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