Wagner v. Wagner - Pa. Superior Court - November 7, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/a31002_05.pdf
Following the parents' divorce in Mercer County, Pennsylvania in 2002, Mother got primary physical custody of the two children by an order of the same court. The parties shared legal custody. Mother, who was in the Army Reserve, maintained her domicile in Florida, where she had a mailing address, driver's license and was registered to vote. She and the children had other significant connections to Florida. Father moved to Ohio. Mother was then transferred to Fort Dix, NJ, and children were sent to live with her stepmother in Florida. When Mother got orders to go to Iraq, Father sought and got a custody order from the Mercer County court. Mother appealed, alleging lack of jurisdiction under the UCCJEA and violation of the Servicemembers' Civil Relief Act, 50 USC App. sec. 501 et seq.,
The Superior Court reversed. Applying 23 Pa. C.S. sec. 5422(a), dealing with modification orders, the court held that the lower court did not have "exclusive, continuing jurisdiction" to modify its original order, because (a) neither parent resided in Pennsylvania, and (b) neither the children nor the parents had "significant connections" with Pennsylvania.
The court also decided that the lower court did not have jurisdiction under sec. 5422(b), because it did not have jurisdiction under the criteria in sec. 5421 to make an initial custody determination. Pennsylvania was not the "home state," since the children were no longer here, and neither parent lived here. Nor did Pennsylvania have jurisdiction under the "significant connections" test, which can only apply if no other state can assume jurisdiction. The court found that the children had more significant connections with Florida than Pennsylvania and remanded the case to the trial court with a direction that it be transferred to Florida.
Donald Marritz
MidPenn Legal Services
Tuesday, November 08, 2005
Saturday, November 05, 2005
physician-patient privilege - blacken the character
Grimminger v. Maitra - Pa. Superior Court - November 4, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/s47039_05.pdf
Held, doctor did not breach common law or statutory duty when he released medical information about a patient to the patient's employer. The doctor had previously sent info to the employer concerning plaintiff's work limitations. Two years later, the employer came to the doctor, showed him a video of plaintiff and asked for the doctor's opinion about plaintiff's work restrictions. The employer offered a new opinion and the employer subsequently fired the plaintiff.
Pennsylvania recognizes a civil cause of action for breach of the physician-patient privilege where "confidential disclosures occurred that were unrelated to any judicial proceedings." Haddad v. Gopal, 787 A.2d 975, 981 (Pa. Super. 2001). This the rule in the majority of jurisdictions. There is also statute, 42 Pa. CS sec. 5929, which prohibits the release of information in a civil matter where that information "shall tend to blacken the character of the patient," unless the patient has consented to the release. Pa. law also recognizes a distinction between information communicated by the patient and information which the doctor gets by examination and observation.
The court's response to each of the plaintiff's arguments was that the information released did not tend to black the patient's character.
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/s47039_05.pdf
Held, doctor did not breach common law or statutory duty when he released medical information about a patient to the patient's employer. The doctor had previously sent info to the employer concerning plaintiff's work limitations. Two years later, the employer came to the doctor, showed him a video of plaintiff and asked for the doctor's opinion about plaintiff's work restrictions. The employer offered a new opinion and the employer subsequently fired the plaintiff.
Pennsylvania recognizes a civil cause of action for breach of the physician-patient privilege where "confidential disclosures occurred that were unrelated to any judicial proceedings." Haddad v. Gopal, 787 A.2d 975, 981 (Pa. Super. 2001). This the rule in the majority of jurisdictions. There is also statute, 42 Pa. CS sec. 5929, which prohibits the release of information in a civil matter where that information "shall tend to blacken the character of the patient," unless the patient has consented to the release. Pa. law also recognizes a distinction between information communicated by the patient and information which the doctor gets by examination and observation.
The court's response to each of the plaintiff's arguments was that the information released did not tend to black the patient's character.
Donald Marritz
MidPenn Legal Services
Wednesday, November 02, 2005
continuances - exercise/abuse of discretion
Gillespie v. Penn DOT - Commonwealth Court - November 2, 2005
http://www.courts.state.pa.us/OpPosting/CWealth/out/546CD05_11-2-05.pdf
Held, the trial court erred by refusing to exercise its discretion to consider a request for a continuance based solely on a standing policy that all parties must agree to a continuance.
"Blind adherence" to an establishing policy is the opposite of the required exercise of discretion, which is an informed decision between multiple courses of action. Instead, the court "essentially delegated its decision-making function to the attorneys....We can think of no clearer example of an abuse of discretion than abdication of the judge's role to an interested party. The trial court's continuance policy....is manifestly unreasonable." It was an abuse of discretionto blindly apply the policy and refuse to consider the merits of the moving party's request.
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/CWealth/out/546CD05_11-2-05.pdf
Held, the trial court erred by refusing to exercise its discretion to consider a request for a continuance based solely on a standing policy that all parties must agree to a continuance.
"Blind adherence" to an establishing policy is the opposite of the required exercise of discretion, which is an informed decision between multiple courses of action. Instead, the court "essentially delegated its decision-making function to the attorneys....We can think of no clearer example of an abuse of discretion than abdication of the judge's role to an interested party. The trial court's continuance policy....is manifestly unreasonable." It was an abuse of discretionto blindly apply the policy and refuse to consider the merits of the moving party's request.
Donald Marritz
MidPenn Legal Services
attorney-client privilege - former client
In re Investigating Grand Jury -- Pa. Superior Court - November 1, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/a25019_05.pdf
In a case said to be of first impression, a criminal defendant's conversation with his former counsel was held to be privileged, even after the representation had ended. The conversation related to the attorney's former representation (about which the defendant was complaining) and was about the case. The court felt that it was likely that the former client "believe[d] that because of their prior relationship, confidentiality remained between them," even though the "conversation did not involved a client seeking legal advice from his lawyer."
Donald Marritz, staff attorney
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/a25019_05.pdf
In a case said to be of first impression, a criminal defendant's conversation with his former counsel was held to be privileged, even after the representation had ended. The conversation related to the attorney's former representation (about which the defendant was complaining) and was about the case. The court felt that it was likely that the former client "believe[d] that because of their prior relationship, confidentiality remained between them," even though the "conversation did not involved a client seeking legal advice from his lawyer."
Donald Marritz, staff attorney
MidPenn Legal Services
Tuesday, November 01, 2005
employment - discrimination - PHRA - "employment agency"
Nethken v. Pa. Civil Service Commission - Commonwealth Court - November 1, 2005
http://www.courts.state.pa.us/OpPosting/CWealth/out/1064CD05_11-1-05.pdf
The Pa. Civil Services Commission is an "employment agency" under the Pa. Human Relations Act, 43 PS sec. 951 et seq., and can be liable for age discrimination.
Plaintiff stated prima facie case of age discrimination when she was not put on a list of eligibles solely because she graduated from college in 1974, when job posting called for recent grad (1999). Lower court judgment on liability upheld.
D. Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/CWealth/out/1064CD05_11-1-05.pdf
The Pa. Civil Services Commission is an "employment agency" under the Pa. Human Relations Act, 43 PS sec. 951 et seq., and can be liable for age discrimination.
Plaintiff stated prima facie case of age discrimination when she was not put on a list of eligibles solely because she graduated from college in 1974, when job posting called for recent grad (1999). Lower court judgment on liability upheld.
D. Marritz
MidPenn Legal Services
HIPAA - HHS privacy rules valid - 3d Cir.
Citizens for Health, et al. v. Leavitt, Secy. of HHS - 3d Cir. - October 3, 2005
http://www.ca3.uscourts.gov/opinarch/042550p.pdf
HHS privacy rules under HIPAA upheld against challenges under Administrative Procedure Act and 1st & 5th Amendments.
http://www.ca3.uscourts.gov/opinarch/042550p.pdf
HHS privacy rules under HIPAA upheld against challenges under Administrative Procedure Act and 1st & 5th Amendments.
Saturday, October 29, 2005
admin. law - collateral estoppel/issue preclusion - capricious disregard of competent evidence
The Frog, Switch & Mfg. Co. v. Pa. Human Relations Commn. - Cmwlth. Court - Oct. 27, 2005
http://www.courts.state.pa.us/OpPosting/CWealth/out/125CD05_10-27-05.pdf
This is an employment law case, but it has implications in all administrative law cases, hence the cross posting. The Petitioner/Employer appealed from a ruling of the PHRC that it had unlawfully retaliated against a former employee because of his union activities. The employee had also gone through arbitration, resulting in a contrary decision, i.e., that the employer had just cause for disciplining him (but that termination was an excessive punishment).
collateral estoppel/issue preclusion -- In the administrative proceeding before the PHRC, the employer contended that the facts found by the arbitrator were conclusive and binding on the Commission. After an extended (and unnecessary?) discussion about whether collateral estoppel (aka, issue preclusion) was applicable, the court held that the Supreme Court's decision in Bortz v.WCAB, 683 A.2d 259 (Pa. 1996), was controlling. There the court held that a decision of the UCBR did not have preclusive effect in a worker's comp. case, "because every administrative agency...is charged with enforcing its own acts which have different purposes; therefore, one agency's hands would be tied by the findings and conclusions of another without being allowed to make independent findings and conclusions and applying its own expertise to the facts."
The court said that "[because labor arbitrations are akin to 'private administrative agencies' and the Commission is charged...with adjudicating claims under the PHRA...., the General Assembly did not intend any arbitration award to have preclusive effect on claims of discrimination brought pursuant to the PHRA."
capricious disregard -- The court remanded the case back to the Commission, because it had "capriciously disregarded overwhelming critical evidence that could have compelled a different conclusion.," citing Wintermeyer v. WCAB, 812 A.2d 478 (Pa. 2002), and its 8-17-05 decision in Hinkle v. City of Philadelphia,
http://www.courts.state.pa.us/OpPosting/CWealth/out/2071CD04_8-17-05.pdf
In the latter case, the court said that the capricious disregard standard is a "shorthand way of addressing various statutory and constitutional requirements that require...an agency to give reasons for its decision, and when an agency ignored critical overwhelming evidence that constituted an abuse of discretion requiring the decision to be vacated" so that the agency can "explain its action and arrive at a new decision if it so desired. Because an agency has so much discretion when enforcing its statute, capricious disregard, like abuse of discretion, will only be applied in rare instances when the agency palpably has failed to give a proper explanation of overwhelming critical evidence. This is one of the extremely rare cases where the threshold has been reached, because in each and every key finding of causation, it ignored evidence that would have compelled a different conclusion."
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/CWealth/out/125CD05_10-27-05.pdf
This is an employment law case, but it has implications in all administrative law cases, hence the cross posting. The Petitioner/Employer appealed from a ruling of the PHRC that it had unlawfully retaliated against a former employee because of his union activities. The employee had also gone through arbitration, resulting in a contrary decision, i.e., that the employer had just cause for disciplining him (but that termination was an excessive punishment).
collateral estoppel/issue preclusion -- In the administrative proceeding before the PHRC, the employer contended that the facts found by the arbitrator were conclusive and binding on the Commission. After an extended (and unnecessary?) discussion about whether collateral estoppel (aka, issue preclusion) was applicable, the court held that the Supreme Court's decision in Bortz v.WCAB, 683 A.2d 259 (Pa. 1996), was controlling. There the court held that a decision of the UCBR did not have preclusive effect in a worker's comp. case, "because every administrative agency...is charged with enforcing its own acts which have different purposes; therefore, one agency's hands would be tied by the findings and conclusions of another without being allowed to make independent findings and conclusions and applying its own expertise to the facts."
The court said that "[because labor arbitrations are akin to 'private administrative agencies' and the Commission is charged...with adjudicating claims under the PHRA...., the General Assembly did not intend any arbitration award to have preclusive effect on claims of discrimination brought pursuant to the PHRA."
capricious disregard -- The court remanded the case back to the Commission, because it had "capriciously disregarded overwhelming critical evidence that could have compelled a different conclusion.," citing Wintermeyer v. WCAB, 812 A.2d 478 (Pa. 2002), and its 8-17-05 decision in Hinkle v. City of Philadelphia,
http://www.courts.state.pa.us/OpPosting/CWealth/out/2071CD04_8-17-05.pdf
In the latter case, the court said that the capricious disregard standard is a "shorthand way of addressing various statutory and constitutional requirements that require...an agency to give reasons for its decision, and when an agency ignored critical overwhelming evidence that constituted an abuse of discretion requiring the decision to be vacated" so that the agency can "explain its action and arrive at a new decision if it so desired. Because an agency has so much discretion when enforcing its statute, capricious disregard, like abuse of discretion, will only be applied in rare instances when the agency palpably has failed to give a proper explanation of overwhelming critical evidence. This is one of the extremely rare cases where the threshold has been reached, because in each and every key finding of causation, it ignored evidence that would have compelled a different conclusion."
Donald Marritz
MidPenn Legal Services
admin. law - standard of proof - preponderance v. clear-and-convincing
Suber v. Pennsylvania Commn. on Crime & Delinquency -- Cmwlth. Court - October 28, 2005
http://www.courts.state.pa.us/OpPosting/CWealth/out/265CD05_10-28-05.pdf
Held, the proper standard of proof was "preponderance of the evidence" and not "clear and convincing" in a case involving the removal of a deputy sheriff from an educ./training program, based on allegations that he had cheated on an exam.
The standard of proof in a particular type of case is "based on the level of concern regarding the degree of accuracy in the factual findings made by the trier of fact...The traditional 'preponderance of the evidence' standard allows parties...to share equally in the risk in proving their claims and affirmative defenses. Any other standard expresses a preference for one side's interests."
In most civil and administrative actions, the proper standard of proof is "preponderance of the evidence." (citing cases). "Clear and convincing" is the highest standard of proof in civil law and is "reserved for cases 'where particularly important individual interests or rights are at stake....'" such as termination of parental rights, civil fraud, involuntary commitment, and public figure defamation.
Meeting the "clear and convincing" standard requires that the witnesses be found to be credible, the facts to which they have testified be remembered distinctly, and their testimony be so clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.
The court found that this case was like Ruane v. Shippensburg Univ., 871 A.2d 859 (2005), in which it applied the preponderance standard in a matter involving the suspension of a student for sexual assault. It rejected the analogy to an attorney disbarment case in which the clear-and-convincing standard was applied, ODC v. Duffield, 644 A.2d 1186 (Pa. 1994).
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/CWealth/out/265CD05_10-28-05.pdf
Held, the proper standard of proof was "preponderance of the evidence" and not "clear and convincing" in a case involving the removal of a deputy sheriff from an educ./training program, based on allegations that he had cheated on an exam.
The standard of proof in a particular type of case is "based on the level of concern regarding the degree of accuracy in the factual findings made by the trier of fact...The traditional 'preponderance of the evidence' standard allows parties...to share equally in the risk in proving their claims and affirmative defenses. Any other standard expresses a preference for one side's interests."
In most civil and administrative actions, the proper standard of proof is "preponderance of the evidence." (citing cases). "Clear and convincing" is the highest standard of proof in civil law and is "reserved for cases 'where particularly important individual interests or rights are at stake....'" such as termination of parental rights, civil fraud, involuntary commitment, and public figure defamation.
Meeting the "clear and convincing" standard requires that the witnesses be found to be credible, the facts to which they have testified be remembered distinctly, and their testimony be so clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.
The court found that this case was like Ruane v. Shippensburg Univ., 871 A.2d 859 (2005), in which it applied the preponderance standard in a matter involving the suspension of a student for sexual assault. It rejected the analogy to an attorney disbarment case in which the clear-and-convincing standard was applied, ODC v. Duffield, 644 A.2d 1186 (Pa. 1994).
Donald Marritz
MidPenn Legal Services
Friday, October 28, 2005
Pennsylvania Bulletin of October 29, 2005
Here is the link to the Pennsylvania Bulletin of October 29, 2005
http://www.pabulletin.com/secure/data/vol35/35-44/index.html
Items of potential interest include --
-DPW - personal care homes - delayed implementation of some regs
http://www.pabulletin.com/secure/data/vol35/35-44/1981.html
- local court rules - Crawford County -
http://www.pabulletin.com/secure/data/vol35/35-44/1977.html
- local court rules - Lehigh County
http://www.pabulletin.com/secure/data/vol35/35-44/1978.html
- local court rules - Somerset County
http://www.pabulletin.com/secure/data/vol35/35-44/1979.html
http://www.pabulletin.com/secure/data/vol35/35-44/1980.html
lean pickings
Donald Marritz
MidPenn Legal Services
http://www.pabulletin.com/secure/data/vol35/35-44/index.html
Items of potential interest include --
-DPW - personal care homes - delayed implementation of some regs
http://www.pabulletin.com/secure/data/vol35/35-44/1981.html
- local court rules - Crawford County -
http://www.pabulletin.com/secure/data/vol35/35-44/1977.html
- local court rules - Lehigh County
http://www.pabulletin.com/secure/data/vol35/35-44/1978.html
- local court rules - Somerset County
http://www.pabulletin.com/secure/data/vol35/35-44/1979.html
http://www.pabulletin.com/secure/data/vol35/35-44/1980.html
lean pickings
Donald Marritz
MidPenn Legal Services
Wednesday, October 26, 2005
disability - med. equivalency - evidence
Oakes v. Barnhart - ED Pa. - October 18, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1276P.pdf
The court rejected the magistrate's recommendation that summary judgment be granted to plaintiff (P) and, rather, granted s/j to defendant (D).
The magistrate believed that the ALJ's equivalency decision was not supported by substantial evidence, because the ALJ failed to secure the testimony of a medical expert before determining that plaintiff's impairment did not equal a listing. The magistrate recommended that the case be remanded for the taking of medical evidence about whether the combination of P's impairments equaled a listed impairment.
The court rejected this reasoning and agreed with SSA that under its "testing modifications" policy set out at 20 CFR 404.906(b)(2), it had "fundamentally altered" its former long-standing policy by allowing an ALJ to use medical expert testimony when "appropriate," rather than requiring the opinion of a medical consultant to determine if a claimant met or equaled a listed impairment. This testing modification policy applies to cases decided in Pennsylvania and nine other states.
The court held that 20 CFR 404.906(b)(1) and (2) established a "single decisionmaker model" and that the ALJ is not required to seek a medical opinion of the issue of equivalence, although s/he may do so where "appropriate," thus going from a "mandatory to discretionary use of medical experts on the issue of equivalency."
The Court upheld the ALJ decision on (non)equivalency and granted s/j to defendant.
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1276P.pdf
The court rejected the magistrate's recommendation that summary judgment be granted to plaintiff (P) and, rather, granted s/j to defendant (D).
The magistrate believed that the ALJ's equivalency decision was not supported by substantial evidence, because the ALJ failed to secure the testimony of a medical expert before determining that plaintiff's impairment did not equal a listing. The magistrate recommended that the case be remanded for the taking of medical evidence about whether the combination of P's impairments equaled a listed impairment.
The court rejected this reasoning and agreed with SSA that under its "testing modifications" policy set out at 20 CFR 404.906(b)(2), it had "fundamentally altered" its former long-standing policy by allowing an ALJ to use medical expert testimony when "appropriate," rather than requiring the opinion of a medical consultant to determine if a claimant met or equaled a listed impairment. This testing modification policy applies to cases decided in Pennsylvania and nine other states.
The court held that 20 CFR 404.906(b)(1) and (2) established a "single decisionmaker model" and that the ALJ is not required to seek a medical opinion of the issue of equivalence, although s/he may do so where "appropriate," thus going from a "mandatory to discretionary use of medical experts on the issue of equivalency."
The Court upheld the ALJ decision on (non)equivalency and granted s/j to defendant.
Donald Marritz
MidPenn Legal Services
Tuesday, October 25, 2005
ADA - employment - regarded as having a disability
Eshelman v. Agere Systems, Inc. - ED Pa. - October 19, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1278P.pdf
The court rejected the defendant's post-trial motion to overturn a jury verdict for plaintiff, whom it found that defendant had "regarded as disabled" under the Americans with Disabilities Act. Plaintiff established that she is an "qualified individual with a disability," 42 USC 12112(a), i.e., a person who with or w/o a reasonable accommodation can perform the essential functions of the job that she holds or wants.
A "disability" is defined as either a) physical/mental impairment that substantially limits one or more major life activities, or b) a record of such impairment, or c) being regarded as having such an impairment.
A person is "regarded as having a disability if a) she has an impairment that doesn't limit any major life function, but is treated by the employer as if it does; b) she has an impairment that does limit her, but only as a result of the attitude of others; or c) has no impairment but is treated as having a substantially limiting impairment., 29 CFR 1630.2(1).
Plaintiff prevailed because she showed that she was discriminated against by her employer, who believed that she was unable to work in a particular class or broad range of jobs, as required in the definition of disability.
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1278P.pdf
The court rejected the defendant's post-trial motion to overturn a jury verdict for plaintiff, whom it found that defendant had "regarded as disabled" under the Americans with Disabilities Act. Plaintiff established that she is an "qualified individual with a disability," 42 USC 12112(a), i.e., a person who with or w/o a reasonable accommodation can perform the essential functions of the job that she holds or wants.
A "disability" is defined as either a) physical/mental impairment that substantially limits one or more major life activities, or b) a record of such impairment, or c) being regarded as having such an impairment.
A person is "regarded as having a disability if a) she has an impairment that doesn't limit any major life function, but is treated by the employer as if it does; b) she has an impairment that does limit her, but only as a result of the attitude of others; or c) has no impairment but is treated as having a substantially limiting impairment., 29 CFR 1630.2(1).
Plaintiff prevailed because she showed that she was discriminated against by her employer, who believed that she was unable to work in a particular class or broad range of jobs, as required in the definition of disability.
Donald Marritz
MidPenn Legal Services
Monday, October 24, 2005
UC - willful misconduct - decision of another agency is not WM per se
Woods Services v. UCBR - Commonwealth Court - October 2, 4 2005
http://www.courts.state.pa.us/OpPosting/CWealth/out/784CD05_10-24-05.pdf
Held, determination of county child/youth services (CYS) agency that an employee of a residential treatment facility "abused" one of his clients "does not constitute willful misconduct per se." The finding is enough to terminate a claimant's employment, which the employer had to do to retain its DPW license to run the facility. Without more, however, the CYS determination does not support a finding of willful misconduct. The employer "failed to present any admissible testimony or evidence, independent of the…. determination, to support a finding of willful misconduct."
The employer did only a cursory investigation. Its proffered testimony was hearsay and rejected. Claimant and an eyewitness testified. The Board resolved all credibility issues in favor of the claimant and his witness. "Our review of the record supports the Board's finding the Employer failed to directly link the CYS finding of child abuse to Claimant for purposes of establishing willful misconduct….."
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/CWealth/out/784CD05_10-24-05.pdf
Held, determination of county child/youth services (CYS) agency that an employee of a residential treatment facility "abused" one of his clients "does not constitute willful misconduct per se." The finding is enough to terminate a claimant's employment, which the employer had to do to retain its DPW license to run the facility. Without more, however, the CYS determination does not support a finding of willful misconduct. The employer "failed to present any admissible testimony or evidence, independent of the…. determination, to support a finding of willful misconduct."
The employer did only a cursory investigation. Its proffered testimony was hearsay and rejected. Claimant and an eyewitness testified. The Board resolved all credibility issues in favor of the claimant and his witness. "Our review of the record supports the Board's finding the Employer failed to directly link the CYS finding of child abuse to Claimant for purposes of establishing willful misconduct….."
Donald Marritz
MidPenn Legal Services
disability - fibromyalgia - credibility - treating physician
Kurilla v. Barnhart - ED Pa. - October 18, 20
http://www.paed.uscourts.gov/documents/opinions/05D1280P.pdf
Case remanded (sentence four, 42 USC 405(g)) because of ALJ errors on credibility and use of reports of treating physicians.
The ALJ's credibility finding was not supported by substantial evidence or made in accordance with SSR 96-7p, which requires careful consideration of statements about symptoms such as pain, which may suggest a greater impairment than shown by the objective medical evidence alone. This is especially true in the case of fibromyalgia, an impairment which is "mysterious and elusive....because it lacks both a clear etiology and objective diagnostic testing capable of verifying the legitimacy of accompanying symptoms."
The finding and statements of claimant's treatment providers was not given sufficient weight. If they are supported by medical date, they should be accepted absent contradictory medical evidence (citing 3d Cir. precedent). The record about fibromyalgia consisted solely of claimant's complaints and his treating physician's diagnosis that he was disabled. Without any evidence to the contrary than the ALJ's erroneous determination that claimant lacked credibility, the court concluded that the ALJ's rejection of the treating physician's opinion was impermissible, because it was not based on substantial evidence.
The court remanded the case for a new consultative exam about the effects of claimant's fibromyalgia on his RFC and a new RFC assessment by a physician, preferably a rheumatologist who has experience and an expertise in fibromyalgia and its related symptoms.
The court did not simply reverse and grant benefits, because "granting...benefits at Step 4 improperly truncates the sequential evaluation process. Step 5 of the process is necessary to determine whether the claimant could perform a less demanding level of work, such as sedentary work."
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1280P.pdf
Case remanded (sentence four, 42 USC 405(g)) because of ALJ errors on credibility and use of reports of treating physicians.
The ALJ's credibility finding was not supported by substantial evidence or made in accordance with SSR 96-7p, which requires careful consideration of statements about symptoms such as pain, which may suggest a greater impairment than shown by the objective medical evidence alone. This is especially true in the case of fibromyalgia, an impairment which is "mysterious and elusive....because it lacks both a clear etiology and objective diagnostic testing capable of verifying the legitimacy of accompanying symptoms."
The finding and statements of claimant's treatment providers was not given sufficient weight. If they are supported by medical date, they should be accepted absent contradictory medical evidence (citing 3d Cir. precedent). The record about fibromyalgia consisted solely of claimant's complaints and his treating physician's diagnosis that he was disabled. Without any evidence to the contrary than the ALJ's erroneous determination that claimant lacked credibility, the court concluded that the ALJ's rejection of the treating physician's opinion was impermissible, because it was not based on substantial evidence.
The court remanded the case for a new consultative exam about the effects of claimant's fibromyalgia on his RFC and a new RFC assessment by a physician, preferably a rheumatologist who has experience and an expertise in fibromyalgia and its related symptoms.
The court did not simply reverse and grant benefits, because "granting...benefits at Step 4 improperly truncates the sequential evaluation process. Step 5 of the process is necessary to determine whether the claimant could perform a less demanding level of work, such as sedentary work."
Donald Marritz
MidPenn Legal Services
Saturday, October 22, 2005
employment - FMLA - advance notice provision
Solovey v. Wyoming Valley Health Care System-Hospital, MD Pa. - October 13, 2005
http://www.pamd.uscourts.gov/opinions/conaboy/04v2683.pdf
Held, that the employer's (ER) policy of requiring two-week advance notice before being able to take an accrued paid vacation day violates the FMLA. Summary judgment granted to plaintiff-employee.
Plaintiff's father was placed in hospice care in June 2003. On June 23, plaintiff left work in mid-shift after learning that her father's condition had worsened. She spent June 23 and 25 with her father and returned to work on June 26th, but left early when she learned that his condition had become critical. She remained out on June 27 and her father died on June 28.
Plaintiff was paid for June 23 and 24 through a policy of "family ill days." The ER deemed the other time missed as FMLA leave but denied her request to use accrued vacation time to cover her other absences, because she had not complied with the collective bargaining agreement (CBA) requirement that she give a two-week notice before taking a vacation in order that the absence qualify for use of paid vacation time. Plaintiff couldn't give such notice, because she didn't know of her need to use it until June 22nd.
The court agreed with plaintiff that sec. 2612 of the FMLA, 29 USC 2612(d)(2)(A), is an express grant allowing her to use accrued vacation w/o the restriction of a two-week notice policy. The statute also holds that a CBA may grant more rights than the FMLA but may not diminish FMLA rights. To adopt the ER's argument would mean that an employee who had ample accrued pain vacation time to substitute for FMLA leave might have to go w/o pay for up to two weeks in the common situation where a serious health situation requiring leave was not foreseeable. This is the kind of economic hardship the FMLA seeks to avoid. It is appropriate to treat a procedural impediment (two-week notice) to using paid leave differently from a substantive right to use the leave (e.g. has the leave time vested? how much has accrued?). The court also found that the ER had no business reason other than its desire to enforce strict adherence to the procedural aspects of the CBA vacation policy to prohibit an employee from taking paid time off during the two-week notice period, when the need for the FMLA leave was not foreseeable.
Donald Marritz, staff attorney
MidPenn Legal Services
http://www.pamd.uscourts.gov/opinions/conaboy/04v2683.pdf
Held, that the employer's (ER) policy of requiring two-week advance notice before being able to take an accrued paid vacation day violates the FMLA. Summary judgment granted to plaintiff-employee.
Plaintiff's father was placed in hospice care in June 2003. On June 23, plaintiff left work in mid-shift after learning that her father's condition had worsened. She spent June 23 and 25 with her father and returned to work on June 26th, but left early when she learned that his condition had become critical. She remained out on June 27 and her father died on June 28.
Plaintiff was paid for June 23 and 24 through a policy of "family ill days." The ER deemed the other time missed as FMLA leave but denied her request to use accrued vacation time to cover her other absences, because she had not complied with the collective bargaining agreement (CBA) requirement that she give a two-week notice before taking a vacation in order that the absence qualify for use of paid vacation time. Plaintiff couldn't give such notice, because she didn't know of her need to use it until June 22nd.
The court agreed with plaintiff that sec. 2612 of the FMLA, 29 USC 2612(d)(2)(A), is an express grant allowing her to use accrued vacation w/o the restriction of a two-week notice policy. The statute also holds that a CBA may grant more rights than the FMLA but may not diminish FMLA rights. To adopt the ER's argument would mean that an employee who had ample accrued pain vacation time to substitute for FMLA leave might have to go w/o pay for up to two weeks in the common situation where a serious health situation requiring leave was not foreseeable. This is the kind of economic hardship the FMLA seeks to avoid. It is appropriate to treat a procedural impediment (two-week notice) to using paid leave differently from a substantive right to use the leave (e.g. has the leave time vested? how much has accrued?). The court also found that the ER had no business reason other than its desire to enforce strict adherence to the procedural aspects of the CBA vacation policy to prohibit an employee from taking paid time off during the two-week notice period, when the need for the FMLA leave was not foreseeable.
Donald Marritz, staff attorney
MidPenn Legal Services
employment - wrongful discharge - sexual harassment
Weaver v. Harpster -- Pa. Superior Court, October 21, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/s44032_05.pdf
Plaintiff, an at-will employee, held to have stated a common law cause of action for wrongful discharge based on allegations of sexual harassment, even though the employer (ER) did not meet definition of "employer" under the Pa. Human Relations Act (PHRA) because it had fewer than four employees.
The court rejected the notion that there is never an alternative to the PHRA as an avenue for relief for sexual discrimination. It also held that, under the circumstances, there was a public policy exception to the at-will employment doctrine, because state law -- a statute and the state constitution -- established a "clear public policy against sexual discrimination."
Plaintiff had quit her job because of intolerable work conditions. Her request that the PHRC investigate and take action was rejected because the ER did not meet the statutory definition of "employer." Plaintiff then filed a case in the common pleas court claiming, inter alia, wrongful discharge. The ER's preliminary objections were sustained. The lower court held that the state PHRA provided the exclusive remedy for employment discrimination based on sex, and that since the PHRA provided plaintiff no remedy, she had none.
Donald Marritz, staff attorney
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/s44032_05.pdf
Plaintiff, an at-will employee, held to have stated a common law cause of action for wrongful discharge based on allegations of sexual harassment, even though the employer (ER) did not meet definition of "employer" under the Pa. Human Relations Act (PHRA) because it had fewer than four employees.
The court rejected the notion that there is never an alternative to the PHRA as an avenue for relief for sexual discrimination. It also held that, under the circumstances, there was a public policy exception to the at-will employment doctrine, because state law -- a statute and the state constitution -- established a "clear public policy against sexual discrimination."
Plaintiff had quit her job because of intolerable work conditions. Her request that the PHRC investigate and take action was rejected because the ER did not meet the statutory definition of "employer." Plaintiff then filed a case in the common pleas court claiming, inter alia, wrongful discharge. The ER's preliminary objections were sustained. The lower court held that the state PHRA provided the exclusive remedy for employment discrimination based on sex, and that since the PHRA provided plaintiff no remedy, she had none.
Donald Marritz, staff attorney
MidPenn Legal Services
Friday, October 21, 2005
UC - VQ - demotion - justification v. substantial change analysis
Diversified Management Care v. UCBR -- Commonwealth Court - October 21, 2005 (2-1 decision)
http://www.courts.state.pa.us/OpPosting/CWealth/out/796CD05_10-21-05.pdf
Claimant (CL) quit her job when she was demoted. There was a reduction in her responsibilities but no reduction in pay or benefits. The employer (ER) demoted CL over an incident in which her son was arrested and faced criminal charges. During this period, she used ER phones to discuss what the UCBR found were "pressing legal and financial matters." There was no ER policy about using phones for personal reasons. The Board found no misconduct or even poor judgment on CL's part.
The ER claimed that the UCBR should have used the "substantial change analysis" to decide the case, and that the CL had failed to show that her job duties had substantially changed as a result of her demotion.
The court cited Allegheny Valley School District v. UCBR, 697 A.2d 243 (Pa. 1997) as setting forth the "appropriate standard" for determining whether a claimant has good cause to quit a job after a demotion. In that case, the court said that the focus in such a case should be "the justification for the demotion." If the demotion was justified, the claimant should get no benefits. If it wasn’t, benefits should be granted. The Commonwealth Court thus upheld the UCBR's application of the justification analysis and its refusal to use the change-of-circumstances analysis.
The Court also upheld the UCBR's reliance on the fact that the ER had no policy prohibiting the way that CL used the phones. The "Board did not err when it based its decision in part on the fact that Employer had no telephone policy, or, more important, that the demotion was unjustified."
Dissenting opinion -- Judge Leavitt filed a dissenting opinion, arguing that the Allegheny Valley case was factually different from instant case. The former involved both a reduction in responsibilities and in salary. The instant case involved only a reduction in responsibilities. The dissent felt that, for that reason, the correct analysis should have been substantial change. She felt that the justification analysis is appropriate if there is a reduction in duties and salary -- whether both of those factors are present so as to constitute a demotion. If so, then the justification analysis is applicable.
Because the instant case only involved a reduction in responsibilities and not in salary, the dissent felt that Allegheny Valley was "distinguishable...and…inapposite. In other words, inquiry into the justification for Claimant's so-called demotion is unnecessary." The Board didn't make findings about substantial change. Without those, and the impact that such changes had on her, "it is impossible to determine whether those changes were substantial and whether 'like circumstances would compel a reasonable person' to voluntarily quit." Judge Leavitt also disagreed with putting the burden on the employer to prove that the demotion was justified, given that in VQ cases, the burden is on the claimant. Overall, the dissent felt that the majority had undermined the goal of the Allegheny Valley court "to avoid intruding upon the ability of employers to make 'valid demotion'….The test should not be whether the Board agrees with the Employer's decision to relieve Claimant of her supervisory responsibilities but whether Employer can show that its stated reasons for a demotion can be factually supported."
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/CWealth/out/796CD05_10-21-05.pdf
Claimant (CL) quit her job when she was demoted. There was a reduction in her responsibilities but no reduction in pay or benefits. The employer (ER) demoted CL over an incident in which her son was arrested and faced criminal charges. During this period, she used ER phones to discuss what the UCBR found were "pressing legal and financial matters." There was no ER policy about using phones for personal reasons. The Board found no misconduct or even poor judgment on CL's part.
The ER claimed that the UCBR should have used the "substantial change analysis" to decide the case, and that the CL had failed to show that her job duties had substantially changed as a result of her demotion.
The court cited Allegheny Valley School District v. UCBR, 697 A.2d 243 (Pa. 1997) as setting forth the "appropriate standard" for determining whether a claimant has good cause to quit a job after a demotion. In that case, the court said that the focus in such a case should be "the justification for the demotion." If the demotion was justified, the claimant should get no benefits. If it wasn’t, benefits should be granted. The Commonwealth Court thus upheld the UCBR's application of the justification analysis and its refusal to use the change-of-circumstances analysis.
The Court also upheld the UCBR's reliance on the fact that the ER had no policy prohibiting the way that CL used the phones. The "Board did not err when it based its decision in part on the fact that Employer had no telephone policy, or, more important, that the demotion was unjustified."
Dissenting opinion -- Judge Leavitt filed a dissenting opinion, arguing that the Allegheny Valley case was factually different from instant case. The former involved both a reduction in responsibilities and in salary. The instant case involved only a reduction in responsibilities. The dissent felt that, for that reason, the correct analysis should have been substantial change. She felt that the justification analysis is appropriate if there is a reduction in duties and salary -- whether both of those factors are present so as to constitute a demotion. If so, then the justification analysis is applicable.
Because the instant case only involved a reduction in responsibilities and not in salary, the dissent felt that Allegheny Valley was "distinguishable...and…inapposite. In other words, inquiry into the justification for Claimant's so-called demotion is unnecessary." The Board didn't make findings about substantial change. Without those, and the impact that such changes had on her, "it is impossible to determine whether those changes were substantial and whether 'like circumstances would compel a reasonable person' to voluntarily quit." Judge Leavitt also disagreed with putting the burden on the employer to prove that the demotion was justified, given that in VQ cases, the burden is on the claimant. Overall, the dissent felt that the majority had undermined the goal of the Allegheny Valley court "to avoid intruding upon the ability of employers to make 'valid demotion'….The test should not be whether the Board agrees with the Employer's decision to relieve Claimant of her supervisory responsibilities but whether Employer can show that its stated reasons for a demotion can be factually supported."
Donald Marritz
MidPenn Legal Services
Pennsylvania Bulletin of October 22, 2005
Here is the link to the Pennsylvania Bulletin of October 22, 2005
http://www.pabulletin.com/secure/data/vol35/35-43/index.html
Items of potential interest include ----
- recent statutes
http://www.pabulletin.com/secure/data/vol35/35-43/1937.html
- appellate rules - criminal - stays in capital cases
http://www.pabulletin.com/secure/data/vol35/35-43/1938.html
- local rules - Lehigh County - juvenile cases
http://www.pabulletin.com/secure/data/vol35/35-43/1941.html
http://www.pabulletin.com/secure/data/vol35/35-43/1942.html
- welfare- payments to nursing facilities - final rates for fiscal 2004-5
http://www.pabulletin.com/secure/data/vol35/35-43/1942.html
- welfare - peer groups, peer group medians, peer group prices for various facilities
http://www.pabulletin.com/secure/data/vol35/35-43/1954.html
- revenue - Jolly Holiday Lottery game
http://www.pabulletin.com/secure/data/vol35/35-43/1915.html
- Dept. of Labor & Industry - reorganization chart
http://www.pabulletin.com/secure/data/vol35/35-43/1947.html
- education - IRRC approval of educ. regs. - student rights and responsibilities
http://www.pabulletin.com/secure/data/vol35/35-43/1957.html
Donald Marritz
MidPenn Legal Services
http://www.pabulletin.com/secure/data/vol35/35-43/index.html
Items of potential interest include ----
- recent statutes
http://www.pabulletin.com/secure/data/vol35/35-43/1937.html
- appellate rules - criminal - stays in capital cases
http://www.pabulletin.com/secure/data/vol35/35-43/1938.html
- local rules - Lehigh County - juvenile cases
http://www.pabulletin.com/secure/data/vol35/35-43/1941.html
http://www.pabulletin.com/secure/data/vol35/35-43/1942.html
- welfare- payments to nursing facilities - final rates for fiscal 2004-5
http://www.pabulletin.com/secure/data/vol35/35-43/1942.html
- welfare - peer groups, peer group medians, peer group prices for various facilities
http://www.pabulletin.com/secure/data/vol35/35-43/1954.html
- revenue - Jolly Holiday Lottery game
http://www.pabulletin.com/secure/data/vol35/35-43/1915.html
- Dept. of Labor & Industry - reorganization chart
http://www.pabulletin.com/secure/data/vol35/35-43/1947.html
- education - IRRC approval of educ. regs. - student rights and responsibilities
http://www.pabulletin.com/secure/data/vol35/35-43/1957.html
Donald Marritz
MidPenn Legal Services
Wednesday, October 19, 2005
bankruptcy - mobile home - ch. 13 - cram down - realty v. personalty - valuation
Nowlin v. Tammac Corporation - ED Pa. - October 17, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1267P.pdf
Nowlin filed a chapter 13 bankruptcy case and brought an adversary action against the secured holder of her installment loan contract, seeking a cram down its claim to the actual value of her mobile home. The bankruptcy court held that
a) the mobile home was personalty, not realty;
b) the value was $38,000, compared to principal balance at time of trial of $41, 368.28;
c) interest of 8% should apply to the creditor's claim, as opposed to the contract rate of 12.5%.
Nowlin appealed the valuation, which she thought should be lower, as well as the 8% interest rate. The creditor appealed the ruling that the home was personality and not realty.
The district court held that
a) the home was personalty, in the bankruptcy context (detailed discussion of this issue) - This determination allowed the court to bifurcate the creditor's claim into secured and unsecured elements, based on fair market value.
b) the valuation of $38,000 was not clearly erroneous -- somewhere between the $ figures provided by the parties' experts.
c) 8% was the appropriate interest rate to be applied to the crammed down claim, under a
"formula approach" - national prime rate, adjusted according to risk factors.
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1267P.pdf
Nowlin filed a chapter 13 bankruptcy case and brought an adversary action against the secured holder of her installment loan contract, seeking a cram down its claim to the actual value of her mobile home. The bankruptcy court held that
a) the mobile home was personalty, not realty;
b) the value was $38,000, compared to principal balance at time of trial of $41, 368.28;
c) interest of 8% should apply to the creditor's claim, as opposed to the contract rate of 12.5%.
Nowlin appealed the valuation, which she thought should be lower, as well as the 8% interest rate. The creditor appealed the ruling that the home was personality and not realty.
The district court held that
a) the home was personalty, in the bankruptcy context (detailed discussion of this issue) - This determination allowed the court to bifurcate the creditor's claim into secured and unsecured elements, based on fair market value.
b) the valuation of $38,000 was not clearly erroneous -- somewhere between the $ figures provided by the parties' experts.
c) 8% was the appropriate interest rate to be applied to the crammed down claim, under a
"formula approach" - national prime rate, adjusted according to risk factors.
Donald Marritz
MidPenn Legal Services
debt collection - FDCPA - attorney fees
Moyer v. Turnbrook Associates, Inc. -- ED Pa. - October 17, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1270P.pdf
The court rejected all of defendant's arguments and awarded attorney fees to plaintiff's counsel under the Fair Debt Collection Practices Act, 15 USC 1692 et seq.
size of award - Plaintiff's judgment was for $1,000, the statutory maximum. The judgment was based on defendant's failure to comply with the statutory requirements, "suggesting a significant level of non-compliance. Attorney fees are then mandatory under" Graziano v. Harrison, 950 F.2d 107 (3d Cir. 1991).
timing of request for fees -- Defendant said that plaintiff should have made her claim for fees during arbitration. Federal civil rules require plaintiff to request fees no later than 14 days after the entry of judgment. Plaintiff filed w/in that time.
proper party defendant - post-judgment amendment of pleading - Defendant said that the judgment against the corporate entity was unenforceable against the unincorporated Turnbrook Associates. The court allowed a post-judgment amendment of the pleading, under equitable estoppel principles, because defendant "actively misled" plaintiff when it admitted that it was a N.J. corporation.
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1270P.pdf
The court rejected all of defendant's arguments and awarded attorney fees to plaintiff's counsel under the Fair Debt Collection Practices Act, 15 USC 1692 et seq.
size of award - Plaintiff's judgment was for $1,000, the statutory maximum. The judgment was based on defendant's failure to comply with the statutory requirements, "suggesting a significant level of non-compliance. Attorney fees are then mandatory under" Graziano v. Harrison, 950 F.2d 107 (3d Cir. 1991).
timing of request for fees -- Defendant said that plaintiff should have made her claim for fees during arbitration. Federal civil rules require plaintiff to request fees no later than 14 days after the entry of judgment. Plaintiff filed w/in that time.
proper party defendant - post-judgment amendment of pleading - Defendant said that the judgment against the corporate entity was unenforceable against the unincorporated Turnbrook Associates. The court allowed a post-judgment amendment of the pleading, under equitable estoppel principles, because defendant "actively misled" plaintiff when it admitted that it was a N.J. corporation.
Donald Marritz
MidPenn Legal Services
Monday, October 17, 2005
ADA - standing - injury in fact
Kratzer v. Gamma Management - ED Pa. -- October 12, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1259P.pdf
Defendant's motion for summary judgment denied on plaintiffs' ADA claims.
Plaintiffs alleged that they are qualified individuals with disabilities under the Americans with Disabilities Act (ADA), 42 USC sec. 12101 et seq. Defendant corporation is the operator of a Ramada Inn and Conference Center. Plaintiffs said that they visited the Ramada and were denied full, safe and equal access due to barriers and Defendant's lack of compliance with the ADA.
Defendant moved for summary judgment, alleged that plaintiffs do not have standing, because they have never tried to stay at the hotel and have no current plans to hold a conference there. Standing requires an "injury in fact." Plaintiffs did allege that each has personally visited the center, continues to desire to visit, and has attended a conference there. They made very specific allegations about the particular shortcomings of the facility.
The ADA gives remedies to "any person who is being subjected to discrimination on the basis of disability...or who has reasonable grounds for believing that such person is about to be subjected to discrimination" in violation of the ADA, 42 USC sec. 12188(a)(1). The provision also states that "[n]othing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization" covered by the law does not intend to comply with the ADA.
No circuit court appears to have addressed the precise issue here -- whether a plaintiff who has visited a facility and identified alleged compliance problems may, after a new operator has taken over, assert a claim alleging ADA violations that are grounded in a plaintiff's intended future use of the newly operated facility." However, precedent from other circuits has held that the "futility provision" allows a suit so long as the plaintiff establishes knowledge of the barriers and that they would visit the facility but for the barriers. Other circuits have held that a plaintiff who is deterred from patronizing a public accommodation because of defendant's failure to comply with the ADA may be considered to have suffered an injury in fact. Many district courts have held likewise.
Defendant's motion for summary judgment denied.
http://www.paed.uscourts.gov/documents/opinions/05D1259P.pdf
Defendant's motion for summary judgment denied on plaintiffs' ADA claims.
Plaintiffs alleged that they are qualified individuals with disabilities under the Americans with Disabilities Act (ADA), 42 USC sec. 12101 et seq. Defendant corporation is the operator of a Ramada Inn and Conference Center. Plaintiffs said that they visited the Ramada and were denied full, safe and equal access due to barriers and Defendant's lack of compliance with the ADA.
Defendant moved for summary judgment, alleged that plaintiffs do not have standing, because they have never tried to stay at the hotel and have no current plans to hold a conference there. Standing requires an "injury in fact." Plaintiffs did allege that each has personally visited the center, continues to desire to visit, and has attended a conference there. They made very specific allegations about the particular shortcomings of the facility.
The ADA gives remedies to "any person who is being subjected to discrimination on the basis of disability...or who has reasonable grounds for believing that such person is about to be subjected to discrimination" in violation of the ADA, 42 USC sec. 12188(a)(1). The provision also states that "[n]othing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization" covered by the law does not intend to comply with the ADA.
No circuit court appears to have addressed the precise issue here -- whether a plaintiff who has visited a facility and identified alleged compliance problems may, after a new operator has taken over, assert a claim alleging ADA violations that are grounded in a plaintiff's intended future use of the newly operated facility." However, precedent from other circuits has held that the "futility provision" allows a suit so long as the plaintiff establishes knowledge of the barriers and that they would visit the facility but for the barriers. Other circuits have held that a plaintiff who is deterred from patronizing a public accommodation because of defendant's failure to comply with the ADA may be considered to have suffered an injury in fact. Many district courts have held likewise.
Defendant's motion for summary judgment denied.
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