UC - willful misconduct - good cause

Docherty v. UCBR - Commonwealth Court - May 9, 2006

http://www.aopc.org/OpPosting/CWealth/out/1952CD05_5-9-06.pdf

Claimant (CL) did not commit willful misconduct where
- CL was phlebotomist in hospital
- hospital had confidentiality policy
- policy required employees to safeguard information from unauthorized viewing or listening - CL was discharged for violating the policy under the following facts:

- CL was drawing blood in a 2-patient room
- one patient was 5 year-old female
- patient's mother specifically asked CL why he was drawing blood
- the mother asked this question in the presence of patient's roommate and latter's mother.
- CL said that blood would be used for a rapid HIV and hepatitis test
- mother complained that CL vocalized a response that could be heard by others in room
- CL did not invite anyone into the room and did not respond loudly
- there is no evidence that the roommate or roommate's mother overheard CL's response

Held, claimant had good cause (a question of law) to violate the ER's rule/policy, since his actions were "justifiable and reasonable under the circumstances." Frumento, 351 A.2d 631 (Pa. 1976). Resolution of these issues requires consideration of "all of the circumstances, including the reasons for the [claimant's] noncompliance with the employer's directives." Navickas, 778 A2d 284 (Pa. 2001).

domestic - gun permit - conviction of DV crime

Wolak v. State Police - Commonwealth Court - Feb. 27, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1373CD05_5-9-06.pdf

The court affirmed the denial by state police of appellant's application for a gun permit based on sec. 922 of the Federal Gun Control Act of 1968, 18 USC 922, which precludes a person convicted of a misdemeanor crime of domestic violence from possessing a firearm.

Appellant was charged with various offenses after having discharged a shotgun in his house. His wife alleged and the criminal complaint stated that he had fired the weapon at her while she was coming up the steps.

All charges were dismissed at an MDJ hearing, except for reckless endangerment. Then pursuant to an agreement with the district attorney, all of the original charges were dropped, and appellant pleaded guilty to disorderly conduct, an misdemeanor of the third degree, 18 Pa. C.S. 5503. The record did not show what subsection of sec. 5503 was involved, and the plea colloquy did not contain any facts, but there was "nothing indicating that the underlying factual averments in the complaint and information were modified. . . only that the charge itself was changed. Thus, the averments made in support of the reckless endangerment charge became the operative averments in support of the disorderly conduct charge. The plea was made with respect to the averments in the Complaint."

The court held that appellant had committed a "misdemeanor crime of domestic violence," since (a) the crime was a misdemeanor under state law, and (b) it had as an element "the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse," 18 USC sec. 921)(a)(33)(A).

family - dependency - failure to ensure protection of child

In the Matter of E.B. - Superior Court- May 3, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/s70041_05.pdf

Clear and convincing evidence supported the finding that the child was dependent, due to fact that parent could not be "relied upon to enforce an existing stay-away order" involving the parent's paramour, who had made sexual advances toward the child.

consumer - state consumer protection law - credit reporting agency

Abusaab v. Equifax Information Services - ED Pa - May 4, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0554P.pdf

An arbitration award against Plaintiff was reversed on appeal, but the defendant credit reporting agency persisted in listing the judgment as "satisfied" instead of having been reversed and removed.

Plaintiff sued under Fair Credit Reporting Act, 15 USC 1681 et seq., and brought state law claims for negligence, defamation, false light, as well as a Consumer Protection Law (CPL) claim.
Defendant moved to dismiss all claims.

The Court refused, except as to the CPL claim, holding that the law does not cover credit reporting agencies, since there is no sale, purchase or lease of good or services between the parties.

Supreme Court of Pennsylvania Adopts New Procedural Rules to Address Changes to PFA Law

The Supreme Court of Pennsylvania has issued new rules of civil procedure to guide implementation of the new amendments to the Protection From Abuse Act. The newly enacted Act 66 of 2005 expands and accelerates PFA victim protections.

Changes to the Protection From Abuse Act that take effect May 9 include those that authorize county judges to order defendants with Protection From Abuse orders against them to surrender all firearms and other weapons within 24 hours - when the court determines such action is necessary to protect a victim. Defendants who do not surrender a firearm when ordered would face a misdemeanor charge. The Act also provides for alternative methods of relinquishment, such as transferring firearms to a licensed dealer.

The new Act also allows the president judge of a Court of Common Pleas to appoint a part-time or full-time master for emergency relief who may hear PFA petitions when a judge is not available. Other changes include an increase in the minimum fine for violation of a PFA order from $100 to $300.

A complete copy of the new rules, along with an explanatory report on the changes, is available on the Pennsylvania Judiciary Web site at the links below.

Order
Rule

Full AOPC Press Release

consumer - debt collection - failure to dispute debt doesn't "verify" it

Nelson v. Select Financial Services, Inc. - ED Pa. - April 28, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0538P.pdf

A debt collector's letter which states that the debtor's lack of response to the intial collection letter "verifies the validity of this debt" was held to violate sec. 1692e of the Fair Debt Collection Practices Act, which prohibits "any false, deceptive, or misleading representation in connection with the collection of any debt."

Applying the "least sophisticated debtor" standard, the court found that the letter "falsely represented to [the debtor] that her inaction definitively confirmed the authenticity of the debt, in violation of Sections 1692e and 1692e(10)."

The court noted the difference between (a) the statutorily-required language that a debt "will be assumed to be valid by the debt collector" unless disputed by the debtor within 30 days and (b) the statement that the debtor's lack of response an intial collection letter with such a "will be assumed" notice verifies the debt.

Pennsylvania Bulletin of April 29, 2006

http://www.pabulletin.com/secure/data/vol36/36-17/index.html


- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-17/696.html

- federal poverty guidelines - 2006
http://www.pabulletin.com/secure/data/vol36/36-17/716.html

- PUC - practice and procedure before the commission
http://www.pabulletin.com/secure/data/vol36/36-17/746.html

- game commission - wild turkeys - hunting and trapping
http://www.pabulletin.com/secure/data/vol36/36-17/700.html

consumer - insurance - cancellation - mailbox rule - intent to cancel

Russock v. AAA Mid-Atlantic Insurance Co. and Citizens Bank - Superior Court- April 17, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a01034_06.pdf

Premium payments were to be made, according to insurer's instructions, through an on-line remittance service of the bank. Payment renewal date was June 13. Insured electronically requested the bank to issue payment on June 3. Bank issued and mailed the check on June 10. Check arrived at insurer's office on June 17, 4 days after the due date of June 13. Insurer issued a notice of cancellation on June 17 but nonetheless cashed insured's check. On June 20, insured had an accident on June 20 and submitted a claim, which was rejected.

Insurer's claim that the payment was late was rejected based on application of the mailbox rule, which holds that payment is deemed received when mailed, "[w]here the use of the mails as a means of acceptance is a;uthorized or implied from the surrounding circumstances...Here the use of the mails to submit premiums was not merely authorized, but required."

Insurer's affirmative defense that insured intended to cancel the policy was rejected. In order to prove that defense, the insurer has the burden to prove insured "had a clear and precise intent to cancel the policy prior to the loss....i.e., knowledge of payment due and refusal to pay." Those condition "do not exist where.... arrangements for payment are made, the payment itself is placed in transit to the payee who has dictated the method of transport, and the check is cashed."

UC - appeal - timeliness

Shea v. UCBR - Commonwealth Court - April 21, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/2042CD05_4-21-06.pdf

Claimant's appeal of referee decision was held to be untimely under 34 Pa. Code 101.82(b)(1), where the appeal was mailed within appeal period but was returned for insufficient postage, then was re-mailed three days after end of appeal period.

custody - standing - "gestational mother"

J.F. v. D.B. - Superior Court - Aril 21, 2006

http://www.aopc.org/OpPosting/Superior/out/A41034_05.pdf

Third-party "gestational mother" (GM)/"gestational carrier" who is not children's biological mother does not have standing, as against unconsenting Father a) to seek or challenge custody of triplets born of the embryo of Father's sperm and the egg of "egg donor" J.R., or b) to seek the termination of J.R.'s parental rights.

GM's actions were contrary to a surrogacy agreement of GM, Father, and Father's long-term companion, E.D. Father and E.D. planned to raise the children by an agreement arranged to a private surrogacy agency. However, the court "decline[d] to comment on the validity of surrogacy contracts, either specifically in this case or generally in this Commonwealth. That task is for the legislature."

Pennsylvania Bulletin of April 22, 2006

http://www.pabulletin.com/secure/data/vol36/36-16/index.html

- weatherization - state plan - public hearing - May 10
http://www.pabulletin.com/secure/data/vol36/36-16/662.html

- LIHEAP - proposed plan 2006-7 - public hearing schedule
http://www.pabulletin.com/secure/data/vol36/36-16/679.html

- PUC - telephones - extended local service area - proposed regulations
http://www.pabulletin.com/secure/data/vol36/36-16/657.html

employment - FMLA - 11th Amendment

Febres v. Camden Board of Education - 3d Cir. - April 18, 2006

http://www.ca3.uscourts.gov/opinarch/051178p.pdf

Held: a local board of education is not an "arm of the state" under the 11th Amendment in a suit under the self-care provision of the Family and Medical Leave Act (FMLA), 29 USC 2612 (a)(1)(D). The court applied the test set out in Fitchik v. N.J. Transit Rail Operations, 873 F.2d 655, 659 (3d Cir. 1989), which "has been reiterated and applied many times since."

SSA Publishes Final Rule Establishing New Administrative Review Process for Adjudicating Initial Disability Claims

The Social Security Administration has published a final rule establishing its new disability determination process, known as the Disability Service Improvement (DSI) process. The rule explains SSA's new procedures for adjudicating the disability portion of initial claims for Social Security disability insurance (DI) benefits and for supplemental security income (SSI) based on disability or blindness.

SSA states that the purpose of the rule is to improve the accuracy, consistency, and fairness of its disability determination process and to make the right decision as early in the process as possible.

Under this rule, the administrative review process consists of several steps, which must be requested within certain time periods. When an application is filed for benefits, SSA will make an initial determination on the claim, and in certain circumstances refer the claim for a quick disability determination (QDD). If the applicant is dissatisfied with the initial determination, they may request review by a Federal reviewing official. If they are dissatisfied with the Federal reviewing official's decision, they may request a hearing before an administrative law judge.

The administrative law judge's decision becomes SSA's final decision, unless the claim is referred to the Decision Review Board (DRB). When the DRB reviews the claim and issues a decision, that decision is SSA's final decision. If the applicant is dissatisfied with the final decision, they may seek judicial review in Federal district court.

View the Final Rule

disability - continuance - lack of counsel - perfunctory hearing

Curry v. Barnhart - ED Pa. - April 13, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0458P.pdf

The court remanded the case for a de novo hearing where
- claimant was a 60 y/o illiterate person
- first attorney agreed to represent claimant only if he got a continuance
- first attorney got a continuance, but in the interim claimant got a second attorney
- second attorney got the hearing continued again, but then decided not to represent claimant
- second attorney went to hearing only to say he wasn't representing claimant
- ALJ asked the claimant if he had any objection to having the hearing; claimant did not object
- There was "no attempt to explain to petitioner the pros and cons of proceeding without legal representation"
- The "ALJ hearing was perfunctory at best
- The claimant "did not knowingly and intelligently waive his right to be represented by counsel"
- "[B]asic fairness dictates that the case be remanded...with representation of the petitioner by counsel."

Pennsylvania Bulletin of April 15, 2006

http://www.pabulletin.com/secure/data/vol36/36-15/index.html

Of possible interest --

- Commonwealth contracts - Governor's executive order - non-discrimination
http://www.pabulletin.com/secure/data/vol36/36-15/598.html

- attorneys - discipline - criminal convictions
http://www.pabulletin.com/secure/data/vol36/36-15/600.html

- courts - rules - electronic filing - technical amendments
http://www.pabulletin.com/secure/data/vol36/36-15/602.html

- public utilities - natural gas suppliers and n/g distribution companies - permanent standards of conduct
http://www.pabulletin.com/secure/data/vol36/36-15/603.html

- welfare - payment for nursing facility services
http://www.pabulletin.com/secure/data/vol36/36-15/623.html
http://www.pabulletin.com/secure/data/vol36/36-15/624.html

CJP Files Class Action Over Attachment of Social Security Funds

The Community Justice Project and private counsel from Harrisburg, Joseph K. Goldberg, have filed a class action lawsuit on behalf of a sixty-seven year-old Coalport (Clearfield County) man. The suit was filed in the United States District Court in Johnstown against Clearfield County Prothonotary William A. Shaw and CSB Bank.

In his suit, John J. Dransfield claims that he lives on Social Security payments directly deposited into his bank account and that his account, at CSB Bank in Coalport was frozen for more than a month in the fall of 2005, so he could not use his Social Security money to pay his bills. Mr. Dransfield also claims that CSB Bank took a total of $340 from the Social Security money in his account to pay itself legal fees associated with freezing his account.

The lawsuit claims that CSB’s action in taking the Social Security funds from his account and the Prothonotary’s action in issuing a writ of execution authorizing the account to be attached violated federal law that prohibits both execution and attachment of Social Security and Supplemental Security Income payments.

In his Complaint, Mr. Dransfield does not deny he owes creditor money and that a judgment has been entered against him, but he claims he is making small monthly payments and that the creditor is not permitted to collect the debt from his Social Security funds.

The lawsuit was filed as a class action on behalf of Mr. Dransfield and all other persons in Clearfield County who have Social Security or Supplemental Security Income payments directly deposited into their bank accounts and who have judgments entered against them. The complaint asks the court to prohibit the attachment of Social Security funds and to order CSB to refund charges it has made against Social Security funds belonging to any of its customers in the United States District Court in Johnstown.

The Complaint and Motion for Class Certification filed in the case are located in the PLS Brief and Information Bank at the link below.

Attachment of SSA Benefits

employment - personnel files - inspection - 43 P.S. 1321 et seq.

University of Pittsburgh v. Dept. of Labor & Industry - Commonwealth Court - April 12, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1440CD05_4-12-06.pdf

An employee can get access to her/his personnel file under the Personnel File Inspect Act, 43 P.S. 1321 et seq. In this case, however, access to outside references for an academic tenure evaluation was denied. The court said that such documents were excluded from the definition of "personnel file," since they were "letters of reference."

appeal - lack of transcript - reconstruction - PRAP 1923

In the Interest of G.T. - Superior Court - April 10, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a04009_06.pdf

Appellant father contested the termination of his parental rights, claiming, inter alia, that the part of the hearing transcript was missing. The court rejected that argument, noting that father did nothing to try to recreate the missing parts of the transcript as best he could, which was his duty under PRAP 1923 http://www.pacode.com/secure/data/210/chapter19/s1923.html (Statement in Absence of Transcript) and which opposing counsel offered to draft. The court also held that there was a sufficient factual basis for the lower court's decision, even in the absence of parts of the transcript.

employment - age discrim. - PHRA - release

Griest v. Pennsylvania State University - Superior Court - April 4, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a05001_06.pdf

Former employee's agreement/release barred him, on its face, from making any claims under the Pennsylvania Human Relations Act. Nonetheless, he filed a claim based on age discrimination in a common pleas action, which the trial court dismissed on the basis of the release, citing Long v.Sears, 105 F3d 1529 (3d Cir. 1997) and Wastak v. Lehigh Valley Health Network, 342 F3d 281 (3d Cir. 2003).

The appellate court affirmed, holding that
- the release agreement did not violate any state public policy;
- the technical requirements of the federal Older Worker's Benefits Protection Act (OWBPA) concerning waiver of federal ADEA rights, 29 USC 626(f)(1), were not relevant to a state cause of action under the PHRA;
- a release not procured by fraud, duress or mutual mistake is binding between the parties.

Pennsylvania Bulletin of April 8, 2006

http://www.pabulletin.com/secure/data/vol36/36-14/index.html

- utilities - biennial report to legislature and governor on Chapter 14
http://www.pabulletin.com/secure/data/vol36/36-14/588.html

- state employees - code of conduct - disclosure of $ interests
http://www.pabulletin.com/secure/data/vol36/36-14/561.html

- governor's veto message - SB 745 - asbestos cases
http://www.pabulletin.com/secure/data/vol36/36-14/562.html

- attorneys - bar admission rules
http://www.pabulletin.com/secure/data/vol36/36-14/563.html

- local court rules
Philadelphia - http://www.pabulletin.com/secure/data/vol36/36-14/565.html
Carbon - http://www.pabulletin.com/secure/data/vol36/36-14/566.html

appeals - PRAP 1925(b) - Concise Statement of Matters Complained of on Appeal

Commonwealth v. Holtzapfel - Commonwealth Court - April 4, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1735CD05_4-4-06.pdf

Citing Commonwealth v. Castillo, 888 A2d 775 (Pa. 2005) and Commonwealth v. Schofield, 888 A2d 771 (Pa. 2005), the court held that there is a "bright-line rule" that requires timely filing of Concise Statement of Matters Compaint of on Appeal under PRAP 1925(b). The result of a failure to timely file such a Statement is a waiver of any issues that could be complained of on appeal.

The rule requires that a Statement be filed within 14 days of the direction of the trial court to file such a statement. In this case, appellant filed a statement but not until about 35 days after the order.

child support - standing of child to enforce parents' support agreement

Chen v. Chen - Pa. Supreme Court - March 20, 2006

http://www.courts.state.pa.us/OpPosting/Supreme/out/J-169-2004mo.pdf
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-169-2004co1.pdf - concurring (Cappy)

http://www.courts.state.pa.us/OpPosting/Supreme/out/J-169-2004co2.pdf - consurring (Castille)

http://www.courts.state.pa.us/OpPosting/Supreme/out/J-169-2004co3.pdf - concurring (Saylor and Eakin)

Stating that it was applying contract principles, the court held that a child is an incidental beneficiary rather than a third-party intended beneficiary of her parents' property settlement agreement (PSA) concerning payment of child support, citing Restatement (2d) Contracts sec. 302, adopted in Guy v. Liederbach, 459 A.2d 744 (Pa. 1983). The Court held that a child does not have a legally enforceable interest/standing under the parents' PSA. The child has a right to be supported but not a right to receive direct individual payments.

custody - standing - adoptive grandparent - parents separated

Little-Stepp v. Cancilla and Little-Stepp - Superior Court - March 31, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a02045_06.pdf

Citing Peters v. Costello, ___ A2d ___ (2005 Pa. Lexis 3199, December 30, 2005), the Superior Court held that non-biological grandparents who
a) stand in loco parentis to one of the parents of a child with respect to whom they seek grandparental visitation rights, and
b) who otherwise quality to seek partial custody/visitation,
have standing to seek visitation under the Grandparent Visitation Act, 23 Pa. CS 5311-13.

In n. 2, however, the Court noted that "'mere grandparental status alone' does not confer standing under the Act....One must meet the other requirements of the specific section upon which one is relying for standing. For instance, section 5312...requires that the parents' marriage be dissolved or they are separated....[I]n Malone v. Stonebrook, 843 A.2d 1278 (Pa. Super. 2004), this Court held that the biological paternal grandmother had standing under section 5312 in a case where [as here] the parents of the child as issue were never married and had no ongoing relationship."

Disability - GAF scores

Colon v. Barnhart - ED Pa. - March 24, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0369P.pdf

The ALJ decision mentioned and discussed only 2 of 12 GAF scores in the medical reports. In her brief, the Commissioner offered reasons for this, which the court rejected, noting that it was "bound to consider the final decision of the Commissioner as written and cannot insert into it arguments presented after the [f]act by interested parties."

A claimant's GAF scores are not considered to have a "direct correlations to the severity requirements." 66 Fed Reg 50746, 50764-5 (2000). However, the GAF remains the scale used by mental health professionals to assess current treatment needs and provide a prognosis. As such, it constitutes medical evidence accepted and relied upon by a medical source and must be addressed by an ALJ in making a determination regarding a claimant's testimony.

This "incomplete consideration of the Plaintiff's GAF scores" constituted a "failure [by the ALJ] to properly weigh the evidence before him." The ALJ did not explain his reasons for not considering all of the GAF scores. His failure to include limitations from the GAFs in his hypo further undercut his decision, including the VE's testimony. The hypo must "fairly encompass all of the Plaintiff's significant limitations."

consumer protection - damages - benefit of the bargain

Lesoon v. Metropolitan Life Insurance Co. - Superior Court - March 28, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a18044_05.pdf

Plaintiff sued the insurance company under the state consumer protection law for deceptive acts, including forging signatures. The trial court decided that plaintiffs did not suffer actual damages, because the company had given plaintiffs money which restored them to the status quo that existed before any fraudulent acts were committed.

Noting the distinction between general principles of contract law and the Pennsylvania Consumer Protecton Law, which was enacted to deter consumer fraud, the Superior Court reversed, holding that Plaintiffs were entitled to "benefit-of-the-bargain damages" -- what they would have received absent the defendant's deceptive acts.

Pennsylvania Bulletin of April 1, 2006

http://www.pabulletin.com/secure/data/vol36/36-13/index.html

Of possible interest -

- recent statutes, vetoes
http://www.pabulletin.com/secure/data/vol36/36-13/523.html

- court rules - local - Venango County - domestic relations
http://www.pabulletin.com/secure/data/vol36/36-13/527.html

- disciplinary board - rules - amendments
http://www.pabulletin.com/secure/data/vol36/36-13/525.html

- Revenue - happy mother's day lottery game (not an April Fool's joke)
http://www.pabulletin.com/secure/data/vol36/36-13/453.html

- Indpt. Regulatory Review Commission - regs. Approved
http://www.pabulletin.com/secure/data/vol36/36-13/542.html

consumer protection law - telemarketing act - discount prescription plan - misleading claim of govt. affiliation

Cmwlth. ex rel. Attorney General v. Peoples Benefit Services, Inc. - Cmwlth. Court - 03-28-06

http://www.courts.state.pa.us/OpPosting/CWealth/out/557MD05_3-28-06.pdf

Defendant's motion to dismiss refused in consumer protection case brought by state attorney general under the Unfair Trade Practices and Consumer Protection Law, 73 P.S. 201-1 et seq. The AG's complaint alleged generally that PBS "engaged in unfair methods of competition and unfair or deceptive acts or practices by marketing in ways that could confuse or mislead consumers into believing that PBS and/or its good and services are government related..."

UC - reasonable assurance - teacher - 43 PS 802.1(1)

Archie v. UCBR - Commonwealth Court - March 27, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/2018CD05_3-27-06.pdf

Part-time adjunct university teacher denied UC because she had "reasonable assurance" of continuing work for next academic term, despite lack of concrete schedule and uncertainty caused by contingent enrollment. The court said that "'reasonable assurance' does not require the employer to give an absolute guarantee of employment in the second academic year" but rather "consists of a bona fide offer of employment for the next academic year on terms substantially the same as those in the prior term," citing 34 Pa. Code 65.161(a).

consumer - RICO - fraud - specificity

Silverstein v. Percudani - MD Pa. - March 22, 2006

http://www.pamd.uscourts.gov/opinions/Munley/04v1262b.pdf

Individual plaintiffs' RICO claims under 18 USC 1962(c) against Pocono real estate developer and financers dismissed for lack of specificity in complaint, as required by Federal Rule 9(b) and case law. Leave to amend was not granted because such leave had been previously granted, "and even with the amendment, Plaintiffs' pleadings are insufficient." Plaintiffs' state consumer protection law claims were also dismissed, because, with no valid federal claim, the parties were not diverse and there was thus had no basis for federal jurisdiction.

disability - failure to keep exam. appt. - VE hypo

Williams v. Barnhart - ED Pa. - March 17, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0345P.pdf

ALJ should have sought a psychiatric evaluation of claimant (CL) even where CL had failed to keep prior appointment for consultative exam. CL did not offer any reason for missing the appt., but neither did the ALJ inquire into the matter at the hearing. Failure to appear for a scheduled exam "is rarely seen as a definitive bar to benefits....[C]ourts will look to see if the ALJ had substantial evidence for his decision in the absence of the evaluation."

There was no such substantial evidence in this case. The ALJ improperly rejected the CL's subjective complaints w/o an adequate explanation. The CL had been hospitalized at least 2x for depression, attends an outpatient psych. treatment program 4 days/week, and has an intensive case manager, who (along with CL's daughter) assists in activities of daily living. The objective evidence, as well as the CL's subjective complaints, point to the need in this case for a psychiatric evaluation.

The ALJ also erred in by failing to explain his reasons for rejecting CL's attorney's supplemental hypo to the VE, which included the CL's subjective complaints. The hypo must reflect all of a CL's impairments that are supported by the record.

Case remanded.

social security disability case - multiple issues

Thompson v. Barnhart - ED Pa. - March 15, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0332P.pdf

This case was remanded because the ALJ decision not supported by substantial evidence and ALJ did not apply correct legal standards.

de facto reopening
Claimant (CL) had filed several prior applications. The ALJ decision being reviewed by the court constituted a de facto reopening of the case. "'Where the administrative process does not address an earlier decision but instead reviews the entire record in the new proceeding and reaches a decision on the merits, the agency has effectively reopened the prior claims and waived application of res judicata.'"

failure to follow remand order
The Commissioner had moved for a remand earlier in the case, stating that it would benefit from further inquiry into CL's mental status, "including obtaining a mental status evaluation and a medical source statement...." The ALJ did not order a further examination but rather got the expert opinion of a non-examining psychiatric expert. This was error. "Medical source statements are to be based on the medical sources' records and examination of the individual; i.e., their personal knowledge of the individual.'" SSR 96-5p, 1996 Lexis 2, at *11 (emphasis supplied by court).

use of GAF
The ALJ found the the CL's mental impairment was non-severe, despite one GAF score of 50. The Commissioner argued in court that GAF assessments are not reliable indicators of mental functioning because they are subjective and vary among practitioners. The court rejected this argument, stating that "[w]hile this response may in fact be true, the ALJ did not include that same critique of GAF score in his decision, and this Court can only review the decision on the basis upon which it was made. Fragnoli v. Halter, 247 F.3d 34, 43-44 n. 7 (3d Cir. 2001). The Court also said that if the ALJ were to reject the GAF score, case law required that he explain his reason for doing so, citing Cotter v. Harris, 642 F2d 700, 707 (3d Cir. 1981) and other ED Pa. cases specifically involving GAF scores.

hypo to vocation expert not complete
In his hypo to the VE, the ALJ omitted some of the mental limitations that he had found to exist. The hypo 'must include all of a claimant's impairments that are supported by the record. Ramirez, 372 F3d 546, 552 (3d Cir. 2004). As in Burns, 312 F3d 113, 122-3 (3d Cir. 2002), a reference to simple tasks does not specifically convey the claimant's intellectual limitations; greater specificity is required."

onset date
The ALJ chose an onset date based solely on the fact that SSI benefits are not retroactive and the chosen date was the earliest he could have awarded benefits under the SSI law, i.e. "for no other reason than the fact that [the claimant] filed a piece of paper on that day." This was not consistent with SSR 83-20, which provides an analytical framework for determining an onset date.

ADA - SSD - no estoppel

Turner v. Hershey Chocolate - 3d Cir. - March 20, 2006

http://www.ca3.uscourts.gov/opinarch/044674p.pdf

Plaintiff's Americans with Disabilities Act (ADA) claims, 42 USC 12112(a), et al., were not estopped by allegations in her SSDI and long-term disability insurance claims about her disability.

Statements in support of an SSDI claim do no take into account the concept of reasonable accommodation under the ADA and therefore do not necessarily estop a claim under the ADA that one is capable of performing the essential functions of a job, with reasonable accommodations. Cleveland v. Policy Mgmt. Systems Corp., 526 US 795 (1999)

Statements on the long-term disability insurance claim were not categorical statements of total inability to peform job funcionts, nor did they take into account plaintiff's ADA entitlement to reasonable accommodation.

custody - relocation - intrastate

Speck v. Spadafore - Superior Court - March 22, 1006

http://www.courts.state.pa.us/OpPosting/Superior/out/A05024_06.pdf

Unmarried parents had 9 y/o child. A York County order was entered giving parties shared legal custody, mother primary physical custody, and father partial custody, with almost daily contact. In 2005 mother filed a petition to modify to allow her to relocate with the child to Butler County, near Pittsburgh, in light of her impending marriage. The trial court granted mother's motion and gave father partial custody during most of the summer.

The appellate court found that the "trial court focused on Mother's personal happiness to the virtual exclusion of the other relevant facts," in spite of its finding that the current arrangement was working well for the child, including almost daily contact with the father and the fact that all extended family from both sides live in the Harrisburg area, within 10 minutes of both parties' homes.

The court said that it was "clear that the only improvement is in Mother's personal relationship" and that the "detriments were numerous and significant," including the "disruption of [the father-child] relationship" and the separation of the child from two half-siblings -- the children of father and his girlfriend, who have lived together for 6 years. Quoting Jane Austen's Mansfield Park, the court said that "children of the same family, the same blood, with the same associations and habits, have some means of enjoyment in their power, which no subsequent connections can supply....' Relocation cases have highlighted the enduring value of the maintenance of sibling relationships."

"While relocation may enhance Mother's own personal and emotional happiness and well-being, our concern must be centered upon whether the move is in the child's best interest....[T]he custody parent bears the burden of establishing a significant improvement in the quality of life for that parent and child...We can identify no significant benefits of relocation to the child in the instant case. The reality is that [the child] enjoyed a good quality of life, surrounded by loving parents, siblings, extended family, a sound school, a circle of friends, and extracurricular activities."

The only benefit identified to mother was her relationship with her new husband. This "relocation had one goal, Mother's cohabitation with the man she intended to marry...[T]hat one fact, alone, is simply not enough to require a ten year-old child to relinquish his parental and familial supports, the very relationships that will enrich and sustain him as he grows to adulthood."

The opinion contains a complete statement of its scope and standard of review, along with the factors relevant to a relocation case.

Pennsylvania Bulletin of March 25, 2006

Here's the link http://www.pabulletin.com/secure/data/vol36/36-12/index.html

Of possible interest-

- court rules - support - proposed rules
comments due May 12, 2006
http://www.pabulletin.com/secure/data/vol36/36-12/480.html

- court rules - PFA - proposed rules
comments due May 12, 2006
http://www.pabulletin.com/secure/data/vol36/36-12/479.html

- voter i.d. - Governor's veto of HB 1318
http://www.pabulletin.com/secure/data/vol36/36-12/475.html

- damages - limitation - contractors - construction defect - dwelling- AG opinion - HB 1467
http://www.pabulletin.com/secure/data/vol36/36-12/476.html

- MDJs - training and certification
http://www.pabulletin.com/secure/data/vol36/36-12/478.html

- client security fund - attorneys - discipline
http://www.pabulletin.com/secure/data/vol36/36-12/477.html

SSA Issues New Rules on Medical Equivalence in Disability Determinations

The Social Security Administration has published final rules revising the the processing of claims for disability benefits under Titles II and XVI of the Social Security Act. These revisions make the language in the rules used under Title II for making findings about medical equivalence consistent with the language in the rules used under Title XVI of the Act.

The revisions also clarify SSA's rules about the evidence used to making findings about medical equivalence for adults and children. The rules explaining the Listing of Impairments and how impairment(s) can meet a listing are also updated and clarified.The new rules will be effective on March 31, 2006.

Final Rules

Pennsylvania Bulletin of March 18, 2006

Here's the link http://www.pabulletin.com/secure/data/vol36/36-11/index.html

Of possible interest-

- evidence - Rule 404 - character evidence - not admissible generally - exceptions
http://www.pabulletin.com/secure/data/vol36/36-11/419.html

- courts - judicial discipline court - internal operating procedure
http://www.pabulletin.com/secure/data/vol36/36-11/418.html

- Commonwealth Court - sessions for 2007
http://www.pabulletin.com/secure/data/vol36/36-11/422.html

- local courts rules - - custody - pretrial conferences
Westmoreland County http://www.pabulletin.com/secure/data/vol36/36-11/421.html
Northampton Copunty http://www.pabulletin.com/secure/data/vol36/36-11/420.html

- welfare - payments to nursing facilities - final rates 2005-6
http://www.pabulletin.com/secure/data/vol36/36-11/448.html

- welfare - peer groups - nursing and special rehab facilities
http://www.pabulletin.com/secure/data/vol36/36-11/449.html

disability - depression/alcoholism - prescribed treatment

Bodner v. Barnhart - ED Pa. - March 14, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0316P.pdf

Alcohol/depression case. Case remanded where

a) There was no evidence in the record that claimant could work when sober and compliant with medications. There was no support in the medical record for this finding, since claimant had not been directed to take psychotropic drugs. A claimant needn't take palliative drugs unless prescribed. The ALJ impropely ignored the treating physician's opinions in this regard.

b) The ALJ did not follow the procedure in SSR 82-59 concerning failure to follow prescribed treatment.

Some key facts -
- Claimant (CL) testified that he had been sober since April 2002
- Treating psych. said CL couldn't complete normal work day/week
- VE testified that CL couldn't do any work if unable to complete normal work day/week
- No psychotropic meds prescribed because of CL's liver disease and other health problems

consumer - predatory lending - statute of limitations - equit. tolling - discovery rule

Wise v. Mortgage Lenders Network USA - ED Pa. - March 13, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0317P.pdf

Lender and mortgage broker moved to dismiss various consumer claims under Rule 12(b)(6) based on statute of limitations grounds. Motion denied.

equitable tolling
Dismissal of federal statutory claims was denied under equitable tolling doctrine, because the complaint alleged that the defendants had actively misled the plaintiffs about their claims. The "doctrine of 'equitable tolling' operates to stop the statute of limitations from running whete the claim's actual accrual date has alreayd passed...It thus allows a court 'to extend a statute of limitations on a case-by-case basis to prevent inequity." Fraudulent concealment was alleged, and plaintiffs showed that they had exercised reasonable diligence in investigating and bringing the claims. Plaintiffs' complaint alleged "facts that suggest an active attempt....to intentionally defraud them by exploiting their financial need and concealing material terms of the loan.

discovery rule
Dismissal of state fraud and breach of fiduciary claim was similarly rejected by application of the "'discovery rule' exception to the statute of limitations which delays the running of the statute until the plaintiff knew, or through the exercise of reasoanble diligence should have known, of the injury and its cause....[W]hen the underlying events being sued upon sound inherently in fraud or deceit...that, without more, will toll the statute of limitations until such time as the fraud has been revealed, or should have been revealed by the exercise of due diligence by the plaintiff.'"

custody - relocation - no prior custody order

Collins v. Collins - Superior Court - March 13, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/s62032_05.pdf

Trial court's order denying mother's request to relocate was reversed on appeal.

Relocation -- The Gruber factors, while important, are but one aspect of the overall best interest analysis; they "take into account only...a small corner of the best interest cosmos." Where there is no existing prior order, it is error to place a higher burden on the relocating parent and to decide relocation first, then primary custody. "Nothing in our case law suggests that...where primary custody must be decided in the context of a relocation request, relocation should take a place of prominence and be the subject of an initial decision, which then leads inexorably to the custody decision....The focus of the court must be on determining which parent and which living situation provides a familial setting that better serves the children's best interests."

Stability -- Stability is important, but physical stability, i.e., staying in the same home, is just one factor. "A child's sense of stability involves more than just physical structures and location; stability with regard to caregiver and patterns of car must also be considered."

Primary caretaker - age of children -- Primary caretaker is an important factor no matter what the children's ages. There is "no support in the case law" for a contrary notion, which the lower court expressed.

Disposition - The appellate court has the option to decide the case on the merits where the record is sufficiently developed.

due process - post-hearing addition to order

In re D.G. - Superior Court - March 10, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/s67030_05.pdf

Appellant/father's due process rights were violated when the court in a dependency case added a provision to its order, ex parte, after the hearing, without giving father notice or an opportunity to be heard on the issue. The addition was a no-contact order concerning one of the witnesses.

An ex parte injunction can issue on where it is evident from the record that there would be immediate and irreparable injury if the injunction were delayed until notice could be given and a hearing held. There was no such showing in this case, nor was the post-hearing discussion transcribed.

Pennsylvania Bulletin of March 11, 2006

The link http://www.pabulletin.com/secure/data/vol36/36-10/index.html

Of possible interest

- drivers licenses - occupation limited licenses
http://www.pabulletin.com/secure/data/vol36/36-10/391.html

- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-10/387.html

- labor & industry - public comment on combined agency state plan - VR/OVR
http://www.pabulletin.com/secure/data/vol36/36-10/403.html

- agriculture - referendum on continuation of state potato research program
http://www.pabulletin.com/secure/data/vol36/36-10/393.html

firearms - license - disclosure of social security number

Stollenwerk v. Miller, ED Pa. - February 24, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0225P.pdf

The court held that the state Uniform Firearms Act requirement that an applicant to buy or carry a handgun disclose his/her Social Security number is invalid under the federal Privacy Act, PL No. 93-579, sec. 7, 88 Stat. 1896, 1909 (1974), reprinted in 5 USC 552a note (2003).

Pennsylvania Bulletin of March 4th*

Here’s the link

http://www.pabulletin.com/secure/data/vol36/36-9/index.html


Of possible interest—

- IRRC – LIHEAP regs approved
http://www.pabulletin.com/secure/data/vol36/36-9/369.html

- public utilities – telephone regs – petition of Consumer Advocate to amend chapter 63
http://www.pabulletin.com/secure/data/vol36/36-9/358.html


* The only date which is a command

disability - consid. of evidence - duty to develop record - scope of magistrate judge's duty

Roman v. Barnhart - ED Pa. - February 28, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0248P.pdf

This case involves a 10 year-old boy with hearing and speech impairment. The case was remanded because ALJ did not explain his consideration of the records of the child's primary physician and "did not appear to give meaningful consideration to the non-medical evidence from [the child's] teacher...." This evidence was directed "to be evaluated and subjectively considered by the ALJ."

An ALJ need not always give a comprehensive explanation for the rejection of evidence. In most cases a sentence or short paragraph will suffice. Here however "it does seem to be an inescapable conclusion the ALJ did fail to directly address evidence from" the teacher.

The Magistrate's Report did discuss this evidence. However, in doing so, the Magistrate "exceeded her limited scope of review...[I]t is impermissible...to rectify ALJ errors by making an independent analysis and relying on information not relied upon by the ALJ....rather than focusing only on the reasons set forth by the ALJ."

There is also a good discussion of the ALJ's duty to develop the record adequately, even where the claimant is represented by counsel. When the ALJ is aware of a report that is "reasonably necessary for the full presentation of a case," the ALJ on his/her own initiative "may" issue subpoenas for the material documents.

Donald Marritz
MidPenn Legal Services

disability - treating physician rule, etc.

Somenski v. Barnhart - ED Pa. - February 28, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0240P.pdf

Summary judgment for Plaintiff.

treating physician - phys. not an advocate; opinion based on objective evidence
Good review of 3d Cir. law on treating physician rule, which the ALJ improperly discounted. The ALJ erred in holding that the doctor's opinion was undermined by the fact that he "was an advocate" for plaintiff in a worker's comp. proceeding. The adversarial nature of W/C proceedings does not affect the reliability of the [doctor's] testimony. An ALJ "may not disregard medical findings of examining physicians merely because it was offered as part of a worker's compensation hearing..."

In addition, the physician's opinions were not based on the claimant's subjective complaints but on an objective, detailed assessment of Plaintiff's functioning.

finding of another agency
Plaintiff had been granted disability benefits by a US Dept. of Labor ALJ in a Longshoreman & Harbor Worker's Comp. case, 33 USC 901 et seq. While that decision is not binding, 20 CFR 404.1504, is "entitled to substantial weight....If the ALJ reaches a contrary conclusion, the ALJ must offer an explanation of why he rejected the other agency's finding." The ALJ in this case "did not specify what amount of weight, if any, he accorded the... decision not did he explain his reasons for rejecting it, beyond the fact that it was not binding. Under controlling Third Circuit law, this was error."

subjective complaints
Claimant's accounts of pain were corroborated by the unrebutted opinions of all physicians. Even though an ALJ's credibility determination is "entitled to great deference," subjective symptoms must be considered and "may not be discounted if reasonably consistent with the objective evidence and other evidence in the record." Here the ALJ improperly discounted unrebutted medical opinions and "erroneously supplanted" the doctor's opinions "with his personal speculation."

V/E - hypo
The hypothetical question to the vocation expert must fairly encompass "all of an individual's significant limitations that are supported by the record." (emphasis in original) The hypo in this case was lacking because if did not take into account the severity of the plaintiff's psych. problems or any of his exertional limitations.

remedy
Noting a) that the 3d Circuit has expressed "frustration with the delays in disability determinations," b) that plaintiff applied for benefits more than 8 years ago, c) that the extensive record is unlikely to change and "constitutes substantial evidence that [plaintiff] is precluded from engaging in substantial gainful activity," the court awarded benefits.

Donald Marritz
MidPenn Legal Services

real estate - sales - disclosure - adjacent group home

Colaizzi v. Beck - Superior Court - March 1, 2006

www.courts.state.pa.us/OpPosting/Superior/out/a41023_05.pdf

Held, it was not a violation of the consumer protection law, 73 P.S. 201-1 et seq., or common law fraud for a seller of real property to fail to disclose to buyer that the adjacent property was the site of a group home for mentally-challenged adults.

Sellers signed a disclosure form under the Real Estate Seller Disclosure Law, 68 Pa. C.S. 7301 et seq., which said that he were not aware of "any condition that would affect the use and/or enjoyment of the property or the fair market value and/or title of the property." The appellate court reject that buyer argument that the lower court erred by focusing solely on the subject property rather than considering adjacent properties. The court said that there was no authority for such a reading of the law. "Moreover, even if we were persuaded by Appellant's argument, we find that the existence of a group home for mentally-challenged adults on the adjacent property does not constitution a 'legal issue'" under the RESDL.

Donald Marritz
MidPenn Legal Services

child witness - Tender Years Hearsay Act - psych. exam

Commonwealth v. Shearer - Superior Court - March 1, 2006

www.courts.state.pa.us/OpPosting/Superior/out/e04010R_02.pdf

Superior Court reversed the trial court's order that a child-victim be examined by a private psychologist retained by alleged abuser prior to a competency determination by trial court under the Tender Years Hearsay Act, 42 Pa. C.S. 5985.1.

The appellate court said that it was "beyond doubt that a court-ordered psychiatric examination intrudes into an important aspect of human privacy concerns….While trial courts must regularly make competency rulings, a court-ordered psychological examination should never be the starting point for such a determination…..Such an examination should not be ordered unless the record demonstrates the existence of a 'compelling reason' for the examination….The fact that a witness is an alleged child victim of sexual abuse does not, in and of itself, negate the requirement of demonstrating the necessity for court-ordered psychological examination."

The court agreed with the Commonwealth that there was no evidence showing that the child witness "suffers from any mental condition that would require a psychiatric examination before a competency hearing can be conducted."

Donald Marritz
MidPenn Legal Services

disability - depression - onset date - evidence

Payton v. Barnhart - ED Pa. - February 24, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0223P.pdf

The ALJ's determination of onset date in closed period case was inconsistent with the medical evidence and not supported by substantial evidence where the sole support of the ALJ decision was a "'non-examining' State Agency 'checklist.'"

The evidence showed that claimant's depression "did not suddenly become a severe impairment" on the date found by the ALJ but existed prior to that point, as established by the medical evidence.

The court reversed the ALJ decision rather than remanding the case, because the administrative record was "fully developed and…substantial evidence on the record as a whole indicates that the cliamant is disabled and entitled to benefits."

Donald Marritz
MidPenn Legal Services

Pennsylvania Bulletin of February 28, 2006

Here's the link http://www.pabulletin.com/secure/data/vol36/36-8/index.html

Of possible interest-

- welfare - MA program fee schedule - procedure code changes
http://www.pabulletin.com/secure/data/vol36/36-8/346.html

- attorneys - discipline - rules of disciplinary enforcement - amendments
http://www.pabulletin.com/secure/data/vol36/36-8/322.html

- court rules - proposed - pleadings, format - comments due March 8th
http://www.pabulletin.com/secure/data/vol36/36-8/323.html

- juvenile court judges' commission - statement of policy - admin. of restitution funds
http://www.pabulletin.com/secure/data/vol36/36-8/329.html

- revenue - mystery multiplier bingo instant lottery game
http://www.pabulletin.com/secure/data/vol36/36-8/348.html

custody - international - Hague Convention

In re Application of Adan - Third Circuit - Febrary 14, 2006

http://www.ca3.uscourts.gov/opinarch/053045p.pdf

District Court ordered return of parties' daughter to Argentinian father, whom appellant-mother had accused of abusing her and daughter. The 3d Circuit ordered a stay of the return order and remanded the case back to the district court -- which it said had created a "woefully incomplete" record -- for detailed fact-finding about the abuse, the ability of Argentinian authorities to protect the child, etc.

See also, Baxter v. Baxter, Third Circuit Court of Appeals, September 15, 2005 http://www.ca3.uscourts.gov/opinarch/043228p.pdf

Donald Marritz
MidPenn Legal Services

Class Action Notice Landscaping H-2B Case

To: Advocates for Workers

The United States District Court for the Eastern District of Pennsylvania nationwide FLSA opt-in class action notice on behalf of H-2B workers against The Brickman Group, Ltd. is available at the following web location:
http://friendsfw.org/H-2B/Brickman/Class_Notice.pdf

The consent form must be returned prior to July 15, 2006. A copy of the consent form is available for printing at:
http://friendsfw.org/H-2B/Brickman/Brickman_Consent.pdf

Brickman is one of the largest employer's of H-2B landscaping workers. The class includes more than 2,000 persons from Mexico and more than 100 persons from Guatemala. The lawsuit is based upon the continuing failure to comply with Arriaga, et al. v. Florida Pacific Farms, LLC, et al., 305 F.3d 1228 (11th Cir. 2002)

The Defendant's U.S. operations where in numerous different status. Addresses supplied as last known US addresses for foreign H-2B workers include persons in the following states (in declining numbers of persons for 2005) : MD; MI; PA; IN; MO; OH; NJ; VA; NY; CO; TX; CT; FL; DE; TN; IL; CA; MA; NC

Interested persons should contact Friends of Farmworkers staff attorney Manuel Boigues, mboigues@friendsfw.org, telephone (215) 733-0878, ext. 130.

Co-counsel include:

Edward Tuddenham
and
Rachel Micah-Jones
Centro de los Derechos del Migrante
Calle Víctor Rosales #164
Col. Centro, Zacatecas, Zac., Méx.
C.P. 98000
Tel: 011 (52) 492 925 2510
Fax: 011 (52) 492 925 2511
Free call from Mexico 01-800-59-01-773
Free call within the US: 1 - (800) 401-5901


From: Art Read, Friends of Farmworkers

contracts - oral settlement agreement - enforceability

Krebs v. United Refining Co. - Superior Court - February 16, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a21034_05.pdf

An oral settlement agreement can be enforceable, even where the parties cannot agree about reducing it to writing. However, the claim to enforce was denied in this case, because there was no agreement as to essential terms. The nature and extent of mutual obligations were not certain, and there was no agreement about material and necessary details of the parties' alleged bargain. A trial court cannot fill in missing terms and enforce an agreement of its own devising.

Donald Marritz
MidPenn Legal Services

UC - voluntary quit - leaving the work site

Iaconelli v. UCBR - Commonwealth Court - February 16, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1443CD05_2-16-06.pdf

Claimant was held to have quit her job when she left the work site and did not thereafter try to return to contact the employer. She "did not take any steps to preserve her employment relationship."

"An employee merely leaving the work premises is not enough to determine intent to voluntarily terminate her employment….A claimant must have a conscious intention to terminate her employment….An employee who leaves her employment w/o informing her employer when or if she is planning to return may be held to have voluntarily quit….However, the majority of these cases allow for a reasonable period of time in which an employee has the opportunity to manifest an intent to quit and the employer has the opportunity to contact the employee or vice-[sic]versa."

Donald Marritz
MidPenn Legal Services

UC - findings - complete/specific

Central Dauphin School District v. UCBR - Commonwealth Court - February 15, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1453CD05_2-15-06.pdf

This is a voluntary quit case in which a teacher left her job because of serious student discipline problems. The court remanded the case back to the UCBR for further findings of fact on a) Claimant's credibility and b) whether the employer provided her "appropriate and sufficient support" in resolving the student discipline problems

The court said that the student behavior, if it took place, "would certainly create circumstances that produced real and substantial pressure to terminate employment… if the facts are found as outlined in the record. However, without specific fact finding we can not [sic] exercise proper appellate review." (emphasis added)

The Board "never ruled on the credibility of Claimant vis-a-vis the alleged conduct" outlined in her testimony or whether the employer provided her "appropriate and sufficient support" in resolving the problem.

Donald Marritz
MidPenn Legal Services

paternity by estoppel

Gebler v. Gatti - Pennsylvania Superior Court - February 2, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/s52014_05.pdf

The trial court's finding of paternity by estoppel (PBE) was reversed (2-1). The parties were never married, Defendant-appellant held the child out as his own for 18 months, "under Mother's misrepresentation that he was the only one having sexual relations with Mother at the time of conception." Defendant ceased acting as the child's father when he got a private DNA test and learned that he was not the child's biological father. The appellate court said that the doctrine of PBE is "aimed at achieving fairness" by holding parties to the prior conduct. It held that to apply the doctrine here "would defy principles of equity...." One judge dissented.

Donald Marritz
MidPenn Legal Services

consumer protection - pleading - fraud v. misrepresentation - contract under seal - limitations

Christopher v. First Mutual Corp. - ED Pa. - January 20, 2006

http://www.paed.uscourts.gov/documents/opinions/06d0073p.pdf

pleading - fraudulent v. deceptive conduct
The district court found that under the catchall provision of the state consumer protection law, 73 P.S. sec. 201-2(xxi), which prohibits "fraudulent or deceptive conduct which created a likelihood of confusion or misunderstanding," it is "no longer necessary for a plaintiff to plead all of the elements of common law fraud to recover" under that provision, where a plaintiff is claiming deception rather than fraud.

It was noted that "courts have divided on whether a plaintiff must meet the heightened fraud pleading requirement," Skurnowicz v. Lucci, 798 A.2d 788 (Pa. Ssuper. 2002) or a less strict requirement, Flores v. Shapiro & Kreisman, 246 F.Supp.2d 427, 432 (ED Pa. 2002), and that the state supreme court had not yet addressed the issue.

statute of limitations - contract under seal
The court also held that the 20-year statute of limitations applied where the document contained the typed words "In witness whereof, I hereunto set my hand and official seal" and the word "seal" was next to each witness signature, 42 Pa. C.S. sec. 5525(a)(8) (contract under seal).

Donald Marritz, staff attorney
MidPenn Legal Services

UC- suitable work - refusal of temporary work w/pay cut

Department of Education v. UCBR - Commonwealth Court - January 27, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1478CD05_1-27-06.pdf

Held, that claimant (CL) did not refuse suitable work, 43 PS 753(t), and was not disqualified under 43 PS 802(a) where:

a) she had only been unemployed two weeks at the time of the employer's job offer;
b) the offer was for temporary work;
c) CL had "favorable prospects of obtaining new [permanent] employment" ;
d) CL had just been placed on a civil service list for a permanent position;
e) the offer would have involved a 26% reduction in pay and loss of benefits;
f) ER did not inform the OES [sic] of the job offer, as required by 43 P.S.sec. 802(a)*

Pennsylvania courts "have developed a balancing test, considering the reduction in pay on one hand against he duration of unemployment on the other, with the weight of the former decreasing as the latter increases." The "'most important factor in this type of case is the length of time that the claimant has been unemployed.' "

The court said that our "supreme court has repeatedly recognized that a claimant is entitled to a 'reasonable opportunity' to find employment commensurate with her training and experience" and held that, under all of the above circumstances, CL had good cause for refusing the ER's offer.

Donald Marritz
MidPenn Legal Services

* This is footnote to say that this apparently dispositive issue was only mentioned in a footnote.

employment - ADA - medical exam/inquiry

Ward v. Merck & Co., Inc. - ED Pa. - January 9, 2006

http://www.paed.uscourts.gov/documents/opinions/06d0034p.pdf

Summary judgment granted to employer (ER) on Plaintiff's claim that he was terminated from his job in violation of the provision of the Americans with Disabilities Act, 42 USC sec. 12111(d), that prohibits a medical exam or inquiry about a disability, its nature or severity, "unless such examination or inquiry is shown to be job-related and consistent with business necessity."

The court found that there was "more than sufficient evidence" to justify the ER's medical inquiry in this case, where there were allegations that Plaintiff's job behavior and performance deteriorated badly.

Donald Marritz
MidPenn Legal Services

consumer - insurance - duty of insured to cooperate in investigation of claim

Murphy v. Federal Insurance Company - ED Pa. - January 18, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0056P.pdf

Defendant's motion for summary judgment granted. Plaintiff breached his contract when he unreasonably refused to cooperate in the insurer's investigation of his claim, to the prejudice of the insurer.

Interpretation of an insurance contract is a question of law. Where a policy is ambiguous, it should be construed against the insurer. If the terms are clear and not ambiguous, the court must give effect to the plain language. Here there was a clear contractual duty of the insured to cooperate in the investigation. His refusal to do so had a prejudicial effect on the insurer.

Donald Marritz
MidPenn Legal Services

UC - willful misconduct - refusal to obey ER direction - insubordination

ATM Corp. of America v. UCBR - Commonwealth Court - January 23, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1560CD05_1-23-06.pdf

Held, refusal of Claimant (CL) to agree to request of employer (ER) for background check was insubordination and willful misconduct.

CL had been an accounting clerk for ER for 4 years w/o incident. In February 2005, ER adopted a new policy and directed CL and all others in the accounting dept. to sign a consent for a background check. There was no ER rule at the time of CL's hire about such checks, although there was a rule about insubordination. CL refused to sign, claiming that the request was overbroad and unreasonably intrusive. ER advised CL that her continued refusal would be grounds for dismissal for insubordination. CL's job involved handling sensitive information, including credit card info, social security numbers, addresses, loan info, etc., and gave her access to large sums of money. There was a specific ER concern about identity theft.

The Court held that CL's refusal to consent to the background check violated the ER rule about insubordination, and that CL did not have good cause for her refusal, thus making her actions willful misconduct. It said that it was "beyond peradventure that Employer has a legitimate need to protect the confidential information of its customers to which accounting department employees, including Claimant, have daily access. A background check is a "reasonable way to protect that confidential information, particularly where demanded by Employer's financial partners and customers. Such background checks are not unique, which is why their occurrence must be disclosed by employers under the Fair Credit Reporting Act [15 USC sec. 1681a(h)]....[T]he Authorization Form conformed to the requirement of federal law." The court said the if a background check of the type identified in the FCRA was "too intrusive on Claimant, it is difficult to imagine for what employment positions it would ever be appropriate." The ER direction was "reasonable under the circumstances, and Claimant's refusal to cooperate was willful misconduct." In addition, the court said that the CL's failure to articulate specific reasons for her refusal "was itself a form of insubordination."

Donald Marritz
MidPenn Legal Services

employment - public - speech - retaliaton - sec. 1983 - qualified immunity

Springer v. Henry - Third Circuit - January 18, 2006

http://www.ca3.uscourts.gov/opinarch/044124p.pdf

Lower court judgment under 42 USC 1983 affirmed for doctor who had been terminated from his job at a state hospital in retaliation for his criticism of the hospital administration (patient care and safety issues). Defendant's claim of qualified immunity rejected, since law prohibiting such termination was clear at the time.

Donald Marritz
MidPenn Legal Services

ADA - $ damages - immunity

U.S. v. Georgia , U.S. Supreme Court - January 10, 2006

http://www.supremecourtus.gov/opinions/05pdf/04-1203.pdf

Held, To the extent that Title II of the Americans with Disabilities Act (ADA), 42 USC 12131 et seq., creates a private cause of action for money damages against states for conduct that actually violates sec. 1 of the 14th Amendment, it validly abrogates the state's sovereign immunity. The case involved a prisoner who claimed that prison officials deliberately refused to accommodate his disability related needs.

The majority opinion focused on possible violations of the 8th Amendment, applicable to the states through the 14th Amendment. The majority noted a disagreement on the Court "regarding the scope of Congress's 'prophylactic' enforcement powers under sec. 5 of the Fourteenth Amendment," but held that "no one doubts that sec. 5 grants Congress the power to 'enforce...the provisions' of the Amendment by creating private remedies against the States for actual violations of those provisions." (emphasis in original)

The concurring opinion of Justice Stevens emphasized that other constitutional rights may also be applicable in the disabled prisoner context, including the right of access to courts (Tennessee v. Lane, 541 U.S. 509 (2004)), abridgement of religious liberties, undue censorship, interference with access to the judicial process, and procedural due process. Justice Stevens also noted that "the state defendants have correctly chosen not to challenge the Eleventh Circuit's holding that Title II is constitutional insofar as it authorizes prospective injunctive relief against the State."

Donald Marritz
MidPenn Legal Services

UC- partial benefits - actual earnings v. potential earnings

Jehrio v. UCBR, Commonwealth Court, January 20, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1699CD05_1-20-06.pdf

This case involves one week, during which the claimant (CL) -- a full-time banquet server -- worked one day, took one day vacation, and no work was available for 5 days. The Board held that the CL was entitled to partial benefits, 43 P.S. sec. 753(u), less her potential earnings on the vacation day, pursuant to UC regs, 35 Pa. Code sec. 65.71

The Court reversed, holding that the regulation and the Board's decision were in conflict with the statute, 43 P.S. 804(d)(1, which directs that partial benefits be reduced by a claimant's actual earnings on the vacation day -- in this case, her vacation pay ($52), which was considerably less that her potential earnings ($218.50 -- hourly wage plus tips), had she worked that day.

Noting the remedial nature of the UC law, the court held that "[i]f the Employer affords employees vacation days, and pays for those vacation days, it would be unfair to penalize those employees and require them to report potential earnings for a day that the Employer agreed they did not have to work. If Employer prevailed, employees could never request a vacation day if work was available to them without being penalized because they would always be required to deduct their potential earnings for the day rather than the vacation pay employer actually paid them."

Donald Marritz
MidPenn Legal Services

debt collection - "debt collector" - vicarious liability

Flamm v. Sarner & Associates and John Matusavage -- ED Pa. - January 4, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0022P.pdf

Defendants' motion for summary judgment denied in a case in which Plaintiff sued law firm and Matusavage, whom she alleged was its employee, for M's actions in trying to collect on a judgment for a doctor's bill. Matusavage (M) went to P's employer several times, accused the P of being a "sneaky thief" who had stolen thousands of dollars from the creditor-doctor, that the employer (ER) could be "in trouble" if it had people like P as employees, and that the next time M went to the ER, he would bring a sheriff and P would be arrested.

law firm as "debt collector"
The law firm defendant was held to be a "debt collector" under the Fair Debt Collection Practices Act, 15 USC sec. 1692 et seq, i.e., a person whose principal business it is to collect debt, or who "regularly collects or attempts to collect debts owed to or due to another." The law firm "consistently has a small percentage of debt collections cases....a consistent taking and handling of debt collection cases" The court held that given this and other evidence, a "reasonable jury could find that" the law firm defendants are debt collectors under the FDCPA.

law firm liability for act of employee or indpt. contractor
Plaintiff claimed Matusavage was the law firm's employee. The firm said that M was an independent contractor, and that it was not liable for his actions. The court noted that there is "relatively little case law on the subject of vicarious liability under the FDCPA" but that "there are cases supporting the notion that an entity which itself meets the definition of 'debt collector' may be held vicariously liable for unlawful collection activities carried out by another on its behalf.'" Given this, summary judgment for D on this issue was held to be "inappropriate."

"ascertainable loss" under the state consumer protection law, 73 P.S. sec. 2270.1 et seq.
Defendants claimed that Plaintiff did not suffer an "ascertainable loss of money or property" and thus could not recover damages under the state consumer protection law, now known as Fair Credit Extension Uniformity Act (FCEUA), 73 P.S. sec. 2270.1 et seq. Noting that Plaintiff had stated a claim under the FDCPA, the court summarily rejected this claim, stating that "[i]t remains for [plaintiff] to present to a jury her 'ascertainable damages' for which she may recover 'actual damages or one hundred dollars ($100), which is greater.'"

defamation and civil conspiracy
The court also rejected defendants' summary judgment motion on these issues, noting a "genuine issue of material fact" on the defamation claim, and that "[q]uestions are raised which prevent" such action on the conspiracy claim.

Donald Marritz
MidPenn Legal Services

housing discrimination - race - predatory lending

McGlawn v. Pa. Human Relations Commn. - Cmwlth. Court - January 13, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/2763CD04_1-13-06.pdf

In a case of first impression, the court held that the Pa. Human Relations Act (PHRA), 43 P.S. 955(h), extends to a sub-prime mortgage broker's predatory lending activities such as reverse redlining. The court relied on federal precedent under the Fair Housing Act, 42 USC 3605, which is very similar to the PHRA, Hargraves v. Capital City Mortgage Corp., 140 F.Supp. 2d (DDC 2000). The court found that the evidence showed that the broker's lending practices and terms were predatory and unfair and that the broker intentionally targeted the plaintiff and the class because of their race, and that the practices had a disparate impart on the basis of race.

predatory character of the loans
The case has an extensive discussion of predatory lending, defining it as including: a) unreasonably high interest rates (more than point points above prime); b) loans based on the value of the asset securing the loan rather than the borrower's ability to repay; c) excessive loan servicing fees; d) targeting of a certain population on unfair or onerous terms which do not meet the borrower's needs; e) a strong likelihood that the borrower will be unable to repay the loan; f) balloon payments; g) prepayment penalties; etc etc.

broker liability
The court rejected the broker's argument that the it should not be liable because it had not approved the loans or actually loaned money. The court noted that the broker was "significantly involved in making the loan" as the middleman who creates the loan opportunity. The customer relies on the broker and expect that the broker will be able to get the best available deal. The borrower deals exclusively with the broker and never actually meets the lender; in the borrower's mind, the broker is the lender. A mortgage broker owes a fiduciary duty to its customers. In re Barker, 251 B.R. 250 (ED Pa. 2000). The PHRA applies to brokers. The broker's activities were a substantial part of the loan transactions at issue.

discrimination
There was substantial evidence, including extensive advertising in the African-American community, a) that the broker intentionally targeted a protected class and b) that its policies and practices had a disparate impart on the basis of race. The PHRC established a prima facie case and rebuttable presumption of discrimination which the broker failed to rebut with some legitimate non-discriminatory reasons for its actions or that its lending practices were legitimate.

damages
The court affirmed the part of the PHRA damage award consisting of monies paid to the broker out of the loan proceeds for items benefiting the broker but not the lender. The court reversed the damage award for the difference between the total interest on the predatory loan v. what the borrowers would pay on a loan at the prevailing rate, due to problems with defining the time frame and the proper credit rates that would be available to the borrowers. However, the court held that the borrowers were entitled to recover damages of this nature. The court also upheld the PHRA's authority to award damages for embarrassment and humiliation, as well as the PHRA's award of a civil penalty to each borrower/complainant.

Donald Marritz
MidPenn Legal Services

employment - ADEA - FRCivP 6(e) - applic. to EEOC right-to-sue letters

DeFrancesco v. Weir Hazleton - ED Pa. - December 20, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1513P.pdf

Plaintiff filed an age discrimination complaint in court on the 92nd day after his EEOC right-to-sue letter was mailed to him. The lower court initially applied FRCivP 6(e), which provides for an extra 3 days to file when a document is mailed.

On a motion for reconsideration by the defendant-employer, however, the district court noted that a 2001 amendment to Rule 6(e) made it applicable only to pleadings, motions, and other court papers, i.e., not a document such as an EEOC right-to-sue letter.

The court held that the weight of judicial authority would justify continued application of the 3-day mailing to EEOC right-so-sue letters, given its consistent continued application even after the amendment to Rule 6(e), but pointed out a "tension...between Rule 6(e)'s amendment...and its continued application to EEOC right-to-sue letters....[W]e are presented with a jurisprudential Mobius strip.

The district court certified the case for interlocutory appeal to the 3d Circuit to answer the question: "Does Federal Rule of Civil Procedure 6(e), as amended effective December 1, 2001, continue to apply to EEOC right-to-sue letters?"

Donald Marritz
MidPenn Legal Services

consumer - TILA - disclosures - creditor v. 3d party

Vallies v. Sky Bank - 3d Cir. - January 5, 2006

http://www.ca3.uscourts.gov/opinarch/051002p.pdf

Held: Single creditor bank must make all TILA disclosures and cannot rely on independent disclosure of required information by a third party seller, a car dealer

Creditor bank violated the TILA when it excluded certain debt cancellation fees from the calculation of the finance charge w/o disclosing the amount of the fees and that cancellation coverage was optional, despite the fact that the disclosures were ultimately made by a non-creditor third party, a car dealer from whom plaintiff bought a vehicle. The car dealer and bank acted independently of each other. The dealer was not the bank's agent.

The TILA in plain terms mandates that the "creditor" to make the required disclosures. The Act "clearly vests the duty of disclosure on the, and only on the, actual creditor and not on any third party to the credit transaction." The "creditor, and the creditor alone, is required to disclose...required information." The "clear language and meaning of the TILA [requires] that all disclosures be made by a single creditor....the actual creditor and not some third party." The "TILA places a clear and affirmative duty on the actual creditor itself to disclose any and all required information....[W]here the creditor fails to disclose this information, it has violated TILA regardless of the ultimate receipt of information." The court rejected the notion that its conclusion was "hypertechnical...or overly formalistic. The creditor need only follow the law...."

Donald Marritz
MidPenn Legal Services

recent ED Pa. disability decisions

Summary judgment granted to SSA in all of the following cases

1. Proffit v. Barnhart - ED Pa. December 30, 2005 -
http://www.paed.uscourts.gov/documents/opinions/06D0014P.pdf
Plaintiff's medical evidence was not extensive and fairly old. Court upheld ALJ's finding the P's subjective complaints were not credible and not supported by objective medical evidence, citing 20 CFR 404.1529(b), (c)(2) and Hartranft v. Apfel, 131 F.3d 358, 362 (3d Cir. 1999)

2. Wright v. Barnhart - ED Pa. - December 28, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1540P.pdf
The court upheld the ALJ's determination that the claimant's depression was not a severe impairment. Noting the threshold for severity is low, the court nonetheless said that the plaintiff "must still provide evidence sufficient to show that her impairment has a minimal effect of her ability to work." Holding that P here didn’t do so, the court noted that the treating physician's opinion was based "largely on the claimant's own account of her symptoms and limitations." The court also rejected the argument that the ALJ should have asked for further info from the treating physician, holding the there was sufficient evidence on which to make a decision. Finally, the claimant's complaints about pain were discounted because it was handled by "conservative treatment….there was a lack of medical evidence showing that she experienced more than moderate levels of pain or other daily symptoms…"

3. Brubaker v. Barnhart - ED Pa. - December 29, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1537P.pdf
a) The ALJ adequately developed the record and fulfilled his heightened duty to the pro se claimant.
b) The claimant did not demonstrate good cause for not having presented evidence to the ALJ at the time of the hearing
c) The ALJ properly rejected the treating doctor's opinion on the ultimate issue of employability, which is reserved for SSA
d) The ALJ properly explained his credibility determination -- this is the weakest part of the opinion. The court held that "although indirectly, the ALJ did explain his credibility determination by incorporating the body of his entire decision….Because I can infer from the decision what the ALJ relied upon in making his credibility determination, I find his conclusion…follows the spirit of the law…." Doesn’t the ALJ have to give a more specific reason for a credibility determination.?
e) The hypothetical posed to the VE adequately set out all credibly established limitations.
f) The ALJ considered claimant's impairments in combination.

Donald Marritz
MidPenn Legal Services

disability - obesity - Listing 9.09 v. SSR 00-3p

Branson v. Barnhart -- ED Pa. - December 29, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1538P.pdf

The court ordered this case to be remanded. Plaintiff's claim had been filed while the Listing 9.09 was still in effect, i.e., prior to the effective date of the new SSR 00-3p. The court found merit in Plaintiff's argument that the SSR should not be applied retroactively to pending claims, citing conflicting cases from other circuits. The court found "persuasive those cases which reason that the Adminstration does not have the authority to engage in retroactive rulemaking….without express congressional authorization" and rejected the language of the SSR which states that it applies to cases filed before October 25, 1999, and still pending on that date. The court held that the claim should have been evaluated under Listing 9.09 and remanded the case.

Donald Marritz
MidPenn Legal Services

contracts - duty of good faith/fair dealing - doctrine of necessary implication

Stamerro v. Stamerro - Superior Court - December 21, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/a13045_05.pdf

This case involves the interpretation and enforcement of a marriage settlement agreement. The appellate court affirmed the trial court's refusal to lower appellant-husband's contractual duty to pay a certain level of alimony.

duty of good faith and fair dealing
Pennsylvania has "accepted the principle in Restatement (Second) of Contracts, sec. 205 that 'every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcements."

The duty of good faith means honesty in fact in the conduct of transaction concerned . The duty of varies somewhat w/context . A complete catalogue of lack of good faith is impossible , but it includes evasion of the spirit of the bargain and lack of diligence

doctrine of necessary implication
This is similar to the doctrine of good faith and fair dealing. Courts employ this doctrine a s a means of avoiding injustice by inferring contract terms that reflect parties' silent intent .

Absent an express term, the doctrine may act to imply a requirement necessitated by reason and justice and to avoid frustation of the intent of the parties

Doctrines of good faith, fair dealing, and necessary implication apply in limited circumstances and cannot trump express contract provisions . They are principles for courts to use to harmonize the reasonable expectations of the parties with the intent of the contractors and the express terms in their contract.

Donald Marritz
MidPenn Legal Services

Freedom of Information Act - waiver of fees

Community Legal Services v. HUD - ED Pa. - December 19, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1502P.pdf

The court granted CLS's motion for summary judgment against HUD on CLS's request to have all fees waived for its Freedom of Information Act (FOIA), 5 USC 552 et seq., request for documents concerning Moving to Work (MTW) Demonstration Program of the Philadelphia Housing Authority, pursuant to PHA's agreement with HUD.

The Court found that CLS had "adequately shown that it satisfied the statutory requirements for a feee waiver" by showing that "disclosure of the requested documents is likely to contribute to public understanding, and that the contribution is likely to be significant."

Donald Marritz
MidPenn Legal Services

custody - expert opinion - discovery/use by opposing party

Lloyd v. Lloyd - Pa. Superior Court - December 20, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/a29038_05.pdf

Mother's discovery and use of report of father's expert permitted under Pa. RCP 4003(a)(3), where father procured report initially but decided not to use report or call expert at trial.

Pa RCP 4003(a)(3) bars discovery of an report of an expert who is not expected to be called as a witness at trial. Father initially indicated that he would call the expert, so the court said that the rule wouldn't apply. In the alternative, the court held that report was discoverable under the rule, because it was the report of a "medical expert," as defined by Rule 4010(b). The court said that an "expert in a child custody case, regardless of who 'hires' the expert, is very similar to a 'independent' medical examiner which is the subject of Rule 4010…An expert, whether hired by a particular party or appointed by the court in custody litigation, is an expert subject to Rule 4010…" The expert's report and findings are "discoverable by a party….regardless of the status of the expert as a witness at trial."

The court also rejected an argument that mother's late motion about getting/using the report violated the trial court's procedural order establishing a schedule and procedure. It approved the trial court's statement that "our analysis is direct and simple…Hire an expert custody evaluator and such opinion evidence will be made known to the court. To do otherwise would be a disservice to the child….[K]nowing such evidence exists and to shield such from disclosure presents a less than full and complete record. We literally can conceive of no circumstance where non-disclosure benefits the child."

Donald Marritz
MidPenn Legal Services

custody - standard of review, expert opinion

King v. King - Pa. Superior Court, December 16, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/A34039_05.pdf

In a factually complicated case, the appellate court affirmed the trial court's grant of primary custody to father, over child's expressed strong preference for mother. There was no discussion at all about the child-preference issue.

standard of review -- The Court said that it was its scope of review was "very broad" but that it was "not this Court's function to determine whether the trial court reached the 'right' decision' rather we must consider whether, 'based on the evidence presented, given due deference to the trial court's weight and credibility determinations,' the trial court erred or abused is discretion in awarding custody to the prevailing party."

expert opinion - The appellate court upheld the trial's court's refusal to follow the recommendation of the custody evaluator, a psychologist, that custody go to mother, stating that the trial court had conducted two full hearings and was "in the unique position of having had the opportunity to observe all of the parties in this matter for a period of at least four years." The trial judge "detailed 96 findings of fact with an excellent analysis and interpretation of the nuances expressed by the witnesses which strongly support his conclusions. Our standard of review does not allow us to alter the court's conclusions provided they are supported by the record or unless they are manifestly unreasonable. The court's decision awarding custody to [father] is supported by the voluminous record before us."

Donald Marritz
MidPenn Legal Services