disability - treating physician - pain - credibility - depression

Franklin v. Barnhart - ED Pa. - June 13, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0730P.pdf

Summary judgment granted to Claimant for closed period of disability of 4+ years to Plaintiff.
inability to do light work -- The ALJ's finding that the claimant (CL) could lift 10 lbs. on sustained basis was not supported by substantial evidence. CL had numerous surgeries to right shoulder but still had significant weakness. Her treating physician of long duration "nowhere" found that she could lift 10 lbs. The ALJ relied on the contrary opinion of a one-time examining physician, whose conclusions were set out only in a check-off box. The court said that the ALJ erred by not giving controlling weight to the treating physician's opinion which reflected expert judgment based on continuing observation over an extended time.

subjective complaints of pain - The ALJ improperly discounted CL's complaint of pain without offering any reasoned basis. The ALJ also erred by not giving "great weight" to the CL's complaints of pain, since they were supported by objective medical evidence. The ALJ decision on pain was not supported by substantial evidence. The record showed "severe pain requiring aggressive pain management."

depression -- ALJ failed to follow Appeals Council prior remand instructions and to give fair consideration to the entire record concerning CL's depression. The ALJ did not consider existing evidence or seek the help of other medical professionals. The ALJ also improperly penalized CL for noting having MH treatment and preferring to stay with her family physician. There was no medical evidence that an MH specialist would have proceeded differently from her family doctor. Moreover, regulations require consideration of a claimant's refusal to see an MH professional, which may have been a result of her depression. And the ALJ again failed to properly credit the opinions of CL's treating physician, improperly preferring, without explanation, the findings in a check-off report of a non-examining state agency psychologist. The 3d Circuit has held such reports to be "weak evidence at best."

special laws - Article III, sec. 32 - class of one

Pa. Turpike Commission v. Attorney General - Supreme Court - June 19, 2006

http://www.courts.state.pa.us/OpPosting/Supreme/out/J-13-2006mo.pdf

A law that was applicable to only a single public employer was held to be a "special law" which violated Article III, sec. 32, of the state constitution

Article III, sec. 32 states that " The General Assembly shall pass no local or special law in any case which has been or can be provided for by general law and specifically the General assembly shall not pass any local or special law" about a list of 8 specific areas, including ones "regulating labor, trade, mining or manufacturing." It also says: "Nor shall the General Assembly indirectly enact any special or local law by the partial repeal of a general law; but laws repealing local or special acts may be passed."

The court held that there was "no rational reason" for the differential treatment established by the statute" and that there was "nothing distinctive" about the two differently-treated entitited that required different treatment. The acts classifications "does not rest upon some ground of difference or any real distinction....." The "narrow classification in the Act....does not bear a reasonable relationship" to the allged statutory purpose. In addition, the act created a class of one, with no reasonable prospect of another members being able to join the class in the future.

debt collection - FDCPA - false threats - attorney letterhead - class certification

McCall v. Drive Financial Services - ED Pa. - June 19,2006

http://www.paed.uscourts.gov/documents/opinions/06D0740P.pdf

The court granted a motion for class certification in a Fair Debt Collection Practices Act, 15 USC 1692 et seq., case in which defendant collection agency was alleged to have sent letters purporting to be from an attorney, on the attorney's ostensible letterhead. The letter threatened suit by the attorney, who is not admitted to practice in Pennsylvania.

Defendant's allegation that there was a conflict between the class and the named plaintiff was dismissed. Named plaintiff had a 15 year-old robbery conviction, which the court said was factually unrelated to his case and to Defendant's alleged violation of the FDCPA.

bankruptcy - "debt relief agency" provisions - standing to challenge

Geisenberger v. Gonzales - ED Pa. - June 19, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0744P.pdf

The court dismissed the constitutional challenge of "practicing bankruptcy attorney" to the "debt relief agency" provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), 11 USC sec. 526-528.

The court held that there was no justiciable case or controversy under Article III, sec. 2, of the US Constitution, since the attorney had not suffered and was not about to suffer an "injury in fact." The court said that the attorney was "requesting an advisory opinion" from the court, which held that without any injury in fact, plaintiff did not have standing to bring the case.

custody - relocation

Ketterer v. Seifert - Superior Court - June 20, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a18024_06.pdf

The court affirmed the trial court's denial of mother's petition to relocated to California with parties' 14 y/o son, despite child's expressed preference for the proposed move. An existing order -- which the court said "has been working well for several years" -- gave mother majority physical custody during the school year and shared custody over the summer. Father's family was mostly in Pennsylvania, and Mother's in California.

The Court focused on the fact that mother failed to prove the first prong of the Gruber test, 583 A2d 434 (Pa. Super. 1990) -- that the moved would "substantially improve the quality of life" for the mother or child. The court specifically rejected mother's primary claim of economic need and the alleged economic benefit that the move would bring.

Noting that the child had a closer relationship with mother than father, the court rejected the child's preference because it was not "based upon good and substantial reasons." The court also mentioned that mother "has had approximately nine different address changes" since her marriage to her current husband 9 years ago.

delay damages - contract action - Pa. R.C.P. 238

Touloumes v. E.S.C., Inc. - Pennsylvania Supreme Court - June 19, 2006

http://www.courts.state.pa.us/OpPosting/Supreme/out/J-183-2004mo.pdf

The court held (5-1) that Pa. R.C.P. 238 does not apply to a contract action seeking to recover damages for injury to property.

The dissent (Newman, J.) http://www.courts.state.pa.us/OpPosting/Supreme/out/J-183-2004do.pdf said that all of the elements of the rule are present, that the rule is "clear and free from all ambiguity" and should apply. The "Majority's exploration of the intent of the Rule was not required because the Rule itself explicity provides that Appellants are entitled to delay damages.

The text of the rule is at http://www.pacode.com/secure/data/231/chapter200/s238.html

MDJ court - non-attorney representation

As of October 1, 2006, non-attorneys will be able to represent individuals, partnership, and corporations in MDJ court if they have a) written authorization to do so, and b) "personal knowledge of the subject matter of the litigation."

New MDJ rules, promulgated by the Pennsylvania Supreme Court, are published at http://www.pabulletin.com/secure/data/vol36/36-24/1058.html

Pennsylvania Bulletin of June 17, 2006

http://www.pabulletin.com/secure/data/vol36/36-24/index.html

- MDJ rules - effective October 1, 2006
representation in MDJ proceedings - attorneys, et al.
counterclaims by defendants
executions ($ and possn.)
notice of judgment/dismissal and right of appeal
http://www.pabulletin.com/secure/data/vol36/36-24/1058.html

- MDJs - code of conduct
http://www.pabulletin.com/secure/data/vol36/36-24/1057.html

- state tax equalization board - 2005 common level ratio
http://www.pabulletin.com/secure/data/vol36/36-24/1153.html

- DPW - MA - fee schedule procedure code changes
http://www.pabulletin.com/secure/data/vol36/36-24/1104.html

- local rules - Dauphin County
http://www.pabulletin.com/secure/data/vol36/36-24/1060.html

ADA - transportation - paratransit services

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.

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."

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."

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

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.

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

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

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

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."

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."

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."

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.