http://www.pabulletin.com/secure/data/vol37/37-8/index.html
court rules - exemption of certain funds (social security, et al.) from execution
http://www.pabulletin.com/secure/data/vol37/37-8/304.html
court rules - PFA forms - Rule 1905 - effective May 7, 2007
http://www.pabulletin.com/secure/data/vol37/37-8/303.html
Friday, February 23, 2007
Monday, February 12, 2007
child abuse - expungement - hearsay - finding that child is "unavailable"
C.E. v. Dept. of Public Welfare - Commonwealth Court - February 12, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/232CD06_2-12-07.pdf
Hearsay statements of child victim were not admissible, absent findings by the ALJ that the hearsay satisfied the requirements of the statute, 42 Pa. C.S. 5986. See, A.Y. v. DPW, 641 A.2d 1148, 1153 (Pa. 1994) and In the Interest of Tina K., 568 A.2d 210 (Pa. Super. 1989).
In particular, the ALJ never made a finding that the child was "unavailable" to testify, that is, "whether testifying would cause her emotional distress to the extent that her ability to communicate would be substantially impaired." The lack of such a finding is not a "mere failure by the ALJ to use the 'magic words' in 42 Pa. C.S. 5986. It is a clear requirement of the statute. Moreover, the evidence in this case included statements by the child that she was not afraid of the Petitioner, that she felt good and was not afraid to be at the hearing.
Although the Commonwealth Court did not mention it, the Superior Court reached a similar result in construing a related statute, 42 Pa. C.S. 5986.1, in Cmwlth. v. Kriner, January 2, 2007 - http://www.courts.state.pa.us/OpPosting/Superior/out/e03003_06.pdf , where it held that the hearsay statement of a child victim/witness under 12 years of age is admissible under 42 Pa. C.S. 5985.1 to prove certain criminal offenses if, inter alia, the child is "'unavailable" as a witness. The statute defines "unavailable" as "serious emotional distress that would substantially impair the child's ability to communicate." This definition is exclusive. There is "no other manner, method, procedure or definition of what constitutes unavailability." Thus, the death of a child witness does not come within this statutory definition of unavailability.
There was also an issue of witness competency. Although it was not considered in deciding the case, the court set out (in n. 8) the criteria for deciding whether a child in a competent witness, citing Commonwealth v. McMaster, 666 A.2d 724, 727 (Pa. Super. 1995).
http://www.courts.state.pa.us/OpPosting/CWealth/out/232CD06_2-12-07.pdf
Hearsay statements of child victim were not admissible, absent findings by the ALJ that the hearsay satisfied the requirements of the statute, 42 Pa. C.S. 5986. See, A.Y. v. DPW, 641 A.2d 1148, 1153 (Pa. 1994) and In the Interest of Tina K., 568 A.2d 210 (Pa. Super. 1989).
In particular, the ALJ never made a finding that the child was "unavailable" to testify, that is, "whether testifying would cause her emotional distress to the extent that her ability to communicate would be substantially impaired." The lack of such a finding is not a "mere failure by the ALJ to use the 'magic words' in 42 Pa. C.S. 5986. It is a clear requirement of the statute. Moreover, the evidence in this case included statements by the child that she was not afraid of the Petitioner, that she felt good and was not afraid to be at the hearing.
Although the Commonwealth Court did not mention it, the Superior Court reached a similar result in construing a related statute, 42 Pa. C.S. 5986.1, in Cmwlth. v. Kriner, January 2, 2007 - http://www.courts.state.pa.us/OpPosting/Superior/out/e03003_06.pdf , where it held that the hearsay statement of a child victim/witness under 12 years of age is admissible under 42 Pa. C.S. 5985.1 to prove certain criminal offenses if, inter alia, the child is "'unavailable" as a witness. The statute defines "unavailable" as "serious emotional distress that would substantially impair the child's ability to communicate." This definition is exclusive. There is "no other manner, method, procedure or definition of what constitutes unavailability." Thus, the death of a child witness does not come within this statutory definition of unavailability.
There was also an issue of witness competency. Although it was not considered in deciding the case, the court set out (in n. 8) the criteria for deciding whether a child in a competent witness, citing Commonwealth v. McMaster, 666 A.2d 724, 727 (Pa. Super. 1995).
Monday, February 05, 2007
parol evidence rule
Ragnar Benson, Inc. v. Hempfield Township Munic. Authority - Superior Court - Jan. 30, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/s65001_06.pdf
If a written contract is unambiguous and purports to be the entire agreement of the parties, and there is no claim of fraud or mistake, then oral testimony and prior written agreements or other writings are not admissible to explain or vary the terms of the contract. This is what is referred to as the parol evidence rule. See, e.g., Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425 (Pa. 2004) for a "comprehensive review" of the rule.
http://www.courts.state.pa.us/OpPosting/Superior/out/s65001_06.pdf
If a written contract is unambiguous and purports to be the entire agreement of the parties, and there is no claim of fraud or mistake, then oral testimony and prior written agreements or other writings are not admissible to explain or vary the terms of the contract. This is what is referred to as the parol evidence rule. See, e.g., Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425 (Pa. 2004) for a "comprehensive review" of the rule.
Friday, February 02, 2007
false imprisonment
In the Interest of M.G. - Superior Court - January 30, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/a36004_06.pdf
The court upheld the delinquency adjudiction of a juvenile accused of false imprisonment, where he followed his cousin into her bedroom, shut and locked the door, and stood between her and the door during an incident which lasted "at most, two minutes."
"In determining the magnitude of the restraint necessary for false imprisonment, this Court has recognized that false imprisonment covers restraints which are less serious than those necessary for the offenses of kidnapping [18 Pa. C.S. 2901(a)] and unlawful restraint [18 Pa. C.S. 2902(a)].
"In determining whether the restraint at issue interfered with [the victim's] liberty 'substantially,' we give the word 'substantially' its plain meaning....Thus, we determine the Legislature intended false imprisonment to cover restraints where an individual's liberty is interfered with in an ample or considerable manner."
It did not matter that the restraint took place in the victim's own bedroom. "Whether in her own home or elsewhere, Appellant restrained [the victim] and kept her in an area where she did not wish to remain. Removing [a victim] from her home or luring her to an unfamiliar place are simply not elements required for false imprisonment."
"Making threats, intimidating and/or using physical force are not stated elements of false imprisonment, although they may be the tool used by an offender in 'restraining another unlawfully.'"
http://www.courts.state.pa.us/OpPosting/Superior/out/a36004_06.pdf
The court upheld the delinquency adjudiction of a juvenile accused of false imprisonment, where he followed his cousin into her bedroom, shut and locked the door, and stood between her and the door during an incident which lasted "at most, two minutes."
"In determining the magnitude of the restraint necessary for false imprisonment, this Court has recognized that false imprisonment covers restraints which are less serious than those necessary for the offenses of kidnapping [18 Pa. C.S. 2901(a)] and unlawful restraint [18 Pa. C.S. 2902(a)].
"In determining whether the restraint at issue interfered with [the victim's] liberty 'substantially,' we give the word 'substantially' its plain meaning....Thus, we determine the Legislature intended false imprisonment to cover restraints where an individual's liberty is interfered with in an ample or considerable manner."
It did not matter that the restraint took place in the victim's own bedroom. "Whether in her own home or elsewhere, Appellant restrained [the victim] and kept her in an area where she did not wish to remain. Removing [a victim] from her home or luring her to an unfamiliar place are simply not elements required for false imprisonment."
"Making threats, intimidating and/or using physical force are not stated elements of false imprisonment, although they may be the tool used by an offender in 'restraining another unlawfully.'"
custody - paternity - standing - presumption
E.W. v. T.S. and C.S - Superior Court - January 31, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/a37030_06.pdf
A man who claimed to be the father of a child did not have standing to seek a declaration of his paternity or ask for custody of a 3 year old child, as against mother (T.S.) and her husband (C.S.), where
- mother and husband were married before conception, at time of conception and birth, etc.
- mother and husband never separated, filed for divorce, etc., and want to maintain their marriage
- husband was named as father on birth certificate
- husband has always assumed paternity and treated child as his own
"The presumption that a child born during the marriage is a child of the husband is always the starting point in a contest involving the parentage of a child born during coverture. Moreover, the strength of the presumption...is a child of the marriage is grounded in the Commonwealth's interest in protecting the family unit. Although the presumption may be rebutted by clear and convincing evidence of husband's non-access, impotency, or sterility, the presumption is irrebuttable where mother, child, and husband live together as an intact family and husband assumed parental responsibility for the child."
Justice Newman's opinion that there is a conflict between these principles and the Uniform Act on Blood Tests has never commanded a majority of the Court. See, Strauser v. Stahr, 726 A.2d 1052, 1056 n. 2 (Pa. 1999)
http://www.courts.state.pa.us/OpPosting/Superior/out/a37030_06.pdf
A man who claimed to be the father of a child did not have standing to seek a declaration of his paternity or ask for custody of a 3 year old child, as against mother (T.S.) and her husband (C.S.), where
- mother and husband were married before conception, at time of conception and birth, etc.
- mother and husband never separated, filed for divorce, etc., and want to maintain their marriage
- husband was named as father on birth certificate
- husband has always assumed paternity and treated child as his own
"The presumption that a child born during the marriage is a child of the husband is always the starting point in a contest involving the parentage of a child born during coverture. Moreover, the strength of the presumption...is a child of the marriage is grounded in the Commonwealth's interest in protecting the family unit. Although the presumption may be rebutted by clear and convincing evidence of husband's non-access, impotency, or sterility, the presumption is irrebuttable where mother, child, and husband live together as an intact family and husband assumed parental responsibility for the child."
Justice Newman's opinion that there is a conflict between these principles and the Uniform Act on Blood Tests has never commanded a majority of the Court. See, Strauser v. Stahr, 726 A.2d 1052, 1056 n. 2 (Pa. 1999)
Pennsylvania Bulletin of February 3, 2007
http://www.pabulletin.com/secure/data/vol37/37-5/index.html
courts - juvenile records - proposed amendments - public availability -
http://www.pabulletin.com/secure/data/vol37/37-5/157.html
court rules - support - amendments
http://www.pabulletin.com/secure/data/vol37/37-5/155.html
governor - regulatory agenda -
"The agendas are compiled to provide members of the regulated community advanced notice of regulatory activity. It is the intention of the Administration that these agendas will serve to increase public participation in the regulatory process."
http://www.pabulletin.com/secure/data/vol37/37-5/186.html
courts - juvenile records - proposed amendments - public availability -
http://www.pabulletin.com/secure/data/vol37/37-5/157.html
court rules - support - amendments
http://www.pabulletin.com/secure/data/vol37/37-5/155.html
governor - regulatory agenda -
"The agendas are compiled to provide members of the regulated community advanced notice of regulatory activity. It is the intention of the Administration that these agendas will serve to increase public participation in the regulatory process."
http://www.pabulletin.com/secure/data/vol37/37-5/186.html
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