Pennsylvania Bulletin of April 8, 2006

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

custody - standing - adoptive grandparent - parents separated

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

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

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

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

Disability - GAF scores

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

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

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

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

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

consumer protection - damages - benefit of the bargain

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

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

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

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

Pennsylvania Bulletin of April 1, 2006

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

Of possible interest -

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

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

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

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

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

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

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

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

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

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

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

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

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

consumer - RICO - fraud - specificity

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

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

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

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

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

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

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

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

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

Case remanded.

social security disability case - multiple issues

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

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

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

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

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

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

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

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

ADA - SSD - no estoppel

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

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

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

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

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

custody - relocation - intrastate

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

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

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

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

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

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

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

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

Pennsylvania Bulletin of March 25, 2006

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

Of possible interest-

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

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

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

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

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

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

SSA Issues New Rules on Medical Equivalence in Disability Determinations

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

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

Final Rules

Pennsylvania Bulletin of March 18, 2006

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

Of possible interest-

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

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

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

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

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

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

disability - depression/alcoholism - prescribed treatment

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

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

Alcohol/depression case. Case remanded where

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

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

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

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

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

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

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

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

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

custody - relocation - no prior custody order

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

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

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

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

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

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

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