Link to index http://www.pabulletin.com/secure/data/vol36/36-30/index.html
- mortgages - mortgage loans - conduct of licensees - proposed rulemaking - public hearing Sept. 12 http://www.pabulletin.com/secure/data/vol36/36-30/1446.html
- Rules of Evidence - Rule 104 - prelim. questions - proposed revision of comment - comments due 9-6-06 - http://www.pabulletin.com/secure/data/vol36/36-30/1433.html
- Rules of Evidence - Rules 601- competency - proposed revision of comment - comments due 9-5-06 http://www.pabulletin.com/secure/data/vol36/36-30/1434.html
- welfare - MA - fee schedule revisions
http://www.pabulletin.com/secure/data/vol36/36-30/1461.html
- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-30/1432.html
- MDJ rules - appeal - correction to note to Rule 1002 - LT cases - $ v. possession http://www.pabulletin.com/secure/data/vol36/36-30/1438.html
- MDJ rules - proposed amendments - comments due September 1, 2006
(1) IFP - (2) execution of $ judgments - (3) time, method of appeal (4) bond for appeal
(5) services of papers on appeal (6) striking appeal (7) procedure on appeal (8) supersedeas
http://www.pabulletin.com/secure/data/vol36/36-30/1437.html
- Rules of Civil Procedure - Rule 1910.1 - support - Act 43 of 2005http://www.pabulletin.com/secure/data/vol36/36-30/1436.html
- Rules of Civil Procedure - arbitration - consumer credit transactionshttp://www.pabulletin.com/secure/data/vol36/36-30/1435.html
Friday, July 28, 2006
Thursday, July 27, 2006
employment - health insurance - COBRA - adequate notice
Mershon v. Woodburne Family Practice - ED Pa - July 19, 2006
http://www.paed.uscourts.gov/documents/opinions/06D0895P.pdf
Plaintiff had problems during her pregnancy. The employer decided that she had abandoned her job and sent her a COBRA notice, 29 USC sec. 1165, in early November saying that her coverage expired at the end of November.
Plaintiff sued for a) Pregnancy Discrimination, 42 USC 2000e et seq., b) discrimination under the state PHRA. 42 Pa. C.S. 951 et seq, and c) the COBRA statute.
The court granted the motion to dismiss the claims under the pregnancy and state PHRA laws, holding that Plaintiff had failed to allege that the employer treated pregnancy-related absences were treated any differently from other medical absences.
However, the court denied the motion to dismiss the COBRA claim. The statute requires that an employee have at least 60 days in which to make a COBRA decision to elect continued coverage, 29 USC sec. 1165. The 60 days had not expired when Plaintiff learned of her dismissal. The statute requires a continuation of coverage from the date of the qualifying event -- whether her failure return to work or her dismissal by the employer -- through the election period, 29 USC 1161. The employer's premature cancellation of coverage in this case -- more than a month before it should have done so -- resulted in uninsured medical expenses and costs to the state in the form of MA benefits. Branch v. G. Bernd Co, 955 F2d 1574 (1582 (5th Cir. 1992), holding the employer liable for the employee's medical expenses.
http://www.paed.uscourts.gov/documents/opinions/06D0895P.pdf
Plaintiff had problems during her pregnancy. The employer decided that she had abandoned her job and sent her a COBRA notice, 29 USC sec. 1165, in early November saying that her coverage expired at the end of November.
Plaintiff sued for a) Pregnancy Discrimination, 42 USC 2000e et seq., b) discrimination under the state PHRA. 42 Pa. C.S. 951 et seq, and c) the COBRA statute.
The court granted the motion to dismiss the claims under the pregnancy and state PHRA laws, holding that Plaintiff had failed to allege that the employer treated pregnancy-related absences were treated any differently from other medical absences.
However, the court denied the motion to dismiss the COBRA claim. The statute requires that an employee have at least 60 days in which to make a COBRA decision to elect continued coverage, 29 USC sec. 1165. The 60 days had not expired when Plaintiff learned of her dismissal. The statute requires a continuation of coverage from the date of the qualifying event -- whether her failure return to work or her dismissal by the employer -- through the election period, 29 USC 1161. The employer's premature cancellation of coverage in this case -- more than a month before it should have done so -- resulted in uninsured medical expenses and costs to the state in the form of MA benefits. Branch v. G. Bernd Co, 955 F2d 1574 (1582 (5th Cir. 1992), holding the employer liable for the employee's medical expenses.
Wednesday, July 26, 2006
adoption - standing of aunt/uncle - agency consent to standing
In re Adoption of J.E.F. - Pennsylvania Supreme Court - July 18, 2006
majority - http://www.courts.state.pa.us/OpPosting/Supreme/out/J-5A-5C-2006mo.pdf
concurring - http://www.courts.state.pa.us/OpPosting/Supreme/out/J-5A-5C-2006co.pdf
Aunt and uncle of three children in the legal custody of a child welfare agency have standing to petition for adoption, despite agency's preference for other adoptive parents (foster parents) and the agency's refusal to consent to aunt/uncle's participation. The Adoption Act does not give agencies any "gatekeeping authority" over adoption petitions. It is the court rather than an agency or other entity which has the ultimate responsibility to determine what will be in the best interests of the adoptees.
majority - http://www.courts.state.pa.us/OpPosting/Supreme/out/J-5A-5C-2006mo.pdf
concurring - http://www.courts.state.pa.us/OpPosting/Supreme/out/J-5A-5C-2006co.pdf
Aunt and uncle of three children in the legal custody of a child welfare agency have standing to petition for adoption, despite agency's preference for other adoptive parents (foster parents) and the agency's refusal to consent to aunt/uncle's participation. The Adoption Act does not give agencies any "gatekeeping authority" over adoption petitions. It is the court rather than an agency or other entity which has the ultimate responsibility to determine what will be in the best interests of the adoptees.
termination of parental rights - change in permanency plan
In re Adoption of S.E.G. - Pa. Supreme Court - July 18, 2006
majority - http://www.courts.state.pa.us/OpPosting/Supreme/out/J-16-2006mo.pdf
concurring- http://www.courts.state.pa.us/OpPosting/Supreme/out/J-16-2006co.pdf
Child welfare agency brought petition to termination parental rights without having formally its permanency plan from reunification to adoption. Held, such a formal change in plan is not a condition precedent to an agency bring a petition to terminate parental rights.
majority - http://www.courts.state.pa.us/OpPosting/Supreme/out/J-16-2006mo.pdf
concurring- http://www.courts.state.pa.us/OpPosting/Supreme/out/J-16-2006co.pdf
Child welfare agency brought petition to termination parental rights without having formally its permanency plan from reunification to adoption. Held, such a formal change in plan is not a condition precedent to an agency bring a petition to terminate parental rights.
contracts - unjust enrichment
Cooper v. East Penn School District - Commonwealth Court - July 26, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/2430CD05_7-26-06.pdf
"Unjust enrichment is an equitable doctrine implying that a contract exists when a party is found to have unfairly benefited by another's actions....However, unjust enrichment is inapplicable where the parties' relaltionship is founded upon a written agreement, regardless of how 'harsh the provisions of such contracfts may seem in light of the subsequent happenings.'"
http://www.courts.state.pa.us/OpPosting/CWealth/out/2430CD05_7-26-06.pdf
"Unjust enrichment is an equitable doctrine implying that a contract exists when a party is found to have unfairly benefited by another's actions....However, unjust enrichment is inapplicable where the parties' relaltionship is founded upon a written agreement, regardless of how 'harsh the provisions of such contracfts may seem in light of the subsequent happenings.'"
Monday, July 24, 2006
FLSA - overtime pay - executive employees
Davis v. Mountaire Farms - 3d Circuit - July 20, 2006
http://www.ca3.uscourts.gov/opinarch/053982p.pdf
Summary judgment for the employer reversed. The lower court had held that plaintiff-employees were exempt employees under sec. 213(a)(1) of the Fair Labor Standards Act, 29 USC sec. 213(a)(1), and thus not entitled to overtime pay under the FLSA., 29 USC sec. 201 et seq.
Plaintiffs were "crew leaders" who supervised other employees known as "chicken catchers." They had some supervisory responsibilities but these did not include hiring and firing or making ultimate decisions or actions about things like vacations, holidays, or discipline. Plaintiffs often worked more than 40 hours a week, but the employer refused to pay the overtime, claiming they were exempt executive employees. The crew leaders were hourly employees until 2002, at which time they became salaried, but there was no change in their duties or responsbilities.
The court held that FLSA exemptions are construed against the employer, which has the burden of proof to establish that its employees come within the scope of an overtime exemption.
The employer has to satify all four factors under 29 CFR sec. 541.100(a), the most important one in this case concerned the "authority to hire or fire other employees."
Noting that "the case law on this is is very fact specific and not consistent," and that there were "genuine issues of material fact," the court said that it did "not believe that Mountaire had established its case as a matter of law" and remanded the matter.
http://www.ca3.uscourts.gov/opinarch/053982p.pdf
Summary judgment for the employer reversed. The lower court had held that plaintiff-employees were exempt employees under sec. 213(a)(1) of the Fair Labor Standards Act, 29 USC sec. 213(a)(1), and thus not entitled to overtime pay under the FLSA., 29 USC sec. 201 et seq.
Plaintiffs were "crew leaders" who supervised other employees known as "chicken catchers." They had some supervisory responsibilities but these did not include hiring and firing or making ultimate decisions or actions about things like vacations, holidays, or discipline. Plaintiffs often worked more than 40 hours a week, but the employer refused to pay the overtime, claiming they were exempt executive employees. The crew leaders were hourly employees until 2002, at which time they became salaried, but there was no change in their duties or responsbilities.
The court held that FLSA exemptions are construed against the employer, which has the burden of proof to establish that its employees come within the scope of an overtime exemption.
The employer has to satify all four factors under 29 CFR sec. 541.100(a), the most important one in this case concerned the "authority to hire or fire other employees."
Noting that "the case law on this is is very fact specific and not consistent," and that there were "genuine issues of material fact," the court said that it did "not believe that Mountaire had established its case as a matter of law" and remanded the matter.
disability - remand - limited remand order
Scandone v. Barhhart - ED Pa. - July 18, 2006
http://www.paed.uscourts.gov/documents/opinions/06D0880P.pdf
Plaintiff appealed an order finding her disabled as of April 1, 2004. The defendant lost hearing tape and asked for a remand. The Court granted Plaintiff's request to prohibit a de novo adjudication finding Plaintiff not disabled or disabled any later than April 1, 2004.
The Court said that it would be "unfair to Plaintiff to permit the Commissioner to misplace the hearing tape and then 'reconstruct the record' by holding a new hearing before the ALJ, potentially reversing Plaintiff's prior favorable decision...The case will be remanded...for further administrative proceedings, but the determination that Plaintiff has been disabled since April 1, 2004, will not be subject to de novo adjudication."
http://www.paed.uscourts.gov/documents/opinions/06D0880P.pdf
Plaintiff appealed an order finding her disabled as of April 1, 2004. The defendant lost hearing tape and asked for a remand. The Court granted Plaintiff's request to prohibit a de novo adjudication finding Plaintiff not disabled or disabled any later than April 1, 2004.
The Court said that it would be "unfair to Plaintiff to permit the Commissioner to misplace the hearing tape and then 'reconstruct the record' by holding a new hearing before the ALJ, potentially reversing Plaintiff's prior favorable decision...The case will be remanded...for further administrative proceedings, but the determination that Plaintiff has been disabled since April 1, 2004, will not be subject to de novo adjudication."
admin. law - exhaustion of remedies - class action in equity
Kowenhover v. Board of Assessment of Allegheny County - Supreme Court - July 18, 2006
majority - http://www.courts.state.pa.us/OpPosting/Supreme/out/J-87A-2005mo.pdf
concurring/dissenting http://www.courts.state.pa.us/OpPosting/Supreme/out/J-87A-2005codo.pdf
The Court held that plaintiffs could bring a class-action complaint in equity, seeking declaratory and injunctive relief, challenging constitutionality of practices and hearing procedures in tax assessment appeals, which were alleged to involve consideration of post-hearing evidence obtained after and outside of the record before the hearing officer.
The lower courts had held that such challenges had to be brought in individual cases pursuant to the appeal route provided by statute. The Supreme Court said that its decision allowed equity to assume jurisdiction in cases where "requiring adherence to the statutory avenue would be of little benefit" -- e.g., where the legal remedy would inadequate, incomplete and inefficient and would involve a "multiplicity of duplicative lawsuits" in matters beyond agency expertise -- and where "an action in equity would provide a tidy global resolution...."
majority - http://www.courts.state.pa.us/OpPosting/Supreme/out/J-87A-2005mo.pdf
concurring/dissenting http://www.courts.state.pa.us/OpPosting/Supreme/out/J-87A-2005codo.pdf
The Court held that plaintiffs could bring a class-action complaint in equity, seeking declaratory and injunctive relief, challenging constitutionality of practices and hearing procedures in tax assessment appeals, which were alleged to involve consideration of post-hearing evidence obtained after and outside of the record before the hearing officer.
The lower courts had held that such challenges had to be brought in individual cases pursuant to the appeal route provided by statute. The Supreme Court said that its decision allowed equity to assume jurisdiction in cases where "requiring adherence to the statutory avenue would be of little benefit" -- e.g., where the legal remedy would inadequate, incomplete and inefficient and would involve a "multiplicity of duplicative lawsuits" in matters beyond agency expertise -- and where "an action in equity would provide a tidy global resolution...."
tax sale - redemption - residential v. commercial purpose
Lamm v. Fisher - Superior Court - July 19, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/s31032_06.pdf
The court rejected the petition for redemption, under the Municipal Claims and Tax Liens Law, 53 P.S. 7293, of a person whose property was sold at a sheriff's sale, because the property was used for a commercial rather than residential purpose. The act "is unambiguous and limits redeption to a non-vacant property occupied as a residence."
http://www.courts.state.pa.us/OpPosting/Superior/out/s31032_06.pdf
The court rejected the petition for redemption, under the Municipal Claims and Tax Liens Law, 53 P.S. 7293, of a person whose property was sold at a sheriff's sale, because the property was used for a commercial rather than residential purpose. The act "is unambiguous and limits redeption to a non-vacant property occupied as a residence."
Friday, July 21, 2006
Pennsylvania Bulletin of July 22, 2006
The link http://www.pabulletin.com/secure/data/vol36/36-29/index.html
- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-29/1261.html
- Rules of Civil Procedure - Rule 204.1 - Pleadings and Other Papers - Format
http://www.pabulletin.com/secure/data/vol36/36-29/1264.html
- Minor Court Rules - PFAs - Older Adult Protective Services Act
http://www.pabulletin.com/secure/data/vol36/36-29/1266.html
- "manufactured homes" - installation pgm - training curric. - bldg. code officials
http://www.pabulletin.com/secure/data/vol36/36-29/1282.html
- sign language interpreters and transliterators - registration - Labor & Industry - Office of Deaf & Hard of Hearing
http://www.pabulletin.com/secure/data/vol36/36-29/1274.html
- DPW - department reorganization
http://www.pabulletin.com/secure/data/vol36/36-29/1274.html
- Labor and Industry - department reorganization
http://www.pabulletin.com/secure/data/vol36/36-29/1277.html
- Dept. of Health - reorganization
http://www.pabulletin.com/secure/data/vol36/36-29/1276.html
- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-29/1261.html
- Rules of Civil Procedure - Rule 204.1 - Pleadings and Other Papers - Format
http://www.pabulletin.com/secure/data/vol36/36-29/1264.html
- Minor Court Rules - PFAs - Older Adult Protective Services Act
http://www.pabulletin.com/secure/data/vol36/36-29/1266.html
- "manufactured homes" - installation pgm - training curric. - bldg. code officials
http://www.pabulletin.com/secure/data/vol36/36-29/1282.html
- sign language interpreters and transliterators - registration - Labor & Industry - Office of Deaf & Hard of Hearing
http://www.pabulletin.com/secure/data/vol36/36-29/1274.html
- DPW - department reorganization
http://www.pabulletin.com/secure/data/vol36/36-29/1274.html
- Labor and Industry - department reorganization
http://www.pabulletin.com/secure/data/vol36/36-29/1277.html
- Dept. of Health - reorganization
http://www.pabulletin.com/secure/data/vol36/36-29/1276.html
Friday, July 14, 2006
consumer protection - liability of corporate officer
Commonwealth v. Manson - Commonwealth Court - July 10, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/1710CD05_7-10-06.pdf
The CEO/lead investor of a company was individually liable for consumer protection law (CPL) violations where the evidence with the he had participated, taken part, and cooperated in conduct which was fraudulent or deceptive and likely to create confusion or misunderstanding, under sec. 2(4)(xxi) of the CPL, 73 P.S. sec. 201-2(4)(xxi).
"Pennsylvania law recognizes the participation theory as a basis for liability" in such a situation. "Liability under this theory attaches only where the corporate officer is an actor who participates in the wrongful actions; thus, corporate officers may be held liable for misfeasance...[but not] for mere nonfeasance."
Concerning deceptive conduct, the court said that the question was not whether the wrongful conduct was intended to deceive the consumer but rather whether person "engaged in conduct that might be 'deceptive to the ordinary consumer'" -- a lesser wrong that fraudulent conduct.
The company in question was Unclaimed Freight Company, LLC. The wrongful conduct was in taking orders for merchandise and receiving payments from consumers, when the company and its CEO "knew or should have known that the merchandise would not be delivered to those consumers...Unclaimed Freight provide neither furniture nor refunds...."
http://www.courts.state.pa.us/OpPosting/CWealth/out/1710CD05_7-10-06.pdf
The CEO/lead investor of a company was individually liable for consumer protection law (CPL) violations where the evidence with the he had participated, taken part, and cooperated in conduct which was fraudulent or deceptive and likely to create confusion or misunderstanding, under sec. 2(4)(xxi) of the CPL, 73 P.S. sec. 201-2(4)(xxi).
"Pennsylvania law recognizes the participation theory as a basis for liability" in such a situation. "Liability under this theory attaches only where the corporate officer is an actor who participates in the wrongful actions; thus, corporate officers may be held liable for misfeasance...[but not] for mere nonfeasance."
Concerning deceptive conduct, the court said that the question was not whether the wrongful conduct was intended to deceive the consumer but rather whether person "engaged in conduct that might be 'deceptive to the ordinary consumer'" -- a lesser wrong that fraudulent conduct.
The company in question was Unclaimed Freight Company, LLC. The wrongful conduct was in taking orders for merchandise and receiving payments from consumers, when the company and its CEO "knew or should have known that the merchandise would not be delivered to those consumers...Unclaimed Freight provide neither furniture nor refunds...."
Pennsylvania Bulletin of July 15, 2006
The link http://www.pabulletin.com/secure/data/vol36/36-28/index.html
- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-28/1307.html
http://www.pabulletin.com/secure/data/vol36/36-28/1308.html
- Commonwealth Court - internal operating procedures - citing unreported decisions
http://www.pabulletin.com/secure/data/vol36/36-28/1310.html
- welfare - "designated exceptional durable medical equipment"
http://www.pabulletin.com/secure/data/vol36/36-28/1352.html
- insurance - credit life and credit accident/health insurance - amended regs
http://www.pabulletin.com/secure/data/vol36/36-28/1321.html
- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-28/1307.html
http://www.pabulletin.com/secure/data/vol36/36-28/1308.html
- Commonwealth Court - internal operating procedures - citing unreported decisions
http://www.pabulletin.com/secure/data/vol36/36-28/1310.html
- welfare - "designated exceptional durable medical equipment"
http://www.pabulletin.com/secure/data/vol36/36-28/1352.html
- insurance - credit life and credit accident/health insurance - amended regs
http://www.pabulletin.com/secure/data/vol36/36-28/1321.html
Monday, July 10, 2006
criminal record history - accuracy - proper defendant
Dunbar v. Pennsylvania State Police
http://tinyurl.com/lvygk
The Pennsylvania State Police -- not the Department of Corrections -- are the proper party defendant in challenges the accuracy of criminal history record, pursuant to 18 Pa. CS 9151, part of the Criminal History Record Information Act, 18 Pa. CS 9101 - 9183.
http://tinyurl.com/lvygk
The Pennsylvania State Police -- not the Department of Corrections -- are the proper party defendant in challenges the accuracy of criminal history record, pursuant to 18 Pa. CS 9151, part of the Criminal History Record Information Act, 18 Pa. CS 9101 - 9183.
UC - available for work - alien worker - expired work authorization
Jimoh v. UCBR - Commonwealth Court - July 6, 2006
http://tinyurl.com/opvpg
UC claimant's arguments in his brief were waived where they were not included in his Petition for Review.
In n. 7, the court said in dictum that the claimant would not have prevailed even if the court had considered the issues which he had waived. Claimant was an alien worker whose work authorization had expired. The court said that under such circumstances, he was not available for work under sec. 401(d) of the UC Law, 43 PS 801(d).
http://tinyurl.com/opvpg
UC claimant's arguments in his brief were waived where they were not included in his Petition for Review.
In n. 7, the court said in dictum that the claimant would not have prevailed even if the court had considered the issues which he had waived. Claimant was an alien worker whose work authorization had expired. The court said that under such circumstances, he was not available for work under sec. 401(d) of the UC Law, 43 PS 801(d).
admin. law - appeal - petition for review - issues - waiver
Jimoh v. UCBR - Commonwealth Court - July 6, 2006
http://tinyurl.com/opvpg
UC claimant's arguments in his brief were waived where they were not included in his Petition for Review.
http://tinyurl.com/opvpg
UC claimant's arguments in his brief were waived where they were not included in his Petition for Review.
Pennsylvania Bulletin of July 8, 2006
The link:
www.pabulletin.com/secure/data/vol36/36-27/index.html
recent statutes
www.pabulletin.com/secure/data/vol36/36-27/1259.html
proposed rules - judgments - execution/attachment-exempt property
comments due Aug. 31, 2006 This proposed rule would prevent attachment of exempt monies - including social security, veterans benefits, various pensions, etc -- which have been electronically deposited into bank accounts
www.pabulletin.com/secure/data/vol36/36-27/1261.html
welfare - licensure/approval appeal procedure www.pabulletin.com/secure/data/vol36/36-27/1268.html
www.pabulletin.com/secure/data/vol36/36-27/index.html
recent statutes
www.pabulletin.com/secure/data/vol36/36-27/1259.html
proposed rules - judgments - execution/attachment-exempt property
comments due Aug. 31, 2006 This proposed rule would prevent attachment of exempt monies - including social security, veterans benefits, various pensions, etc -- which have been electronically deposited into bank accounts
www.pabulletin.com/secure/data/vol36/36-27/1261.html
welfare - licensure/approval appeal procedure www.pabulletin.com/secure/data/vol36/36-27/1268.html
Wednesday, July 05, 2006
employment - Title VII - verification of charge
Buck v. Hampton Township School District - 3d Circuit - June 30, 2006
http://www.ca3.uscourts.gov/opinarch/052373p.pdf
Although Title VII, 42 USC 2000e-5, and supporting regulations, 42 CFR 1601.9, require a plaintiff to verify her charges before her employer gets notice of or must respond to the charge, the verification requirement is not jurisdictional.
In addition, where the employer responds to the merits of the charge before the EEOC -- including a detailed complaint signed by plaintiff's attorney -- without raising the failure of plaintiff herself to verify it and before the EEOC issues a right-to-sue letter, the employer has waived its right to assert that defense in a later federal court proceeding.
The verification requirement is mandatory, a required element of an EEOC charge, but it is not a jurisdictional prerequisite for suit in court, i.e., it does not divest a federal court of jurisdiction. The verification requirement is mean to protect employer's from having to respond to frivolous charges. When an employer files a response on the merits to an unverified charge, he forgoes the protection that the requirement affords.
http://www.ca3.uscourts.gov/opinarch/052373p.pdf
Although Title VII, 42 USC 2000e-5, and supporting regulations, 42 CFR 1601.9, require a plaintiff to verify her charges before her employer gets notice of or must respond to the charge, the verification requirement is not jurisdictional.
In addition, where the employer responds to the merits of the charge before the EEOC -- including a detailed complaint signed by plaintiff's attorney -- without raising the failure of plaintiff herself to verify it and before the EEOC issues a right-to-sue letter, the employer has waived its right to assert that defense in a later federal court proceeding.
The verification requirement is mandatory, a required element of an EEOC charge, but it is not a jurisdictional prerequisite for suit in court, i.e., it does not divest a federal court of jurisdiction. The verification requirement is mean to protect employer's from having to respond to frivolous charges. When an employer files a response on the merits to an unverified charge, he forgoes the protection that the requirement affords.
Friday, June 30, 2006
Pennsylvania Bulletin of July 1, 2006
The link to the index is at http://www.pabulletin.com/secure/data/vol36/36-26/index.html
- DPW - child care - proposed rules - comments due w/in 30 days -- http://www.pabulletin.com/secure/data/vol36/36-26/1206.html
Written comments, suggestions or objections regarding the proposed rulemaking should be made to Robert Frein, Director, Bureau of Subsidized Child Care Services, Office of Child Development, Room 521, Health & Welfare Building, P. O. Box 521, Harrisburg, PA 17105 within 30 calendar days after the date of publication in the Pennsylvania Bulletin. Reference Regulation No. 14-505 when submitting comments.
- Independent Regulatory Review Commissions - actions taken
http://www.pabulletin.com/secure/data/vol36/36-26/1228.html
- agriculture - pesticide disposal program
http://www.pabulletin.com/secure/data/vol36/36-26/1198.html
- DPW - child care - proposed rules - comments due w/in 30 days -- http://www.pabulletin.com/secure/data/vol36/36-26/1206.html
Written comments, suggestions or objections regarding the proposed rulemaking should be made to Robert Frein, Director, Bureau of Subsidized Child Care Services, Office of Child Development, Room 521, Health & Welfare Building, P. O. Box 521, Harrisburg, PA 17105 within 30 calendar days after the date of publication in the Pennsylvania Bulletin. Reference Regulation No. 14-505 when submitting comments.
- Independent Regulatory Review Commissions - actions taken
http://www.pabulletin.com/secure/data/vol36/36-26/1228.html
- agriculture - pesticide disposal program
http://www.pabulletin.com/secure/data/vol36/36-26/1198.html
Thursday, June 29, 2006
attachment of exempt monies - proposed rules
The state Civil Procedural Rules Committee has proposed rules to prevent the improper attachment of various exempt monies -- including Social Security, veterans' benefits, etc. -- when the monies have been "deposited electronically on a recurring basis and are identified as being funds that are exempt from execution,levy or attachment under Pennsylvania or federal law."
http://tinyurl.com/qhsg2 - Proposed Recommendation No. 215
The recommended rules resulted from a proposal (attached) submitted in February by an ad hoc group of legal aid advocates throughout the state.
Comments on the proposed rules are due by August 31, 2006.
http://tinyurl.com/qhsg2 - Proposed Recommendation No. 215
The recommended rules resulted from a proposal (attached) submitted in February by an ad hoc group of legal aid advocates throughout the state.
Comments on the proposed rules are due by August 31, 2006.
IFP - Rule 240(c) - use of gross income/legal aid guidelines - appealable order
Amrhein v. Amrhein - Superior Court - June 26, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/a11022_06.pdf
Mother/appellant -- who was not reprepresented by a legal aid attorney, so Rule 240(d) did not apply -- failed to order a transcript of a custody hearing, after trial court denied her IFP application without a hearing, based solely on the court's application of the gross income to Neighborhood Legal Services Assn. guidelines.
The court held that the trial court's denial of IFP status was a final appealable order, because it terminated the litigation.
The court rejected the trial court's use of NLSA guidelines, which are based on gross income. "This procedure is in direct conflict with the dictates of Rule 240(c), which requires listing and consideration of "not only gross income but also debts and obligations...." The "rote use of the NLSA guidelines was improper because it failed to consider...[the party's] obligations and monthly espenditures...." The procedure "conflicts with the requirements of the state rule." The court said that the trial court should have focused on whether a person can afford to pay and could not reject allegations in an IFP application without conducting an evidentiary hearing. IFP applications must be considered on case by case basis, as required by the rule.
The court reversed the denial of the IFP and remanded, with directions that the trial court hold an IFP hearing w/in 10 days, consider all of the mother's averments, including "the realities of life expenditures...the unassailable expenses of life...."
http://www.courts.state.pa.us/OpPosting/Superior/out/a11022_06.pdf
Mother/appellant -- who was not reprepresented by a legal aid attorney, so Rule 240(d) did not apply -- failed to order a transcript of a custody hearing, after trial court denied her IFP application without a hearing, based solely on the court's application of the gross income to Neighborhood Legal Services Assn. guidelines.
The court held that the trial court's denial of IFP status was a final appealable order, because it terminated the litigation.
The court rejected the trial court's use of NLSA guidelines, which are based on gross income. "This procedure is in direct conflict with the dictates of Rule 240(c), which requires listing and consideration of "not only gross income but also debts and obligations...." The "rote use of the NLSA guidelines was improper because it failed to consider...[the party's] obligations and monthly espenditures...." The procedure "conflicts with the requirements of the state rule." The court said that the trial court should have focused on whether a person can afford to pay and could not reject allegations in an IFP application without conducting an evidentiary hearing. IFP applications must be considered on case by case basis, as required by the rule.
The court reversed the denial of the IFP and remanded, with directions that the trial court hold an IFP hearing w/in 10 days, consider all of the mother's averments, including "the realities of life expenditures...the unassailable expenses of life...."
Wednesday, June 28, 2006
admin. law - decision based solely on record evidence
William Penn School District v. Dept. of Education - Commonwealth Court - June 27, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/1977CD05_6-27-06.pdf
This case, which involves the alleged overpayment of school lunch funds, includes a statement that "'due process requires that administrative decisions of an adjudicatory nature must be based exclusively on evidence contained in the formal record which has been made known to the parties and which they have had an opportunity to refute," quoting from Mercy Regional Health System v. Dept. of Health, 645 A.2d 924, 928 (Pa. Cmwlth. 1994).
http://www.courts.state.pa.us/OpPosting/CWealth/out/1977CD05_6-27-06.pdf
This case, which involves the alleged overpayment of school lunch funds, includes a statement that "'due process requires that administrative decisions of an adjudicatory nature must be based exclusively on evidence contained in the formal record which has been made known to the parties and which they have had an opportunity to refute," quoting from Mercy Regional Health System v. Dept. of Health, 645 A.2d 924, 928 (Pa. Cmwlth. 1994).
Friday, June 23, 2006
Pennsylvania Bulletin of June 24, 2006
The link http://www.pabulletin.com/secure/data/vol36/36-25/index.html
- Civil Rules - amendment- Rule 236(d) - Notice of Judgment by Prothonotary
http://www.pabulletin.com/secure/data/vol36/36-25/1155.html
- DPW - county nursing facility services
http://www.pabulletin.com/secure/data/vol36/36-25/1194.html
- Community Affairs and Development - Manufactured Housing Improvement Program
standards for installation of new manufactured homes
http://www.pabulletin.com/secure/data/vol36/36-25/1158.html
- county prisons - proposed regs - comments due within 30 days
http://www.pabulletin.com/secure/data/vol36/36-25/1160.html
- Civil Rules - amendment- Rule 236(d) - Notice of Judgment by Prothonotary
http://www.pabulletin.com/secure/data/vol36/36-25/1155.html
- DPW - county nursing facility services
http://www.pabulletin.com/secure/data/vol36/36-25/1194.html
- Community Affairs and Development - Manufactured Housing Improvement Program
standards for installation of new manufactured homes
http://www.pabulletin.com/secure/data/vol36/36-25/1158.html
- county prisons - proposed regs - comments due within 30 days
http://www.pabulletin.com/secure/data/vol36/36-25/1160.html
Wednesday, June 21, 2006
disability - treating physician - pain - credibility - depression
Franklin v. Barnhart - ED Pa. - June 13, 2006
http://www.paed.uscourts.gov/documents/opinions/06D0730P.pdf
Summary judgment granted to Claimant for closed period of disability of 4+ years to Plaintiff.
inability to do light work -- The ALJ's finding that the claimant (CL) could lift 10 lbs. on sustained basis was not supported by substantial evidence. CL had numerous surgeries to right shoulder but still had significant weakness. Her treating physician of long duration "nowhere" found that she could lift 10 lbs. The ALJ relied on the contrary opinion of a one-time examining physician, whose conclusions were set out only in a check-off box. The court said that the ALJ erred by not giving controlling weight to the treating physician's opinion which reflected expert judgment based on continuing observation over an extended time.
subjective complaints of pain - The ALJ improperly discounted CL's complaint of pain without offering any reasoned basis. The ALJ also erred by not giving "great weight" to the CL's complaints of pain, since they were supported by objective medical evidence. The ALJ decision on pain was not supported by substantial evidence. The record showed "severe pain requiring aggressive pain management."
depression -- ALJ failed to follow Appeals Council prior remand instructions and to give fair consideration to the entire record concerning CL's depression. The ALJ did not consider existing evidence or seek the help of other medical professionals. The ALJ also improperly penalized CL for noting having MH treatment and preferring to stay with her family physician. There was no medical evidence that an MH specialist would have proceeded differently from her family doctor. Moreover, regulations require consideration of a claimant's refusal to see an MH professional, which may have been a result of her depression. And the ALJ again failed to properly credit the opinions of CL's treating physician, improperly preferring, without explanation, the findings in a check-off report of a non-examining state agency psychologist. The 3d Circuit has held such reports to be "weak evidence at best."
http://www.paed.uscourts.gov/documents/opinions/06D0730P.pdf
Summary judgment granted to Claimant for closed period of disability of 4+ years to Plaintiff.
inability to do light work -- The ALJ's finding that the claimant (CL) could lift 10 lbs. on sustained basis was not supported by substantial evidence. CL had numerous surgeries to right shoulder but still had significant weakness. Her treating physician of long duration "nowhere" found that she could lift 10 lbs. The ALJ relied on the contrary opinion of a one-time examining physician, whose conclusions were set out only in a check-off box. The court said that the ALJ erred by not giving controlling weight to the treating physician's opinion which reflected expert judgment based on continuing observation over an extended time.
subjective complaints of pain - The ALJ improperly discounted CL's complaint of pain without offering any reasoned basis. The ALJ also erred by not giving "great weight" to the CL's complaints of pain, since they were supported by objective medical evidence. The ALJ decision on pain was not supported by substantial evidence. The record showed "severe pain requiring aggressive pain management."
depression -- ALJ failed to follow Appeals Council prior remand instructions and to give fair consideration to the entire record concerning CL's depression. The ALJ did not consider existing evidence or seek the help of other medical professionals. The ALJ also improperly penalized CL for noting having MH treatment and preferring to stay with her family physician. There was no medical evidence that an MH specialist would have proceeded differently from her family doctor. Moreover, regulations require consideration of a claimant's refusal to see an MH professional, which may have been a result of her depression. And the ALJ again failed to properly credit the opinions of CL's treating physician, improperly preferring, without explanation, the findings in a check-off report of a non-examining state agency psychologist. The 3d Circuit has held such reports to be "weak evidence at best."
special laws - Article III, sec. 32 - class of one
Pa. Turpike Commission v. Attorney General - Supreme Court - June 19, 2006
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-13-2006mo.pdf
A law that was applicable to only a single public employer was held to be a "special law" which violated Article III, sec. 32, of the state constitution
Article III, sec. 32 states that " The General Assembly shall pass no local or special law in any case which has been or can be provided for by general law and specifically the General assembly shall not pass any local or special law" about a list of 8 specific areas, including ones "regulating labor, trade, mining or manufacturing." It also says: "Nor shall the General Assembly indirectly enact any special or local law by the partial repeal of a general law; but laws repealing local or special acts may be passed."
The court held that there was "no rational reason" for the differential treatment established by the statute" and that there was "nothing distinctive" about the two differently-treated entitited that required different treatment. The acts classifications "does not rest upon some ground of difference or any real distinction....." The "narrow classification in the Act....does not bear a reasonable relationship" to the allged statutory purpose. In addition, the act created a class of one, with no reasonable prospect of another members being able to join the class in the future.
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-13-2006mo.pdf
A law that was applicable to only a single public employer was held to be a "special law" which violated Article III, sec. 32, of the state constitution
Article III, sec. 32 states that " The General Assembly shall pass no local or special law in any case which has been or can be provided for by general law and specifically the General assembly shall not pass any local or special law" about a list of 8 specific areas, including ones "regulating labor, trade, mining or manufacturing." It also says: "Nor shall the General Assembly indirectly enact any special or local law by the partial repeal of a general law; but laws repealing local or special acts may be passed."
The court held that there was "no rational reason" for the differential treatment established by the statute" and that there was "nothing distinctive" about the two differently-treated entitited that required different treatment. The acts classifications "does not rest upon some ground of difference or any real distinction....." The "narrow classification in the Act....does not bear a reasonable relationship" to the allged statutory purpose. In addition, the act created a class of one, with no reasonable prospect of another members being able to join the class in the future.
debt collection - FDCPA - false threats - attorney letterhead - class certification
McCall v. Drive Financial Services - ED Pa. - June 19,2006
http://www.paed.uscourts.gov/documents/opinions/06D0740P.pdf
The court granted a motion for class certification in a Fair Debt Collection Practices Act, 15 USC 1692 et seq., case in which defendant collection agency was alleged to have sent letters purporting to be from an attorney, on the attorney's ostensible letterhead. The letter threatened suit by the attorney, who is not admitted to practice in Pennsylvania.
Defendant's allegation that there was a conflict between the class and the named plaintiff was dismissed. Named plaintiff had a 15 year-old robbery conviction, which the court said was factually unrelated to his case and to Defendant's alleged violation of the FDCPA.
http://www.paed.uscourts.gov/documents/opinions/06D0740P.pdf
The court granted a motion for class certification in a Fair Debt Collection Practices Act, 15 USC 1692 et seq., case in which defendant collection agency was alleged to have sent letters purporting to be from an attorney, on the attorney's ostensible letterhead. The letter threatened suit by the attorney, who is not admitted to practice in Pennsylvania.
Defendant's allegation that there was a conflict between the class and the named plaintiff was dismissed. Named plaintiff had a 15 year-old robbery conviction, which the court said was factually unrelated to his case and to Defendant's alleged violation of the FDCPA.
bankruptcy - "debt relief agency" provisions - standing to challenge
Geisenberger v. Gonzales - ED Pa. - June 19, 2006
http://www.paed.uscourts.gov/documents/opinions/06D0744P.pdf
The court dismissed the constitutional challenge of "practicing bankruptcy attorney" to the "debt relief agency" provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), 11 USC sec. 526-528.
The court held that there was no justiciable case or controversy under Article III, sec. 2, of the US Constitution, since the attorney had not suffered and was not about to suffer an "injury in fact." The court said that the attorney was "requesting an advisory opinion" from the court, which held that without any injury in fact, plaintiff did not have standing to bring the case.
http://www.paed.uscourts.gov/documents/opinions/06D0744P.pdf
The court dismissed the constitutional challenge of "practicing bankruptcy attorney" to the "debt relief agency" provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), 11 USC sec. 526-528.
The court held that there was no justiciable case or controversy under Article III, sec. 2, of the US Constitution, since the attorney had not suffered and was not about to suffer an "injury in fact." The court said that the attorney was "requesting an advisory opinion" from the court, which held that without any injury in fact, plaintiff did not have standing to bring the case.
custody - relocation
Ketterer v. Seifert - Superior Court - June 20, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/a18024_06.pdf
The court affirmed the trial court's denial of mother's petition to relocated to California with parties' 14 y/o son, despite child's expressed preference for the proposed move. An existing order -- which the court said "has been working well for several years" -- gave mother majority physical custody during the school year and shared custody over the summer. Father's family was mostly in Pennsylvania, and Mother's in California.
The Court focused on the fact that mother failed to prove the first prong of the Gruber test, 583 A2d 434 (Pa. Super. 1990) -- that the moved would "substantially improve the quality of life" for the mother or child. The court specifically rejected mother's primary claim of economic need and the alleged economic benefit that the move would bring.
Noting that the child had a closer relationship with mother than father, the court rejected the child's preference because it was not "based upon good and substantial reasons." The court also mentioned that mother "has had approximately nine different address changes" since her marriage to her current husband 9 years ago.
http://www.courts.state.pa.us/OpPosting/Superior/out/a18024_06.pdf
The court affirmed the trial court's denial of mother's petition to relocated to California with parties' 14 y/o son, despite child's expressed preference for the proposed move. An existing order -- which the court said "has been working well for several years" -- gave mother majority physical custody during the school year and shared custody over the summer. Father's family was mostly in Pennsylvania, and Mother's in California.
The Court focused on the fact that mother failed to prove the first prong of the Gruber test, 583 A2d 434 (Pa. Super. 1990) -- that the moved would "substantially improve the quality of life" for the mother or child. The court specifically rejected mother's primary claim of economic need and the alleged economic benefit that the move would bring.
Noting that the child had a closer relationship with mother than father, the court rejected the child's preference because it was not "based upon good and substantial reasons." The court also mentioned that mother "has had approximately nine different address changes" since her marriage to her current husband 9 years ago.
delay damages - contract action - Pa. R.C.P. 238
Touloumes v. E.S.C., Inc. - Pennsylvania Supreme Court - June 19, 2006
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-183-2004mo.pdf
The court held (5-1) that Pa. R.C.P. 238 does not apply to a contract action seeking to recover damages for injury to property.
The dissent (Newman, J.) http://www.courts.state.pa.us/OpPosting/Supreme/out/J-183-2004do.pdf said that all of the elements of the rule are present, that the rule is "clear and free from all ambiguity" and should apply. The "Majority's exploration of the intent of the Rule was not required because the Rule itself explicity provides that Appellants are entitled to delay damages.
The text of the rule is at http://www.pacode.com/secure/data/231/chapter200/s238.html
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-183-2004mo.pdf
The court held (5-1) that Pa. R.C.P. 238 does not apply to a contract action seeking to recover damages for injury to property.
The dissent (Newman, J.) http://www.courts.state.pa.us/OpPosting/Supreme/out/J-183-2004do.pdf said that all of the elements of the rule are present, that the rule is "clear and free from all ambiguity" and should apply. The "Majority's exploration of the intent of the Rule was not required because the Rule itself explicity provides that Appellants are entitled to delay damages.
The text of the rule is at http://www.pacode.com/secure/data/231/chapter200/s238.html
Friday, June 16, 2006
MDJ court - non-attorney representation
As of October 1, 2006, non-attorneys will be able to represent individuals, partnership, and corporations in MDJ court if they have a) written authorization to do so, and b) "personal knowledge of the subject matter of the litigation."
New MDJ rules, promulgated by the Pennsylvania Supreme Court, are published at http://www.pabulletin.com/secure/data/vol36/36-24/1058.html
New MDJ rules, promulgated by the Pennsylvania Supreme Court, are published at http://www.pabulletin.com/secure/data/vol36/36-24/1058.html
Pennsylvania Bulletin of June 17, 2006
http://www.pabulletin.com/secure/data/vol36/36-24/index.html
- MDJ rules - effective October 1, 2006
representation in MDJ proceedings - attorneys, et al.
counterclaims by defendants
executions ($ and possn.)
notice of judgment/dismissal and right of appeal
http://www.pabulletin.com/secure/data/vol36/36-24/1058.html
- MDJs - code of conduct
http://www.pabulletin.com/secure/data/vol36/36-24/1057.html
- state tax equalization board - 2005 common level ratio
http://www.pabulletin.com/secure/data/vol36/36-24/1153.html
- DPW - MA - fee schedule procedure code changes
http://www.pabulletin.com/secure/data/vol36/36-24/1104.html
- local rules - Dauphin County
http://www.pabulletin.com/secure/data/vol36/36-24/1060.html
- MDJ rules - effective October 1, 2006
representation in MDJ proceedings - attorneys, et al.
counterclaims by defendants
executions ($ and possn.)
notice of judgment/dismissal and right of appeal
http://www.pabulletin.com/secure/data/vol36/36-24/1058.html
- MDJs - code of conduct
http://www.pabulletin.com/secure/data/vol36/36-24/1057.html
- state tax equalization board - 2005 common level ratio
http://www.pabulletin.com/secure/data/vol36/36-24/1153.html
- DPW - MA - fee schedule procedure code changes
http://www.pabulletin.com/secure/data/vol36/36-24/1104.html
- local rules - Dauphin County
http://www.pabulletin.com/secure/data/vol36/36-24/1060.html
Thursday, June 15, 2006
ADA - transportation - paratransit services
Walter and Green et al. v. SEPTA - ED Pa. - June 2, 2006
http://www.paed.uscourts.gov/documents/opinions/06d0684p.pdf
Under the Americans with Disabilities Act, SEPTA has to provide paratransit services, 42 USC 12143, to disabled riders for "rail" service for not for "commuter rail" service.
http://www.paed.uscourts.gov/documents/opinions/06d0684p.pdf
Under the Americans with Disabilities Act, SEPTA has to provide paratransit services, 42 USC 12143, to disabled riders for "rail" service for not for "commuter rail" service.
Tuesday, June 13, 2006
UC - non-attorney representation of parties
Piunti et al. v. UCBR - Commonwealth Court - June 13, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/482MD05_6-13-06.pdf
Four attorneys who alleged that they routinely practice UC law filed an original action in Commonwealth Court asking for a declaratory judgment against the UC Board of Review. Petitioners attacked the constitutionality of sec. 214 of the UC Law, 43 PS sec. 862, Act 5 of 2005, entitled "representation in proceedings -- Any party in any proceeding under this act before the department, a referee or the board may be represented by an attorney or other representive."
Act 5 was enacted in response to the decision ion Harkness v. UCBR, 867 A.2d 728 (Pa. Cmwlth. 2005, appeal granted, 885 A.2d 980, where the Commonwealth Court found that representing corporations in UC cases involved the practice of law was not permitted under Article V, sec. 10 of the state constitution, which gives the state supreme court the sole power to regulate the practice of law.
The UCBR challenged the Petitioners' standing and said they had not stated a claim for relief. As to the latter, the Board claimed the Act 5 "does not restrict or regulate the practice of law" but "simply permits laypersons to 'advocate' in unemployment proceedings, therefore it is not at odds with the Supreme Court's authority to regulate attorneys and the practice of law."
In a 5-2 decision, the Court found that Petitioners were "aggrieved" and had a substantial, direct and immediate interest in the outcome of the case and thus had standing to bring the case. On the merits, the Court held that the Petitioners had stated a claim for relief. As it had previously said in Harkness v. UCBR, 867 A.2d 728 (Pa. Cmwlth. 2005, appeal granted, 885 A.2d 980 (filed Sept. 28, 2005), the court found that representing corporations in UC hearings was the practice of law, over which the Supreme Court has "exclusive jurisdiction" under Article V, sec. 10. "The exclusive jurisdiction encompasses a responsibility that laypersons not practice law without a license and that corporations not appear in our courts in propria persona or otherwise unrepresented by counsel. Whether special circumstances exist which justify such representation of corporations in unemployment proceedings is for the Supreme Court to decide, not the General Assembly."
http://www.courts.state.pa.us/OpPosting/CWealth/out/482MD05_6-13-06.pdf
Four attorneys who alleged that they routinely practice UC law filed an original action in Commonwealth Court asking for a declaratory judgment against the UC Board of Review. Petitioners attacked the constitutionality of sec. 214 of the UC Law, 43 PS sec. 862, Act 5 of 2005, entitled "representation in proceedings -- Any party in any proceeding under this act before the department, a referee or the board may be represented by an attorney or other representive."
Act 5 was enacted in response to the decision ion Harkness v. UCBR, 867 A.2d 728 (Pa. Cmwlth. 2005, appeal granted, 885 A.2d 980, where the Commonwealth Court found that representing corporations in UC cases involved the practice of law was not permitted under Article V, sec. 10 of the state constitution, which gives the state supreme court the sole power to regulate the practice of law.
The UCBR challenged the Petitioners' standing and said they had not stated a claim for relief. As to the latter, the Board claimed the Act 5 "does not restrict or regulate the practice of law" but "simply permits laypersons to 'advocate' in unemployment proceedings, therefore it is not at odds with the Supreme Court's authority to regulate attorneys and the practice of law."
In a 5-2 decision, the Court found that Petitioners were "aggrieved" and had a substantial, direct and immediate interest in the outcome of the case and thus had standing to bring the case. On the merits, the Court held that the Petitioners had stated a claim for relief. As it had previously said in Harkness v. UCBR, 867 A.2d 728 (Pa. Cmwlth. 2005, appeal granted, 885 A.2d 980 (filed Sept. 28, 2005), the court found that representing corporations in UC hearings was the practice of law, over which the Supreme Court has "exclusive jurisdiction" under Article V, sec. 10. "The exclusive jurisdiction encompasses a responsibility that laypersons not practice law without a license and that corporations not appear in our courts in propria persona or otherwise unrepresented by counsel. Whether special circumstances exist which justify such representation of corporations in unemployment proceedings is for the Supreme Court to decide, not the General Assembly."
Sunday, June 11, 2006
employment - Title VII - religious institution
Curay-Cramer v. The Ursuline Academy
http://www.ca3.uscourts.gov/opinarch/044628p.pdf
Former teacher at private Catholic school failed to state cause of action under Title VII of the Civil Rights Act, 42 USC 2000e et seq. or the Pregnancy Discrimination Act, 42 USC 2000e(k). The teacher was fired after she signed her name to a pro-choice advertisement in a local newspaper.
The court held that she did not engage in protected activity or "opposition conduct" in signing the advertisement, which made no reference to any alleged illegal employment practice by the school, either specifically or through context. Her protest or expression was only a public endorsement of Roe v. Wade. It had no "perceptible connection to the employer's alleged illegal employment practice."
The court also held that plaintiff's claim that she was disciplined differently than male employees was foreclosed by the religion clauses of the US Constitution, citing NLRB v. Catholic Bishop of Chicago,440 US 490 (1979), since resolution of her claim would require an analysis of church doctrine and church orthodoxy. In addition, plaintiff had not alleged any similar conduct by a male employee. The court thus distinguished the case from one in which a plaintiff avers that "truly comparable employees were treated differently following substantially similar conduct."
However, the court said it did "not hold that a plaintiff seeking to establish pretext by a religious employer need establish that the comparators engaged in precisely the same conduct as that said to support the adverse employment action against the plaintiff. Whether the proffered comparable conduct is sufficiently similar to avoid raising substantial constitutional questions must be judged on a case-by-case basis."
The court also noted that the legislative history of Title VII shows that Congress intended to exclude religious employers from the provisions prohibiting religious discrimination.
The court cautioned religious employers "against over-reading the impact of our holding. It is by no means the case that all claims of gender discrimination against religious employers are impermissible.....If a religious employer does not offer a religious justification for an adverse employment action against a non-ministerial employee, it is unlikely that serious constitutional questions will be raised by applying Title VII."
http://www.ca3.uscourts.gov/opinarch/044628p.pdf
Former teacher at private Catholic school failed to state cause of action under Title VII of the Civil Rights Act, 42 USC 2000e et seq. or the Pregnancy Discrimination Act, 42 USC 2000e(k). The teacher was fired after she signed her name to a pro-choice advertisement in a local newspaper.
The court held that she did not engage in protected activity or "opposition conduct" in signing the advertisement, which made no reference to any alleged illegal employment practice by the school, either specifically or through context. Her protest or expression was only a public endorsement of Roe v. Wade. It had no "perceptible connection to the employer's alleged illegal employment practice."
The court also held that plaintiff's claim that she was disciplined differently than male employees was foreclosed by the religion clauses of the US Constitution, citing NLRB v. Catholic Bishop of Chicago,440 US 490 (1979), since resolution of her claim would require an analysis of church doctrine and church orthodoxy. In addition, plaintiff had not alleged any similar conduct by a male employee. The court thus distinguished the case from one in which a plaintiff avers that "truly comparable employees were treated differently following substantially similar conduct."
However, the court said it did "not hold that a plaintiff seeking to establish pretext by a religious employer need establish that the comparators engaged in precisely the same conduct as that said to support the adverse employment action against the plaintiff. Whether the proffered comparable conduct is sufficiently similar to avoid raising substantial constitutional questions must be judged on a case-by-case basis."
The court also noted that the legislative history of Title VII shows that Congress intended to exclude religious employers from the provisions prohibiting religious discrimination.
The court cautioned religious employers "against over-reading the impact of our holding. It is by no means the case that all claims of gender discrimination against religious employers are impermissible.....If a religious employer does not offer a religious justification for an adverse employment action against a non-ministerial employee, it is unlikely that serious constitutional questions will be raised by applying Title VII."
Friday, June 09, 2006
Pennsylvania Bulletin of June 10, 2006
The link - http://www.pabulletin.com/secure/data/vol36/36-23/index.html
attorneys - proposed rules of prof. conduct
safekeeping of client $ - comments by 3 July 2006
http://www.pabulletin.com/secure/data/vol36/36-23/1020.html
welfare - MA fee schedule revision
http://www.pabulletin.com/secure/data/vol36/36-23/1030.html
welfare- MA - prior authorization list
http://www.pabulletin.com/secure/data/vol36/36-23/1031.html
housing - PHFA - low-income housing tax credit alloc. plan - public hearing June 23rd
http://www.pabulletin.com/secure/data/vol36/36-23/1040.html
attorneys - proposed rules of prof. conduct
safekeeping of client $ - comments by 3 July 2006
http://www.pabulletin.com/secure/data/vol36/36-23/1020.html
welfare - MA fee schedule revision
http://www.pabulletin.com/secure/data/vol36/36-23/1030.html
welfare- MA - prior authorization list
http://www.pabulletin.com/secure/data/vol36/36-23/1031.html
housing - PHFA - low-income housing tax credit alloc. plan - public hearing June 23rd
http://www.pabulletin.com/secure/data/vol36/36-23/1040.html
Monday, June 05, 2006
employment - gender discrimination
Ziner v. Cedar Crest College - ED Pa. - May 2006
http://www.paed.uscourts.gov/documents/opinions/06D0662P.pdf
Defendant's motion for judgment on the pleadings denied.
exhaustion of administrative remedies
Employer claimed that plaintiff failure to exhaust administrative remedies where, in his court complaint, plaintiff alleged a later instance showing hostile work environment that was not in P's EEOC complaint, because it happened long after the complaint was filed. The court rejected this argument and held that Plaintiff's new allegations could be considered by the court. They "assert nothing more than an additional incident contributing to [an] overall pattern of harassment....He has not brought any new cause of action."
"adverse employment action"
The court also rejected the argument that Plaintiff did not suffer any "adverse employment action," holding that Title VII's language is "not limited to economic or tangible discrimination" but rather is intended to "strike at the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a discriminatorily hostile or abusive work environment," including a situation where the "workplace is permeated" with treatment that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."
gender discrimination
The court said that in Title VII cases, it considers the "aggregate effect of all evidence and reasonable inferences therefrom," including those concerning incidents of what may appear to be facially neutral treatment.
http://www.paed.uscourts.gov/documents/opinions/06D0662P.pdf
Defendant's motion for judgment on the pleadings denied.
exhaustion of administrative remedies
Employer claimed that plaintiff failure to exhaust administrative remedies where, in his court complaint, plaintiff alleged a later instance showing hostile work environment that was not in P's EEOC complaint, because it happened long after the complaint was filed. The court rejected this argument and held that Plaintiff's new allegations could be considered by the court. They "assert nothing more than an additional incident contributing to [an] overall pattern of harassment....He has not brought any new cause of action."
"adverse employment action"
The court also rejected the argument that Plaintiff did not suffer any "adverse employment action," holding that Title VII's language is "not limited to economic or tangible discrimination" but rather is intended to "strike at the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a discriminatorily hostile or abusive work environment," including a situation where the "workplace is permeated" with treatment that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."
gender discrimination
The court said that in Title VII cases, it considers the "aggregate effect of all evidence and reasonable inferences therefrom," including those concerning incidents of what may appear to be facially neutral treatment.
Sunday, June 04, 2006
admin. law - late appeal
El-Attrache v. Insurance Department - Commonwealth Court - June 1, 2006
http://www.aopc.org/OpPosting/CWealth/out/2358CD05_6-1-06.pdf
Doctor's late appeal of insurance abatement application denied where
- application was required to be submitted online
- hard copy of application also had to be submitted
- doctor's employee attempted file online but "screen went 'white'" during attempt
- reasonable person would have assumed that online application wasn't successfully transmitted
- doctor never submitted hard copy to department
- statute mandated timely filing, did not give dept. discretion to allow late filing
- late appeal allowed only where there is breakdown in admin. process or extraordinary circumstances
- to show breakdown, doctor had to prove he did all he could to properly file the application
- doctor did not show that he did so
http://www.aopc.org/OpPosting/CWealth/out/2358CD05_6-1-06.pdf
Doctor's late appeal of insurance abatement application denied where
- application was required to be submitted online
- hard copy of application also had to be submitted
- doctor's employee attempted file online but "screen went 'white'" during attempt
- reasonable person would have assumed that online application wasn't successfully transmitted
- doctor never submitted hard copy to department
- statute mandated timely filing, did not give dept. discretion to allow late filing
- late appeal allowed only where there is breakdown in admin. process or extraordinary circumstances
- to show breakdown, doctor had to prove he did all he could to properly file the application
- doctor did not show that he did so
custody - child's preference - sibling rule
Saintz v. Rinker - Superior Court - June 1, 2006
http://www.aopc.org/OpPosting/Superior/out/A06028_06.pdf
Trial court's award of custody to father affirmed.
- child's preference is an important but not controlling factor
- sibling rule applies to half-siblings
- sublihg rule is a consideration and not a determinant of custody
http://www.aopc.org/OpPosting/Superior/out/A06028_06.pdf
Trial court's award of custody to father affirmed.
- child's preference is an important but not controlling factor
- sibling rule applies to half-siblings
- sublihg rule is a consideration and not a determinant of custody
Friday, June 02, 2006
Pennsylvania Bulletin of June 3, 2006
Pennsylvania Bulletin of June 3, 2006
http://www.pabulletin.com/secure/data/vol36/36-22/index.html
-recent statutes
http://www.pabulletin.com/secure/data/vol36/36-22/967.html
- court rules - compulsory arbitration - damages
http://www.pabulletin.com/secure/data/vol36/36-22/968.html
- court rules - support - modification/termination
http://www.pabulletin.com/secure/data/vol36/36-22/969.html
- child care facilities - proposed rules
http://www.pabulletin.com/secure/data/vol36/36-22/979.html
- Dept. of Labor & Industry - reorganization
http://www.pabulletin.com/secure/data/vol36/36-22/985.html
- Department of Public Welfare - reorganization
http://www.pabulletin.com/secure/data/vol36/36-22/986.html
- education - No Child Left Behind - highly qualified teacher requirement - resolutions
http://www.pabulletin.com/secure/data/vol36/36-22/1017.html
http://www.pabulletin.com/secure/data/vol36/36-22/index.html
-recent statutes
http://www.pabulletin.com/secure/data/vol36/36-22/967.html
- court rules - compulsory arbitration - damages
http://www.pabulletin.com/secure/data/vol36/36-22/968.html
- court rules - support - modification/termination
http://www.pabulletin.com/secure/data/vol36/36-22/969.html
- child care facilities - proposed rules
http://www.pabulletin.com/secure/data/vol36/36-22/979.html
- Dept. of Labor & Industry - reorganization
http://www.pabulletin.com/secure/data/vol36/36-22/985.html
- Department of Public Welfare - reorganization
http://www.pabulletin.com/secure/data/vol36/36-22/986.html
- education - No Child Left Behind - highly qualified teacher requirement - resolutions
http://www.pabulletin.com/secure/data/vol36/36-22/1017.html
Tuesday, May 30, 2006
employment - ADA - reasonable accommodation - retaliation
Kauffman v. GMAC Mortgage Corp. - ED Pa. - May 17, 2006
http://www.paed.uscourts.gov/documents/opinions/06D0610P.pdf
Plaintiff's ADA claims against her employer dimissed on summary judgment motion.
Plaintiff had a severe allergy to perfumes -- a "disability" under the ADA, 42 USC 12101 et seq. The court held that plaintiff was not a "qualified individual" because she failed to sustain her burden of showing that a "reasonable accommodation, allowing her to perform the essential functions of her job, is possible." The evidence showed "many attempts" by the employer to alleviate plaintiff's problem. A completely scent-free environment was held to be "impractical....virtually impossible....unreasonable."
Plaintiff's retaliation claim was also rejected, because she did not meet the "burden of establishing a causal conection between her protected activity [an email to her employer complainting of harassment and unequal treatment] and her termination."
http://www.paed.uscourts.gov/documents/opinions/06D0610P.pdf
Plaintiff's ADA claims against her employer dimissed on summary judgment motion.
Plaintiff had a severe allergy to perfumes -- a "disability" under the ADA, 42 USC 12101 et seq. The court held that plaintiff was not a "qualified individual" because she failed to sustain her burden of showing that a "reasonable accommodation, allowing her to perform the essential functions of her job, is possible." The evidence showed "many attempts" by the employer to alleviate plaintiff's problem. A completely scent-free environment was held to be "impractical....virtually impossible....unreasonable."
Plaintiff's retaliation claim was also rejected, because she did not meet the "burden of establishing a causal conection between her protected activity [an email to her employer complainting of harassment and unequal treatment] and her termination."
employment - discrimination - exhaustion of admin. remedies
EEOC v. Conectiv - ED Pa. - May 24, 2006
http://www.paed.uscourts.gov/documents/opinions/06D0640P.pdf
A plaintiff cannot file an individual employment discrimination action under Title VII, 42 USC 2000e et seq., for racial discrimination unless s/he has first filed charge with the EEOC or PHRC. The "single-filing rule" -- which allows a non-filing plaintiff to join a class action -- does not apply here, because plaintiff did not intervene, as of right or by permission, in the EEOC class action against the employer. Thus "failure to exhaust his administrative remedies is fatal to his individual Title VII action."
http://www.paed.uscourts.gov/documents/opinions/06D0640P.pdf
A plaintiff cannot file an individual employment discrimination action under Title VII, 42 USC 2000e et seq., for racial discrimination unless s/he has first filed charge with the EEOC or PHRC. The "single-filing rule" -- which allows a non-filing plaintiff to join a class action -- does not apply here, because plaintiff did not intervene, as of right or by permission, in the EEOC class action against the employer. Thus "failure to exhaust his administrative remedies is fatal to his individual Title VII action."
damages - calculation - flexibility
Dept. of General Services v. US Mineral Products Co. - Supreme Court - May 25, 2006
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-81-2004mo.pdf
In the course of deciding the proper measure of damages concerning the chemical contamination of the former PennDOT building, the court said that it "has rejected fixed and formulaic rules when it is determined that they are not setting an appropriate, compensatory standard.....and there are many nuances and significant latitude associated with valuation for the purpose of calculating damages."
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-81-2004mo.pdf
In the course of deciding the proper measure of damages concerning the chemical contamination of the former PennDOT building, the court said that it "has rejected fixed and formulaic rules when it is determined that they are not setting an appropriate, compensatory standard.....and there are many nuances and significant latitude associated with valuation for the purpose of calculating damages."
Friday, May 26, 2006
UC- strike v. lockout
Presbyterian Senior Care v. UCBR - Commonwealth Court - May 23, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/1621CD05_5-23-06.pdf
The court reversed a UCBR decision that a strike had become a lockout, noting (a) the absence of a "critical finding" that the union was willing to return to the status quo and (b) the union's failure to satisfy the "futility doctrine" -- that an offer by the union to return to work would definitely not have been accepted by management.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1621CD05_5-23-06.pdf
The court reversed a UCBR decision that a strike had become a lockout, noting (a) the absence of a "critical finding" that the union was willing to return to the status quo and (b) the union's failure to satisfy the "futility doctrine" -- that an offer by the union to return to work would definitely not have been accepted by management.
admin. law - exhaustion of admin. remedies
Northern Area Personal Care Home Admin. Assn. v. DPW - Cmwlth Court - May 24, 2006
http://www.aopc.org/OpPosting/CWealth/out/503MD05_5-24-06.pdf
Petitioners filed an original action in Commonwealth Court challenging and seeking pre-enforcement review of new personal care home regulations.
DPW's argument that Petitioner failed to exhaust administrative remedies was rejected. Citing Arsenal Coal Co. v. DER, 477 A.2d 1333 (Pa. 1984), the court held that equitable relief is available where there is not "an adequate statutory remedy."
Factors discussed in Arsenal Coal include -- whether the effect of submitting to the regs will be direct and immediate, the resulting hardship, the burden of submitting to the regulations (cost and inefficiency), the availability of pre-enforcement review in the regulations themselves.
http://www.aopc.org/OpPosting/CWealth/out/503MD05_5-24-06.pdf
Petitioners filed an original action in Commonwealth Court challenging and seeking pre-enforcement review of new personal care home regulations.
DPW's argument that Petitioner failed to exhaust administrative remedies was rejected. Citing Arsenal Coal Co. v. DER, 477 A.2d 1333 (Pa. 1984), the court held that equitable relief is available where there is not "an adequate statutory remedy."
Factors discussed in Arsenal Coal include -- whether the effect of submitting to the regs will be direct and immediate, the resulting hardship, the burden of submitting to the regulations (cost and inefficiency), the availability of pre-enforcement review in the regulations themselves.
employment - Title VII - ministerial exception - First Amendment
Petruska v. Gannon University - Third Circuit - May 24, 2006
http://www.ca3.uscourts.gov/opinarch/051222p.pdf
"The ministerial exception...exempts religious organizations from employment discrimination suits brought by ministers." It "was created to protect church autonomy and avoid entangling government in religious affairs."
The court adopted "a carefully tailored version of the ministerial exception. Where otherwise illegal discrimination is based on religious belief, religious doctrine, or the internal regulations of a church, the First Amendment exempts religious institutions from Title VII....But where a church discriminates for reasons unrelated to religion, we hold that the Constitution does not foreclose Title VII suits. Employment discrimination unconnected to religious belief, religious doctrine, or the internal regulations of a church is simply the exercise of intolerance, not the free exercise of religion that the Constitution protects. Furthermore, in adjudicating suits that do not involve religious rationales for employment action, courts need not consider questions of religious belief, religious doctrine, or internal church regulations, a process that would violate the Establishment Clause by entangling courts in religious affairs."
http://www.ca3.uscourts.gov/opinarch/051222p.pdf
"The ministerial exception...exempts religious organizations from employment discrimination suits brought by ministers." It "was created to protect church autonomy and avoid entangling government in religious affairs."
The court adopted "a carefully tailored version of the ministerial exception. Where otherwise illegal discrimination is based on religious belief, religious doctrine, or the internal regulations of a church, the First Amendment exempts religious institutions from Title VII....But where a church discriminates for reasons unrelated to religion, we hold that the Constitution does not foreclose Title VII suits. Employment discrimination unconnected to religious belief, religious doctrine, or the internal regulations of a church is simply the exercise of intolerance, not the free exercise of religion that the Constitution protects. Furthermore, in adjudicating suits that do not involve religious rationales for employment action, courts need not consider questions of religious belief, religious doctrine, or internal church regulations, a process that would violate the Establishment Clause by entangling courts in religious affairs."
contempt - talking to witness during break in examination
Yoskowitz v. Yazdanfar - Superior Court - May 24, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/a07024_06.pdf
The appellate court reversed a finding of criminal contempt under 42 Pa. C.S. 4132(3) resulting from an attorney having talked to a witness during a break in the witness's testimony.
The trial court relied on Hall v. Clifton Precision, 150 FRD 525, 528 (ED Pa. 1993), given the lack of state court precedent (rules, cases, etc) on the issue. The trial court noted an "appearance of impropriety" that rendered the witness's testimony "suspect."
The Superior Court said that there was not "sufficient evidence to prove beyond a reasonable doubt that [thej attorney] intended to significantly disrupt the...trial proceedings" and that the "court was in recess when the conversation occurred." The court reversed the finding of contempt "[b]ecause the record fails to reflect the requisite proof beyond a reasonable doubt...."
Note: Despite this decision, I think it's a very bad idea to talk to a witness during a break in the witness's examination. It may not be criminal contempt, but I think it is still improper. It raises serious ethical and other issues.
http://www.courts.state.pa.us/OpPosting/Superior/out/a07024_06.pdf
The appellate court reversed a finding of criminal contempt under 42 Pa. C.S. 4132(3) resulting from an attorney having talked to a witness during a break in the witness's testimony.
The trial court relied on Hall v. Clifton Precision, 150 FRD 525, 528 (ED Pa. 1993), given the lack of state court precedent (rules, cases, etc) on the issue. The trial court noted an "appearance of impropriety" that rendered the witness's testimony "suspect."
The Superior Court said that there was not "sufficient evidence to prove beyond a reasonable doubt that [thej attorney] intended to significantly disrupt the...trial proceedings" and that the "court was in recess when the conversation occurred." The court reversed the finding of contempt "[b]ecause the record fails to reflect the requisite proof beyond a reasonable doubt...."
Note: Despite this decision, I think it's a very bad idea to talk to a witness during a break in the witness's examination. It may not be criminal contempt, but I think it is still improper. It raises serious ethical and other issues.
Pennsylvania Bulletin of May 27, 2006
Here's the link to the Pennsylvania Bulletin of May 27, 2006
http://www.pabulletin.com/secure/data/vol36/36-21/index.html
Of possible interest:
- governor - veto - SB 997 - discussion of "pay as you go" budget
http://www.pabulletin.com/secure/data/vol36/36-21/918.html
- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-21/919.html
- Human Relations Commission - public hearing opinions
http://www.pabulletin.com/secure/data/vol36/36-21/943.html
- IRRC - notiice of filing of final rules
http://www.pabulletin.com/secure/data/vol36/36-21/945.html
- potatoes - referendum on potato research program - it continues! - 85.4% v. 14.6%
http://www.pabulletin.com/secure/data/vol36/36-21/934.html
http://www.pabulletin.com/secure/data/vol36/36-21/index.html
Of possible interest:
- governor - veto - SB 997 - discussion of "pay as you go" budget
http://www.pabulletin.com/secure/data/vol36/36-21/918.html
- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-21/919.html
- Human Relations Commission - public hearing opinions
http://www.pabulletin.com/secure/data/vol36/36-21/943.html
- IRRC - notiice of filing of final rules
http://www.pabulletin.com/secure/data/vol36/36-21/945.html
- potatoes - referendum on potato research program - it continues! - 85.4% v. 14.6%
http://www.pabulletin.com/secure/data/vol36/36-21/934.html
Friday, May 19, 2006
Pennsylvania Bulletin of May 20, 2006
http://www.pabulletin.com/secure/data/vol36/36-20/index.html
- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-20/861.html
- attorneys - disciplininary board - regs
http://www.pabulletin.com/secure/data/vol36/36-20/862.html
- courts - local rules - Carbon County - PFAs
http://www.pabulletin.com/secure/data/vol36/36-20/863.html
- medicine - acupuncture - advance notice of final rulemaking http://www.pabulletin.com/secure/data/vol36/36-20/869.html
- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-20/861.html
- attorneys - disciplininary board - regs
http://www.pabulletin.com/secure/data/vol36/36-20/862.html
- courts - local rules - Carbon County - PFAs
http://www.pabulletin.com/secure/data/vol36/36-20/863.html
- medicine - acupuncture - advance notice of final rulemaking http://www.pabulletin.com/secure/data/vol36/36-20/869.html
Wednesday, May 17, 2006
contracts - integration clause
Glassmere Fuel Service, Inc. v. Clear - Superior Court - May 15, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/a34027_05.pdf
Plaintiff sued Defendant for its failure to comply with an agreement that would have turned D's convenience store into a BP gas station. Plaintiff alleged the Defendant "failed to obtain financing in violation of an 'implied term' of the agreement. Defendant noted that the agreement did not expressly require it to obtain financing and that the agreement's integration clause barred Plaintiff's action.
Held, integration clause barred inconsistent parol evidence of alleged prior representations, unless the representations were omitted because of fraud, accident or mistake. Where contract terms are clear and unambiguous, there is no need to consider other evidence to aid in interpretation.
The doctrine of necessary implication does not apply unless it is "necessary to prevent injustice and it is abundantly clear that the parties intended to be bound by" the alleged missing term, which was not found to be the case here. Plaintiff had other remedies for Defendant's failure to fulfill the contract.
http://www.courts.state.pa.us/OpPosting/Superior/out/a34027_05.pdf
Plaintiff sued Defendant for its failure to comply with an agreement that would have turned D's convenience store into a BP gas station. Plaintiff alleged the Defendant "failed to obtain financing in violation of an 'implied term' of the agreement. Defendant noted that the agreement did not expressly require it to obtain financing and that the agreement's integration clause barred Plaintiff's action.
Held, integration clause barred inconsistent parol evidence of alleged prior representations, unless the representations were omitted because of fraud, accident or mistake. Where contract terms are clear and unambiguous, there is no need to consider other evidence to aid in interpretation.
The doctrine of necessary implication does not apply unless it is "necessary to prevent injustice and it is abundantly clear that the parties intended to be bound by" the alleged missing term, which was not found to be the case here. Plaintiff had other remedies for Defendant's failure to fulfill the contract.
UC- willful misconduct - drug test
Turner v. UCBR - Commonwealth Court - May 16, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/871CD05_5-16-06.pdf
In a 4-3 decision, claimant (CL) was held to have violated the drug disqualification section of the UC Law, 43 PS 802(e.1), where his unemployment was "due to discharge....from work due to failure to submit and/or pass a drug test conducted pursuant to an employer's established substance abuse policy."
The UC Service Center had ruled on the basis of sec. 801(e.1), but the referee and Board ruled on the basis on 402(e), the general willful misconduct section. The Court ultimately ruled CL ineligible in the basis of sec. 801(e.1), pursuant to a series of cases holding that it can affirm an agency decision on other grounds, where those grounds appear on the record of the case.
CL argued that the ER's policy only prohibited drug use while he was on duty, and that there was no proof of that. The court rejected that argument, noting that "while a literal reading of one portion of employer's policy supports claimant's argument...., viewing the entire policy in context belies this claim....'Claimant's submission to the condition of random drug testing is sufficient to infer Claimant's understanding that he had to abstain from any drug use....' Szostek v. UCBR, 541 A2d 48, 50 (Pa. Cmwlth. 1988).' The random testing provision....enforces the requirement that employees not only refrain from on-duty drug use but also be free from drugs remaining in employee's systems while on-duty. Otherwise the test would serve no purpose, because a positive test would be meaningless, or at least could result in no consequences absent independent direct proof of on-duty use. Thus, we conclude that claimant's positive test for marijuana constituted a violation of employer's substance abuse policy."
The court also held that the "testimony of the supervisor of those persons who are actually performing the drug testing of a urine specimen is sufficient to establish the reliability and trustworthiness of the evidence under" the business records as evidence act, 42 Pa. C.S. 6108(b), citing Artis v. UCBR, 699 A.2d 849, 852 (Pa. Cmwlth. 1997). The court said that the testimony of the vice-president and director of toxicology of the lab that did the drug test "provided very detailed and sufficient information relating to the preparation of claimant's drug test result and justified not only a presumption about the trustworthiness of this record but its admission."
Judges Colins and Pelligrini dissented "[b]ecause of cross-examination, the toxicologist admitted the he could not tell from the test results whether the claimant used marijuana or was under the influence of marijuana while on duty," stating that without that evidence "there is not substantial evidence to support the conclusion that claimant violated the employer's drug policy."
Judge Friedman concurred and dissented, citing the same testimony of the toxicologist. She said that the record was "devoid of evidence establishing that Claimant used drugs while on duty, as prohibited by" the ER's policy, and that the Board thus erred in affirming the referee's decision based on 401(e). She "strongly object[ed] to the majority's analysis insofar as it eschews a literal reading of Employer's rules in favor of a broad interpretation of Employer's policy as a whole," noting the a rule violation must be knowing and deliberate. "[k]nowledge of the work rule or policy is a prerequisite to a knowing and deliberation [sic] violation of the same....I believe that this court violates long-standing principles of law when it engages in any 'interpretation' of an employer's rule or policy." However, she "reluctantly" concurred because the Court has the power to affirm on other grounds, i.e., sec. 402(e.1), which appear on the record.
This decision seem consistent with the Court's recent apparent willingness to bend the usual rules in drug cases. See, e.g., UGI Utilities, 851 A.2d 240 (Pa. Cmwlth. 2004) and Ruiz v. UCBR - Commonwealth Court - November 30, 2005, http://www.courts.state.pa.us/OpPosting/CWealth/out/882CD05_11-30-05.pdf
http://www.courts.state.pa.us/OpPosting/CWealth/out/871CD05_5-16-06.pdf
In a 4-3 decision, claimant (CL) was held to have violated the drug disqualification section of the UC Law, 43 PS 802(e.1), where his unemployment was "due to discharge....from work due to failure to submit and/or pass a drug test conducted pursuant to an employer's established substance abuse policy."
The UC Service Center had ruled on the basis of sec. 801(e.1), but the referee and Board ruled on the basis on 402(e), the general willful misconduct section. The Court ultimately ruled CL ineligible in the basis of sec. 801(e.1), pursuant to a series of cases holding that it can affirm an agency decision on other grounds, where those grounds appear on the record of the case.
CL argued that the ER's policy only prohibited drug use while he was on duty, and that there was no proof of that. The court rejected that argument, noting that "while a literal reading of one portion of employer's policy supports claimant's argument...., viewing the entire policy in context belies this claim....'Claimant's submission to the condition of random drug testing is sufficient to infer Claimant's understanding that he had to abstain from any drug use....' Szostek v. UCBR, 541 A2d 48, 50 (Pa. Cmwlth. 1988).' The random testing provision....enforces the requirement that employees not only refrain from on-duty drug use but also be free from drugs remaining in employee's systems while on-duty. Otherwise the test would serve no purpose, because a positive test would be meaningless, or at least could result in no consequences absent independent direct proof of on-duty use. Thus, we conclude that claimant's positive test for marijuana constituted a violation of employer's substance abuse policy."
The court also held that the "testimony of the supervisor of those persons who are actually performing the drug testing of a urine specimen is sufficient to establish the reliability and trustworthiness of the evidence under" the business records as evidence act, 42 Pa. C.S. 6108(b), citing Artis v. UCBR, 699 A.2d 849, 852 (Pa. Cmwlth. 1997). The court said that the testimony of the vice-president and director of toxicology of the lab that did the drug test "provided very detailed and sufficient information relating to the preparation of claimant's drug test result and justified not only a presumption about the trustworthiness of this record but its admission."
Judges Colins and Pelligrini dissented "[b]ecause of cross-examination, the toxicologist admitted the he could not tell from the test results whether the claimant used marijuana or was under the influence of marijuana while on duty," stating that without that evidence "there is not substantial evidence to support the conclusion that claimant violated the employer's drug policy."
Judge Friedman concurred and dissented, citing the same testimony of the toxicologist. She said that the record was "devoid of evidence establishing that Claimant used drugs while on duty, as prohibited by" the ER's policy, and that the Board thus erred in affirming the referee's decision based on 401(e). She "strongly object[ed] to the majority's analysis insofar as it eschews a literal reading of Employer's rules in favor of a broad interpretation of Employer's policy as a whole," noting the a rule violation must be knowing and deliberate. "[k]nowledge of the work rule or policy is a prerequisite to a knowing and deliberation [sic] violation of the same....I believe that this court violates long-standing principles of law when it engages in any 'interpretation' of an employer's rule or policy." However, she "reluctantly" concurred because the Court has the power to affirm on other grounds, i.e., sec. 402(e.1), which appear on the record.
This decision seem consistent with the Court's recent apparent willingness to bend the usual rules in drug cases. See, e.g., UGI Utilities, 851 A.2d 240 (Pa. Cmwlth. 2004) and Ruiz v. UCBR - Commonwealth Court - November 30, 2005, http://www.courts.state.pa.us/OpPosting/CWealth/out/882CD05_11-30-05.pdf
Monday, May 15, 2006
consumer - credit reporting - debt collection
Wesley v. Calvary Investments - ED Pa. - May 9, 2006
http://www.paed.uscourts.gov/documents/opinions/06D0572P.pdf
Defendant's alleged compliance with Fair Credit Reporting Act does not relieve it of complying with obligations under the Fair Debt Collection Practices Act.
http://www.paed.uscourts.gov/documents/opinions/06D0572P.pdf
Defendant's alleged compliance with Fair Credit Reporting Act does not relieve it of complying with obligations under the Fair Debt Collection Practices Act.
Friday, May 12, 2006
Pennsylvania Bulletin of May 13, 2006
http://www.pabulletin.com/secure/data/vol36/36-19/index.html
- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-19/832.html
- state dept. of agriculture - right-to-know procedures
http://www.pabulletin.com/secure/data/vol36/36-19/838.html
- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-19/832.html
- state dept. of agriculture - right-to-know procedures
http://www.pabulletin.com/secure/data/vol36/36-19/838.html
grandparent - standing - dependency - custody
In the Interest of L.C., II - Superior Court - May 11, 2006
http://www.aopc.org/OpPosting/Superior/out/S02045_06.pdf
Held, grandmother was not a proper party and did not have standing to participate in a juvenile case at which the grandson's dependency was adjudicated.
Participation in juvenile cases is restricted to parties, i.e., a) parents of the child; b) the legal custodian of the child; and c) the person whose care and control of the child is at issue.
Grandmother did not fit any of these categories, although she had had custody of the child for 14 years, until July 2003, when custody was granted to child's mother and partial custody (one weekend per month) granted to g/m.
The juvenile law, 42 Pa. C.S. 6301-65, mandates that the adjudication and disposition of a dependent child must be addressed separately and in sequential order. A dependency determiantion is a prerequisite to a custody disposition.
The court said that its conclusion about standing in the adjudication of dependency "does not mean the Grandmother would lack standing to seek custody of her grandson," once dependency was established, citing R.M. v. Baxter,, 777 A,2d 446 (Pa. 2001), and In re Adoption of Hess, 608 A.2d 10 (Pa. 1992) (emphasis in original).
http://www.aopc.org/OpPosting/Superior/out/S02045_06.pdf
Held, grandmother was not a proper party and did not have standing to participate in a juvenile case at which the grandson's dependency was adjudicated.
Participation in juvenile cases is restricted to parties, i.e., a) parents of the child; b) the legal custodian of the child; and c) the person whose care and control of the child is at issue.
Grandmother did not fit any of these categories, although she had had custody of the child for 14 years, until July 2003, when custody was granted to child's mother and partial custody (one weekend per month) granted to g/m.
The juvenile law, 42 Pa. C.S. 6301-65, mandates that the adjudication and disposition of a dependent child must be addressed separately and in sequential order. A dependency determiantion is a prerequisite to a custody disposition.
The court said that its conclusion about standing in the adjudication of dependency "does not mean the Grandmother would lack standing to seek custody of her grandson," once dependency was established, citing R.M. v. Baxter,, 777 A,2d 446 (Pa. 2001), and In re Adoption of Hess, 608 A.2d 10 (Pa. 1992) (emphasis in original).
Wednesday, May 10, 2006
child abuse - cause of abuse - presumption
In re: D.T. - Commonwealth Court - May 9, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/1602CD05_5-9-06.pdf
Request to expunge indicated report of child abuse denied.
Appellant was the paramour of the mother of an 18 month-old child who suffered 2nd degree burns on both feet, which a doctor testified were "typical immersion scald burns." The evidence showed that at the time of his injury, the child was either in the custody of his mother or her paramour, but there was no "independent substantial competent evidence" that appellant was the person that caused the burns."
The court approved DPW's reliance on 23 Pa. C.S. 6381(d) [prima facie evidence of abuse], which provides that "[e]vidence that a child has suffered child abuse of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the welfare of the child shall be prima facie evidence of child abuse by the parents or other person responsible for the welfare of the child."
Citing the decision of In the Interest of J.R.W., 631 A.2d 1019 (Pa. Super. 1993), the court held that while the "existence of child abuse" had to be proven by clear and convincing evidence, proof of "the identity of the perpetrator of that abuse....need only be established by prima facie evidence that the abuse normally would not have occurred except by reason of acts or omissions of the caretakers...." (emphasis in original)
The "presumption can be rebutted, like other statutory presumptions, with countervailing competent, substantial evidence," which did not exist here. Appellant's testimony was found not credible, in part because he lied about not having a prior criminal record.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1602CD05_5-9-06.pdf
Request to expunge indicated report of child abuse denied.
Appellant was the paramour of the mother of an 18 month-old child who suffered 2nd degree burns on both feet, which a doctor testified were "typical immersion scald burns." The evidence showed that at the time of his injury, the child was either in the custody of his mother or her paramour, but there was no "independent substantial competent evidence" that appellant was the person that caused the burns."
The court approved DPW's reliance on 23 Pa. C.S. 6381(d) [prima facie evidence of abuse], which provides that "[e]vidence that a child has suffered child abuse of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the welfare of the child shall be prima facie evidence of child abuse by the parents or other person responsible for the welfare of the child."
Citing the decision of In the Interest of J.R.W., 631 A.2d 1019 (Pa. Super. 1993), the court held that while the "existence of child abuse" had to be proven by clear and convincing evidence, proof of "the identity of the perpetrator of that abuse....need only be established by prima facie evidence that the abuse normally would not have occurred except by reason of acts or omissions of the caretakers...." (emphasis in original)
The "presumption can be rebutted, like other statutory presumptions, with countervailing competent, substantial evidence," which did not exist here. Appellant's testimony was found not credible, in part because he lied about not having a prior criminal record.
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).
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).
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).
Tuesday, May 09, 2006
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.
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.
Monday, May 08, 2006
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.
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.
Friday, May 05, 2006
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
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
Tuesday, May 02, 2006
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.
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.
Friday, April 28, 2006
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
- 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
Thursday, April 27, 2006
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."
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."
Monday, April 24, 2006
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.
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.
Saturday, April 22, 2006
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."
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."
Friday, April 21, 2006
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
- 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
Thursday, April 20, 2006
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."
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."
Tuesday, April 18, 2006
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
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
Monday, April 17, 2006
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."
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."
Friday, April 14, 2006
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
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
Thursday, April 13, 2006
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
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."
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."
Tuesday, April 11, 2006
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.
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.
Monday, April 10, 2006
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.
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.
Sunday, April 09, 2006
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
- 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
Wednesday, April 05, 2006
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.
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.
Monday, April 03, 2006
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.
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."
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."
Friday, March 31, 2006
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."
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.
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
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
Tuesday, March 28, 2006
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..."
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..."
Monday, March 27, 2006
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).
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).
Sunday, March 26, 2006
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.
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.
Saturday, March 25, 2006
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.
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.
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.
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