Walter and Green et al. v. SEPTA - ED Pa. - June 2, 2006
http://www.paed.uscourts.gov/documents/opinions/06d0684p.pdf
Under the Americans with Disabilities Act, SEPTA has to provide paratransit services, 42 USC 12143, to disabled riders for "rail" service for not for "commuter rail" service.
Thursday, June 15, 2006
Tuesday, June 13, 2006
UC - non-attorney representation of parties
Piunti et al. v. UCBR - Commonwealth Court - June 13, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/482MD05_6-13-06.pdf
Four attorneys who alleged that they routinely practice UC law filed an original action in Commonwealth Court asking for a declaratory judgment against the UC Board of Review. Petitioners attacked the constitutionality of sec. 214 of the UC Law, 43 PS sec. 862, Act 5 of 2005, entitled "representation in proceedings -- Any party in any proceeding under this act before the department, a referee or the board may be represented by an attorney or other representive."
Act 5 was enacted in response to the decision ion Harkness v. UCBR, 867 A.2d 728 (Pa. Cmwlth. 2005, appeal granted, 885 A.2d 980, where the Commonwealth Court found that representing corporations in UC cases involved the practice of law was not permitted under Article V, sec. 10 of the state constitution, which gives the state supreme court the sole power to regulate the practice of law.
The UCBR challenged the Petitioners' standing and said they had not stated a claim for relief. As to the latter, the Board claimed the Act 5 "does not restrict or regulate the practice of law" but "simply permits laypersons to 'advocate' in unemployment proceedings, therefore it is not at odds with the Supreme Court's authority to regulate attorneys and the practice of law."
In a 5-2 decision, the Court found that Petitioners were "aggrieved" and had a substantial, direct and immediate interest in the outcome of the case and thus had standing to bring the case. On the merits, the Court held that the Petitioners had stated a claim for relief. As it had previously said in Harkness v. UCBR, 867 A.2d 728 (Pa. Cmwlth. 2005, appeal granted, 885 A.2d 980 (filed Sept. 28, 2005), the court found that representing corporations in UC hearings was the practice of law, over which the Supreme Court has "exclusive jurisdiction" under Article V, sec. 10. "The exclusive jurisdiction encompasses a responsibility that laypersons not practice law without a license and that corporations not appear in our courts in propria persona or otherwise unrepresented by counsel. Whether special circumstances exist which justify such representation of corporations in unemployment proceedings is for the Supreme Court to decide, not the General Assembly."
http://www.courts.state.pa.us/OpPosting/CWealth/out/482MD05_6-13-06.pdf
Four attorneys who alleged that they routinely practice UC law filed an original action in Commonwealth Court asking for a declaratory judgment against the UC Board of Review. Petitioners attacked the constitutionality of sec. 214 of the UC Law, 43 PS sec. 862, Act 5 of 2005, entitled "representation in proceedings -- Any party in any proceeding under this act before the department, a referee or the board may be represented by an attorney or other representive."
Act 5 was enacted in response to the decision ion Harkness v. UCBR, 867 A.2d 728 (Pa. Cmwlth. 2005, appeal granted, 885 A.2d 980, where the Commonwealth Court found that representing corporations in UC cases involved the practice of law was not permitted under Article V, sec. 10 of the state constitution, which gives the state supreme court the sole power to regulate the practice of law.
The UCBR challenged the Petitioners' standing and said they had not stated a claim for relief. As to the latter, the Board claimed the Act 5 "does not restrict or regulate the practice of law" but "simply permits laypersons to 'advocate' in unemployment proceedings, therefore it is not at odds with the Supreme Court's authority to regulate attorneys and the practice of law."
In a 5-2 decision, the Court found that Petitioners were "aggrieved" and had a substantial, direct and immediate interest in the outcome of the case and thus had standing to bring the case. On the merits, the Court held that the Petitioners had stated a claim for relief. As it had previously said in Harkness v. UCBR, 867 A.2d 728 (Pa. Cmwlth. 2005, appeal granted, 885 A.2d 980 (filed Sept. 28, 2005), the court found that representing corporations in UC hearings was the practice of law, over which the Supreme Court has "exclusive jurisdiction" under Article V, sec. 10. "The exclusive jurisdiction encompasses a responsibility that laypersons not practice law without a license and that corporations not appear in our courts in propria persona or otherwise unrepresented by counsel. Whether special circumstances exist which justify such representation of corporations in unemployment proceedings is for the Supreme Court to decide, not the General Assembly."
Sunday, June 11, 2006
employment - Title VII - religious institution
Curay-Cramer v. The Ursuline Academy
http://www.ca3.uscourts.gov/opinarch/044628p.pdf
Former teacher at private Catholic school failed to state cause of action under Title VII of the Civil Rights Act, 42 USC 2000e et seq. or the Pregnancy Discrimination Act, 42 USC 2000e(k). The teacher was fired after she signed her name to a pro-choice advertisement in a local newspaper.
The court held that she did not engage in protected activity or "opposition conduct" in signing the advertisement, which made no reference to any alleged illegal employment practice by the school, either specifically or through context. Her protest or expression was only a public endorsement of Roe v. Wade. It had no "perceptible connection to the employer's alleged illegal employment practice."
The court also held that plaintiff's claim that she was disciplined differently than male employees was foreclosed by the religion clauses of the US Constitution, citing NLRB v. Catholic Bishop of Chicago,440 US 490 (1979), since resolution of her claim would require an analysis of church doctrine and church orthodoxy. In addition, plaintiff had not alleged any similar conduct by a male employee. The court thus distinguished the case from one in which a plaintiff avers that "truly comparable employees were treated differently following substantially similar conduct."
However, the court said it did "not hold that a plaintiff seeking to establish pretext by a religious employer need establish that the comparators engaged in precisely the same conduct as that said to support the adverse employment action against the plaintiff. Whether the proffered comparable conduct is sufficiently similar to avoid raising substantial constitutional questions must be judged on a case-by-case basis."
The court also noted that the legislative history of Title VII shows that Congress intended to exclude religious employers from the provisions prohibiting religious discrimination.
The court cautioned religious employers "against over-reading the impact of our holding. It is by no means the case that all claims of gender discrimination against religious employers are impermissible.....If a religious employer does not offer a religious justification for an adverse employment action against a non-ministerial employee, it is unlikely that serious constitutional questions will be raised by applying Title VII."
http://www.ca3.uscourts.gov/opinarch/044628p.pdf
Former teacher at private Catholic school failed to state cause of action under Title VII of the Civil Rights Act, 42 USC 2000e et seq. or the Pregnancy Discrimination Act, 42 USC 2000e(k). The teacher was fired after she signed her name to a pro-choice advertisement in a local newspaper.
The court held that she did not engage in protected activity or "opposition conduct" in signing the advertisement, which made no reference to any alleged illegal employment practice by the school, either specifically or through context. Her protest or expression was only a public endorsement of Roe v. Wade. It had no "perceptible connection to the employer's alleged illegal employment practice."
The court also held that plaintiff's claim that she was disciplined differently than male employees was foreclosed by the religion clauses of the US Constitution, citing NLRB v. Catholic Bishop of Chicago,440 US 490 (1979), since resolution of her claim would require an analysis of church doctrine and church orthodoxy. In addition, plaintiff had not alleged any similar conduct by a male employee. The court thus distinguished the case from one in which a plaintiff avers that "truly comparable employees were treated differently following substantially similar conduct."
However, the court said it did "not hold that a plaintiff seeking to establish pretext by a religious employer need establish that the comparators engaged in precisely the same conduct as that said to support the adverse employment action against the plaintiff. Whether the proffered comparable conduct is sufficiently similar to avoid raising substantial constitutional questions must be judged on a case-by-case basis."
The court also noted that the legislative history of Title VII shows that Congress intended to exclude religious employers from the provisions prohibiting religious discrimination.
The court cautioned religious employers "against over-reading the impact of our holding. It is by no means the case that all claims of gender discrimination against religious employers are impermissible.....If a religious employer does not offer a religious justification for an adverse employment action against a non-ministerial employee, it is unlikely that serious constitutional questions will be raised by applying Title VII."
Friday, June 09, 2006
Pennsylvania Bulletin of June 10, 2006
The link - http://www.pabulletin.com/secure/data/vol36/36-23/index.html
attorneys - proposed rules of prof. conduct
safekeeping of client $ - comments by 3 July 2006
http://www.pabulletin.com/secure/data/vol36/36-23/1020.html
welfare - MA fee schedule revision
http://www.pabulletin.com/secure/data/vol36/36-23/1030.html
welfare- MA - prior authorization list
http://www.pabulletin.com/secure/data/vol36/36-23/1031.html
housing - PHFA - low-income housing tax credit alloc. plan - public hearing June 23rd
http://www.pabulletin.com/secure/data/vol36/36-23/1040.html
attorneys - proposed rules of prof. conduct
safekeeping of client $ - comments by 3 July 2006
http://www.pabulletin.com/secure/data/vol36/36-23/1020.html
welfare - MA fee schedule revision
http://www.pabulletin.com/secure/data/vol36/36-23/1030.html
welfare- MA - prior authorization list
http://www.pabulletin.com/secure/data/vol36/36-23/1031.html
housing - PHFA - low-income housing tax credit alloc. plan - public hearing June 23rd
http://www.pabulletin.com/secure/data/vol36/36-23/1040.html
Monday, June 05, 2006
employment - gender discrimination
Ziner v. Cedar Crest College - ED Pa. - May 2006
http://www.paed.uscourts.gov/documents/opinions/06D0662P.pdf
Defendant's motion for judgment on the pleadings denied.
exhaustion of administrative remedies
Employer claimed that plaintiff failure to exhaust administrative remedies where, in his court complaint, plaintiff alleged a later instance showing hostile work environment that was not in P's EEOC complaint, because it happened long after the complaint was filed. The court rejected this argument and held that Plaintiff's new allegations could be considered by the court. They "assert nothing more than an additional incident contributing to [an] overall pattern of harassment....He has not brought any new cause of action."
"adverse employment action"
The court also rejected the argument that Plaintiff did not suffer any "adverse employment action," holding that Title VII's language is "not limited to economic or tangible discrimination" but rather is intended to "strike at the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a discriminatorily hostile or abusive work environment," including a situation where the "workplace is permeated" with treatment that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."
gender discrimination
The court said that in Title VII cases, it considers the "aggregate effect of all evidence and reasonable inferences therefrom," including those concerning incidents of what may appear to be facially neutral treatment.
http://www.paed.uscourts.gov/documents/opinions/06D0662P.pdf
Defendant's motion for judgment on the pleadings denied.
exhaustion of administrative remedies
Employer claimed that plaintiff failure to exhaust administrative remedies where, in his court complaint, plaintiff alleged a later instance showing hostile work environment that was not in P's EEOC complaint, because it happened long after the complaint was filed. The court rejected this argument and held that Plaintiff's new allegations could be considered by the court. They "assert nothing more than an additional incident contributing to [an] overall pattern of harassment....He has not brought any new cause of action."
"adverse employment action"
The court also rejected the argument that Plaintiff did not suffer any "adverse employment action," holding that Title VII's language is "not limited to economic or tangible discrimination" but rather is intended to "strike at the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a discriminatorily hostile or abusive work environment," including a situation where the "workplace is permeated" with treatment that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."
gender discrimination
The court said that in Title VII cases, it considers the "aggregate effect of all evidence and reasonable inferences therefrom," including those concerning incidents of what may appear to be facially neutral treatment.
Sunday, June 04, 2006
admin. law - late appeal
El-Attrache v. Insurance Department - Commonwealth Court - June 1, 2006
http://www.aopc.org/OpPosting/CWealth/out/2358CD05_6-1-06.pdf
Doctor's late appeal of insurance abatement application denied where
- application was required to be submitted online
- hard copy of application also had to be submitted
- doctor's employee attempted file online but "screen went 'white'" during attempt
- reasonable person would have assumed that online application wasn't successfully transmitted
- doctor never submitted hard copy to department
- statute mandated timely filing, did not give dept. discretion to allow late filing
- late appeal allowed only where there is breakdown in admin. process or extraordinary circumstances
- to show breakdown, doctor had to prove he did all he could to properly file the application
- doctor did not show that he did so
http://www.aopc.org/OpPosting/CWealth/out/2358CD05_6-1-06.pdf
Doctor's late appeal of insurance abatement application denied where
- application was required to be submitted online
- hard copy of application also had to be submitted
- doctor's employee attempted file online but "screen went 'white'" during attempt
- reasonable person would have assumed that online application wasn't successfully transmitted
- doctor never submitted hard copy to department
- statute mandated timely filing, did not give dept. discretion to allow late filing
- late appeal allowed only where there is breakdown in admin. process or extraordinary circumstances
- to show breakdown, doctor had to prove he did all he could to properly file the application
- doctor did not show that he did so
custody - child's preference - sibling rule
Saintz v. Rinker - Superior Court - June 1, 2006
http://www.aopc.org/OpPosting/Superior/out/A06028_06.pdf
Trial court's award of custody to father affirmed.
- child's preference is an important but not controlling factor
- sibling rule applies to half-siblings
- sublihg rule is a consideration and not a determinant of custody
http://www.aopc.org/OpPosting/Superior/out/A06028_06.pdf
Trial court's award of custody to father affirmed.
- child's preference is an important but not controlling factor
- sibling rule applies to half-siblings
- sublihg rule is a consideration and not a determinant of custody
Friday, June 02, 2006
Pennsylvania Bulletin of June 3, 2006
Pennsylvania Bulletin of June 3, 2006
http://www.pabulletin.com/secure/data/vol36/36-22/index.html
-recent statutes
http://www.pabulletin.com/secure/data/vol36/36-22/967.html
- court rules - compulsory arbitration - damages
http://www.pabulletin.com/secure/data/vol36/36-22/968.html
- court rules - support - modification/termination
http://www.pabulletin.com/secure/data/vol36/36-22/969.html
- child care facilities - proposed rules
http://www.pabulletin.com/secure/data/vol36/36-22/979.html
- Dept. of Labor & Industry - reorganization
http://www.pabulletin.com/secure/data/vol36/36-22/985.html
- Department of Public Welfare - reorganization
http://www.pabulletin.com/secure/data/vol36/36-22/986.html
- education - No Child Left Behind - highly qualified teacher requirement - resolutions
http://www.pabulletin.com/secure/data/vol36/36-22/1017.html
http://www.pabulletin.com/secure/data/vol36/36-22/index.html
-recent statutes
http://www.pabulletin.com/secure/data/vol36/36-22/967.html
- court rules - compulsory arbitration - damages
http://www.pabulletin.com/secure/data/vol36/36-22/968.html
- court rules - support - modification/termination
http://www.pabulletin.com/secure/data/vol36/36-22/969.html
- child care facilities - proposed rules
http://www.pabulletin.com/secure/data/vol36/36-22/979.html
- Dept. of Labor & Industry - reorganization
http://www.pabulletin.com/secure/data/vol36/36-22/985.html
- Department of Public Welfare - reorganization
http://www.pabulletin.com/secure/data/vol36/36-22/986.html
- education - No Child Left Behind - highly qualified teacher requirement - resolutions
http://www.pabulletin.com/secure/data/vol36/36-22/1017.html
Tuesday, May 30, 2006
employment - ADA - reasonable accommodation - retaliation
Kauffman v. GMAC Mortgage Corp. - ED Pa. - May 17, 2006
http://www.paed.uscourts.gov/documents/opinions/06D0610P.pdf
Plaintiff's ADA claims against her employer dimissed on summary judgment motion.
Plaintiff had a severe allergy to perfumes -- a "disability" under the ADA, 42 USC 12101 et seq. The court held that plaintiff was not a "qualified individual" because she failed to sustain her burden of showing that a "reasonable accommodation, allowing her to perform the essential functions of her job, is possible." The evidence showed "many attempts" by the employer to alleviate plaintiff's problem. A completely scent-free environment was held to be "impractical....virtually impossible....unreasonable."
Plaintiff's retaliation claim was also rejected, because she did not meet the "burden of establishing a causal conection between her protected activity [an email to her employer complainting of harassment and unequal treatment] and her termination."
http://www.paed.uscourts.gov/documents/opinions/06D0610P.pdf
Plaintiff's ADA claims against her employer dimissed on summary judgment motion.
Plaintiff had a severe allergy to perfumes -- a "disability" under the ADA, 42 USC 12101 et seq. The court held that plaintiff was not a "qualified individual" because she failed to sustain her burden of showing that a "reasonable accommodation, allowing her to perform the essential functions of her job, is possible." The evidence showed "many attempts" by the employer to alleviate plaintiff's problem. A completely scent-free environment was held to be "impractical....virtually impossible....unreasonable."
Plaintiff's retaliation claim was also rejected, because she did not meet the "burden of establishing a causal conection between her protected activity [an email to her employer complainting of harassment and unequal treatment] and her termination."
employment - discrimination - exhaustion of admin. remedies
EEOC v. Conectiv - ED Pa. - May 24, 2006
http://www.paed.uscourts.gov/documents/opinions/06D0640P.pdf
A plaintiff cannot file an individual employment discrimination action under Title VII, 42 USC 2000e et seq., for racial discrimination unless s/he has first filed charge with the EEOC or PHRC. The "single-filing rule" -- which allows a non-filing plaintiff to join a class action -- does not apply here, because plaintiff did not intervene, as of right or by permission, in the EEOC class action against the employer. Thus "failure to exhaust his administrative remedies is fatal to his individual Title VII action."
http://www.paed.uscourts.gov/documents/opinions/06D0640P.pdf
A plaintiff cannot file an individual employment discrimination action under Title VII, 42 USC 2000e et seq., for racial discrimination unless s/he has first filed charge with the EEOC or PHRC. The "single-filing rule" -- which allows a non-filing plaintiff to join a class action -- does not apply here, because plaintiff did not intervene, as of right or by permission, in the EEOC class action against the employer. Thus "failure to exhaust his administrative remedies is fatal to his individual Title VII action."
damages - calculation - flexibility
Dept. of General Services v. US Mineral Products Co. - Supreme Court - May 25, 2006
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-81-2004mo.pdf
In the course of deciding the proper measure of damages concerning the chemical contamination of the former PennDOT building, the court said that it "has rejected fixed and formulaic rules when it is determined that they are not setting an appropriate, compensatory standard.....and there are many nuances and significant latitude associated with valuation for the purpose of calculating damages."
http://www.courts.state.pa.us/OpPosting/Supreme/out/J-81-2004mo.pdf
In the course of deciding the proper measure of damages concerning the chemical contamination of the former PennDOT building, the court said that it "has rejected fixed and formulaic rules when it is determined that they are not setting an appropriate, compensatory standard.....and there are many nuances and significant latitude associated with valuation for the purpose of calculating damages."
Friday, May 26, 2006
UC- strike v. lockout
Presbyterian Senior Care v. UCBR - Commonwealth Court - May 23, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/1621CD05_5-23-06.pdf
The court reversed a UCBR decision that a strike had become a lockout, noting (a) the absence of a "critical finding" that the union was willing to return to the status quo and (b) the union's failure to satisfy the "futility doctrine" -- that an offer by the union to return to work would definitely not have been accepted by management.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1621CD05_5-23-06.pdf
The court reversed a UCBR decision that a strike had become a lockout, noting (a) the absence of a "critical finding" that the union was willing to return to the status quo and (b) the union's failure to satisfy the "futility doctrine" -- that an offer by the union to return to work would definitely not have been accepted by management.
admin. law - exhaustion of admin. remedies
Northern Area Personal Care Home Admin. Assn. v. DPW - Cmwlth Court - May 24, 2006
http://www.aopc.org/OpPosting/CWealth/out/503MD05_5-24-06.pdf
Petitioners filed an original action in Commonwealth Court challenging and seeking pre-enforcement review of new personal care home regulations.
DPW's argument that Petitioner failed to exhaust administrative remedies was rejected. Citing Arsenal Coal Co. v. DER, 477 A.2d 1333 (Pa. 1984), the court held that equitable relief is available where there is not "an adequate statutory remedy."
Factors discussed in Arsenal Coal include -- whether the effect of submitting to the regs will be direct and immediate, the resulting hardship, the burden of submitting to the regulations (cost and inefficiency), the availability of pre-enforcement review in the regulations themselves.
http://www.aopc.org/OpPosting/CWealth/out/503MD05_5-24-06.pdf
Petitioners filed an original action in Commonwealth Court challenging and seeking pre-enforcement review of new personal care home regulations.
DPW's argument that Petitioner failed to exhaust administrative remedies was rejected. Citing Arsenal Coal Co. v. DER, 477 A.2d 1333 (Pa. 1984), the court held that equitable relief is available where there is not "an adequate statutory remedy."
Factors discussed in Arsenal Coal include -- whether the effect of submitting to the regs will be direct and immediate, the resulting hardship, the burden of submitting to the regulations (cost and inefficiency), the availability of pre-enforcement review in the regulations themselves.
employment - Title VII - ministerial exception - First Amendment
Petruska v. Gannon University - Third Circuit - May 24, 2006
http://www.ca3.uscourts.gov/opinarch/051222p.pdf
"The ministerial exception...exempts religious organizations from employment discrimination suits brought by ministers." It "was created to protect church autonomy and avoid entangling government in religious affairs."
The court adopted "a carefully tailored version of the ministerial exception. Where otherwise illegal discrimination is based on religious belief, religious doctrine, or the internal regulations of a church, the First Amendment exempts religious institutions from Title VII....But where a church discriminates for reasons unrelated to religion, we hold that the Constitution does not foreclose Title VII suits. Employment discrimination unconnected to religious belief, religious doctrine, or the internal regulations of a church is simply the exercise of intolerance, not the free exercise of religion that the Constitution protects. Furthermore, in adjudicating suits that do not involve religious rationales for employment action, courts need not consider questions of religious belief, religious doctrine, or internal church regulations, a process that would violate the Establishment Clause by entangling courts in religious affairs."
http://www.ca3.uscourts.gov/opinarch/051222p.pdf
"The ministerial exception...exempts religious organizations from employment discrimination suits brought by ministers." It "was created to protect church autonomy and avoid entangling government in religious affairs."
The court adopted "a carefully tailored version of the ministerial exception. Where otherwise illegal discrimination is based on religious belief, religious doctrine, or the internal regulations of a church, the First Amendment exempts religious institutions from Title VII....But where a church discriminates for reasons unrelated to religion, we hold that the Constitution does not foreclose Title VII suits. Employment discrimination unconnected to religious belief, religious doctrine, or the internal regulations of a church is simply the exercise of intolerance, not the free exercise of religion that the Constitution protects. Furthermore, in adjudicating suits that do not involve religious rationales for employment action, courts need not consider questions of religious belief, religious doctrine, or internal church regulations, a process that would violate the Establishment Clause by entangling courts in religious affairs."
contempt - talking to witness during break in examination
Yoskowitz v. Yazdanfar - Superior Court - May 24, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/a07024_06.pdf
The appellate court reversed a finding of criminal contempt under 42 Pa. C.S. 4132(3) resulting from an attorney having talked to a witness during a break in the witness's testimony.
The trial court relied on Hall v. Clifton Precision, 150 FRD 525, 528 (ED Pa. 1993), given the lack of state court precedent (rules, cases, etc) on the issue. The trial court noted an "appearance of impropriety" that rendered the witness's testimony "suspect."
The Superior Court said that there was not "sufficient evidence to prove beyond a reasonable doubt that [thej attorney] intended to significantly disrupt the...trial proceedings" and that the "court was in recess when the conversation occurred." The court reversed the finding of contempt "[b]ecause the record fails to reflect the requisite proof beyond a reasonable doubt...."
Note: Despite this decision, I think it's a very bad idea to talk to a witness during a break in the witness's examination. It may not be criminal contempt, but I think it is still improper. It raises serious ethical and other issues.
http://www.courts.state.pa.us/OpPosting/Superior/out/a07024_06.pdf
The appellate court reversed a finding of criminal contempt under 42 Pa. C.S. 4132(3) resulting from an attorney having talked to a witness during a break in the witness's testimony.
The trial court relied on Hall v. Clifton Precision, 150 FRD 525, 528 (ED Pa. 1993), given the lack of state court precedent (rules, cases, etc) on the issue. The trial court noted an "appearance of impropriety" that rendered the witness's testimony "suspect."
The Superior Court said that there was not "sufficient evidence to prove beyond a reasonable doubt that [thej attorney] intended to significantly disrupt the...trial proceedings" and that the "court was in recess when the conversation occurred." The court reversed the finding of contempt "[b]ecause the record fails to reflect the requisite proof beyond a reasonable doubt...."
Note: Despite this decision, I think it's a very bad idea to talk to a witness during a break in the witness's examination. It may not be criminal contempt, but I think it is still improper. It raises serious ethical and other issues.
Pennsylvania Bulletin of May 27, 2006
Here's the link to the Pennsylvania Bulletin of May 27, 2006
http://www.pabulletin.com/secure/data/vol36/36-21/index.html
Of possible interest:
- governor - veto - SB 997 - discussion of "pay as you go" budget
http://www.pabulletin.com/secure/data/vol36/36-21/918.html
- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-21/919.html
- Human Relations Commission - public hearing opinions
http://www.pabulletin.com/secure/data/vol36/36-21/943.html
- IRRC - notiice of filing of final rules
http://www.pabulletin.com/secure/data/vol36/36-21/945.html
- potatoes - referendum on potato research program - it continues! - 85.4% v. 14.6%
http://www.pabulletin.com/secure/data/vol36/36-21/934.html
http://www.pabulletin.com/secure/data/vol36/36-21/index.html
Of possible interest:
- governor - veto - SB 997 - discussion of "pay as you go" budget
http://www.pabulletin.com/secure/data/vol36/36-21/918.html
- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-21/919.html
- Human Relations Commission - public hearing opinions
http://www.pabulletin.com/secure/data/vol36/36-21/943.html
- IRRC - notiice of filing of final rules
http://www.pabulletin.com/secure/data/vol36/36-21/945.html
- potatoes - referendum on potato research program - it continues! - 85.4% v. 14.6%
http://www.pabulletin.com/secure/data/vol36/36-21/934.html
Friday, May 19, 2006
Pennsylvania Bulletin of May 20, 2006
http://www.pabulletin.com/secure/data/vol36/36-20/index.html
- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-20/861.html
- attorneys - disciplininary board - regs
http://www.pabulletin.com/secure/data/vol36/36-20/862.html
- courts - local rules - Carbon County - PFAs
http://www.pabulletin.com/secure/data/vol36/36-20/863.html
- medicine - acupuncture - advance notice of final rulemaking http://www.pabulletin.com/secure/data/vol36/36-20/869.html
- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-20/861.html
- attorneys - disciplininary board - regs
http://www.pabulletin.com/secure/data/vol36/36-20/862.html
- courts - local rules - Carbon County - PFAs
http://www.pabulletin.com/secure/data/vol36/36-20/863.html
- medicine - acupuncture - advance notice of final rulemaking http://www.pabulletin.com/secure/data/vol36/36-20/869.html
Wednesday, May 17, 2006
contracts - integration clause
Glassmere Fuel Service, Inc. v. Clear - Superior Court - May 15, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/a34027_05.pdf
Plaintiff sued Defendant for its failure to comply with an agreement that would have turned D's convenience store into a BP gas station. Plaintiff alleged the Defendant "failed to obtain financing in violation of an 'implied term' of the agreement. Defendant noted that the agreement did not expressly require it to obtain financing and that the agreement's integration clause barred Plaintiff's action.
Held, integration clause barred inconsistent parol evidence of alleged prior representations, unless the representations were omitted because of fraud, accident or mistake. Where contract terms are clear and unambiguous, there is no need to consider other evidence to aid in interpretation.
The doctrine of necessary implication does not apply unless it is "necessary to prevent injustice and it is abundantly clear that the parties intended to be bound by" the alleged missing term, which was not found to be the case here. Plaintiff had other remedies for Defendant's failure to fulfill the contract.
http://www.courts.state.pa.us/OpPosting/Superior/out/a34027_05.pdf
Plaintiff sued Defendant for its failure to comply with an agreement that would have turned D's convenience store into a BP gas station. Plaintiff alleged the Defendant "failed to obtain financing in violation of an 'implied term' of the agreement. Defendant noted that the agreement did not expressly require it to obtain financing and that the agreement's integration clause barred Plaintiff's action.
Held, integration clause barred inconsistent parol evidence of alleged prior representations, unless the representations were omitted because of fraud, accident or mistake. Where contract terms are clear and unambiguous, there is no need to consider other evidence to aid in interpretation.
The doctrine of necessary implication does not apply unless it is "necessary to prevent injustice and it is abundantly clear that the parties intended to be bound by" the alleged missing term, which was not found to be the case here. Plaintiff had other remedies for Defendant's failure to fulfill the contract.
UC- willful misconduct - drug test
Turner v. UCBR - Commonwealth Court - May 16, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/871CD05_5-16-06.pdf
In a 4-3 decision, claimant (CL) was held to have violated the drug disqualification section of the UC Law, 43 PS 802(e.1), where his unemployment was "due to discharge....from work due to failure to submit and/or pass a drug test conducted pursuant to an employer's established substance abuse policy."
The UC Service Center had ruled on the basis of sec. 801(e.1), but the referee and Board ruled on the basis on 402(e), the general willful misconduct section. The Court ultimately ruled CL ineligible in the basis of sec. 801(e.1), pursuant to a series of cases holding that it can affirm an agency decision on other grounds, where those grounds appear on the record of the case.
CL argued that the ER's policy only prohibited drug use while he was on duty, and that there was no proof of that. The court rejected that argument, noting that "while a literal reading of one portion of employer's policy supports claimant's argument...., viewing the entire policy in context belies this claim....'Claimant's submission to the condition of random drug testing is sufficient to infer Claimant's understanding that he had to abstain from any drug use....' Szostek v. UCBR, 541 A2d 48, 50 (Pa. Cmwlth. 1988).' The random testing provision....enforces the requirement that employees not only refrain from on-duty drug use but also be free from drugs remaining in employee's systems while on-duty. Otherwise the test would serve no purpose, because a positive test would be meaningless, or at least could result in no consequences absent independent direct proof of on-duty use. Thus, we conclude that claimant's positive test for marijuana constituted a violation of employer's substance abuse policy."
The court also held that the "testimony of the supervisor of those persons who are actually performing the drug testing of a urine specimen is sufficient to establish the reliability and trustworthiness of the evidence under" the business records as evidence act, 42 Pa. C.S. 6108(b), citing Artis v. UCBR, 699 A.2d 849, 852 (Pa. Cmwlth. 1997). The court said that the testimony of the vice-president and director of toxicology of the lab that did the drug test "provided very detailed and sufficient information relating to the preparation of claimant's drug test result and justified not only a presumption about the trustworthiness of this record but its admission."
Judges Colins and Pelligrini dissented "[b]ecause of cross-examination, the toxicologist admitted the he could not tell from the test results whether the claimant used marijuana or was under the influence of marijuana while on duty," stating that without that evidence "there is not substantial evidence to support the conclusion that claimant violated the employer's drug policy."
Judge Friedman concurred and dissented, citing the same testimony of the toxicologist. She said that the record was "devoid of evidence establishing that Claimant used drugs while on duty, as prohibited by" the ER's policy, and that the Board thus erred in affirming the referee's decision based on 401(e). She "strongly object[ed] to the majority's analysis insofar as it eschews a literal reading of Employer's rules in favor of a broad interpretation of Employer's policy as a whole," noting the a rule violation must be knowing and deliberate. "[k]nowledge of the work rule or policy is a prerequisite to a knowing and deliberation [sic] violation of the same....I believe that this court violates long-standing principles of law when it engages in any 'interpretation' of an employer's rule or policy." However, she "reluctantly" concurred because the Court has the power to affirm on other grounds, i.e., sec. 402(e.1), which appear on the record.
This decision seem consistent with the Court's recent apparent willingness to bend the usual rules in drug cases. See, e.g., UGI Utilities, 851 A.2d 240 (Pa. Cmwlth. 2004) and Ruiz v. UCBR - Commonwealth Court - November 30, 2005, http://www.courts.state.pa.us/OpPosting/CWealth/out/882CD05_11-30-05.pdf
http://www.courts.state.pa.us/OpPosting/CWealth/out/871CD05_5-16-06.pdf
In a 4-3 decision, claimant (CL) was held to have violated the drug disqualification section of the UC Law, 43 PS 802(e.1), where his unemployment was "due to discharge....from work due to failure to submit and/or pass a drug test conducted pursuant to an employer's established substance abuse policy."
The UC Service Center had ruled on the basis of sec. 801(e.1), but the referee and Board ruled on the basis on 402(e), the general willful misconduct section. The Court ultimately ruled CL ineligible in the basis of sec. 801(e.1), pursuant to a series of cases holding that it can affirm an agency decision on other grounds, where those grounds appear on the record of the case.
CL argued that the ER's policy only prohibited drug use while he was on duty, and that there was no proof of that. The court rejected that argument, noting that "while a literal reading of one portion of employer's policy supports claimant's argument...., viewing the entire policy in context belies this claim....'Claimant's submission to the condition of random drug testing is sufficient to infer Claimant's understanding that he had to abstain from any drug use....' Szostek v. UCBR, 541 A2d 48, 50 (Pa. Cmwlth. 1988).' The random testing provision....enforces the requirement that employees not only refrain from on-duty drug use but also be free from drugs remaining in employee's systems while on-duty. Otherwise the test would serve no purpose, because a positive test would be meaningless, or at least could result in no consequences absent independent direct proof of on-duty use. Thus, we conclude that claimant's positive test for marijuana constituted a violation of employer's substance abuse policy."
The court also held that the "testimony of the supervisor of those persons who are actually performing the drug testing of a urine specimen is sufficient to establish the reliability and trustworthiness of the evidence under" the business records as evidence act, 42 Pa. C.S. 6108(b), citing Artis v. UCBR, 699 A.2d 849, 852 (Pa. Cmwlth. 1997). The court said that the testimony of the vice-president and director of toxicology of the lab that did the drug test "provided very detailed and sufficient information relating to the preparation of claimant's drug test result and justified not only a presumption about the trustworthiness of this record but its admission."
Judges Colins and Pelligrini dissented "[b]ecause of cross-examination, the toxicologist admitted the he could not tell from the test results whether the claimant used marijuana or was under the influence of marijuana while on duty," stating that without that evidence "there is not substantial evidence to support the conclusion that claimant violated the employer's drug policy."
Judge Friedman concurred and dissented, citing the same testimony of the toxicologist. She said that the record was "devoid of evidence establishing that Claimant used drugs while on duty, as prohibited by" the ER's policy, and that the Board thus erred in affirming the referee's decision based on 401(e). She "strongly object[ed] to the majority's analysis insofar as it eschews a literal reading of Employer's rules in favor of a broad interpretation of Employer's policy as a whole," noting the a rule violation must be knowing and deliberate. "[k]nowledge of the work rule or policy is a prerequisite to a knowing and deliberation [sic] violation of the same....I believe that this court violates long-standing principles of law when it engages in any 'interpretation' of an employer's rule or policy." However, she "reluctantly" concurred because the Court has the power to affirm on other grounds, i.e., sec. 402(e.1), which appear on the record.
This decision seem consistent with the Court's recent apparent willingness to bend the usual rules in drug cases. See, e.g., UGI Utilities, 851 A.2d 240 (Pa. Cmwlth. 2004) and Ruiz v. UCBR - Commonwealth Court - November 30, 2005, http://www.courts.state.pa.us/OpPosting/CWealth/out/882CD05_11-30-05.pdf
Monday, May 15, 2006
consumer - credit reporting - debt collection
Wesley v. Calvary Investments - ED Pa. - May 9, 2006
http://www.paed.uscourts.gov/documents/opinions/06D0572P.pdf
Defendant's alleged compliance with Fair Credit Reporting Act does not relieve it of complying with obligations under the Fair Debt Collection Practices Act.
http://www.paed.uscourts.gov/documents/opinions/06D0572P.pdf
Defendant's alleged compliance with Fair Credit Reporting Act does not relieve it of complying with obligations under the Fair Debt Collection Practices Act.
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