- CL said that blood would be used for a rapid HIV and hepatitis test
- mother complained that CL vocalized a response that could be heard by others in room
- CL did not invite anyone into the room and did not respond loudly
- there is no evidence that the roommate or roommate's mother overheard CL's response

Held, claimant had good cause (a question of law) to violate the ER's rule/policy, since his actions were "justifiable and reasonable under the circumstances." Frumento, 351 A.2d 631 (Pa. 1976). Resolution of these issues requires consideration of "all of the circumstances, including the reasons for the [claimant's] noncompliance with the employer's directives." Navickas, 778 A2d 284 (Pa. 2001).

domestic - gun permit - conviction of DV crime

Wolak v. State Police - Commonwealth Court - Feb. 27, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1373CD05_5-9-06.pdf

The court affirmed the denial by state police of appellant's application for a gun permit based on sec. 922 of the Federal Gun Control Act of 1968, 18 USC 922, which precludes a person convicted of a misdemeanor crime of domestic violence from possessing a firearm.

Appellant was charged with various offenses after having discharged a shotgun in his house. His wife alleged and the criminal complaint stated that he had fired the weapon at her while she was coming up the steps.

All charges were dismissed at an MDJ hearing, except for reckless endangerment. Then pursuant to an agreement with the district attorney, all of the original charges were dropped, and appellant pleaded guilty to disorderly conduct, an misdemeanor of the third degree, 18 Pa. C.S. 5503. The record did not show what subsection of sec. 5503 was involved, and the plea colloquy did not contain any facts, but there was "nothing indicating that the underlying factual averments in the complaint and information were modified. . . only that the charge itself was changed. Thus, the averments made in support of the reckless endangerment charge became the operative averments in support of the disorderly conduct charge. The plea was made with respect to the averments in the Complaint."

The court held that appellant had committed a "misdemeanor crime of domestic violence," since (a) the crime was a misdemeanor under state law, and (b) it had as an element "the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse," 18 USC sec. 921)(a)(33)(A).

family - dependency - failure to ensure protection of child

In the Matter of E.B. - Superior Court- May 3, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/s70041_05.pdf

Clear and convincing evidence supported the finding that the child was dependent, due to fact that parent could not be "relied upon to enforce an existing stay-away order" involving the parent's paramour, who had made sexual advances toward the child.

consumer - state consumer protection law - credit reporting agency

Abusaab v. Equifax Information Services - ED Pa - May 4, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0554P.pdf

An arbitration award against Plaintiff was reversed on appeal, but the defendant credit reporting agency persisted in listing the judgment as "satisfied" instead of having been reversed and removed.

Plaintiff sued under Fair Credit Reporting Act, 15 USC 1681 et seq., and brought state law claims for negligence, defamation, false light, as well as a Consumer Protection Law (CPL) claim.
Defendant moved to dismiss all claims.

The Court refused, except as to the CPL claim, holding that the law does not cover credit reporting agencies, since there is no sale, purchase or lease of good or services between the parties.

Supreme Court of Pennsylvania Adopts New Procedural Rules to Address Changes to PFA Law

The Supreme Court of Pennsylvania has issued new rules of civil procedure to guide implementation of the new amendments to the Protection From Abuse Act. The newly enacted Act 66 of 2005 expands and accelerates PFA victim protections.

Changes to the Protection From Abuse Act that take effect May 9 include those that authorize county judges to order defendants with Protection From Abuse orders against them to surrender all firearms and other weapons within 24 hours - when the court determines such action is necessary to protect a victim. Defendants who do not surrender a firearm when ordered would face a misdemeanor charge. The Act also provides for alternative methods of relinquishment, such as transferring firearms to a licensed dealer.

The new Act also allows the president judge of a Court of Common Pleas to appoint a part-time or full-time master for emergency relief who may hear PFA petitions when a judge is not available. Other changes include an increase in the minimum fine for violation of a PFA order from $100 to $300.

A complete copy of the new rules, along with an explanatory report on the changes, is available on the Pennsylvania Judiciary Web site at the links below.

Order
Rule

Full AOPC Press Release

consumer - debt collection - failure to dispute debt doesn't "verify" it

Nelson v. Select Financial Services, Inc. - ED Pa. - April 28, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0538P.pdf

A debt collector's letter which states that the debtor's lack of response to the intial collection letter "verifies the validity of this debt" was held to violate sec. 1692e of the Fair Debt Collection Practices Act, which prohibits "any false, deceptive, or misleading representation in connection with the collection of any debt."

Applying the "least sophisticated debtor" standard, the court found that the letter "falsely represented to [the debtor] that her inaction definitively confirmed the authenticity of the debt, in violation of Sections 1692e and 1692e(10)."

The court noted the difference between (a) the statutorily-required language that a debt "will be assumed to be valid by the debt collector" unless disputed by the debtor within 30 days and (b) the statement that the debtor's lack of response an intial collection letter with such a "will be assumed" notice verifies the debt.