Pennsylvania Bulletin of April 15, 2006

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

Of possible interest --

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

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

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

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

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

CJP Files Class Action Over Attachment of Social Security Funds

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

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

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

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

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

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

Attachment of SSA Benefits

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

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

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

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

appeal - lack of transcript - reconstruction - PRAP 1923

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

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

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

employment - age discrim. - PHRA - release

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

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

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

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

Pennsylvania Bulletin of April 8, 2006

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

custody - standing - adoptive grandparent - parents separated

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

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

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

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

Disability - GAF scores

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

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

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

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

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

consumer protection - damages - benefit of the bargain

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

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

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

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

Pennsylvania Bulletin of April 1, 2006

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

Of possible interest -

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

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

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

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

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

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

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

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

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

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

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

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

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

consumer - RICO - fraud - specificity

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

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

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

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

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

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

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

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

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

Case remanded.

social security disability case - multiple issues

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

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

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

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

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

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

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

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

ADA - SSD - no estoppel

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

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

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

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

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

custody - relocation - intrastate

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

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

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

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

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

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

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

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

Pennsylvania Bulletin of March 25, 2006

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

Of possible interest-

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

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

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

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

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

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