threat to harm another - interstate communication - 18 USC 875(c)

US v. Elonis – 3d Cir. – October 28, 2016

http://www2.ca3.uscourts.gov/opinarch/123798p1.pdf

Conviction upheld for violation on 18 USC 875(c) – use of interstate communications containing threat to injure the person of another

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http://uscode.house.gov/view.xhtml?path=/prelim@title18/part1/chapter41&edition=prelim

§818 USC 875 (c). Interstate communications

(c) Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.

privacy - Pa. Constitution - Article I, sec. 1

PSEA et al. v. Office of Open Records, DCED, et al.

Majority                     http://www.pacourts.us/assets/opinions/Supreme/out/J-44A-2016mo%20-%2010285085913999619.pdf?cb=1 (33 pp.)

Concurring                http://www.pacourts.us/assets/opinions/Supreme/out/J-44A-2016co%20-%2010285085913999653.pdf?cb=1 (6 pp.)

Held:  The right to privacy under Article I, sec. 1, of the Pennsylvania Constitution precludes the wholesale disclosure of names and addresses of school teachers, absent a strong countervailing interest.

Rules of Prof. Responsibility 4.2 - contacting govt. officials - Discip. Board of Pa. newsletter

Attorney News - October 2016

Tip of the Month: Contacting Government Officials

Suppose you are representing a client in a dispute with a government agency. The agency is represented by counsel, perhaps the Attorney General’s Office or the local solicitor or municipal counsel. Rule 4.2 of the Rules of Professional Conduct prohibits a lawyer from communicating directly with a represented party about the subject of the representation without the consent of counsel, or as authorized by law. Does this prohibit you from petitioning the government agency on policy matters the way any other citizen would be allowed to do?
 
In 1997, the ABA Standing Committee on Ethics and Professional Responsibility addressed the question in Formal Opinion 97-408,  Communication with Government Agency Represented by Counsel (1997). The Committee noted that the “authorized by law” exception arises out of the preservation of the First Amendment’s protection of the right to petition the government in controversies with government officials. The Committee concluded that a lawyer representing a client before an agency may contact the agency when two conditions are satisfied:

1.     The officials to be contacted are in a position to take or recommend action in the matter and the substance of the communication relates to policy issues including settlement; and  

2.     The communicating lawyer gives opposing counsel advance notice of the impending communication so that they can give appropriate advice to their clients as to how to respond to the inquiry. 

The ABA opinion has generally been adopted and followed in state bar ethics opinions. It is important that the right to communicate with government officials recognized by the ABA pertains to matters of policy, not the particulars of cases.

Comment 5 to Rule 4.2 echoes this analysis, stating, “Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government.” Also, the fact of representation does not prohibit the lawyer from communicating about other matters unrelated to the representation. Comment 4 states, “the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter.”
 

employment - wages - payment by debit card violates WPCL

Siciliano v. Mueller, dba McDonalds – Pa. Super.

http://www.pacourts.us/assets/opinions/Superior/out/J-A06019-16o%20-%2010285579214039762.pdf?cb=1

In a class action involving an issue of first impression, the court held that mandatory payment of wages by payroll debit card does not meet the requirement of section 260.3 of the WPCL that “wages shall be paid in lawful money of the United States or check.” 43 P.S. § 260.3.

The WPCL states that wages “shall be paid in lawful money of the United States or check.” 43 P.S. § 260.3. The language is clear. A debit card is not “lawful money” and it is not a “check” as contemplated by the drafters of the WPCL.   The Legislature obviously did not contemplate the concept of a payroll debit card when it adopted the language of section 260.3 in 1961.

The term “check” is defined in the WPCL as follows: “A draft drawn on a bank and payable on demand.” 43 P.S. § 260.2(a). A “draft,” though not defined in the WPCL, is “[a]n unconditional written order signed by one person (the drawer) directing another person (the drawee or payor) to pay a certain sum of money on demand or at a definite time to a third person (the payee) or to bearer. A check is the most common example of a draft.” Black’s Law Dictionary (10th ed. 2014).

The term “lawful money” is not defined in the statute; however, its common definition or approved usage does not include a debit card. See 1 Pa.C.S. § 1903 (where terms are not defined in statutes, Statutory Construction Act requires words and phrases to be construed by their common and approved usages). The Statutory Construction Act itself defines “money” as: “Lawful money of the United States.” 1 Pa.C.S. § 1991. B

The use of a voluntary payroll debit card may be an appropriate method of wage payment. However, until our General Assembly provides otherwise, the plain language of the WPCL makes clear that the mandatory use of payroll debit cards at issue here, which may subject the user to fees, is not. S

Fair Credit Reporting Act - inaccurate crim. records - housing

Stokes v. RealPage Inc. – ED Pa. – October 18, 2016

https://www.paed.uscourts.gov/documents/opinions/16D0791P.pdf

MTD denied - Defendant, RealPage, Inc.  motion to dismiss Count Two of the Complaint for lack of standing denied. 

disability - mental disability - complete history - pre-application/onset hospitalizations

Patel v. Colvin – ED Pa. – October 13, 2016

https://www.paed.uscourts.gov/documents/opinions/16D0776P.pdf

Plaintiff stated that her disability began on May 1, 2010, and filed the application on August 5, 2011.33 In assessing Plaintiff’s treatment record, the ALJ stated that records before the application date of August 5, 2011, were “not from the relevant period.” 

With regard to Plaintiff’s hospitalizations, the ALJ noted which hospitalizations preceded the “alleged onset date”and apparently discounted them on this basis. This was error.

The regulations specifically acknowledge the importance of a comprehensive view of a claimant’s condition over a significant period of time i.e. the need for longitudinal evidence.

More specifically, the regulations state that a “complete medical history,” means “the records of your medical source(s) covering at least the 12 months preceding the month in which you file your application.”

This is particularly relevant in this case, where Plaintiff alleged an onset date of May 1, 2010, and the hospitalizations occurred after that date, with most occurring within one year of the application date. Of particular concern is the ALJ’s apparent discounting of Plaintiff’s lengthy hospitalization from July 21, 2011 through August 24, 2011, at the time of Plaintiff’s application.

In addition, it appears that the ALJ applied a mechanical assessment of Plaintiff’s medical records, focusing on whether a hospitalization lasted more than two weeks and seemingly discounting or rejecting as irrelevant any that did not, without regard to whether “the duration and functional effects of the episodes are of equal severity and may be used to substitute for the listed finding” as required by the regulations.