custody - jurisdiction

Welliver v. Ortiz – Pa. Super. – March 8, 2023

https://www.pacourts.us/assets/opinions/Superior/out/J-A03019-23o%20-%20105457667214892481.pdf?cb=1

 

Held: Pennsylvania trial court did not have jurisdiction over custody case, where neither parent had lived here for a considerable time, and there was no substantial evidence concerning the child in this state.

Accordingly, the trial court did not have exclusive and continuing jurisdiction over the most recent custody petition.

The court also lacked jurisdiction under 23 Pa.C.S.A. § 5422(b), which permits a court to modify a custody determination only if it has jurisdiction to  make an initial custody determination under 23 Pa.C.S.A. § 5421(a). 

The facts on the record fail to establish any of the four jurisdictional bases stated in section 5421, concerning jurisdiction to make an initial custody determination: subsection (

1) is inapposite because the Commonwealth was not Child’s home state at the time of the proceeding or six months before; subsection 

(2) is inapposite because a court of another state had jurisdiction at the time of the filing of the 2020 petition; subsection 

(3) is inapposite because New Jersey (and/or California) have not declined to exercise jurisdiction on the grounds that the Commonwealth is the most appropriate forum to determine custody under sections 5427 or 5428; and 

(4) at least one other state would have jurisdiction under paragraphs (1), (2) or (3). 

The trial court therefore lacked jurisdiction to modify custody under section 5421. Because the trial court lacked subject matter jurisdiction, its August 19, 2022 custody order is null and void. 

 

employment - criminal conviction - collateral consequences - harm to reputation

Commonwealth v. Coniker – Pa. Super. – 2-15-23 – precedential

https://www.pacourts.us/assets/opinions/Superior/out/J-A29038-22o%20-%20105435515212837900.pdf?cb=1

 

 

Held: Because criminal conviction could have collateral consequences – such as damage to his reputation --  the fact that defendant had completed his sentence did not render the case moot. Defendant permitted to appeal.

 

From the opinion:

A case becomes moot when there is no longer an actual case or controversy to be resolved. In the Interest of Y.W.-B., 265 A.3d 602, 612  n.8 (Pa. 2021); e.g., Commonwealth v. Beaudoin, 182 A.3d 1009, 1010 (dismissing appeal as moot based on defendant’s death, a discretionary decision by this Court). 

However, the collateral consequences doctrine recognizes that a person with a criminal conviction may face legal consequences beyond serving the sentence imposed for the conviction. Commonwealth v. Markley, 501 A.2d 1137, 1141–42 (Pa. Super. 1985) (citing Sibron v. New York, 392 U.S. 40 (1968)). Notably, adverse consequences are presumed; “a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.” Id. at 1141 (quoting Sibron, 392 U.S. at 57). . . . .

He. . .speculated that these convictions could damage his reputation; see Markley, 501 A.2d at 1140, 1141 n.4; see also Pa. Const. Art. 1, § 1 (recognizing an inherent right to reputation). . . .Given the possibility that Coniker’s convictions will damage his reputation, we conclude that he could suffer collateral consequences as a result. As such, we agree with Coniker that the collateral consequences doctrine applies and his cases are not moot. Markey, supra. Therefore, we will address substantive issues. 

 

 

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UC - willful misconduct - absences - failure to report

Rothlein v. UCBR – Cmwlth. Court – 2-24-23 – unreported memorandum opinion**

https://www.pacourts.us/assets/opinions/Commonwealth/out/1102CD20_2-24-23.pdf?cb=1

 

Held: Claimant disqualified for willful misconduct for failure to report his absences due to illness.

 

From the opinion:

 

The employer bears the burden of proving that the claimant committed willful misconduct. Grand Sport Auto Body v. UCBR., 55 A.3d 186, 190 (Pa. Cmwlth. 2012) (en banc) (citing Docherty v. UCBR., 898 A.2d 1205, 1208 (Pa. Cmwlth. 2006)). 

If the employer satisfies this initial hurdle, the burden shifts to the claimant to establish good cause for his or her actions. Id. (citing McKeesport Hosp. v. UCBR, 625 A.2d 112, 114 (Pa. Cmwlth. 1993)). Good cause exists where the claimant’s actions “are justifiable and reasonable under the circumstances.” Id. (quoting Docherty, 898 A.2d at 1208-09). 

Illness is a good cause defense to willful misconduct due to absenteeism. Owens v. UCBR, 748 A.2d 794, 798 (Pa. Cmwlth. 2000) (citing McKeesport Hosp., 625 A.2d at 114). 

A claimant’s illness will not establish good cause, however, where the claimant fails to properly report his or her absences. See Schlappich v. UCBR., 485 A.2d 855, 857 (Pa. Cmwlth. 1984) (citing Manatawny Manor v. UCBR, 401 A.2d 424 (Pa. Cmwlth. 1979)); Gelles v. UCBR, 452 A.2d 91, 92 (Pa. Cmwlth. 1982) (citing Gochenauer v. UCBR., 429 A.2d 1246, 1248 (Pa. Cmwlth. 1981)).

In this matter, . . .although Claimant may have missed work due to illness, Employer’s documentation reveals that he failed to demonstrate good cause, because he did not report many of his absences.10 See Schlappich, 485 A.2d at 857 (citing Manatawny Manor, 401 A.2d 424). 

+++++++

 

 

** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).