Greene v. United Services Automobile Assn. - Superior Court - November 20, 2007
http://www.aopc.org/OpPosting/Superior/out/a20010_07.pdf
The court denied the plaintiffs' claim that their insurer denied their homeowner's insurance claim in bad faith. The court held that in order for a party to succeed on a statutory claim of bad faith under 42 Pa. C.S. sec. 8371 (actions on insurance policies) that party must fulfill a two-prong test. A plaintiff must show, by clear and convincing evidence, that
- the insurer did not have a reasonable basis for denying benefits under the policy and
- knew or recklessly disregarded its lack of a reasonable basis in denying the claim.
The court elaborated that the "motive of self-interest or ill will" level of culpability is not a third element required for a finding of bad faith, but it is probative of the second element, i.e.., the insurer knew or recklessly disregarded its lack of reasonable basis in denying the claim.
Wednesday, November 21, 2007
Monday, November 19, 2007
midwifery - licensing - Amish - standard for stay of admin. decision
Goslin v. State Board of Medicine - Cmwlth. Court - publication ordered November 16, 2007
http://www.aopc.org/OpPosting/CWealth/out/1830CD07_11-16-07.pdf
Unlicensed midwife with 26 years experience in Amish community denied application for stay of decision of state Board of Medicine directing her to discontinue her practice and imposing fines and penalties.
Aside from the substantive law, the decision is also noteworthy concerning the standards for a stay, especially the likelihood of success on the merits. The court said that the Supreme Court
in Pennsylvania Public Utility Commission v. Process Gas Consumers Group, 502 Pa. 553, 467 A.2d 805 (1983) has set forth the standard a litigant must satisfy in seeking a stay of an adjudicatory body’s decision. Applicants for a stay or supersedeas must:
(1) make a strong showing of likelihood of success on the merits;
(2) demonstrate that, without the grant of a stay, the applicant will suffer irreparable injury;
(3) establish that the Court’s issuance of a stay will not result in substantial harm to other parties interested in the proceedings; and
(4) show that the issuance of a stay will not adversely affect the public interest.
[J]urists considering applications should not regard the first prong inflexibly. Rather, in exercising its discretion to grant or deny a stay pending appeal, this Court may properly grant a stay, even when a litigant has presented a substantial case on the merits, if the litigant’s showing with regard to the remaining three factors strongly supports the applicant’s request. Witmer v. Department of Transportation, Bureau of Driver Licensing, 889 A.2d 638, 640 (Pa. Cmwlth. 2005).
http://www.aopc.org/OpPosting/CWealth/out/1830CD07_11-16-07.pdf
Unlicensed midwife with 26 years experience in Amish community denied application for stay of decision of state Board of Medicine directing her to discontinue her practice and imposing fines and penalties.
Aside from the substantive law, the decision is also noteworthy concerning the standards for a stay, especially the likelihood of success on the merits. The court said that the Supreme Court
in Pennsylvania Public Utility Commission v. Process Gas Consumers Group, 502 Pa. 553, 467 A.2d 805 (1983) has set forth the standard a litigant must satisfy in seeking a stay of an adjudicatory body’s decision. Applicants for a stay or supersedeas must:
(1) make a strong showing of likelihood of success on the merits;
(2) demonstrate that, without the grant of a stay, the applicant will suffer irreparable injury;
(3) establish that the Court’s issuance of a stay will not result in substantial harm to other parties interested in the proceedings; and
(4) show that the issuance of a stay will not adversely affect the public interest.
[J]urists considering applications should not regard the first prong inflexibly. Rather, in exercising its discretion to grant or deny a stay pending appeal, this Court may properly grant a stay, even when a litigant has presented a substantial case on the merits, if the litigant’s showing with regard to the remaining three factors strongly supports the applicant’s request. Witmer v. Department of Transportation, Bureau of Driver Licensing, 889 A.2d 638, 640 (Pa. Cmwlth. 2005).
Thursday, November 15, 2007
dependency - counsel for child - access to child
In the Interest of A.S. - Superior Court - November 15, 2007
http://www.aopc.org/OpPosting/Superior/out/a24014_07.pdf
Trial court improperly dismissed child welfare agency's dependency petition due to the agency's failure to have the child in court to testify. The appellate court held that the dismissel was error where the child's court-appointed counsel never had a chance to meet with the child because of the mother's refusal to give counsel access to the child, despite an order directing the mother to do so.
The trial court did not receive evidence from both sides. The mother violated the child's rights by denying access by counsel and preventing the child "from being heard in any fashion at a hearing regarding her own welfare."
http://www.aopc.org/OpPosting/Superior/out/a24014_07.pdf
Trial court improperly dismissed child welfare agency's dependency petition due to the agency's failure to have the child in court to testify. The appellate court held that the dismissel was error where the child's court-appointed counsel never had a chance to meet with the child because of the mother's refusal to give counsel access to the child, despite an order directing the mother to do so.
The trial court did not receive evidence from both sides. The mother violated the child's rights by denying access by counsel and preventing the child "from being heard in any fashion at a hearing regarding her own welfare."
statutes - enactment - legislative procedure - Pa. Constitution
Marcavage v. Rendell - Commonwealth Court - November 15, 2007
http://www.aopc.org/OpPosting/CWealth/out/195MD05_11-15-07.pdf
Article III, sec. 1, of the state constitution provides that “[n]o law shall be passed except by bill, and no bill shall be altered or amended, on its passage through either House, as to change its original purpose.”
This provision is violated by the passage of a bill which began as one criminalizing crop destruction but was amended during the legislative process to become one which punished ethic intimidation.
The relevant test is set out in Pennsylvanians Against Gambling Expansion Fund, Inc., v. Commonwealth (PAGE), 877 A.2d 383 (Pa. 2005). This case established a "new two-prong test for determining whether legislation violates Article III, Section 1....First, the Court must consider the legislation's original purpose and compare it to the final purpose to determine whether there has been an alteration or amendment that changed the original purpose....Second, the Court must consider whether the title and contents of the legislation are deceptive in their final form....The challenged legislation must survive both inquiries to pass constitutional muster.
A court must consider a bill's purpose "in reasonably broad terms, so as to provide the General Assembly with full opportunity to amend and even expand a bill, and not run afoul of the constitutional prohibition on an alteration or amendment that changes its original purpose.....[T]he reviewing court should 'hypothesize, based on the text of the statute, as to a reasonably broad original purpose.'”
The court held here that there was no "single unifying purpose" between the original and amended bills, even though both concerned criminal conduct. The bills did "not regulate the same discrete activity" but rather "vastly different activities, albeit under the broad heading of crime." Even looking at the language in "reasonably broad terms," there was a change of purpose from the original to the amended bill, given that the latter had "no nexus to the conduct to which the original legislation was directed...."
http://www.aopc.org/OpPosting/CWealth/out/195MD05_11-15-07.pdf
Article III, sec. 1, of the state constitution provides that “[n]o law shall be passed except by bill, and no bill shall be altered or amended, on its passage through either House, as to change its original purpose.”
This provision is violated by the passage of a bill which began as one criminalizing crop destruction but was amended during the legislative process to become one which punished ethic intimidation.
The relevant test is set out in Pennsylvanians Against Gambling Expansion Fund, Inc., v. Commonwealth (PAGE), 877 A.2d 383 (Pa. 2005). This case established a "new two-prong test for determining whether legislation violates Article III, Section 1....First, the Court must consider the legislation's original purpose and compare it to the final purpose to determine whether there has been an alteration or amendment that changed the original purpose....Second, the Court must consider whether the title and contents of the legislation are deceptive in their final form....The challenged legislation must survive both inquiries to pass constitutional muster.
A court must consider a bill's purpose "in reasonably broad terms, so as to provide the General Assembly with full opportunity to amend and even expand a bill, and not run afoul of the constitutional prohibition on an alteration or amendment that changes its original purpose.....[T]he reviewing court should 'hypothesize, based on the text of the statute, as to a reasonably broad original purpose.'”
The court held here that there was no "single unifying purpose" between the original and amended bills, even though both concerned criminal conduct. The bills did "not regulate the same discrete activity" but rather "vastly different activities, albeit under the broad heading of crime." Even looking at the language in "reasonably broad terms," there was a change of purpose from the original to the amended bill, given that the latter had "no nexus to the conduct to which the original legislation was directed...."
Wednesday, November 07, 2007
real property - tax sale - notice - presumption of proper posting
Picknick v. Washington County Tax Claim Bureau - Commonwealth Court - November 7, 2007
http://www.aopc.org/OpPosting/CWealth/out/253CD07_11-7-07.pdf
A tax claim bureau (TCB) satisfies its initial burden of proving -- and establishes a presumption of -- regularity and proper posting under the Real Estate Tax Sale Law, 72 P.S. 5860.101 et seq., where the TCB files an affidavit of posting. Thomas v. Montgomery Co. TCB, 553 A.2d 1044, 1046 (Pa. Cmwlth. 1989). Such proof establishes a prima facie case that the method of posting is "reasonable and likely to inform the taxpayer as well as the public at large of an intended real property sale." The property owner then has the burden to produce contradictory evidence.
In this case, the TCB produced an affidavit, photos and testimony about posting. The property owner did not present any evidence to rebut the presumption.
http://www.aopc.org/OpPosting/CWealth/out/253CD07_11-7-07.pdf
A tax claim bureau (TCB) satisfies its initial burden of proving -- and establishes a presumption of -- regularity and proper posting under the Real Estate Tax Sale Law, 72 P.S. 5860.101 et seq., where the TCB files an affidavit of posting. Thomas v. Montgomery Co. TCB, 553 A.2d 1044, 1046 (Pa. Cmwlth. 1989). Such proof establishes a prima facie case that the method of posting is "reasonable and likely to inform the taxpayer as well as the public at large of an intended real property sale." The property owner then has the burden to produce contradictory evidence.
In this case, the TCB produced an affidavit, photos and testimony about posting. The property owner did not present any evidence to rebut the presumption.
Monday, November 05, 2007
School Expulsion Upheld for Breaking into School District Computer System
The Commonwealth Court of Pennsylvania upheld the suspension of a student who gained unauthorized access to the school district computer system and supplied information to another student who used the information to access and disrupt the system.
The expulsion was upheld despite the fact that the Computer Use Policy only provided for a possible suspension of one to ten days for violation of the policy.
The Court held that the School Board had discretion as to appropriate penalties in disciplinary proceedings and properly exercised its discretion to expel Student. While the Computer Use Policy suggested penalties up to a 10-day suspension, it also indicated in the Appendix that such a punishment was only to act as a guide, and an individual case could warrant the modification of the listed penalties.
The Court noted that previously, the student had committed a serious and potentially damaging violation of the School District’s Computer Use Policy when he made false student identification cards, and this time he committed a more serious violation of the School District’s Computer Use Policy by decoding encrypted information and helping another student access extremely sensitive and private School District information. Given his history, including a prior suspension for computer misconduct, and given that his conduct is felonious under the Crimes Code, the Court found that the expulsion was entirely appropriate.
Decision: M.T. for A.T. v. Central York School District [PDF]
The expulsion was upheld despite the fact that the Computer Use Policy only provided for a possible suspension of one to ten days for violation of the policy.
The Court held that the School Board had discretion as to appropriate penalties in disciplinary proceedings and properly exercised its discretion to expel Student. While the Computer Use Policy suggested penalties up to a 10-day suspension, it also indicated in the Appendix that such a punishment was only to act as a guide, and an individual case could warrant the modification of the listed penalties.
The Court noted that previously, the student had committed a serious and potentially damaging violation of the School District’s Computer Use Policy when he made false student identification cards, and this time he committed a more serious violation of the School District’s Computer Use Policy by decoding encrypted information and helping another student access extremely sensitive and private School District information. Given his history, including a prior suspension for computer misconduct, and given that his conduct is felonious under the Crimes Code, the Court found that the expulsion was entirely appropriate.
Decision: M.T. for A.T. v. Central York School District [PDF]
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