Protection from Abuse - persons related by affinity

B.R.S. v. J.L. – Pa. Superior Court – July 31, 2020 – reported opinion

http://www.pacourts.us/assets/opinions/Superior/out/J-A16004-20o%20-%20104500805107927464.pdf?cb=1

 

 

Held: Plaintiff had standing to bring and get relief in PFA case against the husband of her sister-in-law, since plaintiff and defendant were family members related by affinity.

 

From the opinion

The goal of the Protection from Abuse Act is protection and prevention of further abuse by removing the perpetrator of the abuse from the household and/or from the victim for a period of time. As for individuals who may seek refuge within the confines of the Act, the statute's protective sphere encompasses [] “family or household members.” In section 6102 of the Act, the term “family or household members” is defined as, 

Spouses or persons who have been spouses, persons living as spouses, parents and children, other persons related by consanguinity or affinity, current or former sexual or intimate partners or persons who share biological parenthood. Id. (citations and internal quotation marks omitted).

Here, the parties are not spouses, persons living as spouses, related by consanguinity, current or former sexual or intimate partners or persons who share biological parenthood. Consequently, they may only fall under the confines of the PFA Act if we determine they are “persons related by ... affinity.” Id. 

The Act itself does not define “affinity.” However, a prior panel of this Court faced a similar issue in McCance, [908 A.2d 905 (Pa. Super. 2006)] in which the Court sought to give meaning to all the terms in the PFA statute while preserving its objective. The Court interpreted “affinity” in the Act to include a family relationship of brother-in-law and sister-in-law. The Court specifically found that such an interpretation was consistent with the purpose of the Act, “which is to forestall escalation of disputes among family members where injury may be on the horizon.” Id. at 910 (citations omitted). 

Merriam-Webster includes multiple definitions of “brother-in-law”, among which is “the husband of one’s spouse’s sibling”. Merriam–Webster, https://www.merriam-webster.com/dictionary/brother-in-law (last visited July 15, 2020). Similarly, among the definitions of “sister-in-law” is “the wife of one’s spouse’s sibling”. Merriam–Webster, https://www.merriam- webster.com/dictionary/sister-in-law (last visited July 15, 2020). Therefore, we conclude Appellant and Appellee are related by affinity. 

To interpret the Act as Defendant would have us do would lead to absurd results. Despite Plaintiff not being blood related, his relationship with her is no different than his relationship with Defendant’s wife, who falls under the protection of the Act pursuant to McCance. Plaintiff’s testimony regarding holidays, birthdays, and summers spent together, the relationships between the parties’ children, and the corresponding relationship between Plaintiff and Defendant’s children, and vice versa, . . .. applies equally to Appellee as it does to Appellee’s wife. 

[T]he persons who undoubtedly fit the Act's definition of family or household members— e.g., spouses, parents, children, relatives, paramours, and persons who undertake romantic relationships— typically share some significant degree of domestic, familial and/or intimate interdependence. There is often an obvious emotional bond. Frequently, these individuals interface in very practical areas of private life—a mutual residence, common family obligations and/or shared involvement in the affairs of day-to-day living ... In sum, the persons protected by the Act as a family or household members have a connection rooted in blood, marriage, family-standing, or a chosen romantic relationship. Scott v. Shay, 928 A.2d 312, 315 (Pa. Super. 2007). -4- 

By construing “person related by ... affinity” to include all definitions of a brother-in-law or sister-in-law, we give effect to the provisions of the statute in a way that promotes its purpose of preventing violence among people with a domestic, familial or romantic bond, past or present. 

 

 

 

occupational licensing -good moral character - equal protection - Pa. Constitution

 Haveman and Spillane v. Bureau of Professional and Occupational Affairs – Cmwlth. Court – en banc – reported

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/765MD18_8-25-20.pdf?cb=2

 

The 5-2 majority held that the “good moral character” clause, on its face, violates the equal protection mandates of the Pennsylvania Constitution.

 

From Harrisburg Patriot News – August 26, 2020

 

COMMONWEALTH COURT

 

Morality clause in esthetician licensing rules is unconstitutional, court says 

 

Matt Miller mmiller@pennlive. Com

 

A section of state law that requires estheticians to be of “good moral character” before they can obtain licenses to work in beauty salons is unconstitutional and discriminatory, a sharply divided Commonwealth Court panel ruled Tuesday.

 

The majority opinion by Judge Anne E. Covey marks a win for not only two aspiring estheticians who have criminal records, but also for anyone else who wants to get into that profession but has some sort of criminal record in their past.

The decision could be appealed to the state Supreme Court, however.

 

The issue before Commonwealth Court was a challenge to part of the state Beauty Culture Law filed by Courtney Haveman and Amanda Spillane. Both had brushes with the law in the past and claim to have reformed.

 

The state Board of Cosmetology cited their criminal records in refusing to grant them licenses to become estheticians, specialistswho perform facial massages and other skin care treatments. The cosmetology board determined the two failed the good moral character test.

 

On appeal to Commonwealth Court, Haveman and Spillane argued that the good character requirement violates their constitutional right to due process of law, “discriminates within the beauty industry” and “needlessly discriminates against people with criminal histories.”

 

State officials countered that the good moral character provision is justified to protect patrons of salons and barber shops.

Covey concluded that the provision is in fact unconstitutionally discriminatory because it is not imposed for the licensing of others in the profession, such as barbers.

 

Judge Ellen Ceisler filed her own opinion backing the ruling in favor of the women. She called the moral character provision “unconstitutionally imprecise and arbitrary.”

 

“Good character has nothing to do with protecting beauty salon patrons. Indeed, the Board admits that it has no evidence that the good character requirement protects salon customers,” Ceisler wrote.” In fact, the board already has separate authority to withhold licenses for misbehavior that is related to cosmetology.”

 

Judges P. Kevin Brobson and Patricia A. McCullough filed dissenting opinions.

 

Brobson contended Haveman and Spillane should have pursued appeals with the cosmetology board before going to court. So, he said, the case was not yet ripe to even be considered by Commonwealth Court. McCullough claimed the majority decision is premature and that her court should have waited to evaluate whether the dispute was addressed by a revision made to the Beauty Culture Law this year.

But see n. 10 –

 

10 Accordingly, “[o]ur Supreme Court has held that the equal protection provisions of the Pennsylvania Constitution are analyzed under the same standards used by the [U.S.] Supreme Court when reviewing equal protections claims under the Fourteenth Amendment to the [U.S.] Constitution.” Muscarella v. Commonwealth, 87 A.3d 966, 972 n.8 (Pa. Cmwlth. 2014)

  

 

 

 

 

 

qualified immunity - employment - sex discrimination, et al. - 3d Cir.

Starnes v. Butler Co. Court of Common Pleas – 3d Cir. – 8-24-2020

https://www2.ca3.uscourts.gov/opinarch/183271p.pdf

 

Third Cir. upheld lower court denial of judge’s claim of qualified immunity on all  claims except 1^st Amendment association claim, in case involving female probation officer’s claims against president judge for various issues involving improper sexual conduct and discrimination concerning her employment.

 

Starnes’ other claims, for which qualified immunity for the judge was denied at pleading stage, involved

• 14^th Amendment equal protection
• Title VII discrimination
• 14^th Amendment – sex discrimination
• Sec. 1983 hostile work environment
• First Amendment – right of free expression, right of petition for redress of grievances

 

default judgment - opening - timeliness

Scala v. KWS, Inc. – Pa. Super. – reported decision – August 11, 2020

 

http://www.pacourts.us/assets/opinions/Superior/out/J-A13021-20o%20-%20104511452108811397.pdf?cb=1

 

Held: Refusal to open default judgment against defendant affirmed in products liability case brought by laborer who suffered partial amputation while working on construction site.

 

Requirements to open-- A petition to open a default judgment is addressed to the equitable powers of the court and the trial court has discretion to grant or deny such a petition. The party seeking to open the default judgment must establish three elements: (1) the petition to open or strike was promptly filed; (2) the default can be reasonably explained or excused; and (3) there is a meritorious defense to the underlying claim. 

Standard of review - The court’s refusal to open a default judgment will not be reversed on appeal unless the trial court abused its discretion or committed an error of law. An abuse of discretion is not merely an error in judgment; rather it occurs when the law is overridden or misapplied, or when the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias or ill-will. Moreover, this Court must determine whether there are equitable considerations that weigh in favor of opening the default judgment and allowing the defendant to defend the case on the merits. Where the equities warrant opening a default judgment, this Court will not hesitate to find an abuse of discretion. Stabley v. A&P, 89 A.3d 715, 719 (Pa. Super. 2014) (quoting Castings Condominium Ass’n, Inc. v. Klein, 663 A.2d 220, 222-23 (Pa. Super. 1995))

Timeliness - In Kelly v. Siuma, 34 A.3d 86 (Pa. Super. 2011) and Supreme Court’s decision in Queen City Elec. Supply Co., Inc. v. Soltis Elec. Co., Inc., 421 A.2d 174 (Pa. 1980), the courts said that Pennsylvania courts have not established a specific time period within which a petition to open a default judgment must be filed to qualify as timely. Instead, the court must consider the length of time between discovery of the entry of the default judgment and the reason for delay. It is well established that where equitable circumstances exist, a default judgment may be opened regardless of the time that may have elapsed between entry of the judgment and filing of the petition to open.

The timeliness of a petition to open a judgment is measured from the date that notice of the entry of the default judgment is received. In cases where the appellate courts have found a ‘prompt’ and timely filing of the petition to open a default judgment, the period of delay has normally been less than one month. See Ducksonv.WeeWheelers,Inc.,[]620A.2d 1206 (Pa. Super. 1993)(one day is timely);Alba v. Urology Associates of Kingston, [] 598 A.2d 57 (Pa. Super. 1991) (fourteen days is timely); Fink v. General Accident Ins. Co., [] 594 A.2d 345 (Pa. Super. 1991) ([] five days is timely). [US Bank N.A. v. Mallory, 982 A.2d 986, 995 (Pa. Super. 2009)] (quotation omitted) (finding eighty-two day delay was not timely). Kelly, 34 A.3d at 92.

 

PFA - why victims stay

E/K/ v. J.R.A. - Pa. Super – August 27, 2020

http://www.pacourts.us/assets/opinions/Superior/out/J-A13031-20o%20-%20104508250108578008.pdf?cb=1

 

n. 14

“It is not uncommon for victims of intimate partner violence to remain with or return to their abusers for a myriad of complicated reasons, such as a dire financial situation; a need for housing; help with co-parenting their children, or assistance with a disability; fear of escalating violence or losing their children; religious or cultural beliefs; and/or distorted thinking and unhealthy reliance upon the abuser created by past abuse.”Commonwealth v. Wilson, 227 A.3d 928, 940 (Pa. Super. 2020) (citing Why Do Victims Stay?, National Coalition Against Domestic Violence, https://ncadv.org/why-do- victims-stay). In fact, the PFA Act recognizes the complicated nature of the dynamics of intimate partner violence, and explicitly provides that a PFA order remains in effect in the event of subsequent co-residency. See 23 Pa.C.S. § 6108(g) (“Resumption of co[-]residency on the part of the plaintiff and defendant shall not nullify the provisions of the court order.”).