Morilus v.Countrywide Home Loans, Inc. - ED Pa. - June 20, 2007
http://www.paed.uscourts.gov/documents/opinions/07d0746p.pdf
The plaintiff sued an appraisal company under a number of consumer protection statutes, claiming that the company had conspired to unfairly and deceptively induce plaintiff to execute the loan, based on a falsely inflated appraisal price, with monthly payments that plaintiff could not afford. The court sustained defendant's motion to dismiss some of plaintiff's claims, including
- Truth in Lending Act, 15 USC 1601 et seq., because the defendant was not a creditor
- Home Ownership and Real Estate Protection Act, 15 USC 1639(a), because defendant was not a "creditor"
- Equal Credit Opportunity AQct 15 USC 1691a(e), because defendant was not involved in any credit decision
- Pennsylvania Fair Credit Extension Uniformity Act, 73 PS 2270 et seq., because defendant was not a "creditor"
- Pennsylvania Credit Services Act, 73 PS 2182, because defendant was not a "creditor" or credit services organization
- punitive damages - there was no allegation that D knew of a high risk of harm to P or that it acted deliberately and outrageously and with a conscious disregard of the risk.
The court also rejected the following claims but gave plaintiff leave to file an amended complaint with the necessary allegations, as follows
- Real Estate Settlement Procedures Act, 12 USC 2601 et seq. - to sustain her claim that the defendant was part of a fraudulent scheme to improperly split settlement charges, plaintiff would have to allege that she made a "qualified written request" to the lender stating that her account was in error
- Pennsylvania Consumer Protection Law - Plaintiff did not make any allegations that met the requirements of common law fraud, including a material misreprentation of an existing fact, scienter, jusitifiable reliance on the misrepresentation, and damages, citing Booze v. Allstate Insurance, 750 A.2d 877, 880 (Pa. Super. 2000) [But see Commonwealth v. Percudani, 825 A.2d 743 (Pa. Cmwlth 2003), noting that amendments to the CPL statute negated this requirement. ]
- fraud claim - both state and federal pleading law requires pleading with more particularity that in the existing complaint.
Tuesday, July 17, 2007
consumer - Fair Credit Reporting Act - refusal to investigate disputed debt
Klotz v. Trans Union, LLC - ED Pa. - July 2, 2007
http://www.paed.uscourts.gov/documents/opinions/07D0792P.pdf
In the course of rejecting the plaintiff's motion to certify a class, the court held that the defendant credit reporting agency (CRA) did not have a duty to investigate plaintiff's dispute about his credit report , since
- plaintiff's documents were prepared by a third party credit repair organization (CRO)
- plaintiff did not notify the CRA directly of his dispute, as required by 15 USC 1681i(a)(1)(A)
- plaintiff did not prepare or read the dispute, just signed it and sent it in
- plaintiff did not prove the inaccuracy of the CRA's information, as required by 15 USC 1681i
The court relied on the decision in Cushman v. Trans Union Corp. 115 F.3d 220 (3d Cir. 1997)
http://www.paed.uscourts.gov/documents/opinions/07D0792P.pdf
In the course of rejecting the plaintiff's motion to certify a class, the court held that the defendant credit reporting agency (CRA) did not have a duty to investigate plaintiff's dispute about his credit report , since
- plaintiff's documents were prepared by a third party credit repair organization (CRO)
- plaintiff did not notify the CRA directly of his dispute, as required by 15 USC 1681i(a)(1)(A)
- plaintiff did not prepare or read the dispute, just signed it and sent it in
- plaintiff did not prove the inaccuracy of the CRA's information, as required by 15 USC 1681i
The court relied on the decision in Cushman v. Trans Union Corp. 115 F.3d 220 (3d Cir. 1997)
mobile homepark rights act - park closures - HB 1673 (proposed)
This recently introduced bill would require written notice to park residents within 30 days of the park owner entering into an agreement for the sale of the park.
You can see HB 1673 at http://www.legis.state.pa.us/cfdocs/legis/home/bills/topindex.cfm
The notice would have to include
- the estimated date that residents will be expected to vacate, no sooner than 180 days of getting notice
- the estimated date that the park will be closed.
- a receipt from one adult resident in each home showing that the notice was received
- a right of first refusal to existing residents and neootiation in good faith
- payment of relocation expenses equivalent to 6 months rent
- pay the appraised value of the home of the tenant cannot find a suitable replacement site
Park owners could not refused to admit used home thyat are in good and tenantable condition
You can see HB 1673 at http://www.legis.state.pa.us/cfdocs/legis/home/bills/topindex.cfm
The notice would have to include
- the estimated date that residents will be expected to vacate, no sooner than 180 days of getting notice
- the estimated date that the park will be closed.
- a receipt from one adult resident in each home showing that the notice was received
- a right of first refusal to existing residents and neootiation in good faith
- payment of relocation expenses equivalent to 6 months rent
- pay the appraised value of the home of the tenant cannot find a suitable replacement site
Park owners could not refused to admit used home thyat are in good and tenantable condition
Tuesday, July 10, 2007
courts- appeals - MDJ judgments - date of judgment
Lloyd, Inc. v. Microbytes, Inc. - Superior Court - July 9, 2007
http://www.aopc.org/OpPosting/Superior/out/a10028_07.pdf
The time to appeal an MDJ judgment was held to begin to run on the "date of judgement" entered on the Notice of Judgment/Transcript Civil Case, on which the MDJ signed the judgment, rather than the next day, on which the Notice was processed.
A judgment is "entered" under MDJ Rule 1002 when the judgment form is signed by the MDJ, not when it is printed out and the process of providing notice of the judgment is initiated. A judgment is encountered simultaneously with the recordation of the judgment on the pre-printed judgment/transcript form. The rules could have allowed the appeal period to begin on the date the notice is printed. They do not, so "we must assume that the appeal period was meant to begin with the signing of the judgment form by the magisterial district judge."
http://www.aopc.org/OpPosting/Superior/out/a10028_07.pdf
The time to appeal an MDJ judgment was held to begin to run on the "date of judgement" entered on the Notice of Judgment/Transcript Civil Case, on which the MDJ signed the judgment, rather than the next day, on which the Notice was processed.
A judgment is "entered" under MDJ Rule 1002 when the judgment form is signed by the MDJ, not when it is printed out and the process of providing notice of the judgment is initiated. A judgment is encountered simultaneously with the recordation of the judgment on the pre-printed judgment/transcript form. The rules could have allowed the appeal period to begin on the date the notice is printed. They do not, so "we must assume that the appeal period was meant to begin with the signing of the judgment form by the magisterial district judge."
mortgage foreclosure - Act 91 notice - local consumer counseling agency - jurisdiction
Washington Mutual v. Carr - CP Adams County - July 5, 2006
49 Adams L.J. 17 (CP Adams 2006)
In what the court said was a matter of first impression in the state, it held that Act 91 requires a mortgage holder to give the name and address of a "local" consumer credit counseling agency (CCCA), 35 P.S. 1680.403c(b)(1), which the Pa. Housing Finance Agency has indicated mean as being "for the county" in which the property in located. In the instant case, the mortgagee listing 47 CCCAs but none in the county where the property was located and only five in the neighboring counties comprising south central Pennsylvania.
Citing case law to the effect that Act 91 is meant to protect vulnerable consumers unschooled in the complex world of mortgage foreclosure from the loss of their homes due to ignorance of their rights in a sometimes sharp practice of lenders," the court found the "Bank's cavalier shotgun approach to proving appropriate notice to a mortgagor is insufficient to satisfy the jurisdictional prerequisites provided for in Act 91." The court found that the defect could not be cured by amendment and dismissed the complaint, finding that strict and not just substantial compliance with Act 91 was required, since proper notice under Act 91 is a jurisdictional matter. PHA v. Barbour, 592 A.2d 47, 48 (Pa. Super. 1991). "[L]ack of compliance, even if minimal or inadvertent, denies the Court jurisdiction."
49 Adams L.J. 17 (CP Adams 2006)
In what the court said was a matter of first impression in the state, it held that Act 91 requires a mortgage holder to give the name and address of a "local" consumer credit counseling agency (CCCA), 35 P.S. 1680.403c(b)(1), which the Pa. Housing Finance Agency has indicated mean as being "for the county" in which the property in located. In the instant case, the mortgagee listing 47 CCCAs but none in the county where the property was located and only five in the neighboring counties comprising south central Pennsylvania.
Citing case law to the effect that Act 91 is meant to protect vulnerable consumers unschooled in the complex world of mortgage foreclosure from the loss of their homes due to ignorance of their rights in a sometimes sharp practice of lenders," the court found the "Bank's cavalier shotgun approach to proving appropriate notice to a mortgagor is insufficient to satisfy the jurisdictional prerequisites provided for in Act 91." The court found that the defect could not be cured by amendment and dismissed the complaint, finding that strict and not just substantial compliance with Act 91 was required, since proper notice under Act 91 is a jurisdictional matter. PHA v. Barbour, 592 A.2d 47, 48 (Pa. Super. 1991). "[L]ack of compliance, even if minimal or inadvertent, denies the Court jurisdiction."
Monday, July 02, 2007
PFA - standing - sexual/intimate partner - victim of sexual assault
Scott v. Shay - Superior Court - June 26, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/a37040_06.pdf
Victim and perpetrator of sexual assault are not "family or household members" or "sexual or intimate partners."
In addition, there was no evidence of "abuse" in the case. Two encounters more than a year apart do not establish a course of conduct. Nor did plaintiff have a reasonable fear of bodily injury from defendant's actions.
http://www.courts.state.pa.us/OpPosting/Superior/out/a37040_06.pdf
Victim and perpetrator of sexual assault are not "family or household members" or "sexual or intimate partners."
In addition, there was no evidence of "abuse" in the case. Two encounters more than a year apart do not establish a course of conduct. Nor did plaintiff have a reasonable fear of bodily injury from defendant's actions.
Tuesday, June 26, 2007
UC- voluntary quit - voluntary retirement program
Davila v. UCBR - Commonwealth Court - June 26, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/255CD07_6-26-07.pdf
A Claimant who quit her job pursuant to requirements of a voluntary retirement program did not have good cause to leave her job, where continuing work was available and she was not in danger of losing her job. The fact that the program required her to retire did not constitute good cause, since she entered the program voluntarily.
http://www.courts.state.pa.us/OpPosting/CWealth/out/255CD07_6-26-07.pdf
A Claimant who quit her job pursuant to requirements of a voluntary retirement program did not have good cause to leave her job, where continuing work was available and she was not in danger of losing her job. The fact that the program required her to retire did not constitute good cause, since she entered the program voluntarily.
Monday, June 25, 2007
UC - voluntary quit - childcare
Shaffer v. UCBR - Commonwealth Court - June 25, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/119CD07_6-25-07.pdf
Claimant held not to have proved a necessitous and compelling reason to quit her job when her employer moved its operations, thus increasing her commuting time and causing the loss of her parents' help with childcare. The court said that the claimantdid not "establish that she exhausted all other alternative arrangements, such as making a concerted effort to find another baby-sitter or locate a suitable day care center." (emphasis added)
Her testimony showed that she "investigated only one daycare facility" and "did not offer evidence that she looked in any other childcare arrangements" or that she properly explored alternative arrangements for her old son's before and after school care. (emphasis in original). The claimant "did not establish that she made a concerted effort to find alternative childcare arrangements." (emphasis added)
http://www.courts.state.pa.us/OpPosting/CWealth/out/119CD07_6-25-07.pdf
Claimant held not to have proved a necessitous and compelling reason to quit her job when her employer moved its operations, thus increasing her commuting time and causing the loss of her parents' help with childcare. The court said that the claimantdid not "establish that she exhausted all other alternative arrangements, such as making a concerted effort to find another baby-sitter or locate a suitable day care center." (emphasis added)
Her testimony showed that she "investigated only one daycare facility" and "did not offer evidence that she looked in any other childcare arrangements" or that she properly explored alternative arrangements for her old son's before and after school care. (emphasis in original). The claimant "did not establish that she made a concerted effort to find alternative childcare arrangements." (emphasis added)
Friday, June 22, 2007
consumer - floating forum selection clause
Susquehanna Patriot Commcl. Leasing Co. v. Holper Industries, Inc. - Super. Ct. - June 12, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/a24021_06.pdf
A "floating" forum selection clause (FFSC) in contracts concerning equipment leases was held to be enforceable under Pennsylvania law., under the general principles set out in Patriot Commcl. Leasing Co. v. Kremer Restaurant, 915 A2d 647 (Pa. Super. 2006) http://www.courts.state.pa.us/OpPosting/Superior/out/A24012_06.pdf posted and discussed in the PLAN Updates in January 2007.
The equipment was advertised by the lessor, NorVergence, as providing 30%-60% savings to the lessees, through the use of a specific device. In fact, the device was not capable of providing any reduced savings and was worth a fraction of its selling price. Immediately after the lease-contracts were consummated, NorVergence assigned them to 3rd party finance companies, including appellant. The original lease said that the money on the rental agreements was owed regardless of whether NorVergence provided the promised services. After collecting millions on the assignments, NorVergence declared bankruptcy. The lessees stopped making payments to the assignees, who then sued in Pennsylvania on leases executed by small business entities in New Jersey and Maryland.
After setting out the split of authority regarding the enforceability of the FFSC and the difficulty in disassociating the "obvious and egregious fraud" used to procure these leases from the analysis of whether to uphold the FFSC, the court upheld them in these cases, noting the "in the interest of judicial uniformity, all cases must be analyzed in accordance with overriding principles of law that cannot depend upon facts not implicated in the application on those principles. We must confine ourselves accordingly."
The court in Patriot Commercial Leasing held that where the parties have freely agreed to a forum selection clause, which was not unreasonable at the time, it will only be held unreasonable where its enforcement, under all of the circumstances, would seriously impair a party's ability to pursue its case. Here, the defendants are in states which border Pennsylvania; and many of them have the same attorney; many of their claims can be heard in the same proceeding.
There has been "nationwide litigation, including litigation by various state attorneys general and the FTC about this issue, concerning leases negotiated by NorVergence, which assigned various leases for telecommunications equipment to Appellant Susquehanna PCL. See, http://www.attorneygeneral.gov/consumers.aspx? and http://www.ftc.gov/opa/2005/07/norvergence.shtm
http://www.courts.state.pa.us/OpPosting/Superior/out/a24021_06.pdf
A "floating" forum selection clause (FFSC) in contracts concerning equipment leases was held to be enforceable under Pennsylvania law., under the general principles set out in Patriot Commcl. Leasing Co. v. Kremer Restaurant, 915 A2d 647 (Pa. Super. 2006) http://www.courts.state.pa.us/OpPosting/Superior/out/A24012_06.pdf posted and discussed in the PLAN Updates in January 2007.
The equipment was advertised by the lessor, NorVergence, as providing 30%-60% savings to the lessees, through the use of a specific device. In fact, the device was not capable of providing any reduced savings and was worth a fraction of its selling price. Immediately after the lease-contracts were consummated, NorVergence assigned them to 3rd party finance companies, including appellant. The original lease said that the money on the rental agreements was owed regardless of whether NorVergence provided the promised services. After collecting millions on the assignments, NorVergence declared bankruptcy. The lessees stopped making payments to the assignees, who then sued in Pennsylvania on leases executed by small business entities in New Jersey and Maryland.
After setting out the split of authority regarding the enforceability of the FFSC and the difficulty in disassociating the "obvious and egregious fraud" used to procure these leases from the analysis of whether to uphold the FFSC, the court upheld them in these cases, noting the "in the interest of judicial uniformity, all cases must be analyzed in accordance with overriding principles of law that cannot depend upon facts not implicated in the application on those principles. We must confine ourselves accordingly."
The court in Patriot Commercial Leasing held that where the parties have freely agreed to a forum selection clause, which was not unreasonable at the time, it will only be held unreasonable where its enforcement, under all of the circumstances, would seriously impair a party's ability to pursue its case. Here, the defendants are in states which border Pennsylvania; and many of them have the same attorney; many of their claims can be heard in the same proceeding.
There has been "nationwide litigation, including litigation by various state attorneys general and the FTC about this issue, concerning leases negotiated by NorVergence, which assigned various leases for telecommunications equipment to Appellant Susquehanna PCL. See, http://www.attorneygeneral.gov/consumers.aspx? and http://www.ftc.gov/opa/2005/07/norvergence.shtm
Tuesday, June 19, 2007
real property - tax sale - notice - new sale
Willard v. Delaward Co. Tax Claim Bureau - April 276, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/1319CD06_4-26-07.pdf
Record owners of property listed but then removed from one judicial tax sale, then relisted for another sale, must get new , separate notice of the second sale. The second sale is not merely a continuation of the original sale. There is no provision in the Real Estate Tax Sale Law for the concept of a "continued" judicial sale.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1319CD06_4-26-07.pdf
Record owners of property listed but then removed from one judicial tax sale, then relisted for another sale, must get new , separate notice of the second sale. The second sale is not merely a continuation of the original sale. There is no provision in the Real Estate Tax Sale Law for the concept of a "continued" judicial sale.
real estate - tax assessment - appeal - base year value v. current market value
Daugherty v. County of Allegheny - Commonwealth Court - March 27, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/1777CD06_3-27-07.pdf
County Board of Assessment lacked the statutory authority to limit assessment appeals to challenge to base year market value, rather than challenge that assessment exceeds current market value.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1777CD06_3-27-07.pdf
County Board of Assessment lacked the statutory authority to limit assessment appeals to challenge to base year market value, rather than challenge that assessment exceeds current market value.
mortgage foreclosure - predatory loan - arbitration - limitation of consumer judicial remedies
Salley v. Option One Mortgage Corp. - Pa. Supreme Court - May 31, 2007 majority
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-34-2006mo.pdf dissent http://www.courts.state.pa.us/OpPosting/Supreme/out/J-34-2006do.pdf
In a case arising from a federal court's certification of the question to the state supreme court, the state court held that an arbitration agreement consummated in connection with a residential mortgage loan which limited a consumer's judicial remedies related to foreclosure is not presumptively unconscionable. The exceptions from arbitration involved creditor remedies exclusively, including: foreclosure; self-help remedies (such as repossession); and ancillary remedies such as sequestration, attachment, replevin, and garnishment.
The federal suit arose in the context of a consumer suit "asserting violation of various mortgage-regulation and consumer-protection laws by a sub-prime lender, i.e., a financial institution affording higher-interest loans to consumer with impaired credit histories."
The court apparently accepted the holding in Harris v. Green Tree Financial Corp., 183 F.3d 173 (3d Cir. 1999), interpreting Pa. law to be that the mere fact that the lender retains the option to litigate some issues in court, while the consumer must arbitrate all claims does not make the arbitration agreement unenforceable.
Although the court did not say that it was overruling the decision, only that it "swept too broadly," the court apparently rejected Lytle v. CitiFinancial Services, Inc. 810 A.2d 643 (Pa. Super. 2002), which had held that "under Pennsylvania law, the reservation by [a financial institution] of access to the courts for itself to the exclusion of the consumer creates a presumption of unconscionability."
The case also involved the Federal Arbitration Act, 9 USC 2, which expresses a liberal federal policy favoring arbitration agreements. The FAA was meant to "overcome state legislative and judicial efforts to undermine the enforceability of arbitration agreements, inter alia, by establishing a substantive rule of federal law placing such agreements upon the same footing as other contracts." In Prima Paint Corp v. Flood & Conklin Mfg. Co., 388 US 395, 404 (1967) and Buckeye Check Cashing, Inc. v. Cardegna, 546 US 440 (2006), the Supreme Court "has determined that a challenge to the validity of a contract as a whole, and not specificlaly to an arbitration clause, must be presented to the arbitrator and not the courts....The courts may consider, in the first instnace, only those challenges that are directed solely to the arbitration component itself."
The court rejected the argument about the effect of a split-forum, that is, the consumer having "to litigate nearly identical statutory claims twice, one in state court against he foreclosing entity (to whom the loan has been sold/assigned in a secondary market), and a second time in an arbitral forum against....the lender."
Thus, it said that "although this Court is cognizant of the phenomenon of predatory lending and its deleterious effects, because those asserted aspects of this case go to not only the arbitration agreement but also to the underlying merits of the parties' larger dispute, we believe that any relevant contentions in this regard are for an arbitrator in the first instance, under the rationale set forth in the Prima Paint/Buckeye line of decisions."
However, the court did not entirely foreclose the consumer's arguments, noting that it had "taken care...not to exclude the possibility that the arbitration agreement might otherwise be deemed to be unconscionable under Pennsylvania law if [the plaintff's] predatory lending claims are proven, since we have little doubt concerning the unreasonableness of such an adhesion agreement when used as a tool of established predatory lending."
The court also noted "a substantial level of procedural unconscionability present in the sub-prime lending industry, as it employs adhesion contracts and, by design, targets those with few financial choices. Procedural unconscionability would be particularly high in the present case if various of the facts asserted by [the plaintiff], such as lender non-disclosure and dishonesty in the application and settlement process, are true. Furthermore, [the lender] does not deny that its agreement with [the consumer] was one of adhesion. Nevertheless, merely because a contract is one of adhesion does not render it unconscionable and unenforceable as a matter of law."
The court relied heavily on a New Jersey case, Delta Funding Corp. v. Harris, 912 A.2d 104 (NJ 2006)
The consumer-plaintiff waived several important arguments presented by his amici, including whether the costs of arbitration would be prohibitively expensive.
Justice Baldwin, dissenting, argued that a) the majority would have an arbitrator rather than the court decide the important question of unconscionability, and b) that the consumer's was attacking the arbitration clause, not the contract as a whole. She suggested that the court follow contrary decisions from Wisconsin, Tennessee, West Virginia and California in finding that "one-sided arbitration agreements are unconscionable and void."
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-34-2006mo.pdf dissent http://www.courts.state.pa.us/OpPosting/Supreme/out/J-34-2006do.pdf
In a case arising from a federal court's certification of the question to the state supreme court, the state court held that an arbitration agreement consummated in connection with a residential mortgage loan which limited a consumer's judicial remedies related to foreclosure is not presumptively unconscionable. The exceptions from arbitration involved creditor remedies exclusively, including: foreclosure; self-help remedies (such as repossession); and ancillary remedies such as sequestration, attachment, replevin, and garnishment.
The federal suit arose in the context of a consumer suit "asserting violation of various mortgage-regulation and consumer-protection laws by a sub-prime lender, i.e., a financial institution affording higher-interest loans to consumer with impaired credit histories."
The court apparently accepted the holding in Harris v. Green Tree Financial Corp., 183 F.3d 173 (3d Cir. 1999), interpreting Pa. law to be that the mere fact that the lender retains the option to litigate some issues in court, while the consumer must arbitrate all claims does not make the arbitration agreement unenforceable.
Although the court did not say that it was overruling the decision, only that it "swept too broadly," the court apparently rejected Lytle v. CitiFinancial Services, Inc. 810 A.2d 643 (Pa. Super. 2002), which had held that "under Pennsylvania law, the reservation by [a financial institution] of access to the courts for itself to the exclusion of the consumer creates a presumption of unconscionability."
The case also involved the Federal Arbitration Act, 9 USC 2, which expresses a liberal federal policy favoring arbitration agreements. The FAA was meant to "overcome state legislative and judicial efforts to undermine the enforceability of arbitration agreements, inter alia, by establishing a substantive rule of federal law placing such agreements upon the same footing as other contracts." In Prima Paint Corp v. Flood & Conklin Mfg. Co., 388 US 395, 404 (1967) and Buckeye Check Cashing, Inc. v. Cardegna, 546 US 440 (2006), the Supreme Court "has determined that a challenge to the validity of a contract as a whole, and not specificlaly to an arbitration clause, must be presented to the arbitrator and not the courts....The courts may consider, in the first instnace, only those challenges that are directed solely to the arbitration component itself."
The court rejected the argument about the effect of a split-forum, that is, the consumer having "to litigate nearly identical statutory claims twice, one in state court against he foreclosing entity (to whom the loan has been sold/assigned in a secondary market), and a second time in an arbitral forum against....the lender."
Thus, it said that "although this Court is cognizant of the phenomenon of predatory lending and its deleterious effects, because those asserted aspects of this case go to not only the arbitration agreement but also to the underlying merits of the parties' larger dispute, we believe that any relevant contentions in this regard are for an arbitrator in the first instance, under the rationale set forth in the Prima Paint/Buckeye line of decisions."
However, the court did not entirely foreclose the consumer's arguments, noting that it had "taken care...not to exclude the possibility that the arbitration agreement might otherwise be deemed to be unconscionable under Pennsylvania law if [the plaintff's] predatory lending claims are proven, since we have little doubt concerning the unreasonableness of such an adhesion agreement when used as a tool of established predatory lending."
The court also noted "a substantial level of procedural unconscionability present in the sub-prime lending industry, as it employs adhesion contracts and, by design, targets those with few financial choices. Procedural unconscionability would be particularly high in the present case if various of the facts asserted by [the plaintiff], such as lender non-disclosure and dishonesty in the application and settlement process, are true. Furthermore, [the lender] does not deny that its agreement with [the consumer] was one of adhesion. Nevertheless, merely because a contract is one of adhesion does not render it unconscionable and unenforceable as a matter of law."
The court relied heavily on a New Jersey case, Delta Funding Corp. v. Harris, 912 A.2d 104 (NJ 2006)
The consumer-plaintiff waived several important arguments presented by his amici, including whether the costs of arbitration would be prohibitively expensive.
Justice Baldwin, dissenting, argued that a) the majority would have an arbitrator rather than the court decide the important question of unconscionability, and b) that the consumer's was attacking the arbitration clause, not the contract as a whole. She suggested that the court follow contrary decisions from Wisconsin, Tennessee, West Virginia and California in finding that "one-sided arbitration agreements are unconscionable and void."
Wednesday, June 13, 2007
Truth-in-Lending - "tolerance for accuracy" not an affirmative defense
Sterten v. Option One Mortgage Corp. - ED Pa. - March 22, 2007
http://www.paed.uscourts.gov/documents/opinions/07d0409p.pdf
The "tolerance for accuracy" provision of the Truth in Lending Act, 15 USC 1605(f), is not an affirmative defense under Rule 8(c) of the Federal Rules of Civil Procedure.
Where the creditor made it clear in the pleadings that the discrepancy in the finance charge ($57) came within the $100 limit of sec. 1605(f) of the TILA, the notice policies of the federal rules was satisfied. Section 1605(f) "defines the parameters of an element of the TILA violation. It does not create a defense. Only if the total of the improper finance charges exceeds $100 is there a violation." Where as here the discrepancy was less thatn $100, there is no statutory violation.
The federal rules "reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits."
http://www.paed.uscourts.gov/documents/opinions/07d0409p.pdf
The "tolerance for accuracy" provision of the Truth in Lending Act, 15 USC 1605(f), is not an affirmative defense under Rule 8(c) of the Federal Rules of Civil Procedure.
Where the creditor made it clear in the pleadings that the discrepancy in the finance charge ($57) came within the $100 limit of sec. 1605(f) of the TILA, the notice policies of the federal rules was satisfied. Section 1605(f) "defines the parameters of an element of the TILA violation. It does not create a defense. Only if the total of the improper finance charges exceeds $100 is there a violation." Where as here the discrepancy was less thatn $100, there is no statutory violation.
The federal rules "reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits."
Tuesday, June 12, 2007
civil procedure - prothonotary - duty to accept pleadings
Sollenberger v. Lee, Prothonotary - Commonwealth Court - June 8, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/82CD07_6-8-07.pdf
"The prothonorary is not an administrative officer who has the discretion to interpret or implement rules or statutes....Therefore if documents tendered for filing are proper on their face and in conformity with rules of court, a prothonotary does not have the discretion to refuse to enter them...."
http://www.courts.state.pa.us/OpPosting/CWealth/out/82CD07_6-8-07.pdf
"The prothonorary is not an administrative officer who has the discretion to interpret or implement rules or statutes....Therefore if documents tendered for filing are proper on their face and in conformity with rules of court, a prothonotary does not have the discretion to refuse to enter them...."
Friday, May 25, 2007
Supreme Court Holds that Parents Can Pursue IDEA Claims in Federal Court
The United States Supreme Court has held that parents seeking to enforce rights granted to their children under the Individuals with Disabilities Education Act (IDEA) have independent, enforceable rights, which are not limited to procedural and reimbursement-related matters but encompass the entitlement to a free appropriate public education for their child and that these right may be enforced by the parents in the federal courts on their own behalf without the assistance of legal counsel.
In Winkelman v. Parma City School District, decided May 21, 2007, the Court reversed the order of the Sixth Circuit Court of Appeals dismissing the Winkelmans’ appeal unless they obtained counsel to represent their son, Jacob.
The Sixth Circuit relied on Cavanaugh v. Cardinal Local School Dist., 409 F. 3d 753 (2005), where the Court of Appeals had rejected the proposition that IDEA allows nonlawyer parents raising IDEA claims to proceed pro se in federal court. The court ruled that the right to a free appropriate public education “belongs to the child alone,” 409 F. 3d, at 757, not to both the parents and the child. It followed, the court held, that “any right on which the [parents] could proceed on their own behalf would be derivative” of the child’s right, ibid., so that parents bringing IDEA claims were not appearing on their own behalf.
The Supreme Court reversed, concluding that IDEA grants parents independent, enforceable rights. These rights, which are not limited to certain procedural and reimbursement-related matters, encompass the entitlement to a free appropriate public education for the parents’ child.
The Court stated that the Court of Appeals erred when it dismissed the Winkelmans’ appeal for lack of counsel. Parents enjoy rights under IDEA; and they are, as a result, entitled to prosecute IDEA claims on their own behalf.
View the Decision (Legal Information Institute - Cornell Law School)
In Winkelman v. Parma City School District, decided May 21, 2007, the Court reversed the order of the Sixth Circuit Court of Appeals dismissing the Winkelmans’ appeal unless they obtained counsel to represent their son, Jacob.
The Sixth Circuit relied on Cavanaugh v. Cardinal Local School Dist., 409 F. 3d 753 (2005), where the Court of Appeals had rejected the proposition that IDEA allows nonlawyer parents raising IDEA claims to proceed pro se in federal court. The court ruled that the right to a free appropriate public education “belongs to the child alone,” 409 F. 3d, at 757, not to both the parents and the child. It followed, the court held, that “any right on which the [parents] could proceed on their own behalf would be derivative” of the child’s right, ibid., so that parents bringing IDEA claims were not appearing on their own behalf.
The Supreme Court reversed, concluding that IDEA grants parents independent, enforceable rights. These rights, which are not limited to certain procedural and reimbursement-related matters, encompass the entitlement to a free appropriate public education for the parents’ child.
The Court stated that the Court of Appeals erred when it dismissed the Winkelmans’ appeal for lack of counsel. Parents enjoy rights under IDEA; and they are, as a result, entitled to prosecute IDEA claims on their own behalf.
View the Decision (Legal Information Institute - Cornell Law School)
Monday, May 21, 2007
custody - standing - step-grandparents - parents not separated
Helsel v. Puricelli - Superior Court - May 21, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/a07037_07.pdf
A step-grandfather is not a "grandparent" under the the Custody and Grandparents Visitation Act (GVA), 23 Pa. C.S. 5301 et seq.
Even if he were, he would not have standing under the facts of this case, in which the parents, who had been separated for more than 6 months at one time, were back together as an intact family at the time the step-grandfather filed his action. Sec. 5312 allows a grandparents to seek "reasonable partial custody or visitation" where the parents "have been separated for six months or more..." The court held that the "GVA only applies where parents separated at least six months before the filing of the custody petition and remain separated at the time the petition is filed."
http://www.courts.state.pa.us/OpPosting/Superior/out/a07037_07.pdf
A step-grandfather is not a "grandparent" under the the Custody and Grandparents Visitation Act (GVA), 23 Pa. C.S. 5301 et seq.
Even if he were, he would not have standing under the facts of this case, in which the parents, who had been separated for more than 6 months at one time, were back together as an intact family at the time the step-grandfather filed his action. Sec. 5312 allows a grandparents to seek "reasonable partial custody or visitation" where the parents "have been separated for six months or more..." The court held that the "GVA only applies where parents separated at least six months before the filing of the custody petition and remain separated at the time the petition is filed."
custody - standing
Morgan v. Weiser - Superior Court - May 7, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/a41021_06.pdf
Biological father whose parental rights were terminated does not stand in loco parentis to the child, given that, after the termination, he had minimal partial custody of child, paid minimal child support, and did not live with the child in a familial setting at any time. His contact with the child was "akin to babysitting and caretaking."
http://www.courts.state.pa.us/OpPosting/Superior/out/a41021_06.pdf
Biological father whose parental rights were terminated does not stand in loco parentis to the child, given that, after the termination, he had minimal partial custody of child, paid minimal child support, and did not live with the child in a familial setting at any time. His contact with the child was "akin to babysitting and caretaking."
attorneys fees - reasonableness
McMullen v. Kurtz - Superior Court - May 17, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/A37007_06.pdf
Legal fees in a contract must be reasonable even if the contract providing for the award of such fees does not specify that they must be reasonable. A reasonableness requirement is "implicit in the agreement."
In determining reasonableness, the court must consider, inter alia, how complicated the issues the issues in the underlying case were.
http://www.courts.state.pa.us/OpPosting/Superior/out/A37007_06.pdf
Legal fees in a contract must be reasonable even if the contract providing for the award of such fees does not specify that they must be reasonable. A reasonableness requirement is "implicit in the agreement."
In determining reasonableness, the court must consider, inter alia, how complicated the issues the issues in the underlying case were.
Thursday, May 17, 2007
consumer protection - drug/medical/dental ads
Commonwealth v. Peoples Benefit Services - Commonwealth Court - May 14, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/557MD05_5-14-07.pdf
The Attorney General sued PBS for consumer protection violations, alleging that PBS ads could confuse or mislead consumers into believing that PBS and its goods/services are government related, in violation of the CPL, 73 P.S. sec. 201-1 et seq.
The Commonwealth's request for a preliminary injunction was denied, even though the judge who heard the case found that PBS designed its campaign with the intent to take advantage of confusing changes to Medicare Part D and the PBS deliberately attempted to "push the envelope" with its marketing materials. The Court in this opinion denied both parties' request for summary judgment, finding that there were still unresolved issues of material fact.
However, the court set out some important CPL principles, including that an act/practice is deceptive or unfair it is has the capacity or tendency to deceive. Neither the intention to deceive nor an actual deception must be proved. Rather it need only be show that the acts/practices are capable of being interpreted in a misleading way. The test for the court is to determine the overall impression arising from the totality of what is said, as well as what is reasonably implied in the ad or solicitation. The CPL is to be construed liberally to effectuate its objective of protecting consumers from fraud and unfair or deceptive business practices.
http://www.courts.state.pa.us/OpPosting/CWealth/out/557MD05_5-14-07.pdf
The Attorney General sued PBS for consumer protection violations, alleging that PBS ads could confuse or mislead consumers into believing that PBS and its goods/services are government related, in violation of the CPL, 73 P.S. sec. 201-1 et seq.
The Commonwealth's request for a preliminary injunction was denied, even though the judge who heard the case found that PBS designed its campaign with the intent to take advantage of confusing changes to Medicare Part D and the PBS deliberately attempted to "push the envelope" with its marketing materials. The Court in this opinion denied both parties' request for summary judgment, finding that there were still unresolved issues of material fact.
However, the court set out some important CPL principles, including that an act/practice is deceptive or unfair it is has the capacity or tendency to deceive. Neither the intention to deceive nor an actual deception must be proved. Rather it need only be show that the acts/practices are capable of being interpreted in a misleading way. The test for the court is to determine the overall impression arising from the totality of what is said, as well as what is reasonably implied in the ad or solicitation. The CPL is to be construed liberally to effectuate its objective of protecting consumers from fraud and unfair or deceptive business practices.
Friday, May 04, 2007
Pennsylvania Bulletin of May 5, 2007
http://www.pabulletin.com/secure/data/vol37/37-18/index.html
MDJs - Rule 112- availability and temporary assignment - civil and possessory actions
http://www.pabulletin.com/secure/data/vol37/37-18/774.html
welfare - MA - Healthy Beginnings - Health Horizons - federal poverty guidelines 2007
http://www.pabulletin.com/secure/data/vol37/37-18/806.html
MDJs - Rule 112- availability and temporary assignment - civil and possessory actions
http://www.pabulletin.com/secure/data/vol37/37-18/774.html
welfare - MA - Healthy Beginnings - Health Horizons - federal poverty guidelines 2007
http://www.pabulletin.com/secure/data/vol37/37-18/806.html
Tuesday, May 01, 2007
custody - support - lesbian couple, sperm donor
Jacob v. Jacob - Superior Court - April 30, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/s15032_07.pdf
Sperm donor-father of children held liable for support -- along with lesbian couple -- on grounds of equitable estoppel and by statute, 23 Pa. C.S. 4321(2). Father -- played active part in children's lives -- ordered joined as indispensable party.
Custody award of lower court confirmed, giving
- shared legal custody to biological mother and her former partner (Appellant)
- primary physical custody to biological mother
- partial physical custody to mother's former partner and biological father (separately)
http://www.courts.state.pa.us/OpPosting/Superior/out/s15032_07.pdf
Sperm donor-father of children held liable for support -- along with lesbian couple -- on grounds of equitable estoppel and by statute, 23 Pa. C.S. 4321(2). Father -- played active part in children's lives -- ordered joined as indispensable party.
Custody award of lower court confirmed, giving
- shared legal custody to biological mother and her former partner (Appellant)
- primary physical custody to biological mother
- partial physical custody to mother's former partner and biological father (separately)
Monday, April 23, 2007
custody - setting trial date w/in 180 days of filing
Dietrich v. Dietrich - Superior Court - April 20, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/S15041_07.pdf
The court held that, since a trial was not scheduled in this case within 180 days of the date the complaint was filed, as required by Pa. R.C.P 1915.4(b) http://www.pacode.com/secure/data/231/chapter1915/s1915.4.html, the order that resulted from a trial that took place more than 180 days after filing had to be vacated and the case remanded "to restore the immediately-preceding custody order....Either party may then file a petition to modify custody pursuant to Chapter 53" of the state domestic relations act, 23 Pa. CS, and Pa RCP 1915.4. Go figure.
http://www.courts.state.pa.us/OpPosting/Superior/out/S15041_07.pdf
The court held that, since a trial was not scheduled in this case within 180 days of the date the complaint was filed, as required by Pa. R.C.P 1915.4(b) http://www.pacode.com/secure/data/231/chapter1915/s1915.4.html, the order that resulted from a trial that took place more than 180 days after filing had to be vacated and the case remanded "to restore the immediately-preceding custody order....Either party may then file a petition to modify custody pursuant to Chapter 53" of the state domestic relations act, 23 Pa. CS, and Pa RCP 1915.4. Go figure.
UC - quit v. fire - "park your truck"
Bell v. UCBR - Commonwealth Court - filed 2-20-07, ordered reported 4-20-07
http://www.courts.state.pa.us/OpPosting/CWealth/out/1806CD06_4-20-07.pdf
Journeyman plumber's argument that his supervisor's use of the phrase "park your truck" meant that he had been fired was rejected. Claimant was held to have voluntarily quit when he left the job after a confrontation, during which the supervisor used the phrase.
The UCBR resolved all critical factual issues in favor of the employer, including that the supervisor's statement that "if Claimant did not like working with [the supervisor] or Employer, provided Claimant with the option to continue his employment and did not possess the immediacy and finality of a firing."
There were also findings that the claimant had made numerous prior requests to be laid off, had not questioned the supervisor about the meaning of his statement, and that continuing work was available. Claimant's testimony and argument that "park your truck" had a special meaning in the profession--you're fired--was rejected under the totality of circumstances in the case.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1806CD06_4-20-07.pdf
Journeyman plumber's argument that his supervisor's use of the phrase "park your truck" meant that he had been fired was rejected. Claimant was held to have voluntarily quit when he left the job after a confrontation, during which the supervisor used the phrase.
The UCBR resolved all critical factual issues in favor of the employer, including that the supervisor's statement that "if Claimant did not like working with [the supervisor] or Employer, provided Claimant with the option to continue his employment and did not possess the immediacy and finality of a firing."
There were also findings that the claimant had made numerous prior requests to be laid off, had not questioned the supervisor about the meaning of his statement, and that continuing work was available. Claimant's testimony and argument that "park your truck" had a special meaning in the profession--you're fired--was rejected under the totality of circumstances in the case.
Monday, April 16, 2007
PFA - withdrawal - expungement
Commonwealth v. Charnik - Superior Court - April 3, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/s69024_06.pdf
This case involves a PFA defendant's request for expungement of a) two indirect criminal contempt convictions and b) the underlying PFA order itself. The trial court and Superior Court denied both requests.
Plaintiff got a final PFA order following a contested hearing. Later, Defendant was charged with and found guilty of two (2) instances of indirect criminal contempt, for violating the final PFA order. Plaintiff later filed a petition to withdraw the PFA order, seven months after it had been entered. The trial court granted the petition. Defendant then moved to expunge both the PFA record and the record of his contempt convictions. The trial court denied both requests and the Superior Court affirmed.
conviction records - The Superior Court rejected the request to expunge the contempt convictions, stating that the "Pennsylvania legislature has strictly regulated expungement of records of convicted persons. Conviction records may be expunged only where: 1) the subject of the information reaches the age of seventy and has been free from arrest or prosecution for ten years; or 2) where the individual has been dead for three years. Criminal History Record Information Act, 18 Pa. C.S. sec. 9122(b)." (emphasis in original)
non-conviction records -
The Superior Court termed the issue of the expungement of the underlying PFA "more complicated."
It held (in n. 3) that the trial did not have jurisdiction to set aside the final PFA order seven months after it had entered it, since there had been no appeal or reconsideration of that order. Query: does this mean that a PFA plaintiff does not have the right to withdraw her/his case? See, e.g., 23 Pa. C.S. 6105(e)(2) ("Vacated or expired orders shall be purged from the registry.")
In any event , the court went on to discuss the expungement issue in detail, distinguishing between a case where a final PFA order is entered after a hearing and a case which is discontinued before the entry of a final order, e.g., where it is withdrawn after the entry of a temporary order, without any hearing and before a plaintiff has met her/his burden of proof. "Thus, when a PFA petition...has been dismissed by court order [when neither party appears at the final hearing] or the PFA proceedings never evolve beyond the temporary order stage..., expungement is proper as a matter of law" since the PFA process was "not completed" and therefore lacked the "safeguards of due process."
The court said that expungement was not proper in other circumstances and held that the decision in Carlacci v. Mazaleski, 798 A.2d 186 (Pa. 2002), should be read as "expressly limiting the remedy of expungement of PFA records to those cases where...no facts were brought forth to substantiate a finding of abuse and no final order was entered...."
In the case at bar, the request for expungement was rejected, because the final order was entered after a contested hearing at which "facts were brought forth proving the allegations of abuse by a fair preponderance of the evidence, and [the defendant] has not appealed that determination...."
Query: would the have reached the same result where the final order was entered by agreement, without any admission?
http://www.courts.state.pa.us/OpPosting/Superior/out/s69024_06.pdf
This case involves a PFA defendant's request for expungement of a) two indirect criminal contempt convictions and b) the underlying PFA order itself. The trial court and Superior Court denied both requests.
Plaintiff got a final PFA order following a contested hearing. Later, Defendant was charged with and found guilty of two (2) instances of indirect criminal contempt, for violating the final PFA order. Plaintiff later filed a petition to withdraw the PFA order, seven months after it had been entered. The trial court granted the petition. Defendant then moved to expunge both the PFA record and the record of his contempt convictions. The trial court denied both requests and the Superior Court affirmed.
conviction records - The Superior Court rejected the request to expunge the contempt convictions, stating that the "Pennsylvania legislature has strictly regulated expungement of records of convicted persons. Conviction records may be expunged only where: 1) the subject of the information reaches the age of seventy and has been free from arrest or prosecution for ten years; or 2) where the individual has been dead for three years. Criminal History Record Information Act, 18 Pa. C.S. sec. 9122(b)." (emphasis in original)
non-conviction records -
The Superior Court termed the issue of the expungement of the underlying PFA "more complicated."
It held (in n. 3) that the trial did not have jurisdiction to set aside the final PFA order seven months after it had entered it, since there had been no appeal or reconsideration of that order. Query: does this mean that a PFA plaintiff does not have the right to withdraw her/his case? See, e.g., 23 Pa. C.S. 6105(e)(2) ("Vacated or expired orders shall be purged from the registry.")
In any event , the court went on to discuss the expungement issue in detail, distinguishing between a case where a final PFA order is entered after a hearing and a case which is discontinued before the entry of a final order, e.g., where it is withdrawn after the entry of a temporary order, without any hearing and before a plaintiff has met her/his burden of proof. "Thus, when a PFA petition...has been dismissed by court order [when neither party appears at the final hearing] or the PFA proceedings never evolve beyond the temporary order stage..., expungement is proper as a matter of law" since the PFA process was "not completed" and therefore lacked the "safeguards of due process."
The court said that expungement was not proper in other circumstances and held that the decision in Carlacci v. Mazaleski, 798 A.2d 186 (Pa. 2002), should be read as "expressly limiting the remedy of expungement of PFA records to those cases where...no facts were brought forth to substantiate a finding of abuse and no final order was entered...."
In the case at bar, the request for expungement was rejected, because the final order was entered after a contested hearing at which "facts were brought forth proving the allegations of abuse by a fair preponderance of the evidence, and [the defendant] has not appealed that determination...."
Query: would the have reached the same result where the final order was entered by agreement, without any admission?
Monday, April 09, 2007
UC - hearing - continuance
Skowronek v. UCBR - Commonwealth Court - April 9, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/2150CD06_4-9-07.pdf
The referee's denial of counsel's request for a continuance of the UC hearing was affirmed and no abuse of discretion was found, under the following circumstances:
last-minute request - The request was made just one day prior to the hearing on July 20th. The hearing notice had been sent out on July 7th. The court noted that the request was less the 24 hours prior to the hearing and was faxed when the referee office was closed, at 6:30 p.m. on the last business day before the hearing. It also cited case law saying that "last-minute requests for continuances will not be viewed favorably....."
no contact information supplied - The request did not contain contact information for claimant's counsel. The contact information was at the bottom of the attorney's stationery and did not appear on the fax, having apparently been cut off.
no good cause established - The request was vague and did not establish "good cause" on it face. The attorney said only that "I will be unavailable due to a previously scheduled appointment." The court said that this request was "vague" and similar to another case, where a continuance was requested for "unspecified personal reasons." In this case, the court said that the request did "not provide sufficient information from which the referee could determine proper cause existed to continue the hearing. Given the timing of the requests and its vague nature, no abuse of discretion is apparent."
http://www.courts.state.pa.us/OpPosting/CWealth/out/2150CD06_4-9-07.pdf
The referee's denial of counsel's request for a continuance of the UC hearing was affirmed and no abuse of discretion was found, under the following circumstances:
last-minute request - The request was made just one day prior to the hearing on July 20th. The hearing notice had been sent out on July 7th. The court noted that the request was less the 24 hours prior to the hearing and was faxed when the referee office was closed, at 6:30 p.m. on the last business day before the hearing. It also cited case law saying that "last-minute requests for continuances will not be viewed favorably....."
no contact information supplied - The request did not contain contact information for claimant's counsel. The contact information was at the bottom of the attorney's stationery and did not appear on the fax, having apparently been cut off.
no good cause established - The request was vague and did not establish "good cause" on it face. The attorney said only that "I will be unavailable due to a previously scheduled appointment." The court said that this request was "vague" and similar to another case, where a continuance was requested for "unspecified personal reasons." In this case, the court said that the request did "not provide sufficient information from which the referee could determine proper cause existed to continue the hearing. Given the timing of the requests and its vague nature, no abuse of discretion is apparent."
wages - WPCL - attorney fees
Zdrok v. Main Line Mortgage Co. - Superior Court - April 5, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/a32002_06.pdf
This case was remanded for a calculation and award of attorney fees to the prevailing party below. A fee award is mandatory in an action brought under the Wage Payment and Collection Law, 43 P.S. sec. 260.9a(f), citing Oberneder v. Link Computer Corp, 696 A.2d 148, 151 (Pa. 1997). "This conclusion promotes the statute's purpose to protect employees when employers breach a contractual obligation to pay wages."
http://www.courts.state.pa.us/OpPosting/Superior/out/a32002_06.pdf
This case was remanded for a calculation and award of attorney fees to the prevailing party below. A fee award is mandatory in an action brought under the Wage Payment and Collection Law, 43 P.S. sec. 260.9a(f), citing Oberneder v. Link Computer Corp, 696 A.2d 148, 151 (Pa. 1997). "This conclusion promotes the statute's purpose to protect employees when employers breach a contractual obligation to pay wages."
Friday, April 06, 2007
Pennsylvania Bulletin of April 7, 2007
http://www.pabulletin.com/secure/data/vol37/37-14/index.html
court rules - additional defendants - cross claims - etc.
http://www.pabulletin.com/secure/data/vol37/37-14/591.html
drivers' licenses - physical examination
http://www.pabulletin.com/secure/data/vol37/37-14/594.html
court rules - additional defendants - cross claims - etc.
http://www.pabulletin.com/secure/data/vol37/37-14/591.html
drivers' licenses - physical examination
http://www.pabulletin.com/secure/data/vol37/37-14/594.html
Tuesday, April 03, 2007
disability - determination of another agency - substantial weight
Sell v. Barnhart - ED Pa. - March 28, 2007
http://www.paed.uscourts.gov/documents/opinions/07D0401P.pdf
This case was remanded because the ALJ did not give proper weight to the disability determination of another agency, the Veterans Administration.
The "Third Circuit has held that a determination made by another agency that a person is 'disabled' is entitled to 'substantial weight.' [citing cases.] The ALJ, however only gave the VA's determination 'probative' weight....Moreover, the ALJ did not provide a detailed explanation for rejecting the VA's determination.
The case was remanded "for the sole purpose of giving the Veteran's [sic] Administration's finding that Plaintiff was 100% disabled during the relevant period 'substantial' rather than merely 'probative' weight. If the Commission decides to reject the VA's determination under the 'substantial weight' standard, the Commissioner must give a detailed explanation for rejecting that determination."
http://www.paed.uscourts.gov/documents/opinions/07D0401P.pdf
This case was remanded because the ALJ did not give proper weight to the disability determination of another agency, the Veterans Administration.
The "Third Circuit has held that a determination made by another agency that a person is 'disabled' is entitled to 'substantial weight.' [citing cases.] The ALJ, however only gave the VA's determination 'probative' weight....Moreover, the ALJ did not provide a detailed explanation for rejecting the VA's determination.
The case was remanded "for the sole purpose of giving the Veteran's [sic] Administration's finding that Plaintiff was 100% disabled during the relevant period 'substantial' rather than merely 'probative' weight. If the Commission decides to reject the VA's determination under the 'substantial weight' standard, the Commissioner must give a detailed explanation for rejecting that determination."
Friday, March 30, 2007
Pennsylvania Bulletin of March 31, 2007
http://www.pabulletin.com/secure/data/vol37/37-13/index.html
court rules - mortgage foreclosure - execution on personal property - UCC sec. 9404(a)
http://www.pabulletin.com/secure/data/vol37/37-13/537.html
IRRC - regulations approved - welfare - special MA and home health agency services
http://www.pabulletin.com/secure/data/vol37/37-13/564.html
court rules - mortgage foreclosure - execution on personal property - UCC sec. 9404(a)
http://www.pabulletin.com/secure/data/vol37/37-13/537.html
IRRC - regulations approved - welfare - special MA and home health agency services
http://www.pabulletin.com/secure/data/vol37/37-13/564.html
Thursday, March 29, 2007
disability - all evidence - forest/trees - treating physician
Martinez-Ortiz v. Astrue - ED Pa. - March 27, 2007
http://www.paed.uscourts.gov/documents/opinions/07D0389P.pdf
This disability case was remanded because
- treating physician - The ALJ did not give proper weight to the treating physician's opinion, which is "normally entitled to significant weight, and...cannot be disregarded 'for no reason or for the wrong reason.'"
- expression of opinion about disability - The ALJ improperly rejected the opinion of a treating physician whom he said was trying to qualify the claimant for benefits. The court responded by saying the "a treating doctor's opinion cannot be rejected because it discusses whether the plaintiff is disabled."
- all of the evidence - The ALJ failed to evaluate the claimant's overall condition and "instead relied upon certain discrete findings of physicians...and used those findings to reject" the treating physician's opinion. "In doing so, the ALJ unacceptably focused on the trees to the exclusion of the forest."
http://www.paed.uscourts.gov/documents/opinions/07D0389P.pdf
This disability case was remanded because
- treating physician - The ALJ did not give proper weight to the treating physician's opinion, which is "normally entitled to significant weight, and...cannot be disregarded 'for no reason or for the wrong reason.'"
- expression of opinion about disability - The ALJ improperly rejected the opinion of a treating physician whom he said was trying to qualify the claimant for benefits. The court responded by saying the "a treating doctor's opinion cannot be rejected because it discusses whether the plaintiff is disabled."
- all of the evidence - The ALJ failed to evaluate the claimant's overall condition and "instead relied upon certain discrete findings of physicians...and used those findings to reject" the treating physician's opinion. "In doing so, the ALJ unacceptably focused on the trees to the exclusion of the forest."
courts - appeals - filing by fax
Estate of Karschner - Superior Court - February 28, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/s38031_06.pdf
The appellate court stated (in what may be dicta) that, under the rules of civil and appellate procedure, filing an appeal by fax is not proper. "The Rules of Civil Procedure categorically prohibit the 'filing of legal papers with the prothonotary by facsimile transmission. Pa. RCP 205.3(a), note. The question then becomes whether that prohibition [in the note] informs our treatment of a filing required by the rules of this Court. We find that it does." The court found support for its ruling in the internal operating procedures of the Supreme Court, which limit fax transmissions to emergency motions only. See, 210 Pa. Code sec. 63.6(c).
Despite this, the appellate court considered the merits of the case, because 1) the appellant mailed a notice of appeal, which was received by the appellant court within about 40 days of the entry of the final order in the docket of the trial court (although not within the 30 days required by Pa.RAP 903(a); and 2) the prothonotary of the trial court never made an entry in the docket that the required notation under Pa. RCP 236(b) -- that appropriate notice of the entry of the trial court judgment had been given to the parties. Since that entry was not made, the 30-day appeal period for filing an appeal was held to have never begun, hence the appellate court's decision on the merits. Still, it would seem to be better practice not to rely on a notice of appeal which is filed by fax in the appellate court.
Is not Pennsylvania procedure a thing to behold at times? Or is this just an isolated phenomenon and an unjust basis on which the judge our state practice -- like New Jersey's reputation, based solely and wrongfully on a relatively small uninhabitable, grotesque area of land just outside NYC, instead of on all its beautiful, non-grotesque places to which Pennsylvanians and others flee for fun?
http://www.courts.state.pa.us/OpPosting/Superior/out/s38031_06.pdf
The appellate court stated (in what may be dicta) that, under the rules of civil and appellate procedure, filing an appeal by fax is not proper. "The Rules of Civil Procedure categorically prohibit the 'filing of legal papers with the prothonotary by facsimile transmission. Pa. RCP 205.3(a), note. The question then becomes whether that prohibition [in the note] informs our treatment of a filing required by the rules of this Court. We find that it does." The court found support for its ruling in the internal operating procedures of the Supreme Court, which limit fax transmissions to emergency motions only. See, 210 Pa. Code sec. 63.6(c).
Despite this, the appellate court considered the merits of the case, because 1) the appellant mailed a notice of appeal, which was received by the appellant court within about 40 days of the entry of the final order in the docket of the trial court (although not within the 30 days required by Pa.RAP 903(a); and 2) the prothonotary of the trial court never made an entry in the docket that the required notation under Pa. RCP 236(b) -- that appropriate notice of the entry of the trial court judgment had been given to the parties. Since that entry was not made, the 30-day appeal period for filing an appeal was held to have never begun, hence the appellate court's decision on the merits. Still, it would seem to be better practice not to rely on a notice of appeal which is filed by fax in the appellate court.
Is not Pennsylvania procedure a thing to behold at times? Or is this just an isolated phenomenon and an unjust basis on which the judge our state practice -- like New Jersey's reputation, based solely and wrongfully on a relatively small uninhabitable, grotesque area of land just outside NYC, instead of on all its beautiful, non-grotesque places to which Pennsylvanians and others flee for fun?
Monday, March 26, 2007
admin. law - policies v. regulations
Eastwood Nursing & Rehab. Center v. DPW - 910 A.2d 134 (Pa. Cmwlth. 2006)
http://www.courts.state.pa.us/OpPosting/CWealth/out/1421CD05_11-3-06.pdf
DPW issued a Statement of Policy (SOP), which the petitioner argued was an improper and ineffective unpromulgated regulation. "It is well settled law that an agency's substantive regulations, when properly enacted under the Commonwealth Documents Law (CDL), [45 P.S. sec. 1102-1602] have the force and effect of law and enjoy a general presumption of reasonableness....The CDL defines a 'regulation' as 'any rule or regulation, or order in the nature of a rule or regulation, promulgated by an agency under statutory authority in the administration of any statute administered by or relating to the agency....' 45 P.S. § 1102(12). When an agency issues a regulation, the CDL requires the agency to provide notice of a proposed rule to the public, receive comments from interested parties, and hold hearings when appropriate. 45 P.S. §§ 1201, 1202...."
"Conversely, an interpretive rule, referred to in Section 102 of the CDL as a"statement of policy," is defined as: 'any document, except an adjudication or a regulation, promulgated by an agency which sets forth substantive or procedural personal or property rights, privileges, immunities, duties, liabilities or obligations of the public or any part thereof, and includes, without limiting the generality of the foregoing, any document interpreting or implementing any act of Assembly enforced or administered by such agency. 45 P.S. § 1102(13). In other words, a statement of policy is 'one that tracks a statute and does not expand upon its plain meaning; such a rule need not be issued in accord with the CDL.' " (emphasis added)
In PHRC v. Norristown Area School District, 374 A.2d 671, 679 (Pa. 1977), the Supreme Court "articulated the distinction between substantive rules which must be promulgated through rule-making procedures and statements of policy which require no such procedures" as follows: The critical distinction between a substantive rule and a general statement of policy is the different practical effect that these two types of pronouncements have in subsequent administrative proceedings. . . . A properly adopted substantive rule establishes a standard of conduct which has the force of law. . . . The underlying policy embodied in the rule is not generally subject to challenge before the agency. general statement of policy, on the other hand, does not establish a 'binding norm'. [It is not finally determinative of the issues or rights to which it is addressed. The agency cannot apply or rely upon a general statement of policy as law because a general statement of policy only announces what the agency seeks to establish as policy.] A policy statement announces the agency's tentative intentions for the future. When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued. "
The statement of policy is an "informational device...[which] erves several beneficial functions. By providing a formal method by which an agency can express its views, the general statement of policy encourages public dissemination of the agency's policies prior to their actual application in particular situations. Thus the agency's initial views do not remain secret but are disclosed well in advance of their actual application. Additionally, the publication of a general statement of policy facilitates long range planning within the regulated industry and promotes uniformity in areas of national concern.
"A regulation is a governmental agency's exercise of delegated legislative power to create a mandatory standard of beha-vior. A regulation is binding on a reviewing court if it conforms to the grant of delegated power, is issued in accordance with proper procedures, and is reasonable. In contrast, a statement of policy is a governmental agency's statutory interpretation which a court may accept or reject depending upon how accurately the agency's interpretation reflects the meaning of the statute.....
"Pennsylvania follows the 'binding norm test' to assess whether an agency's pronouncement is a regulation or a statement of policy..... 'A binding norm' means that the agency is bound by the statement until the agency repeals it, and if the statement is binding on the agency, it is a regulation . [I]n determining whether an agency action is a regulation or a statement of policy, one must look to the extent to which the challenged pronouncement leaves the agency free to exercise discretion to follow or not follow the announced policy in an individual case...... In ascertaining whether an agency has established a binding norm, the reviewing court must consider: (1) the plain language of the provision; (2) the manner in which the agency has implemented the provision; and, (3) whether the agency's discretion is restricted by the provision. "
http://www.courts.state.pa.us/OpPosting/CWealth/out/1421CD05_11-3-06.pdf
DPW issued a Statement of Policy (SOP), which the petitioner argued was an improper and ineffective unpromulgated regulation. "It is well settled law that an agency's substantive regulations, when properly enacted under the Commonwealth Documents Law (CDL), [45 P.S. sec. 1102-1602] have the force and effect of law and enjoy a general presumption of reasonableness....The CDL defines a 'regulation' as 'any rule or regulation, or order in the nature of a rule or regulation, promulgated by an agency under statutory authority in the administration of any statute administered by or relating to the agency....' 45 P.S. § 1102(12). When an agency issues a regulation, the CDL requires the agency to provide notice of a proposed rule to the public, receive comments from interested parties, and hold hearings when appropriate. 45 P.S. §§ 1201, 1202...."
"Conversely, an interpretive rule, referred to in Section 102 of the CDL as a"statement of policy," is defined as: 'any document, except an adjudication or a regulation, promulgated by an agency which sets forth substantive or procedural personal or property rights, privileges, immunities, duties, liabilities or obligations of the public or any part thereof, and includes, without limiting the generality of the foregoing, any document interpreting or implementing any act of Assembly enforced or administered by such agency. 45 P.S. § 1102(13). In other words, a statement of policy is 'one that tracks a statute and does not expand upon its plain meaning; such a rule need not be issued in accord with the CDL.' " (emphasis added)
In PHRC v. Norristown Area School District, 374 A.2d 671, 679 (Pa. 1977), the Supreme Court "articulated the distinction between substantive rules which must be promulgated through rule-making procedures and statements of policy which require no such procedures" as follows: The critical distinction between a substantive rule and a general statement of policy is the different practical effect that these two types of pronouncements have in subsequent administrative proceedings. . . . A properly adopted substantive rule establishes a standard of conduct which has the force of law. . . . The underlying policy embodied in the rule is not generally subject to challenge before the agency. general statement of policy, on the other hand, does not establish a 'binding norm'. [It is not finally determinative of the issues or rights to which it is addressed. The agency cannot apply or rely upon a general statement of policy as law because a general statement of policy only announces what the agency seeks to establish as policy.] A policy statement announces the agency's tentative intentions for the future. When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued. "
The statement of policy is an "informational device...[which] erves several beneficial functions. By providing a formal method by which an agency can express its views, the general statement of policy encourages public dissemination of the agency's policies prior to their actual application in particular situations. Thus the agency's initial views do not remain secret but are disclosed well in advance of their actual application. Additionally, the publication of a general statement of policy facilitates long range planning within the regulated industry and promotes uniformity in areas of national concern.
"A regulation is a governmental agency's exercise of delegated legislative power to create a mandatory standard of beha-vior. A regulation is binding on a reviewing court if it conforms to the grant of delegated power, is issued in accordance with proper procedures, and is reasonable. In contrast, a statement of policy is a governmental agency's statutory interpretation which a court may accept or reject depending upon how accurately the agency's interpretation reflects the meaning of the statute.....
"Pennsylvania follows the 'binding norm test' to assess whether an agency's pronouncement is a regulation or a statement of policy..... 'A binding norm' means that the agency is bound by the statement until the agency repeals it, and if the statement is binding on the agency, it is a regulation . [I]n determining whether an agency action is a regulation or a statement of policy, one must look to the extent to which the challenged pronouncement leaves the agency free to exercise discretion to follow or not follow the announced policy in an individual case...... In ascertaining whether an agency has established a binding norm, the reviewing court must consider: (1) the plain language of the provision; (2) the manner in which the agency has implemented the provision; and, (3) whether the agency's discretion is restricted by the provision. "
public employment - right of accompaniment by union rep.
Commonwealth, Office of Administration v. PLRB - Supreme Court - Feb. 20, 2007
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-14-2006mo.pdf
Under the state Public Employee Relations Act, 43 P.S. 1101.101 et seq., a public employee has the right to be accompanied by a union representative during an interview in which the employee reasonably fears that discipline may be imposed by the employer. Such a right of accompaniment during an investigatory interview includes the employee's choice of a union representative, when the representative is reasonably available and there are no extenuating circumstances.
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-14-2006mo.pdf
Under the state Public Employee Relations Act, 43 P.S. 1101.101 et seq., a public employee has the right to be accompanied by a union representative during an interview in which the employee reasonably fears that discipline may be imposed by the employer. Such a right of accompaniment during an investigatory interview includes the employee's choice of a union representative, when the representative is reasonably available and there are no extenuating circumstances.
admin. law - agency interpretation of statute
Malt Beverages Distributors Assn. v. Liquor Control Board - Cmwlth. Court- Feb. 23, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/896CD06_2-23-07.pdf
While courts traditionally accord the interpretation of the agency charged with administation of a statute some deference, the meaning of a statute is essentially a question of law for the court. Generally an administrative agency's interpretation of a statute for which it has enforcement responsibility is entitled to substantial deference. However, where an administative interpretation is inconsistent with the statute itself, or where the statutes's meaning is unambiguous, such an interpretation carries little or no weight.
http://www.courts.state.pa.us/OpPosting/CWealth/out/896CD06_2-23-07.pdf
While courts traditionally accord the interpretation of the agency charged with administation of a statute some deference, the meaning of a statute is essentially a question of law for the court. Generally an administrative agency's interpretation of a statute for which it has enforcement responsibility is entitled to substantial deference. However, where an administative interpretation is inconsistent with the statute itself, or where the statutes's meaning is unambiguous, such an interpretation carries little or no weight.
admin. law - agency interpretation of its own regulations
Tire Jockey Services, Inc. v. Dept. of Environmental Protection - Pa. S.Ct. - February 20, 2007
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-30-2005mo.pdf
There is a two-step analysis when reviewing an agency's interpretation of its governing regulations: (1) whether the interpretation is erroneous or inconsistent with the regulations, and 2) whether the regulation is consistent with the statute under which it was promulgated.
When an agency adopts a regulation pursuant to it own legislative rule-making power, as opposed to its interpretive rule-making power, it is valid and binding on courts as a statute, so long as it is a) adopted within the agency's granted power, b) issued pursuant to proper procedure, and c) reasonable.
When a court reviews a regulation issued pursuant to an agency's legislative rule-making power, the court may not substitute its own judgment for that of the agency to demonstrate that the agency has exceeded its administrative authority. It is not enough that the prescribed system may appear to be unwise or burdensome of inferior to another. Lack of wisdom in exercising agency power is not equivalent to abuse. What has been ordered must appear to be so entirely at odds with fundamental principles as to be the expression of a whim rather than an exercise of judgment.
Regarding the reasonableness prong, appellate courts accord deference to agencies and reverse agency determinations only if they were made in bad faith or they constituted a manifest or flagrant abuse of discretion or a purely arbitrary execution of the agency's duties or functions.
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-30-2005mo.pdf
There is a two-step analysis when reviewing an agency's interpretation of its governing regulations: (1) whether the interpretation is erroneous or inconsistent with the regulations, and 2) whether the regulation is consistent with the statute under which it was promulgated.
When an agency adopts a regulation pursuant to it own legislative rule-making power, as opposed to its interpretive rule-making power, it is valid and binding on courts as a statute, so long as it is a) adopted within the agency's granted power, b) issued pursuant to proper procedure, and c) reasonable.
When a court reviews a regulation issued pursuant to an agency's legislative rule-making power, the court may not substitute its own judgment for that of the agency to demonstrate that the agency has exceeded its administrative authority. It is not enough that the prescribed system may appear to be unwise or burdensome of inferior to another. Lack of wisdom in exercising agency power is not equivalent to abuse. What has been ordered must appear to be so entirely at odds with fundamental principles as to be the expression of a whim rather than an exercise of judgment.
Regarding the reasonableness prong, appellate courts accord deference to agencies and reverse agency determinations only if they were made in bad faith or they constituted a manifest or flagrant abuse of discretion or a purely arbitrary execution of the agency's duties or functions.
Thursday, March 01, 2007
UC - willful misconduct - corrections officer
Department of Corrections v. UCBR - Commonwealth Court - February 28, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/1205CD06_2-28-07.pdf
A corrections officer who heard rumors of a planned attack on an inmate was guilty of willful misconduct for not reporting the rumors and not intervening when he heard the inmate being beaten. The officer's fear of reprisals and fear for his own safety did not constitute good cause for his actions.
The Court said that its conscience was shocked by the Board's conclusion "that a corrections officer who refuses to report a threat of violence against an inmate and refuses to render aid to an inmate being beaten could use fear for his own personal safety as good cause justification for his refusal to render aid....We can do nothing but express our outrage" that the DOC's Office of Professional Responsibility was aware of and condoned claimant's conduct and that of others in his situation.
Citing its decision in Williams v. UCBR, 648 A.2d 1321 (Pa. Cmwlth. 1994), the court noted its prior holdings that a "corrections officer, like law enforcement officials, occupy positions of great responsibility and trust, and thus, must adhere to demanding standards, which are higher than those applied to many other professions."
As noted in a concurring opinion, this statement is in direct conflict with the Supreme Court's decision in Navickas v. UCBR, 778 A.2d 284, 290-1 (Pa. 2001), where the court rejected a higher standard of care for a health care worker, stating that that is a "question...of policy...not posed by the Unemployment Compensation Law we are called upon to construe. The Act sets for a single governing standard of willful misconduct, one that does not draw distinctions based upon the type or nature of the employee involved."
http://www.courts.state.pa.us/OpPosting/CWealth/out/1205CD06_2-28-07.pdf
A corrections officer who heard rumors of a planned attack on an inmate was guilty of willful misconduct for not reporting the rumors and not intervening when he heard the inmate being beaten. The officer's fear of reprisals and fear for his own safety did not constitute good cause for his actions.
The Court said that its conscience was shocked by the Board's conclusion "that a corrections officer who refuses to report a threat of violence against an inmate and refuses to render aid to an inmate being beaten could use fear for his own personal safety as good cause justification for his refusal to render aid....We can do nothing but express our outrage" that the DOC's Office of Professional Responsibility was aware of and condoned claimant's conduct and that of others in his situation.
Citing its decision in Williams v. UCBR, 648 A.2d 1321 (Pa. Cmwlth. 1994), the court noted its prior holdings that a "corrections officer, like law enforcement officials, occupy positions of great responsibility and trust, and thus, must adhere to demanding standards, which are higher than those applied to many other professions."
As noted in a concurring opinion, this statement is in direct conflict with the Supreme Court's decision in Navickas v. UCBR, 778 A.2d 284, 290-1 (Pa. 2001), where the court rejected a higher standard of care for a health care worker, stating that that is a "question...of policy...not posed by the Unemployment Compensation Law we are called upon to construe. The Act sets for a single governing standard of willful misconduct, one that does not draw distinctions based upon the type or nature of the employee involved."
Friday, February 23, 2007
Pennsylvania Bulletin of February 24, 2007
http://www.pabulletin.com/secure/data/vol37/37-8/index.html
court rules - exemption of certain funds (social security, et al.) from execution
http://www.pabulletin.com/secure/data/vol37/37-8/304.html
court rules - PFA forms - Rule 1905 - effective May 7, 2007
http://www.pabulletin.com/secure/data/vol37/37-8/303.html
court rules - exemption of certain funds (social security, et al.) from execution
http://www.pabulletin.com/secure/data/vol37/37-8/304.html
court rules - PFA forms - Rule 1905 - effective May 7, 2007
http://www.pabulletin.com/secure/data/vol37/37-8/303.html
Monday, February 12, 2007
child abuse - expungement - hearsay - finding that child is "unavailable"
C.E. v. Dept. of Public Welfare - Commonwealth Court - February 12, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/232CD06_2-12-07.pdf
Hearsay statements of child victim were not admissible, absent findings by the ALJ that the hearsay satisfied the requirements of the statute, 42 Pa. C.S. 5986. See, A.Y. v. DPW, 641 A.2d 1148, 1153 (Pa. 1994) and In the Interest of Tina K., 568 A.2d 210 (Pa. Super. 1989).
In particular, the ALJ never made a finding that the child was "unavailable" to testify, that is, "whether testifying would cause her emotional distress to the extent that her ability to communicate would be substantially impaired." The lack of such a finding is not a "mere failure by the ALJ to use the 'magic words' in 42 Pa. C.S. 5986. It is a clear requirement of the statute. Moreover, the evidence in this case included statements by the child that she was not afraid of the Petitioner, that she felt good and was not afraid to be at the hearing.
Although the Commonwealth Court did not mention it, the Superior Court reached a similar result in construing a related statute, 42 Pa. C.S. 5986.1, in Cmwlth. v. Kriner, January 2, 2007 - http://www.courts.state.pa.us/OpPosting/Superior/out/e03003_06.pdf , where it held that the hearsay statement of a child victim/witness under 12 years of age is admissible under 42 Pa. C.S. 5985.1 to prove certain criminal offenses if, inter alia, the child is "'unavailable" as a witness. The statute defines "unavailable" as "serious emotional distress that would substantially impair the child's ability to communicate." This definition is exclusive. There is "no other manner, method, procedure or definition of what constitutes unavailability." Thus, the death of a child witness does not come within this statutory definition of unavailability.
There was also an issue of witness competency. Although it was not considered in deciding the case, the court set out (in n. 8) the criteria for deciding whether a child in a competent witness, citing Commonwealth v. McMaster, 666 A.2d 724, 727 (Pa. Super. 1995).
http://www.courts.state.pa.us/OpPosting/CWealth/out/232CD06_2-12-07.pdf
Hearsay statements of child victim were not admissible, absent findings by the ALJ that the hearsay satisfied the requirements of the statute, 42 Pa. C.S. 5986. See, A.Y. v. DPW, 641 A.2d 1148, 1153 (Pa. 1994) and In the Interest of Tina K., 568 A.2d 210 (Pa. Super. 1989).
In particular, the ALJ never made a finding that the child was "unavailable" to testify, that is, "whether testifying would cause her emotional distress to the extent that her ability to communicate would be substantially impaired." The lack of such a finding is not a "mere failure by the ALJ to use the 'magic words' in 42 Pa. C.S. 5986. It is a clear requirement of the statute. Moreover, the evidence in this case included statements by the child that she was not afraid of the Petitioner, that she felt good and was not afraid to be at the hearing.
Although the Commonwealth Court did not mention it, the Superior Court reached a similar result in construing a related statute, 42 Pa. C.S. 5986.1, in Cmwlth. v. Kriner, January 2, 2007 - http://www.courts.state.pa.us/OpPosting/Superior/out/e03003_06.pdf , where it held that the hearsay statement of a child victim/witness under 12 years of age is admissible under 42 Pa. C.S. 5985.1 to prove certain criminal offenses if, inter alia, the child is "'unavailable" as a witness. The statute defines "unavailable" as "serious emotional distress that would substantially impair the child's ability to communicate." This definition is exclusive. There is "no other manner, method, procedure or definition of what constitutes unavailability." Thus, the death of a child witness does not come within this statutory definition of unavailability.
There was also an issue of witness competency. Although it was not considered in deciding the case, the court set out (in n. 8) the criteria for deciding whether a child in a competent witness, citing Commonwealth v. McMaster, 666 A.2d 724, 727 (Pa. Super. 1995).
Monday, February 05, 2007
parol evidence rule
Ragnar Benson, Inc. v. Hempfield Township Munic. Authority - Superior Court - Jan. 30, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/s65001_06.pdf
If a written contract is unambiguous and purports to be the entire agreement of the parties, and there is no claim of fraud or mistake, then oral testimony and prior written agreements or other writings are not admissible to explain or vary the terms of the contract. This is what is referred to as the parol evidence rule. See, e.g., Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425 (Pa. 2004) for a "comprehensive review" of the rule.
http://www.courts.state.pa.us/OpPosting/Superior/out/s65001_06.pdf
If a written contract is unambiguous and purports to be the entire agreement of the parties, and there is no claim of fraud or mistake, then oral testimony and prior written agreements or other writings are not admissible to explain or vary the terms of the contract. This is what is referred to as the parol evidence rule. See, e.g., Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425 (Pa. 2004) for a "comprehensive review" of the rule.
Friday, February 02, 2007
false imprisonment
In the Interest of M.G. - Superior Court - January 30, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/a36004_06.pdf
The court upheld the delinquency adjudiction of a juvenile accused of false imprisonment, where he followed his cousin into her bedroom, shut and locked the door, and stood between her and the door during an incident which lasted "at most, two minutes."
"In determining the magnitude of the restraint necessary for false imprisonment, this Court has recognized that false imprisonment covers restraints which are less serious than those necessary for the offenses of kidnapping [18 Pa. C.S. 2901(a)] and unlawful restraint [18 Pa. C.S. 2902(a)].
"In determining whether the restraint at issue interfered with [the victim's] liberty 'substantially,' we give the word 'substantially' its plain meaning....Thus, we determine the Legislature intended false imprisonment to cover restraints where an individual's liberty is interfered with in an ample or considerable manner."
It did not matter that the restraint took place in the victim's own bedroom. "Whether in her own home or elsewhere, Appellant restrained [the victim] and kept her in an area where she did not wish to remain. Removing [a victim] from her home or luring her to an unfamiliar place are simply not elements required for false imprisonment."
"Making threats, intimidating and/or using physical force are not stated elements of false imprisonment, although they may be the tool used by an offender in 'restraining another unlawfully.'"
http://www.courts.state.pa.us/OpPosting/Superior/out/a36004_06.pdf
The court upheld the delinquency adjudiction of a juvenile accused of false imprisonment, where he followed his cousin into her bedroom, shut and locked the door, and stood between her and the door during an incident which lasted "at most, two minutes."
"In determining the magnitude of the restraint necessary for false imprisonment, this Court has recognized that false imprisonment covers restraints which are less serious than those necessary for the offenses of kidnapping [18 Pa. C.S. 2901(a)] and unlawful restraint [18 Pa. C.S. 2902(a)].
"In determining whether the restraint at issue interfered with [the victim's] liberty 'substantially,' we give the word 'substantially' its plain meaning....Thus, we determine the Legislature intended false imprisonment to cover restraints where an individual's liberty is interfered with in an ample or considerable manner."
It did not matter that the restraint took place in the victim's own bedroom. "Whether in her own home or elsewhere, Appellant restrained [the victim] and kept her in an area where she did not wish to remain. Removing [a victim] from her home or luring her to an unfamiliar place are simply not elements required for false imprisonment."
"Making threats, intimidating and/or using physical force are not stated elements of false imprisonment, although they may be the tool used by an offender in 'restraining another unlawfully.'"
custody - paternity - standing - presumption
E.W. v. T.S. and C.S - Superior Court - January 31, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/a37030_06.pdf
A man who claimed to be the father of a child did not have standing to seek a declaration of his paternity or ask for custody of a 3 year old child, as against mother (T.S.) and her husband (C.S.), where
- mother and husband were married before conception, at time of conception and birth, etc.
- mother and husband never separated, filed for divorce, etc., and want to maintain their marriage
- husband was named as father on birth certificate
- husband has always assumed paternity and treated child as his own
"The presumption that a child born during the marriage is a child of the husband is always the starting point in a contest involving the parentage of a child born during coverture. Moreover, the strength of the presumption...is a child of the marriage is grounded in the Commonwealth's interest in protecting the family unit. Although the presumption may be rebutted by clear and convincing evidence of husband's non-access, impotency, or sterility, the presumption is irrebuttable where mother, child, and husband live together as an intact family and husband assumed parental responsibility for the child."
Justice Newman's opinion that there is a conflict between these principles and the Uniform Act on Blood Tests has never commanded a majority of the Court. See, Strauser v. Stahr, 726 A.2d 1052, 1056 n. 2 (Pa. 1999)
http://www.courts.state.pa.us/OpPosting/Superior/out/a37030_06.pdf
A man who claimed to be the father of a child did not have standing to seek a declaration of his paternity or ask for custody of a 3 year old child, as against mother (T.S.) and her husband (C.S.), where
- mother and husband were married before conception, at time of conception and birth, etc.
- mother and husband never separated, filed for divorce, etc., and want to maintain their marriage
- husband was named as father on birth certificate
- husband has always assumed paternity and treated child as his own
"The presumption that a child born during the marriage is a child of the husband is always the starting point in a contest involving the parentage of a child born during coverture. Moreover, the strength of the presumption...is a child of the marriage is grounded in the Commonwealth's interest in protecting the family unit. Although the presumption may be rebutted by clear and convincing evidence of husband's non-access, impotency, or sterility, the presumption is irrebuttable where mother, child, and husband live together as an intact family and husband assumed parental responsibility for the child."
Justice Newman's opinion that there is a conflict between these principles and the Uniform Act on Blood Tests has never commanded a majority of the Court. See, Strauser v. Stahr, 726 A.2d 1052, 1056 n. 2 (Pa. 1999)
Pennsylvania Bulletin of February 3, 2007
http://www.pabulletin.com/secure/data/vol37/37-5/index.html
courts - juvenile records - proposed amendments - public availability -
http://www.pabulletin.com/secure/data/vol37/37-5/157.html
court rules - support - amendments
http://www.pabulletin.com/secure/data/vol37/37-5/155.html
governor - regulatory agenda -
"The agendas are compiled to provide members of the regulated community advanced notice of regulatory activity. It is the intention of the Administration that these agendas will serve to increase public participation in the regulatory process."
http://www.pabulletin.com/secure/data/vol37/37-5/186.html
courts - juvenile records - proposed amendments - public availability -
http://www.pabulletin.com/secure/data/vol37/37-5/157.html
court rules - support - amendments
http://www.pabulletin.com/secure/data/vol37/37-5/155.html
governor - regulatory agenda -
"The agendas are compiled to provide members of the regulated community advanced notice of regulatory activity. It is the intention of the Administration that these agendas will serve to increase public participation in the regulatory process."
http://www.pabulletin.com/secure/data/vol37/37-5/186.html
Tuesday, January 30, 2007
UC- employee v. independent contractor
Beacon Flag Car Co. v. UCBR - 910 A.2d 103 (Pa. Cmwlth. 2006)
http://www.courts.state.pa.us/OpPosting/CWealth/out/928CD06_10-31-06.pdf
Claimant held to be a self-employed independent contractor rather than an employee and thus not eligible for UC benefits.
The Claimant -- who did not appear at or participate in the referee hearing -- provided flag car services to clients of Beacon Flag Co. (BFC) under an "independent contractor agreement." A flag car (aka pilot or escort car) accompanies oversized loads on trips. Drivers such as claimant are free to accept or decline any offered trip from BFC and are encouraged to promote their own business. Some drivers have their own vehicles; some rent them from the a business owned by the ER's husband. The drivers get no training. They are given 1099 income tax forms rather than W-2 forms.
The UCBR determined that claimant and others were under BFC's direction or control. The court reversed, based on the decision in Viktor, Ltd. v. Dept. of Labor and Industry, 892 A.2d 781 (Pa. 2006), which decision "was ignored by both the referee and UCBR."
The courts refer to sec. 4(el)(2)(B) of the UC Law, 43 P.S. sec. 753 (el)(2)(B) in these cases. That provision "presumes that an individual is an employee, as opposed to an independent contractor, but this presumption may be overcome if the putative employer sustains its burden of showing that the claimant was free from the control and direction in the performance of his service and that, as to such service, was customarily engaged in an independent trade or business....Unless both of these showings are made, the presumption stands that one who performs services for wages is an employee."
"The first element -- the issue of control -- is based upon a showing of control, not only with regard to the work to be done, but also with regard to the manner of performing it."
"As to the second element -- whether Claimant conducts his driving services as an 'independently established' business -- the courts have identified two factors as important in making this evaluation: (1) whether the individual was capable of performing the activities in question for anyone who wished to avail themselves of the services; and (2) whether the nature of the business compelled the individual to look to only a single employer for the continuation of such services."
The existence of a non-complete clause in the Indpt. Contractor Agreement is not dispositive. The "mere existence" of such a clause does not render the party agreeing to it an employee of the other party. Electrolux Corp. v. Bureau of Tax Operations, 705 A.2d 1357 (Pa. Cmwlth), appeal discontinued, 724 A.2d 936 (Pa. 1998). All factors must be considered. The "unique facts of each cases must be examined in order to resolve the question of employee versus independent contractor status."
http://www.courts.state.pa.us/OpPosting/CWealth/out/928CD06_10-31-06.pdf
Claimant held to be a self-employed independent contractor rather than an employee and thus not eligible for UC benefits.
The Claimant -- who did not appear at or participate in the referee hearing -- provided flag car services to clients of Beacon Flag Co. (BFC) under an "independent contractor agreement." A flag car (aka pilot or escort car) accompanies oversized loads on trips. Drivers such as claimant are free to accept or decline any offered trip from BFC and are encouraged to promote their own business. Some drivers have their own vehicles; some rent them from the a business owned by the ER's husband. The drivers get no training. They are given 1099 income tax forms rather than W-2 forms.
The UCBR determined that claimant and others were under BFC's direction or control. The court reversed, based on the decision in Viktor, Ltd. v. Dept. of Labor and Industry, 892 A.2d 781 (Pa. 2006), which decision "was ignored by both the referee and UCBR."
The courts refer to sec. 4(el)(2)(B) of the UC Law, 43 P.S. sec. 753 (el)(2)(B) in these cases. That provision "presumes that an individual is an employee, as opposed to an independent contractor, but this presumption may be overcome if the putative employer sustains its burden of showing that the claimant was free from the control and direction in the performance of his service and that, as to such service, was customarily engaged in an independent trade or business....Unless both of these showings are made, the presumption stands that one who performs services for wages is an employee."
"The first element -- the issue of control -- is based upon a showing of control, not only with regard to the work to be done, but also with regard to the manner of performing it."
"As to the second element -- whether Claimant conducts his driving services as an 'independently established' business -- the courts have identified two factors as important in making this evaluation: (1) whether the individual was capable of performing the activities in question for anyone who wished to avail themselves of the services; and (2) whether the nature of the business compelled the individual to look to only a single employer for the continuation of such services."
The existence of a non-complete clause in the Indpt. Contractor Agreement is not dispositive. The "mere existence" of such a clause does not render the party agreeing to it an employee of the other party. Electrolux Corp. v. Bureau of Tax Operations, 705 A.2d 1357 (Pa. Cmwlth), appeal discontinued, 724 A.2d 936 (Pa. 1998). All factors must be considered. The "unique facts of each cases must be examined in order to resolve the question of employee versus independent contractor status."
Wednesday, January 24, 2007
disability - grid - non-exertional impairment
Poulos v. Commissioner of Social Security - 3rd Circuit - January 24, 2007
http://www.ca3.uscourts.gov/opinarch/054637p.pdf
The ALJ determined that the claimant had both exertional and non-exertional limitations and "subsequently concluded, without reference to any vocational evidence, that a) Appellant's exertional and nonexertional limitations did not 'significantly compromise' the sedentary occupational base" and, thus, that b) the medical-vocational guidelines--the Grid--could be applied to deny appellant's claim.
The court held that the ALJ erred in doing this and that his "reliance on the Guidelines in the presence of Appellant's nonexertional limitations constitutes reversible error under Sykes v. Apfel, 228 F.3d 259 (3d Cir. 2000), where the court rejected the same argument that SSA made here -- that the guidelines can be relied on even in the presence of a nonexertional limitation, "so long as the limitation does not significantly diminish the range of work that could otherwise be exertionally possible."
The court "squarely rejected this argument in Sykes" and did so here as well. Absent a rulemaking establishing the fact of an undiminished occupational base, SSA cannot determine that a nonexertional impairment does not significantly erode a claimant's occupational basis unless SSA either a) takes additional evidence establishing as much, or b) provides notice to the claimant of its intent to take official notice of this fact and provides the claimant an opportunity to counter the conclusion.
The court remanded the case because the record had not been fully developed and reminded the ALJ of his duty to do so.
The court also reminded the ALJ "that under the Supreme Court's decision in Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 803 (1999), he is not entitled to consider potential accommodations by employers in determining the availability of jobs in the national economy that Appellant can perform."
http://www.ca3.uscourts.gov/opinarch/054637p.pdf
The ALJ determined that the claimant had both exertional and non-exertional limitations and "subsequently concluded, without reference to any vocational evidence, that a) Appellant's exertional and nonexertional limitations did not 'significantly compromise' the sedentary occupational base" and, thus, that b) the medical-vocational guidelines--the Grid--could be applied to deny appellant's claim.
The court held that the ALJ erred in doing this and that his "reliance on the Guidelines in the presence of Appellant's nonexertional limitations constitutes reversible error under Sykes v. Apfel, 228 F.3d 259 (3d Cir. 2000), where the court rejected the same argument that SSA made here -- that the guidelines can be relied on even in the presence of a nonexertional limitation, "so long as the limitation does not significantly diminish the range of work that could otherwise be exertionally possible."
The court "squarely rejected this argument in Sykes" and did so here as well. Absent a rulemaking establishing the fact of an undiminished occupational base, SSA cannot determine that a nonexertional impairment does not significantly erode a claimant's occupational basis unless SSA either a) takes additional evidence establishing as much, or b) provides notice to the claimant of its intent to take official notice of this fact and provides the claimant an opportunity to counter the conclusion.
The court remanded the case because the record had not been fully developed and reminded the ALJ of his duty to do so.
The court also reminded the ALJ "that under the Supreme Court's decision in Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 803 (1999), he is not entitled to consider potential accommodations by employers in determining the availability of jobs in the national economy that Appellant can perform."
Wednesday, January 17, 2007
employment - nurses - licenses - suspension - violation of VRP agreement
Wittorf v. Board of Nursing - Cmwlth. Court - October 12, 2006 (publication ordered 01-10-07)
http://www.courts.state.pa.us/OpPosting/CWealth/out/338CD06_1-10-07.pdf
The Court upheld the decision of the State Board of Nursing to suspend the license of a nurse who had violated a consent agreement which he entered under the Voluntary Rehabilitation Program (VRP), 63 P.S. sec. 224.1(c).
The nurse entered the VRP agreement after he had been charged with DUI, a 2nd degree misdemeanor. The criminal case was resolved without a finding of guilt, when Wittorf successfully completed an ARD program, after which his criminal record was expunged.
The Bureau of Professional & Occupational Affairs then took action concerning his nursing license. It offered him a chance to enter the VRP in lieu of disciplinary charges being brought against him. In the VRP agreement, Wittorf stipulated that a) he was unable to practice nursing with reasonable skill and safety, due to his abuse of and dependency on alcohol. and b) that he had suffered from alcohol abuse or dependency for two years. Under the VRP agreement, Wittorf's license was suspended, but the suspension was stayed in favor of probation, conditioned on, inter alia, his complete abstention from the use of alcohol and his documented regular attendance and active participation in a support program.
The Bureau petitioned to suspend Wittorf's license when he later violated the VRP agreement by testing positive for alcohol several times and failing to submit support group attendance records after being requested to do so. At a hearing, Wittorf did not dispute violating the VRP agreement. Instead he argued that the Board had no authority to force him to enter into a VRP agreement, because he had only been charged with a misdemeanor, and the statute, 63 P.S. sec. 224(a)(5), only authorized suspension if the offense was a felony.
The Court held that Wittorf's argument ignored the Board's independent authority under 63 P.S. sec. 224(a)(2), 224(b)(4) and 224.1(c) to a) suspend or revoke a nurses license or, in the alternative, or to b) require a VRP program, when a nurse us "unable to practice....with reasonable skill and safety to patients by reason of....dependence upon alcohol...."
http://www.courts.state.pa.us/OpPosting/CWealth/out/338CD06_1-10-07.pdf
The Court upheld the decision of the State Board of Nursing to suspend the license of a nurse who had violated a consent agreement which he entered under the Voluntary Rehabilitation Program (VRP), 63 P.S. sec. 224.1(c).
The nurse entered the VRP agreement after he had been charged with DUI, a 2nd degree misdemeanor. The criminal case was resolved without a finding of guilt, when Wittorf successfully completed an ARD program, after which his criminal record was expunged.
The Bureau of Professional & Occupational Affairs then took action concerning his nursing license. It offered him a chance to enter the VRP in lieu of disciplinary charges being brought against him. In the VRP agreement, Wittorf stipulated that a) he was unable to practice nursing with reasonable skill and safety, due to his abuse of and dependency on alcohol. and b) that he had suffered from alcohol abuse or dependency for two years. Under the VRP agreement, Wittorf's license was suspended, but the suspension was stayed in favor of probation, conditioned on, inter alia, his complete abstention from the use of alcohol and his documented regular attendance and active participation in a support program.
The Bureau petitioned to suspend Wittorf's license when he later violated the VRP agreement by testing positive for alcohol several times and failing to submit support group attendance records after being requested to do so. At a hearing, Wittorf did not dispute violating the VRP agreement. Instead he argued that the Board had no authority to force him to enter into a VRP agreement, because he had only been charged with a misdemeanor, and the statute, 63 P.S. sec. 224(a)(5), only authorized suspension if the offense was a felony.
The Court held that Wittorf's argument ignored the Board's independent authority under 63 P.S. sec. 224(a)(2), 224(b)(4) and 224.1(c) to a) suspend or revoke a nurses license or, in the alternative, or to b) require a VRP program, when a nurse us "unable to practice....with reasonable skill and safety to patients by reason of....dependence upon alcohol...."
welfare - NMP-MA - ongoing v. monthly program
Brobst v. DPW - Commonwealth Court 09-26-06, publication ordered 01-10-07
http://www.courts.state.pa.us/OpPosting/CWealth/out/121CD06_1-10-07.pdf
The court upheld DPW's decision that the appellant was eligible for the monthly NMP-MA spend-down program but not the ongoing NMP-MA spend-down program, because a) her monthly expenses exceeded the specified income limits and b) her medical expenses were covered under the NMP-MA program, and so could not be deducted from her income.
The ongoing program allows a recipient to "received uninterrupted medical coverage for the full month. 55 Pa.Code sec. 181.13." The monthly program applies where income, after appropriate deductions, is still above the specified income limits, requiring the individual to "spend a certain amount on expenses every month before medical assistance can be available to cover the remaining expenses for the month, 55 Pa. Code sec. 181.13....[M]edical expenses covered by NMP-MA may not be deducted from monthly income....only expenses not covered by NMP-MA....."
The court held that the DPW program under 55 Pa. Code 181.13 was a valid application of the "flexible income test" required under Title XIX of the Social Security Act, 42 USC sec. 1396 et seq.
http://www.courts.state.pa.us/OpPosting/CWealth/out/121CD06_1-10-07.pdf
The court upheld DPW's decision that the appellant was eligible for the monthly NMP-MA spend-down program but not the ongoing NMP-MA spend-down program, because a) her monthly expenses exceeded the specified income limits and b) her medical expenses were covered under the NMP-MA program, and so could not be deducted from her income.
The ongoing program allows a recipient to "received uninterrupted medical coverage for the full month. 55 Pa.Code sec. 181.13." The monthly program applies where income, after appropriate deductions, is still above the specified income limits, requiring the individual to "spend a certain amount on expenses every month before medical assistance can be available to cover the remaining expenses for the month, 55 Pa. Code sec. 181.13....[M]edical expenses covered by NMP-MA may not be deducted from monthly income....only expenses not covered by NMP-MA....."
The court held that the DPW program under 55 Pa. Code 181.13 was a valid application of the "flexible income test" required under Title XIX of the Social Security Act, 42 USC sec. 1396 et seq.
appeals - interlocutory appeal - collateral order - discovery
Feldman v. Ide - Superior Court - January 9, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/a33037_06.pdf
For an order to be deemed collateral and subject to interlocutory review
- The order must be separate and distinct from the main cause of action
- The right involved must be too important for review to be denied, i.e., the right is deeply rooted in public policy such that it goes beyond the controversy at hand, such as privacy.
- The question presented must be such that if review is postponed until judgment, the claim will be irreparably lost.
In a discovery controversy, there must be no effective means of review if the order were to be carried out. An order directing a doctor hired by the insurer of a tort plaintiff to produce documents about his income in worker's comp. and personal injury cases was held to be collateral and thus subject to interlocutory. However, the discovery order was upheld pursuant to the decision in Cooper v. Shoffstall, 905 A.2d, 482 (Pa. 2006).
http://www.courts.state.pa.us/OpPosting/Superior/out/a33037_06.pdf
For an order to be deemed collateral and subject to interlocutory review
- The order must be separate and distinct from the main cause of action
- The right involved must be too important for review to be denied, i.e., the right is deeply rooted in public policy such that it goes beyond the controversy at hand, such as privacy.
- The question presented must be such that if review is postponed until judgment, the claim will be irreparably lost.
In a discovery controversy, there must be no effective means of review if the order were to be carried out. An order directing a doctor hired by the insurer of a tort plaintiff to produce documents about his income in worker's comp. and personal injury cases was held to be collateral and thus subject to interlocutory. However, the discovery order was upheld pursuant to the decision in Cooper v. Shoffstall, 905 A.2d, 482 (Pa. 2006).
Friday, January 12, 2007
Pennsylvania Bulletin of January 13, 2007
http://www.pabulletin.com/secure/data/vol37/37-2/index.html
banking - right-to-know request policy
http://www.pabulletin.com/secure/data/vol37/37-2/44.html
UC- table -rate and amount of benefits
http://www.pabulletin.com/secure/data/vol37/37-2/53.html
agriculture - wine marketing and research program
http://www.pabulletin.com/secure/data/vol37/37-2/42.html
banking - right-to-know request policy
http://www.pabulletin.com/secure/data/vol37/37-2/44.html
UC- table -rate and amount of benefits
http://www.pabulletin.com/secure/data/vol37/37-2/53.html
agriculture - wine marketing and research program
http://www.pabulletin.com/secure/data/vol37/37-2/42.html
Tuesday, January 09, 2007
admin. law - appeal - timeliness - designation of mailing date
Julia Ribaudo Senior Services v. DPW - Commonwealth Court - January 4, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/351CD06_1-4-07.pdf
Where an appeal must be filed within a specified time from the mailing date of a decision, the decision must contain a clearly specified mailing date. There is "no substitute for denominating the date of mailing so as to constitute the starting date for the appeal period. . . . A disembodied date on the notice. . .without any indication that it is the mailing date, is not sufficiently informative."
A date on a letter or a "date final administrative action," without more, are not sufficient. Likewise, testimony on department practice about mailing its decisions is "no substitute for a clearly designated mailing date," without which a notice does "not serve to begin the appeal period."
The following cases were cited in support of the decision: Sheets v. DPW, 479 A.2d 80 (Pa. Cmwlth. 1984); Schmidt v. Commonwealth, 433 A.2d 4546, 458 (Pa. 1981); Mihordin v. UCBR, 471 A.2d 1334, 1336 (1984); Nyhart v. Dept. of Corrections, 721 A.2d 391 (Pa. Cmwlth. 1998).
http://www.courts.state.pa.us/OpPosting/CWealth/out/351CD06_1-4-07.pdf
Where an appeal must be filed within a specified time from the mailing date of a decision, the decision must contain a clearly specified mailing date. There is "no substitute for denominating the date of mailing so as to constitute the starting date for the appeal period. . . . A disembodied date on the notice. . .without any indication that it is the mailing date, is not sufficiently informative."
A date on a letter or a "date final administrative action," without more, are not sufficient. Likewise, testimony on department practice about mailing its decisions is "no substitute for a clearly designated mailing date," without which a notice does "not serve to begin the appeal period."
The following cases were cited in support of the decision: Sheets v. DPW, 479 A.2d 80 (Pa. Cmwlth. 1984); Schmidt v. Commonwealth, 433 A.2d 4546, 458 (Pa. 1981); Mihordin v. UCBR, 471 A.2d 1334, 1336 (1984); Nyhart v. Dept. of Corrections, 721 A.2d 391 (Pa. Cmwlth. 1998).
PFA - right to plenary 10-day hearing
Lanza v. Simconis - Superior Court - December 19, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/a29001_06.pdf
Plaintiff/appellant filed a pro se PFA and trial court conducted a hearing under 23 Pa. C.S. 6107(b), at which defendant unexpectedly appeared and denied the allegations of abuse. The trial court denied the temporary order, stating that it was unable to determine credibility. The trial court did not set or conduct a final 10-day hearing on the merits under 23 Pa. C.S 6107(a).
The appellate court held that it was error not to hold a plenary final hearing within 10 days. Such a hearing is required by the statute, 23 Pa. C.S. 6107(a) ("a hearing shall be held") and by a PFA plaintiff's due process right to be heard at a meaningful time and in a meaningful manner, including the right to have counsel, to cross-examine defendant, and to present other witnesses and evidence.
http://www.courts.state.pa.us/OpPosting/Superior/out/a29001_06.pdf
Plaintiff/appellant filed a pro se PFA and trial court conducted a hearing under 23 Pa. C.S. 6107(b), at which defendant unexpectedly appeared and denied the allegations of abuse. The trial court denied the temporary order, stating that it was unable to determine credibility. The trial court did not set or conduct a final 10-day hearing on the merits under 23 Pa. C.S 6107(a).
The appellate court held that it was error not to hold a plenary final hearing within 10 days. Such a hearing is required by the statute, 23 Pa. C.S. 6107(a) ("a hearing shall be held") and by a PFA plaintiff's due process right to be heard at a meaningful time and in a meaningful manner, including the right to have counsel, to cross-examine defendant, and to present other witnesses and evidence.
driver's license - suspension - delay
Orloff v. PennDOT - Commonwealth Court - December 18, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/136CD06_12-18-06.pdf
In a 4-3 decision, the court held that a) there was an "unreasonable delay chargeable to PennDOT [which] led the licensee to believe that his operating privilege would not be impaired; and b) "prejudice would result by having his operating privilege suspended after such delay."
The case had been decided in the licensee's favor by the trial court, which had held that DOT had not properly proven its case by use of copies of electronic transmissions from another state, which had reported a DUI conviction to Pennsylvania. DOT appealed and the Commonwealth Court reversed in part, affirmed in part, and remanded the case back to the trial court for consideration of several legal issues. The trial judge died and the case languished there for about 5 years until DOT sent the court a letter asking that the case be be listed for hearing, at which time the licensee raised the issue of delay.
DOT's contention that this was judicial delay for which it was not responsible was rejected. The court said that the "General Assembly placed in PennDOT the responsibility to prosecute licenses suspension cases....[and the] responsibility for moving a case forward under circumstances where it is reasonable for it to be expected to do so," in which event "the delay is attributable to PennDOT....PennDOT was responsible for taking the appropriate action to have the case heard and, absent such action to carry out its responsibility to prosecute the appeal, PennDOT is chargeable with the delay."
The court also held that the licensee had established prejudice from the unreasonable delay in that he was "able to demonstrate that he changed his circumstances to his detriment in reliance on his belief that his operating privileges would not be impaired....[T]he loss of a job or required closing of a business requiring a driver's license constitutes prejudice.....Also prejudice is established when a licensee has changed jobs to a position that requires driving as part of the new job's duties....[or] by showing the an owner changed his job duties so that a license is necessary for the financial well-being of his company."
The dissent argued that the delay was caused by the lower court and should not be attributable to PennDOT, and that the court had created an "unworkable standard for future cases where a licenses suspension is remanded to this Court or to a court of common pleas solely for reconsideration of a legal issue."
http://www.courts.state.pa.us/OpPosting/CWealth/out/136CD06_12-18-06.pdf
In a 4-3 decision, the court held that a) there was an "unreasonable delay chargeable to PennDOT [which] led the licensee to believe that his operating privilege would not be impaired; and b) "prejudice would result by having his operating privilege suspended after such delay."
The case had been decided in the licensee's favor by the trial court, which had held that DOT had not properly proven its case by use of copies of electronic transmissions from another state, which had reported a DUI conviction to Pennsylvania. DOT appealed and the Commonwealth Court reversed in part, affirmed in part, and remanded the case back to the trial court for consideration of several legal issues. The trial judge died and the case languished there for about 5 years until DOT sent the court a letter asking that the case be be listed for hearing, at which time the licensee raised the issue of delay.
DOT's contention that this was judicial delay for which it was not responsible was rejected. The court said that the "General Assembly placed in PennDOT the responsibility to prosecute licenses suspension cases....[and the] responsibility for moving a case forward under circumstances where it is reasonable for it to be expected to do so," in which event "the delay is attributable to PennDOT....PennDOT was responsible for taking the appropriate action to have the case heard and, absent such action to carry out its responsibility to prosecute the appeal, PennDOT is chargeable with the delay."
The court also held that the licensee had established prejudice from the unreasonable delay in that he was "able to demonstrate that he changed his circumstances to his detriment in reliance on his belief that his operating privileges would not be impaired....[T]he loss of a job or required closing of a business requiring a driver's license constitutes prejudice.....Also prejudice is established when a licensee has changed jobs to a position that requires driving as part of the new job's duties....[or] by showing the an owner changed his job duties so that a license is necessary for the financial well-being of his company."
The dissent argued that the delay was caused by the lower court and should not be attributable to PennDOT, and that the court had created an "unworkable standard for future cases where a licenses suspension is remanded to this Court or to a court of common pleas solely for reconsideration of a legal issue."
UC - vol. quit - racial/ethnic harassment, profanity
The Western & Southern Life Insurance Company - Commomwealth Court - Decembr 18, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/1347CD06_12-18-06.pdf
Held, that the UCBR's findings that a) the claimant was subject to racial and ethnic slurs, profanity, and physical threats, and that b) claimant acted with common sense and did all he reasonably could to preserve his job before quitting were supported by substantial evidence, and that the Board did not commit any error in applying the relevant law.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1347CD06_12-18-06.pdf
Held, that the UCBR's findings that a) the claimant was subject to racial and ethnic slurs, profanity, and physical threats, and that b) claimant acted with common sense and did all he reasonably could to preserve his job before quitting were supported by substantial evidence, and that the Board did not commit any error in applying the relevant law.
Pennsylvania Bulletin of December 23, 2006
http://www.pabulletin.com/secure/data/vol36/36-51/index.html
court rules - proposed - electronic filing and service of legal papers - comments due 2-16-07 http://www.pabulletin.com/secure/data/vol36/36-51/2503.html
state police - uniform crime reporting act
http://www.pabulletin.com/secure/data/vol36/36-51/2542.html
professional & occupation affairs - schedule of civil penalties http://www.pabulletin.com/secure/data/vol36/36-51/2510.html
crime victims compensation
http://www.pabulletin.com/secure/data/vol36/36-51/2509.html
court rules - proposed - electronic filing and service of legal papers - comments due 2-16-07 http://www.pabulletin.com/secure/data/vol36/36-51/2503.html
state police - uniform crime reporting act
http://www.pabulletin.com/secure/data/vol36/36-51/2542.html
professional & occupation affairs - schedule of civil penalties http://www.pabulletin.com/secure/data/vol36/36-51/2510.html
crime victims compensation
http://www.pabulletin.com/secure/data/vol36/36-51/2509.html
evidence - child witness - hearsay - child "unavailable"
Commonwealth v. Kriner - Superior Court - January 2, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/e03003_06.pdf
The hearsay statement of a child victim/witness under 12 years of age is admissible under 42 Pa. C.S. 5985.1 to prove certain criminal offenses if, inter alia, the child is "'unavailable" as a witness.
The statute defines "unavailable" as "serious emotional distress that would substantially impair the child's ability to communicate." This definition is exclusive. There is "no other manner, method, procedure or definition of what constitutes unavailability." Thus, the death of a child witness does not come within this statutory definition of unavailability.
http://www.courts.state.pa.us/OpPosting/Superior/out/e03003_06.pdf
The hearsay statement of a child victim/witness under 12 years of age is admissible under 42 Pa. C.S. 5985.1 to prove certain criminal offenses if, inter alia, the child is "'unavailable" as a witness.
The statute defines "unavailable" as "serious emotional distress that would substantially impair the child's ability to communicate." This definition is exclusive. There is "no other manner, method, procedure or definition of what constitutes unavailability." Thus, the death of a child witness does not come within this statutory definition of unavailability.
forum selection clause - validity
Patriot Commercial Leasing Company v. Kremer Restaurant Enterprises
http://www.courts.state.pa.us/OpPosting/Superior/out/A24012_06.pdf
In this case involving two commercial entities, the court held that forum selection clauses are presumed to be valid when the parties have freely agreed that litigation shall be conducted in a particular forum and where the agreement is not unreasonable at the time of litigation. Such a clause will be considered unreasonable "only where its enforcement would, under all circumstances existing at the time of litigation, seriously impair a party's ability to pursue his cause of action....Mere inconvenience or additional expense is not the test of unreasonableness." The "modern trend is to uphold the enforceability of forum selection clauses where those clauses are clear and unambiguous."
A "forum selection clause in a commercial contract between business entities is presumptively valid and will be deemed unenforceable only when: 1) the clause itself was inducted by fraud or overreaching; 2) the forum selected in the clause is so unfair or inconvenient that a party, for all practical purposes, will be deprived of an opportunity to be heard; or 3) the clause is found to violate public policy."
http://www.courts.state.pa.us/OpPosting/Superior/out/A24012_06.pdf
In this case involving two commercial entities, the court held that forum selection clauses are presumed to be valid when the parties have freely agreed that litigation shall be conducted in a particular forum and where the agreement is not unreasonable at the time of litigation. Such a clause will be considered unreasonable "only where its enforcement would, under all circumstances existing at the time of litigation, seriously impair a party's ability to pursue his cause of action....Mere inconvenience or additional expense is not the test of unreasonableness." The "modern trend is to uphold the enforceability of forum selection clauses where those clauses are clear and unambiguous."
A "forum selection clause in a commercial contract between business entities is presumptively valid and will be deemed unenforceable only when: 1) the clause itself was inducted by fraud or overreaching; 2) the forum selected in the clause is so unfair or inconvenient that a party, for all practical purposes, will be deprived of an opportunity to be heard; or 3) the clause is found to violate public policy."
landlord-tenant - covenant of quiet enjoyment
Kohl v. PNC Bank Natl. Assn. et al. - Pennsylvania Supreme Court - December 27, 2006 majority http://www.courts.state.pa.us/OpPosting/Supreme/out/J-129-2005mo.pdf
concur/dissent http://www.courts.state.pa.us/OpPosting/Supreme/out/J-129-2005cd.pdf
In a 5-1 decision, the court held that a "suit by a landlord which substantially impairs a tenant's possessory interest in a leasehold, brought in bad faith, maliciously, or otherwise without probable cause and primarily for a purpose unrelated to seeking legal redress, constitutes a breach of the landlord's [implied] covenant of quiet enjoyment," citing the lower court decision in the case, 863 A.2d 23, 31 (Pa. Super. 2004) and Raker v. G.C. Murphy Co., 58 A.2d 18 (Pa. 1948).
The court mentioned the "need to protect a litigant's free access to the courts under Article I, sec. 11, of the Pennsylvania Constitution ("All courts shall be open...") and noted that "that law does not punish parties who avail themselves of the courts except in very limited circumstances manifesting bad faith, in order to avoid the potential chilling effect individuals' willingness to seek legal redress."
In discussing the covenant of quiet enjoyment, the court noted that it is "implied in all leases" and stated that it is "settled in this state that any wrongful act of the landlord which results in an interference of the tenant's possession, in whole or in part, is an eviction for which the landlord is liable in damages to the tenant." The covenant is breached by such acts as threatening eviction if the tenant's boyfriend visited the tenant at the property. On the other hand, there has to be "more than mere infringement of the tenant's rights." The act of the landlord must "substantially impair...a tenant's possessory interest in a leasehold."
concur/dissent http://www.courts.state.pa.us/OpPosting/Supreme/out/J-129-2005cd.pdf
In a 5-1 decision, the court held that a "suit by a landlord which substantially impairs a tenant's possessory interest in a leasehold, brought in bad faith, maliciously, or otherwise without probable cause and primarily for a purpose unrelated to seeking legal redress, constitutes a breach of the landlord's [implied] covenant of quiet enjoyment," citing the lower court decision in the case, 863 A.2d 23, 31 (Pa. Super. 2004) and Raker v. G.C. Murphy Co., 58 A.2d 18 (Pa. 1948).
The court mentioned the "need to protect a litigant's free access to the courts under Article I, sec. 11, of the Pennsylvania Constitution ("All courts shall be open...") and noted that "that law does not punish parties who avail themselves of the courts except in very limited circumstances manifesting bad faith, in order to avoid the potential chilling effect individuals' willingness to seek legal redress."
In discussing the covenant of quiet enjoyment, the court noted that it is "implied in all leases" and stated that it is "settled in this state that any wrongful act of the landlord which results in an interference of the tenant's possession, in whole or in part, is an eviction for which the landlord is liable in damages to the tenant." The covenant is breached by such acts as threatening eviction if the tenant's boyfriend visited the tenant at the property. On the other hand, there has to be "more than mere infringement of the tenant's rights." The act of the landlord must "substantially impair...a tenant's possessory interest in a leasehold."
employment - civil service - "just cause" for termination - arrest
Woods v. State Civil Service Commission - Pennsylvania Supreme Court - December 27, 2006
majority http://www.courts.state.pa.us/OpPosting/Supreme/out/J-104-2006mo.pdf concur/dissent http://www.courts.state.pa.us/OpPosting/Supreme/out/J-104-2006mo.pdf
In a 5-2 decision, the court held that the arrest of a youth counselor on felony (perjury) and misdemeanor (false swearing) charges did not, by itself, constitute "just cause" for dismissal under the state civil service law, 71 P.S. sec. 741.807.
"Just cause" is not defined by the statute, but it has been held to mean cause that is "merit-related,and the criteria must touch upon competency and ability in some rational and logical manner." Just cause involves considerable discretion on the part of the department head, but "[t]o be sufficient...the cause should be personal to the employee and such as to render him unfit for the position he occupies, thus making his dismissal justifiable and for the good of the service."
The court held that while the arrest "may have warranted suspension, we disagree that his arrest along on perjury and false swearing charges establish just cause for removal." The "arrest alone did not rationally and logically touch upon his competency and ability to perform his job as to warrant dismissal....and therefore did not provide just cause for removal." The "arrest alone, albeit on crimen falsi charges, failed to demonstrate that his trustworthiness or integrity had been compromised." The court "decline[d] to adopt a per se rule that 'the appearance of impropriety' by an employee in 'highly sensitive positions' provides just cause to warrant dismissal."
The court also held that absent some indication that the employee's competence and ability to perform his job had been compromised, the mere fact of student awareness of the arrest and charges was alone insufficient to provide the just cause for removal.
majority http://www.courts.state.pa.us/OpPosting/Supreme/out/J-104-2006mo.pdf concur/dissent http://www.courts.state.pa.us/OpPosting/Supreme/out/J-104-2006mo.pdf
In a 5-2 decision, the court held that the arrest of a youth counselor on felony (perjury) and misdemeanor (false swearing) charges did not, by itself, constitute "just cause" for dismissal under the state civil service law, 71 P.S. sec. 741.807.
"Just cause" is not defined by the statute, but it has been held to mean cause that is "merit-related,and the criteria must touch upon competency and ability in some rational and logical manner." Just cause involves considerable discretion on the part of the department head, but "[t]o be sufficient...the cause should be personal to the employee and such as to render him unfit for the position he occupies, thus making his dismissal justifiable and for the good of the service."
The court held that while the arrest "may have warranted suspension, we disagree that his arrest along on perjury and false swearing charges establish just cause for removal." The "arrest alone did not rationally and logically touch upon his competency and ability to perform his job as to warrant dismissal....and therefore did not provide just cause for removal." The "arrest alone, albeit on crimen falsi charges, failed to demonstrate that his trustworthiness or integrity had been compromised." The court "decline[d] to adopt a per se rule that 'the appearance of impropriety' by an employee in 'highly sensitive positions' provides just cause to warrant dismissal."
The court also held that absent some indication that the employee's competence and ability to perform his job had been compromised, the mere fact of student awareness of the arrest and charges was alone insufficient to provide the just cause for removal.
Pennsylvania Bulletin of December 30, 2006
http://www.pabulletin.com/secure/data/vol36/36-52/index.html
local rules - Allegheny County - service of process http://www.pabulletin.com/secure/data/vol36/36-52/2548.html
welfare - subsidized child care regulations
http://www.pabulletin.com/secure/data/vol36/36-52/2554.html
transportation - children - car seats - exemptions - size, weight, medical conditions http://www.pabulletin.com/secure/data/vol36/36-52/2555.html
local rules - Allegheny County - service of process http://www.pabulletin.com/secure/data/vol36/36-52/2548.html
welfare - subsidized child care regulations
http://www.pabulletin.com/secure/data/vol36/36-52/2554.html
transportation - children - car seats - exemptions - size, weight, medical conditions http://www.pabulletin.com/secure/data/vol36/36-52/2555.html
UC - willful misconduct - giving false information to ER
Downey v. UCBR - Commonwealth Court - December 19, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/1050CD06_12-19-06.pdf
Claimant engaged in willful misconduct when he falsely claimed total disability and accepted disability benefits while engaging in activities inconsistent with such claims -- i.e., doing substantial, heavy home repair work. The court said that there were no cases exactly on point, but likened this to theft cases, holding that "dishonesty or misrepresentation can exhibit a disregard of the employer's interests and disregard of standards of behavior that the employer can rightfully expect from its employees."
The fact that the employer allowed claimant to return to light duty work on May 4th before discharging him on July 29th was held not to bring the case within the remoteness doctrine, which holds that an unexplained substantial delay between the alleged misconduct and job termination precludes the employer from relying on such misconduct. Here, the employer was gathering evidence and pursuing an investigation through proper bureaucratic channels.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1050CD06_12-19-06.pdf
Claimant engaged in willful misconduct when he falsely claimed total disability and accepted disability benefits while engaging in activities inconsistent with such claims -- i.e., doing substantial, heavy home repair work. The court said that there were no cases exactly on point, but likened this to theft cases, holding that "dishonesty or misrepresentation can exhibit a disregard of the employer's interests and disregard of standards of behavior that the employer can rightfully expect from its employees."
The fact that the employer allowed claimant to return to light duty work on May 4th before discharging him on July 29th was held not to bring the case within the remoteness doctrine, which holds that an unexplained substantial delay between the alleged misconduct and job termination precludes the employer from relying on such misconduct. Here, the employer was gathering evidence and pursuing an investigation through proper bureaucratic channels.
appeal - matters complained of - Rule 1925(b) statement
Wells v. Cendant Mobility Financial Corp. - Superior Court - December 14, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/a32035_06.pdf
Appellants' arguments were held to have been waived, because they filed an "indecipherably vague" statement under Pa. R.A.P. 1925(b) concerning "matters complained of on appeal."
http://www.pacode.com/secure/data/210/chapter19/s1925.html
The Rule 1925(b) statement is "a crucial component in the appellate process" and is "intended to aid trial judges in identifying and focusing upon those issues which the parties plan to raise on appeal." A statement that is "overly broad and vague" or "unfocused and indefinite" or "vague and abstract" forces the trial court to "guess what issues an appellant is appealing." Such an "endless assignment severely taxes the trial court and impedes meaningful appellate review.
Where the Rule 1925(b) statement is inadequate, the trial and appellate courts "may find waiver and disregard any argument" on a point, "even if the trial court guesses correctly and addresses the issue" in a thorough opinion. "[I]ssues not included in a Rule 1925(b) statement are deemed waived on appeal....A Concise Statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no Concise Statement at all."
In the instant case, appellants alleged unspecified "errors of law" which were "extremely vague, encompassing the entire proceedings without providing a hint as to when, where, or how the trial court committed its alleged legal errors."
http://www.courts.state.pa.us/OpPosting/Superior/out/a32035_06.pdf
Appellants' arguments were held to have been waived, because they filed an "indecipherably vague" statement under Pa. R.A.P. 1925(b) concerning "matters complained of on appeal."
http://www.pacode.com/secure/data/210/chapter19/s1925.html
The Rule 1925(b) statement is "a crucial component in the appellate process" and is "intended to aid trial judges in identifying and focusing upon those issues which the parties plan to raise on appeal." A statement that is "overly broad and vague" or "unfocused and indefinite" or "vague and abstract" forces the trial court to "guess what issues an appellant is appealing." Such an "endless assignment severely taxes the trial court and impedes meaningful appellate review.
Where the Rule 1925(b) statement is inadequate, the trial and appellate courts "may find waiver and disregard any argument" on a point, "even if the trial court guesses correctly and addresses the issue" in a thorough opinion. "[I]ssues not included in a Rule 1925(b) statement are deemed waived on appeal....A Concise Statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no Concise Statement at all."
In the instant case, appellants alleged unspecified "errors of law" which were "extremely vague, encompassing the entire proceedings without providing a hint as to when, where, or how the trial court committed its alleged legal errors."
Pennsylvania Bulletin of December 16, 2006
http://www.pabulletin.com/secure/data/vol36/36-50/index.html
recent statutes - http://www.pabulletin.com/secure/data/vol36/36-50/2443.html
Numerous new statutes, including social security number privacy act; credit reporting agency law; sexual assault and evidence collection act; court interpreter law; plain language consumer contract act; court-apptd. custody health care or behavioral health practitioners; children's trust fund act - These can all be accessed by bill number, key word, etc. at http://www.legis.state.pa.us/cfdocs/legis/home/session.cfm
mortgages - bankers/brokers/consumer equity prot. act statement of policy - first mortgages - http://www.pabulletin.com/secure/data/vol36/36-50/2456.html
health - medical records - charges
http://www.pabulletin.com/secure/data/vol36/36-50/2465.html
welfare - prior authoriz. reqmts. - HCPCS updates - MA fee schedule revisions http://www.pabulletin.com/secure/data/vol36/36-50/2479.html
IRRC - actions taken by Indpt. Reg. Review Commn. http://www.pabulletin.com/secure/data/vol36/36-50/2485.html
recent statutes - http://www.pabulletin.com/secure/data/vol36/36-50/2443.html
Numerous new statutes, including social security number privacy act; credit reporting agency law; sexual assault and evidence collection act; court interpreter law; plain language consumer contract act; court-apptd. custody health care or behavioral health practitioners; children's trust fund act - These can all be accessed by bill number, key word, etc. at http://www.legis.state.pa.us/cfdocs/legis/home/session.cfm
mortgages - bankers/brokers/consumer equity prot. act statement of policy - first mortgages - http://www.pabulletin.com/secure/data/vol36/36-50/2456.html
health - medical records - charges
http://www.pabulletin.com/secure/data/vol36/36-50/2465.html
welfare - prior authoriz. reqmts. - HCPCS updates - MA fee schedule revisions http://www.pabulletin.com/secure/data/vol36/36-50/2479.html
IRRC - actions taken by Indpt. Reg. Review Commn. http://www.pabulletin.com/secure/data/vol36/36-50/2485.html
custody - relocation - intrastate
Masser v. Miller - Superior Court - December 11, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/a25012_06.pdf
The trial court properly denied the mother's petition to relocate the parties' 14 y/o daughter from Schuylkill to Dauphin County where
- both extended families lived in Schuylkill County
- child had daily contact with both families - child was very close to her half-brother in Schuylkill County
- child did not want to move
- the child had significant extracurricular activities in her current location
- there was no particular benefit to the move
- the move would cause a significant disruption in continuity and stability
The court's rejection of the opinion of the court-appointed expert was justified by the facts, which showed that the expert did not have a "sufficient understanding" of the effect that the proposed move would have on the child's contact with the extended families.
The court noted that the use of the Gruber analysis is "not necessarily required in analyzing all intra-state relocation disputes" but rather is "within the discretion of the trial court" which was properly exercised in this case.
The court also approved the modification of the existing order to expand father's partial custody, to reflect the "custody actually being exercised by the parties," as well as the best interests of the child.
http://www.courts.state.pa.us/OpPosting/Superior/out/a25012_06.pdf
The trial court properly denied the mother's petition to relocate the parties' 14 y/o daughter from Schuylkill to Dauphin County where
- both extended families lived in Schuylkill County
- child had daily contact with both families - child was very close to her half-brother in Schuylkill County
- child did not want to move
- the child had significant extracurricular activities in her current location
- there was no particular benefit to the move
- the move would cause a significant disruption in continuity and stability
The court's rejection of the opinion of the court-appointed expert was justified by the facts, which showed that the expert did not have a "sufficient understanding" of the effect that the proposed move would have on the child's contact with the extended families.
The court noted that the use of the Gruber analysis is "not necessarily required in analyzing all intra-state relocation disputes" but rather is "within the discretion of the trial court" which was properly exercised in this case.
The court also approved the modification of the existing order to expand father's partial custody, to reflect the "custody actually being exercised by the parties," as well as the best interests of the child.
custody - criminal convictions - evaluation/counseling - "qualified professional"
Ramer v. Ramer - Superior Court - December 11, 2006 http://www.courts.state.pa.us/OpPosting/Superior/out/a27040_06.pdf
The trial court erred when it failed to appoint a "qualified professional" under 23 Pa. C.S. 5303(b) and (c) to evaluate and counsel father, who had two convictions of crimes listed under sec. 5303(b)(9) and (10) -- indecent assault and indecent exposure.
"qualified professional" -- A licensed psychologist was not a "qualified professional" where the psychologist admitted that he had no special training or expertise concerning sex offenders. "Qualified" requires that the "professional have expertise tied to the particular offense under assessment....[T]he statute attempts to ensure that the court will receive the kind of information necessary to assess whether the offending parents, with his or her unique criminal conviction history, poses a threat of harm to the child...The statute requires a sensitive inquiry aided by a professional whose qualifications allow him or her to assess the offending parents in light of the particular criminal conduct that has triggered the inquiry....[S]exual offenders in particular often present with unique mental health issues."
counseling - Sec. 5303(c) requires the qualified professional to provide "counseling to an offending parent" which "shall include a program of treatment or individual therapy designed to rehabilitate a parent..." A "one-time evaluation....did not...meet the description of 'counseling in section 5303(c)." Moreover counseling from 2000 does not satisfy the statute, which "requires counseling...in the present, i.e., at the time custody is under assessment."
required finding that the parent does not pose a threat - The trial court's reliance on the "absence of evidence that a parent poses a threat to the child...is an improper reading of the rule, which imposes an affirmative duty to determine that the parents 'does not pose a threat of hard to the child. 23 Pa. C.S. sec. 5303(b). This is to be accomplished through the appointment of a qualified professional, the provision of counseling to the offending parent in the present, and the taking of testimony from the qualified professional regarding the same. Such did not occur here, and, thus, we vacate the custody order and remand with instructions to comply with the plain language of 23 Pa. C.S. sections 5303(b)( and (c)."
The trial court erred when it failed to appoint a "qualified professional" under 23 Pa. C.S. 5303(b) and (c) to evaluate and counsel father, who had two convictions of crimes listed under sec. 5303(b)(9) and (10) -- indecent assault and indecent exposure.
"qualified professional" -- A licensed psychologist was not a "qualified professional" where the psychologist admitted that he had no special training or expertise concerning sex offenders. "Qualified" requires that the "professional have expertise tied to the particular offense under assessment....[T]he statute attempts to ensure that the court will receive the kind of information necessary to assess whether the offending parents, with his or her unique criminal conviction history, poses a threat of harm to the child...The statute requires a sensitive inquiry aided by a professional whose qualifications allow him or her to assess the offending parents in light of the particular criminal conduct that has triggered the inquiry....[S]exual offenders in particular often present with unique mental health issues."
counseling - Sec. 5303(c) requires the qualified professional to provide "counseling to an offending parent" which "shall include a program of treatment or individual therapy designed to rehabilitate a parent..." A "one-time evaluation....did not...meet the description of 'counseling in section 5303(c)." Moreover counseling from 2000 does not satisfy the statute, which "requires counseling...in the present, i.e., at the time custody is under assessment."
required finding that the parent does not pose a threat - The trial court's reliance on the "absence of evidence that a parent poses a threat to the child...is an improper reading of the rule, which imposes an affirmative duty to determine that the parents 'does not pose a threat of hard to the child. 23 Pa. C.S. sec. 5303(b). This is to be accomplished through the appointment of a qualified professional, the provision of counseling to the offending parent in the present, and the taking of testimony from the qualified professional regarding the same. Such did not occur here, and, thus, we vacate the custody order and remand with instructions to comply with the plain language of 23 Pa. C.S. sections 5303(b)( and (c)."
Pennsylvania Bulletin of December 2, 2006
http://www.pabulletin.com/secure/data/vol36/36-48/index.html
courts - electronic case records - public access policy http://www.pabulletin.com/secure/data/vol36/36-48/2328.html
court rules - proposed - support - contempt http://www.pabulletin.com/secure/data/vol36/36-48/2329.html
court rules - proposed - discovery in domestic relations matters http://www.pabulletin.com/secure/data/vol36/36-48/2330.html
general services - distribution of federally-donated food to needs households http://www.pabulletin.com/secure/data/vol36/36-48/2337.html
health - medical records - charges
http://www.pabulletin.com/secure/data/vol36/36-48/2359.html
school districts - personal income tax
http://www.pabulletin.com/secure/data/vol36/36-48/2344.html
courts - electronic case records - public access policy http://www.pabulletin.com/secure/data/vol36/36-48/2328.html
court rules - proposed - support - contempt http://www.pabulletin.com/secure/data/vol36/36-48/2329.html
court rules - proposed - discovery in domestic relations matters http://www.pabulletin.com/secure/data/vol36/36-48/2330.html
general services - distribution of federally-donated food to needs households http://www.pabulletin.com/secure/data/vol36/36-48/2337.html
health - medical records - charges
http://www.pabulletin.com/secure/data/vol36/36-48/2359.html
school districts - personal income tax
http://www.pabulletin.com/secure/data/vol36/36-48/2344.html
Friday, December 08, 2006
Pennsylvania Bulletin of December 9, 2006
http://www.pabulletin.com/secure/data/vol36/36-49/index.html
Cmwlth. Court - emergency applications - internal operating procedures
http://www.pabulletin.com/secure/data/vol36/36-49/2403.html
health - home care agencies/registries - draft licensing regulations
http://www.pabulletin.com/secure/data/vol36/36-49/2413.html
DOT - alcohol highway safety schools/DUI program coordinators
These regulations implement 75 Pa.C.S. § 1549(b), which requires each county, multicounty judicial district or group of counties combined under a single DUI program to establish and maintain a course of instruction regarding the problems associated with alcohol or controlled substance use, or both, and driving.
http://www.pabulletin.com/secure/data/vol36/36-49/2412.html
Cmwlth. Court - emergency applications - internal operating procedures
http://www.pabulletin.com/secure/data/vol36/36-49/2403.html
health - home care agencies/registries - draft licensing regulations
http://www.pabulletin.com/secure/data/vol36/36-49/2413.html
DOT - alcohol highway safety schools/DUI program coordinators
These regulations implement 75 Pa.C.S. § 1549(b), which requires each county, multicounty judicial district or group of counties combined under a single DUI program to establish and maintain a course of instruction regarding the problems associated with alcohol or controlled substance use, or both, and driving.
http://www.pabulletin.com/secure/data/vol36/36-49/2412.html
Thursday, December 07, 2006
employment - lie detectors - firefighters
City of Pittsburgh v. Bachner et al. - Commonwealth Court - November 30, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/2539CD05_11-30-06.pdf
Applicants for firefighter positions with city challenged "just cause" determinations under 53 P.S. 23493.1(a) to reject their applications, and the use of lie detector tests involved in the city's passing over their applications for employment as firefighters
Held, just cause provision gives a right to placement on hiring list, unless there is just cause for disqualification, but just cause provision does not give candidates the right to challenge information gathering procedures to determine if just cause exists.
Here, the applicants' right to placement was affected ony by information they provided, and they retained the right to challenge their disqualifications and argue that they are not supported by just cause. The court discussed the Lie Detector Test Law, 18 Pa. C.S. 7321, which generally prohibits the use of lie detectors in employment situations, except in matters involving public law enforcement personnel or people whose job gives them access to narcotics or dangerour drugs, 18 Pa. C.S. 7321(b). The latter was conceded in this case.
http://www.courts.state.pa.us/OpPosting/CWealth/out/2539CD05_11-30-06.pdf
Applicants for firefighter positions with city challenged "just cause" determinations under 53 P.S. 23493.1(a) to reject their applications, and the use of lie detector tests involved in the city's passing over their applications for employment as firefighters
Held, just cause provision gives a right to placement on hiring list, unless there is just cause for disqualification, but just cause provision does not give candidates the right to challenge information gathering procedures to determine if just cause exists.
Here, the applicants' right to placement was affected ony by information they provided, and they retained the right to challenge their disqualifications and argue that they are not supported by just cause. The court discussed the Lie Detector Test Law, 18 Pa. C.S. 7321, which generally prohibits the use of lie detectors in employment situations, except in matters involving public law enforcement personnel or people whose job gives them access to narcotics or dangerour drugs, 18 Pa. C.S. 7321(b). The latter was conceded in this case.
employment - application - false information - police job
Salters v. State Police - Commonwealth Coourt - November 29, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/761CD06_11-29-06.pdf
A false statement on an application for police certification was alone enough to disqualify an applicant, in spite of the police chief's alleged advice to applicant to lie. Applicant was required to get a psych. evaluation. The first one showed that he was a "psychological risk." A second one had no such finding. Applicant mentioned only the second evaluation on his certification application, on which he made a verified statement that there had been no other psych. evaluations.
Amendments to the charges made more than 30 days in advance of the hearing wre held to not violate due process/notice requirements, citing general admin. rules of procedures, 1 Pa. Code 35.1 et seq., and the relative simplicity of the issues. The court also rejected applicant's argument that only agency heads who are attorneys can adjudicate administrative decisions.
http://www.courts.state.pa.us/OpPosting/CWealth/out/761CD06_11-29-06.pdf
A false statement on an application for police certification was alone enough to disqualify an applicant, in spite of the police chief's alleged advice to applicant to lie. Applicant was required to get a psych. evaluation. The first one showed that he was a "psychological risk." A second one had no such finding. Applicant mentioned only the second evaluation on his certification application, on which he made a verified statement that there had been no other psych. evaluations.
Amendments to the charges made more than 30 days in advance of the hearing wre held to not violate due process/notice requirements, citing general admin. rules of procedures, 1 Pa. Code 35.1 et seq., and the relative simplicity of the issues. The court also rejected applicant's argument that only agency heads who are attorneys can adjudicate administrative decisions.
Monday, November 20, 2006
UC - sec. 401(d)- availablity for work - alien worker - expired work authorization
Ruiz v. UCBR - Commonwealth Court - November 20, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/1343CD06_11-20-06.pdf
An alien who does not have a current valid work authorization is not legally available for work and is not eligible for UC benefits under sec. 401(d)(1) of the UC Law, 43 P.S. sec. 801(d)(1).
"A claimant who registers for work is presumed [to be] able [to] and available for work....Nevertheless, to be available for work, a claimant must be ready and able to accept employment, and be actually and currently attached to the labor force."
"Immigration is a matter of exclusive federal jurisdiction. Accordinly, where the USCIS denies or revokes an alien's work authorization, the determination is binding on the states and can be assailed only before a federal agency or in a federal court....Significantly, when an alien does not possess a current or valid USCIS work authorization, he cannot accept employment. 8CFR sec. 274.12(c). Moreover, it is unlawful for an employer to hire, recruit, or continue to employ an alient who is (or has become) an "unauthorized alien." 8 USC sec. 1324a(a)(1)-(2).
This decision confirms the dictum in Jimoh v. UCBR, 902 A.2d 608, 612 n.7 (Pa. Cmwlth. 2006), concerning sec. 401(d).
http://www.courts.state.pa.us/OpPosting/CWealth/out/1343CD06_11-20-06.pdf
An alien who does not have a current valid work authorization is not legally available for work and is not eligible for UC benefits under sec. 401(d)(1) of the UC Law, 43 P.S. sec. 801(d)(1).
"A claimant who registers for work is presumed [to be] able [to] and available for work....Nevertheless, to be available for work, a claimant must be ready and able to accept employment, and be actually and currently attached to the labor force."
"Immigration is a matter of exclusive federal jurisdiction. Accordinly, where the USCIS denies or revokes an alien's work authorization, the determination is binding on the states and can be assailed only before a federal agency or in a federal court....Significantly, when an alien does not possess a current or valid USCIS work authorization, he cannot accept employment. 8CFR sec. 274.12(c). Moreover, it is unlawful for an employer to hire, recruit, or continue to employ an alient who is (or has become) an "unauthorized alien." 8 USC sec. 1324a(a)(1)-(2).
This decision confirms the dictum in Jimoh v. UCBR, 902 A.2d 608, 612 n.7 (Pa. Cmwlth. 2006), concerning sec. 401(d).
Friday, November 17, 2006
Pennsylvania Bulletin of November 18, 2006
http://www.pabulletin.com/secure/data/vol36/36-46/index.html
PUC - practice & procedure - interpretation of rules on party status, rights, obligations
http://www.pabulletin.com/secure/data/vol36/36-46/2266.html
Governor - notice of veto of HB 236 - promulgation of regulations
http://www.pabulletin.com/secure/data/vol36/36-46/2259.html
courts - local rules - Philadelphia - motion for summary judgment - Rule *1035.2(a)http://www.pabulletin.com/secure/data/vol36/36-46/2260.html
IRRC - notice of filing of final rule - commercial manure hauler/broker certification
http://www.pabulletin.com/secure/data/vol36/36-46/2284.html
PUC - practice & procedure - interpretation of rules on party status, rights, obligations
http://www.pabulletin.com/secure/data/vol36/36-46/2266.html
Governor - notice of veto of HB 236 - promulgation of regulations
http://www.pabulletin.com/secure/data/vol36/36-46/2259.html
courts - local rules - Philadelphia - motion for summary judgment - Rule *1035.2(a)http://www.pabulletin.com/secure/data/vol36/36-46/2260.html
IRRC - notice of filing of final rule - commercial manure hauler/broker certification
http://www.pabulletin.com/secure/data/vol36/36-46/2284.html
Wednesday, November 15, 2006
child witness - taint - clear and convincing evidence
Commonwealth v. Cesar - Superior Court - November 14, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/s06009_06.pdf
The court discussed how to deal with the issue of the possible tainting of the testimony of a child. The Defendant claimed that the child's evidence had been tainted by improper coaching by a parent, an asst. DA, and someone from the victim-witness office.
The court discussed the problem of taint, stating that the "core belief underlying the theory...is that a child's memory is peculiarly susceptible to suggestibility so that when called to testify a child may have difficult distinguishing fact from fantasy. Taint is the implantation of false memories or the distortion of real memories caused by interview techniques...that are so unduly suggestive and coercive as to infect the memory of the child, rending that child incompetent to testify."
The court said that a taint investigation is triggered by "some evidence of taint. Once some evidence of taint is presented, the... hearing [about the child's competency to testify] must be expanded to explore this specific question. During the hearing the party alleging taint bears the burden of production of evidence of taint and the burden of persuasion to show taint by clear and convincing evidence. Pennsylvania has always maintained that since competency is the presumption, the moving party must carry the burden of overcoming that presumption...[A]s with all questions of competency, the resolution of a taint challenge...is a matter addressed to the discretion of the trial court."
http://www.courts.state.pa.us/OpPosting/Superior/out/s06009_06.pdf
The court discussed how to deal with the issue of the possible tainting of the testimony of a child. The Defendant claimed that the child's evidence had been tainted by improper coaching by a parent, an asst. DA, and someone from the victim-witness office.
The court discussed the problem of taint, stating that the "core belief underlying the theory...is that a child's memory is peculiarly susceptible to suggestibility so that when called to testify a child may have difficult distinguishing fact from fantasy. Taint is the implantation of false memories or the distortion of real memories caused by interview techniques...that are so unduly suggestive and coercive as to infect the memory of the child, rending that child incompetent to testify."
The court said that a taint investigation is triggered by "some evidence of taint. Once some evidence of taint is presented, the... hearing [about the child's competency to testify] must be expanded to explore this specific question. During the hearing the party alleging taint bears the burden of production of evidence of taint and the burden of persuasion to show taint by clear and convincing evidence. Pennsylvania has always maintained that since competency is the presumption, the moving party must carry the burden of overcoming that presumption...[A]s with all questions of competency, the resolution of a taint challenge...is a matter addressed to the discretion of the trial court."
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