http://www.pabulletin.com/secure/data/vol37/37-8/index.html
court rules - exemption of certain funds (social security, et al.) from execution
http://www.pabulletin.com/secure/data/vol37/37-8/304.html
court rules - PFA forms - Rule 1905 - effective May 7, 2007
http://www.pabulletin.com/secure/data/vol37/37-8/303.html
Friday, February 23, 2007
Monday, February 12, 2007
child abuse - expungement - hearsay - finding that child is "unavailable"
C.E. v. Dept. of Public Welfare - Commonwealth Court - February 12, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/232CD06_2-12-07.pdf
Hearsay statements of child victim were not admissible, absent findings by the ALJ that the hearsay satisfied the requirements of the statute, 42 Pa. C.S. 5986. See, A.Y. v. DPW, 641 A.2d 1148, 1153 (Pa. 1994) and In the Interest of Tina K., 568 A.2d 210 (Pa. Super. 1989).
In particular, the ALJ never made a finding that the child was "unavailable" to testify, that is, "whether testifying would cause her emotional distress to the extent that her ability to communicate would be substantially impaired." The lack of such a finding is not a "mere failure by the ALJ to use the 'magic words' in 42 Pa. C.S. 5986. It is a clear requirement of the statute. Moreover, the evidence in this case included statements by the child that she was not afraid of the Petitioner, that she felt good and was not afraid to be at the hearing.
Although the Commonwealth Court did not mention it, the Superior Court reached a similar result in construing a related statute, 42 Pa. C.S. 5986.1, in Cmwlth. v. Kriner, January 2, 2007 - http://www.courts.state.pa.us/OpPosting/Superior/out/e03003_06.pdf , where it held that the hearsay statement of a child victim/witness under 12 years of age is admissible under 42 Pa. C.S. 5985.1 to prove certain criminal offenses if, inter alia, the child is "'unavailable" as a witness. The statute defines "unavailable" as "serious emotional distress that would substantially impair the child's ability to communicate." This definition is exclusive. There is "no other manner, method, procedure or definition of what constitutes unavailability." Thus, the death of a child witness does not come within this statutory definition of unavailability.
There was also an issue of witness competency. Although it was not considered in deciding the case, the court set out (in n. 8) the criteria for deciding whether a child in a competent witness, citing Commonwealth v. McMaster, 666 A.2d 724, 727 (Pa. Super. 1995).
http://www.courts.state.pa.us/OpPosting/CWealth/out/232CD06_2-12-07.pdf
Hearsay statements of child victim were not admissible, absent findings by the ALJ that the hearsay satisfied the requirements of the statute, 42 Pa. C.S. 5986. See, A.Y. v. DPW, 641 A.2d 1148, 1153 (Pa. 1994) and In the Interest of Tina K., 568 A.2d 210 (Pa. Super. 1989).
In particular, the ALJ never made a finding that the child was "unavailable" to testify, that is, "whether testifying would cause her emotional distress to the extent that her ability to communicate would be substantially impaired." The lack of such a finding is not a "mere failure by the ALJ to use the 'magic words' in 42 Pa. C.S. 5986. It is a clear requirement of the statute. Moreover, the evidence in this case included statements by the child that she was not afraid of the Petitioner, that she felt good and was not afraid to be at the hearing.
Although the Commonwealth Court did not mention it, the Superior Court reached a similar result in construing a related statute, 42 Pa. C.S. 5986.1, in Cmwlth. v. Kriner, January 2, 2007 - http://www.courts.state.pa.us/OpPosting/Superior/out/e03003_06.pdf , where it held that the hearsay statement of a child victim/witness under 12 years of age is admissible under 42 Pa. C.S. 5985.1 to prove certain criminal offenses if, inter alia, the child is "'unavailable" as a witness. The statute defines "unavailable" as "serious emotional distress that would substantially impair the child's ability to communicate." This definition is exclusive. There is "no other manner, method, procedure or definition of what constitutes unavailability." Thus, the death of a child witness does not come within this statutory definition of unavailability.
There was also an issue of witness competency. Although it was not considered in deciding the case, the court set out (in n. 8) the criteria for deciding whether a child in a competent witness, citing Commonwealth v. McMaster, 666 A.2d 724, 727 (Pa. Super. 1995).
Monday, February 05, 2007
parol evidence rule
Ragnar Benson, Inc. v. Hempfield Township Munic. Authority - Superior Court - Jan. 30, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/s65001_06.pdf
If a written contract is unambiguous and purports to be the entire agreement of the parties, and there is no claim of fraud or mistake, then oral testimony and prior written agreements or other writings are not admissible to explain or vary the terms of the contract. This is what is referred to as the parol evidence rule. See, e.g., Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425 (Pa. 2004) for a "comprehensive review" of the rule.
http://www.courts.state.pa.us/OpPosting/Superior/out/s65001_06.pdf
If a written contract is unambiguous and purports to be the entire agreement of the parties, and there is no claim of fraud or mistake, then oral testimony and prior written agreements or other writings are not admissible to explain or vary the terms of the contract. This is what is referred to as the parol evidence rule. See, e.g., Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425 (Pa. 2004) for a "comprehensive review" of the rule.
Friday, February 02, 2007
false imprisonment
In the Interest of M.G. - Superior Court - January 30, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/a36004_06.pdf
The court upheld the delinquency adjudiction of a juvenile accused of false imprisonment, where he followed his cousin into her bedroom, shut and locked the door, and stood between her and the door during an incident which lasted "at most, two minutes."
"In determining the magnitude of the restraint necessary for false imprisonment, this Court has recognized that false imprisonment covers restraints which are less serious than those necessary for the offenses of kidnapping [18 Pa. C.S. 2901(a)] and unlawful restraint [18 Pa. C.S. 2902(a)].
"In determining whether the restraint at issue interfered with [the victim's] liberty 'substantially,' we give the word 'substantially' its plain meaning....Thus, we determine the Legislature intended false imprisonment to cover restraints where an individual's liberty is interfered with in an ample or considerable manner."
It did not matter that the restraint took place in the victim's own bedroom. "Whether in her own home or elsewhere, Appellant restrained [the victim] and kept her in an area where she did not wish to remain. Removing [a victim] from her home or luring her to an unfamiliar place are simply not elements required for false imprisonment."
"Making threats, intimidating and/or using physical force are not stated elements of false imprisonment, although they may be the tool used by an offender in 'restraining another unlawfully.'"
http://www.courts.state.pa.us/OpPosting/Superior/out/a36004_06.pdf
The court upheld the delinquency adjudiction of a juvenile accused of false imprisonment, where he followed his cousin into her bedroom, shut and locked the door, and stood between her and the door during an incident which lasted "at most, two minutes."
"In determining the magnitude of the restraint necessary for false imprisonment, this Court has recognized that false imprisonment covers restraints which are less serious than those necessary for the offenses of kidnapping [18 Pa. C.S. 2901(a)] and unlawful restraint [18 Pa. C.S. 2902(a)].
"In determining whether the restraint at issue interfered with [the victim's] liberty 'substantially,' we give the word 'substantially' its plain meaning....Thus, we determine the Legislature intended false imprisonment to cover restraints where an individual's liberty is interfered with in an ample or considerable manner."
It did not matter that the restraint took place in the victim's own bedroom. "Whether in her own home or elsewhere, Appellant restrained [the victim] and kept her in an area where she did not wish to remain. Removing [a victim] from her home or luring her to an unfamiliar place are simply not elements required for false imprisonment."
"Making threats, intimidating and/or using physical force are not stated elements of false imprisonment, although they may be the tool used by an offender in 'restraining another unlawfully.'"
custody - paternity - standing - presumption
E.W. v. T.S. and C.S - Superior Court - January 31, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/a37030_06.pdf
A man who claimed to be the father of a child did not have standing to seek a declaration of his paternity or ask for custody of a 3 year old child, as against mother (T.S.) and her husband (C.S.), where
- mother and husband were married before conception, at time of conception and birth, etc.
- mother and husband never separated, filed for divorce, etc., and want to maintain their marriage
- husband was named as father on birth certificate
- husband has always assumed paternity and treated child as his own
"The presumption that a child born during the marriage is a child of the husband is always the starting point in a contest involving the parentage of a child born during coverture. Moreover, the strength of the presumption...is a child of the marriage is grounded in the Commonwealth's interest in protecting the family unit. Although the presumption may be rebutted by clear and convincing evidence of husband's non-access, impotency, or sterility, the presumption is irrebuttable where mother, child, and husband live together as an intact family and husband assumed parental responsibility for the child."
Justice Newman's opinion that there is a conflict between these principles and the Uniform Act on Blood Tests has never commanded a majority of the Court. See, Strauser v. Stahr, 726 A.2d 1052, 1056 n. 2 (Pa. 1999)
http://www.courts.state.pa.us/OpPosting/Superior/out/a37030_06.pdf
A man who claimed to be the father of a child did not have standing to seek a declaration of his paternity or ask for custody of a 3 year old child, as against mother (T.S.) and her husband (C.S.), where
- mother and husband were married before conception, at time of conception and birth, etc.
- mother and husband never separated, filed for divorce, etc., and want to maintain their marriage
- husband was named as father on birth certificate
- husband has always assumed paternity and treated child as his own
"The presumption that a child born during the marriage is a child of the husband is always the starting point in a contest involving the parentage of a child born during coverture. Moreover, the strength of the presumption...is a child of the marriage is grounded in the Commonwealth's interest in protecting the family unit. Although the presumption may be rebutted by clear and convincing evidence of husband's non-access, impotency, or sterility, the presumption is irrebuttable where mother, child, and husband live together as an intact family and husband assumed parental responsibility for the child."
Justice Newman's opinion that there is a conflict between these principles and the Uniform Act on Blood Tests has never commanded a majority of the Court. See, Strauser v. Stahr, 726 A.2d 1052, 1056 n. 2 (Pa. 1999)
Pennsylvania Bulletin of February 3, 2007
http://www.pabulletin.com/secure/data/vol37/37-5/index.html
courts - juvenile records - proposed amendments - public availability -
http://www.pabulletin.com/secure/data/vol37/37-5/157.html
court rules - support - amendments
http://www.pabulletin.com/secure/data/vol37/37-5/155.html
governor - regulatory agenda -
"The agendas are compiled to provide members of the regulated community advanced notice of regulatory activity. It is the intention of the Administration that these agendas will serve to increase public participation in the regulatory process."
http://www.pabulletin.com/secure/data/vol37/37-5/186.html
courts - juvenile records - proposed amendments - public availability -
http://www.pabulletin.com/secure/data/vol37/37-5/157.html
court rules - support - amendments
http://www.pabulletin.com/secure/data/vol37/37-5/155.html
governor - regulatory agenda -
"The agendas are compiled to provide members of the regulated community advanced notice of regulatory activity. It is the intention of the Administration that these agendas will serve to increase public participation in the regulatory process."
http://www.pabulletin.com/secure/data/vol37/37-5/186.html
Tuesday, January 30, 2007
UC- employee v. independent contractor
Beacon Flag Car Co. v. UCBR - 910 A.2d 103 (Pa. Cmwlth. 2006)
http://www.courts.state.pa.us/OpPosting/CWealth/out/928CD06_10-31-06.pdf
Claimant held to be a self-employed independent contractor rather than an employee and thus not eligible for UC benefits.
The Claimant -- who did not appear at or participate in the referee hearing -- provided flag car services to clients of Beacon Flag Co. (BFC) under an "independent contractor agreement." A flag car (aka pilot or escort car) accompanies oversized loads on trips. Drivers such as claimant are free to accept or decline any offered trip from BFC and are encouraged to promote their own business. Some drivers have their own vehicles; some rent them from the a business owned by the ER's husband. The drivers get no training. They are given 1099 income tax forms rather than W-2 forms.
The UCBR determined that claimant and others were under BFC's direction or control. The court reversed, based on the decision in Viktor, Ltd. v. Dept. of Labor and Industry, 892 A.2d 781 (Pa. 2006), which decision "was ignored by both the referee and UCBR."
The courts refer to sec. 4(el)(2)(B) of the UC Law, 43 P.S. sec. 753 (el)(2)(B) in these cases. That provision "presumes that an individual is an employee, as opposed to an independent contractor, but this presumption may be overcome if the putative employer sustains its burden of showing that the claimant was free from the control and direction in the performance of his service and that, as to such service, was customarily engaged in an independent trade or business....Unless both of these showings are made, the presumption stands that one who performs services for wages is an employee."
"The first element -- the issue of control -- is based upon a showing of control, not only with regard to the work to be done, but also with regard to the manner of performing it."
"As to the second element -- whether Claimant conducts his driving services as an 'independently established' business -- the courts have identified two factors as important in making this evaluation: (1) whether the individual was capable of performing the activities in question for anyone who wished to avail themselves of the services; and (2) whether the nature of the business compelled the individual to look to only a single employer for the continuation of such services."
The existence of a non-complete clause in the Indpt. Contractor Agreement is not dispositive. The "mere existence" of such a clause does not render the party agreeing to it an employee of the other party. Electrolux Corp. v. Bureau of Tax Operations, 705 A.2d 1357 (Pa. Cmwlth), appeal discontinued, 724 A.2d 936 (Pa. 1998). All factors must be considered. The "unique facts of each cases must be examined in order to resolve the question of employee versus independent contractor status."
http://www.courts.state.pa.us/OpPosting/CWealth/out/928CD06_10-31-06.pdf
Claimant held to be a self-employed independent contractor rather than an employee and thus not eligible for UC benefits.
The Claimant -- who did not appear at or participate in the referee hearing -- provided flag car services to clients of Beacon Flag Co. (BFC) under an "independent contractor agreement." A flag car (aka pilot or escort car) accompanies oversized loads on trips. Drivers such as claimant are free to accept or decline any offered trip from BFC and are encouraged to promote their own business. Some drivers have their own vehicles; some rent them from the a business owned by the ER's husband. The drivers get no training. They are given 1099 income tax forms rather than W-2 forms.
The UCBR determined that claimant and others were under BFC's direction or control. The court reversed, based on the decision in Viktor, Ltd. v. Dept. of Labor and Industry, 892 A.2d 781 (Pa. 2006), which decision "was ignored by both the referee and UCBR."
The courts refer to sec. 4(el)(2)(B) of the UC Law, 43 P.S. sec. 753 (el)(2)(B) in these cases. That provision "presumes that an individual is an employee, as opposed to an independent contractor, but this presumption may be overcome if the putative employer sustains its burden of showing that the claimant was free from the control and direction in the performance of his service and that, as to such service, was customarily engaged in an independent trade or business....Unless both of these showings are made, the presumption stands that one who performs services for wages is an employee."
"The first element -- the issue of control -- is based upon a showing of control, not only with regard to the work to be done, but also with regard to the manner of performing it."
"As to the second element -- whether Claimant conducts his driving services as an 'independently established' business -- the courts have identified two factors as important in making this evaluation: (1) whether the individual was capable of performing the activities in question for anyone who wished to avail themselves of the services; and (2) whether the nature of the business compelled the individual to look to only a single employer for the continuation of such services."
The existence of a non-complete clause in the Indpt. Contractor Agreement is not dispositive. The "mere existence" of such a clause does not render the party agreeing to it an employee of the other party. Electrolux Corp. v. Bureau of Tax Operations, 705 A.2d 1357 (Pa. Cmwlth), appeal discontinued, 724 A.2d 936 (Pa. 1998). All factors must be considered. The "unique facts of each cases must be examined in order to resolve the question of employee versus independent contractor status."
Wednesday, January 24, 2007
disability - grid - non-exertional impairment
Poulos v. Commissioner of Social Security - 3rd Circuit - January 24, 2007
http://www.ca3.uscourts.gov/opinarch/054637p.pdf
The ALJ determined that the claimant had both exertional and non-exertional limitations and "subsequently concluded, without reference to any vocational evidence, that a) Appellant's exertional and nonexertional limitations did not 'significantly compromise' the sedentary occupational base" and, thus, that b) the medical-vocational guidelines--the Grid--could be applied to deny appellant's claim.
The court held that the ALJ erred in doing this and that his "reliance on the Guidelines in the presence of Appellant's nonexertional limitations constitutes reversible error under Sykes v. Apfel, 228 F.3d 259 (3d Cir. 2000), where the court rejected the same argument that SSA made here -- that the guidelines can be relied on even in the presence of a nonexertional limitation, "so long as the limitation does not significantly diminish the range of work that could otherwise be exertionally possible."
The court "squarely rejected this argument in Sykes" and did so here as well. Absent a rulemaking establishing the fact of an undiminished occupational base, SSA cannot determine that a nonexertional impairment does not significantly erode a claimant's occupational basis unless SSA either a) takes additional evidence establishing as much, or b) provides notice to the claimant of its intent to take official notice of this fact and provides the claimant an opportunity to counter the conclusion.
The court remanded the case because the record had not been fully developed and reminded the ALJ of his duty to do so.
The court also reminded the ALJ "that under the Supreme Court's decision in Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 803 (1999), he is not entitled to consider potential accommodations by employers in determining the availability of jobs in the national economy that Appellant can perform."
http://www.ca3.uscourts.gov/opinarch/054637p.pdf
The ALJ determined that the claimant had both exertional and non-exertional limitations and "subsequently concluded, without reference to any vocational evidence, that a) Appellant's exertional and nonexertional limitations did not 'significantly compromise' the sedentary occupational base" and, thus, that b) the medical-vocational guidelines--the Grid--could be applied to deny appellant's claim.
The court held that the ALJ erred in doing this and that his "reliance on the Guidelines in the presence of Appellant's nonexertional limitations constitutes reversible error under Sykes v. Apfel, 228 F.3d 259 (3d Cir. 2000), where the court rejected the same argument that SSA made here -- that the guidelines can be relied on even in the presence of a nonexertional limitation, "so long as the limitation does not significantly diminish the range of work that could otherwise be exertionally possible."
The court "squarely rejected this argument in Sykes" and did so here as well. Absent a rulemaking establishing the fact of an undiminished occupational base, SSA cannot determine that a nonexertional impairment does not significantly erode a claimant's occupational basis unless SSA either a) takes additional evidence establishing as much, or b) provides notice to the claimant of its intent to take official notice of this fact and provides the claimant an opportunity to counter the conclusion.
The court remanded the case because the record had not been fully developed and reminded the ALJ of his duty to do so.
The court also reminded the ALJ "that under the Supreme Court's decision in Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 803 (1999), he is not entitled to consider potential accommodations by employers in determining the availability of jobs in the national economy that Appellant can perform."
Wednesday, January 17, 2007
employment - nurses - licenses - suspension - violation of VRP agreement
Wittorf v. Board of Nursing - Cmwlth. Court - October 12, 2006 (publication ordered 01-10-07)
http://www.courts.state.pa.us/OpPosting/CWealth/out/338CD06_1-10-07.pdf
The Court upheld the decision of the State Board of Nursing to suspend the license of a nurse who had violated a consent agreement which he entered under the Voluntary Rehabilitation Program (VRP), 63 P.S. sec. 224.1(c).
The nurse entered the VRP agreement after he had been charged with DUI, a 2nd degree misdemeanor. The criminal case was resolved without a finding of guilt, when Wittorf successfully completed an ARD program, after which his criminal record was expunged.
The Bureau of Professional & Occupational Affairs then took action concerning his nursing license. It offered him a chance to enter the VRP in lieu of disciplinary charges being brought against him. In the VRP agreement, Wittorf stipulated that a) he was unable to practice nursing with reasonable skill and safety, due to his abuse of and dependency on alcohol. and b) that he had suffered from alcohol abuse or dependency for two years. Under the VRP agreement, Wittorf's license was suspended, but the suspension was stayed in favor of probation, conditioned on, inter alia, his complete abstention from the use of alcohol and his documented regular attendance and active participation in a support program.
The Bureau petitioned to suspend Wittorf's license when he later violated the VRP agreement by testing positive for alcohol several times and failing to submit support group attendance records after being requested to do so. At a hearing, Wittorf did not dispute violating the VRP agreement. Instead he argued that the Board had no authority to force him to enter into a VRP agreement, because he had only been charged with a misdemeanor, and the statute, 63 P.S. sec. 224(a)(5), only authorized suspension if the offense was a felony.
The Court held that Wittorf's argument ignored the Board's independent authority under 63 P.S. sec. 224(a)(2), 224(b)(4) and 224.1(c) to a) suspend or revoke a nurses license or, in the alternative, or to b) require a VRP program, when a nurse us "unable to practice....with reasonable skill and safety to patients by reason of....dependence upon alcohol...."
http://www.courts.state.pa.us/OpPosting/CWealth/out/338CD06_1-10-07.pdf
The Court upheld the decision of the State Board of Nursing to suspend the license of a nurse who had violated a consent agreement which he entered under the Voluntary Rehabilitation Program (VRP), 63 P.S. sec. 224.1(c).
The nurse entered the VRP agreement after he had been charged with DUI, a 2nd degree misdemeanor. The criminal case was resolved without a finding of guilt, when Wittorf successfully completed an ARD program, after which his criminal record was expunged.
The Bureau of Professional & Occupational Affairs then took action concerning his nursing license. It offered him a chance to enter the VRP in lieu of disciplinary charges being brought against him. In the VRP agreement, Wittorf stipulated that a) he was unable to practice nursing with reasonable skill and safety, due to his abuse of and dependency on alcohol. and b) that he had suffered from alcohol abuse or dependency for two years. Under the VRP agreement, Wittorf's license was suspended, but the suspension was stayed in favor of probation, conditioned on, inter alia, his complete abstention from the use of alcohol and his documented regular attendance and active participation in a support program.
The Bureau petitioned to suspend Wittorf's license when he later violated the VRP agreement by testing positive for alcohol several times and failing to submit support group attendance records after being requested to do so. At a hearing, Wittorf did not dispute violating the VRP agreement. Instead he argued that the Board had no authority to force him to enter into a VRP agreement, because he had only been charged with a misdemeanor, and the statute, 63 P.S. sec. 224(a)(5), only authorized suspension if the offense was a felony.
The Court held that Wittorf's argument ignored the Board's independent authority under 63 P.S. sec. 224(a)(2), 224(b)(4) and 224.1(c) to a) suspend or revoke a nurses license or, in the alternative, or to b) require a VRP program, when a nurse us "unable to practice....with reasonable skill and safety to patients by reason of....dependence upon alcohol...."
welfare - NMP-MA - ongoing v. monthly program
Brobst v. DPW - Commonwealth Court 09-26-06, publication ordered 01-10-07
http://www.courts.state.pa.us/OpPosting/CWealth/out/121CD06_1-10-07.pdf
The court upheld DPW's decision that the appellant was eligible for the monthly NMP-MA spend-down program but not the ongoing NMP-MA spend-down program, because a) her monthly expenses exceeded the specified income limits and b) her medical expenses were covered under the NMP-MA program, and so could not be deducted from her income.
The ongoing program allows a recipient to "received uninterrupted medical coverage for the full month. 55 Pa.Code sec. 181.13." The monthly program applies where income, after appropriate deductions, is still above the specified income limits, requiring the individual to "spend a certain amount on expenses every month before medical assistance can be available to cover the remaining expenses for the month, 55 Pa. Code sec. 181.13....[M]edical expenses covered by NMP-MA may not be deducted from monthly income....only expenses not covered by NMP-MA....."
The court held that the DPW program under 55 Pa. Code 181.13 was a valid application of the "flexible income test" required under Title XIX of the Social Security Act, 42 USC sec. 1396 et seq.
http://www.courts.state.pa.us/OpPosting/CWealth/out/121CD06_1-10-07.pdf
The court upheld DPW's decision that the appellant was eligible for the monthly NMP-MA spend-down program but not the ongoing NMP-MA spend-down program, because a) her monthly expenses exceeded the specified income limits and b) her medical expenses were covered under the NMP-MA program, and so could not be deducted from her income.
The ongoing program allows a recipient to "received uninterrupted medical coverage for the full month. 55 Pa.Code sec. 181.13." The monthly program applies where income, after appropriate deductions, is still above the specified income limits, requiring the individual to "spend a certain amount on expenses every month before medical assistance can be available to cover the remaining expenses for the month, 55 Pa. Code sec. 181.13....[M]edical expenses covered by NMP-MA may not be deducted from monthly income....only expenses not covered by NMP-MA....."
The court held that the DPW program under 55 Pa. Code 181.13 was a valid application of the "flexible income test" required under Title XIX of the Social Security Act, 42 USC sec. 1396 et seq.
appeals - interlocutory appeal - collateral order - discovery
Feldman v. Ide - Superior Court - January 9, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/a33037_06.pdf
For an order to be deemed collateral and subject to interlocutory review
- The order must be separate and distinct from the main cause of action
- The right involved must be too important for review to be denied, i.e., the right is deeply rooted in public policy such that it goes beyond the controversy at hand, such as privacy.
- The question presented must be such that if review is postponed until judgment, the claim will be irreparably lost.
In a discovery controversy, there must be no effective means of review if the order were to be carried out. An order directing a doctor hired by the insurer of a tort plaintiff to produce documents about his income in worker's comp. and personal injury cases was held to be collateral and thus subject to interlocutory. However, the discovery order was upheld pursuant to the decision in Cooper v. Shoffstall, 905 A.2d, 482 (Pa. 2006).
http://www.courts.state.pa.us/OpPosting/Superior/out/a33037_06.pdf
For an order to be deemed collateral and subject to interlocutory review
- The order must be separate and distinct from the main cause of action
- The right involved must be too important for review to be denied, i.e., the right is deeply rooted in public policy such that it goes beyond the controversy at hand, such as privacy.
- The question presented must be such that if review is postponed until judgment, the claim will be irreparably lost.
In a discovery controversy, there must be no effective means of review if the order were to be carried out. An order directing a doctor hired by the insurer of a tort plaintiff to produce documents about his income in worker's comp. and personal injury cases was held to be collateral and thus subject to interlocutory. However, the discovery order was upheld pursuant to the decision in Cooper v. Shoffstall, 905 A.2d, 482 (Pa. 2006).
Friday, January 12, 2007
Pennsylvania Bulletin of January 13, 2007
http://www.pabulletin.com/secure/data/vol37/37-2/index.html
banking - right-to-know request policy
http://www.pabulletin.com/secure/data/vol37/37-2/44.html
UC- table -rate and amount of benefits
http://www.pabulletin.com/secure/data/vol37/37-2/53.html
agriculture - wine marketing and research program
http://www.pabulletin.com/secure/data/vol37/37-2/42.html
banking - right-to-know request policy
http://www.pabulletin.com/secure/data/vol37/37-2/44.html
UC- table -rate and amount of benefits
http://www.pabulletin.com/secure/data/vol37/37-2/53.html
agriculture - wine marketing and research program
http://www.pabulletin.com/secure/data/vol37/37-2/42.html
Tuesday, January 09, 2007
admin. law - appeal - timeliness - designation of mailing date
Julia Ribaudo Senior Services v. DPW - Commonwealth Court - January 4, 2007
http://www.courts.state.pa.us/OpPosting/CWealth/out/351CD06_1-4-07.pdf
Where an appeal must be filed within a specified time from the mailing date of a decision, the decision must contain a clearly specified mailing date. There is "no substitute for denominating the date of mailing so as to constitute the starting date for the appeal period. . . . A disembodied date on the notice. . .without any indication that it is the mailing date, is not sufficiently informative."
A date on a letter or a "date final administrative action," without more, are not sufficient. Likewise, testimony on department practice about mailing its decisions is "no substitute for a clearly designated mailing date," without which a notice does "not serve to begin the appeal period."
The following cases were cited in support of the decision: Sheets v. DPW, 479 A.2d 80 (Pa. Cmwlth. 1984); Schmidt v. Commonwealth, 433 A.2d 4546, 458 (Pa. 1981); Mihordin v. UCBR, 471 A.2d 1334, 1336 (1984); Nyhart v. Dept. of Corrections, 721 A.2d 391 (Pa. Cmwlth. 1998).
http://www.courts.state.pa.us/OpPosting/CWealth/out/351CD06_1-4-07.pdf
Where an appeal must be filed within a specified time from the mailing date of a decision, the decision must contain a clearly specified mailing date. There is "no substitute for denominating the date of mailing so as to constitute the starting date for the appeal period. . . . A disembodied date on the notice. . .without any indication that it is the mailing date, is not sufficiently informative."
A date on a letter or a "date final administrative action," without more, are not sufficient. Likewise, testimony on department practice about mailing its decisions is "no substitute for a clearly designated mailing date," without which a notice does "not serve to begin the appeal period."
The following cases were cited in support of the decision: Sheets v. DPW, 479 A.2d 80 (Pa. Cmwlth. 1984); Schmidt v. Commonwealth, 433 A.2d 4546, 458 (Pa. 1981); Mihordin v. UCBR, 471 A.2d 1334, 1336 (1984); Nyhart v. Dept. of Corrections, 721 A.2d 391 (Pa. Cmwlth. 1998).
PFA - right to plenary 10-day hearing
Lanza v. Simconis - Superior Court - December 19, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/a29001_06.pdf
Plaintiff/appellant filed a pro se PFA and trial court conducted a hearing under 23 Pa. C.S. 6107(b), at which defendant unexpectedly appeared and denied the allegations of abuse. The trial court denied the temporary order, stating that it was unable to determine credibility. The trial court did not set or conduct a final 10-day hearing on the merits under 23 Pa. C.S 6107(a).
The appellate court held that it was error not to hold a plenary final hearing within 10 days. Such a hearing is required by the statute, 23 Pa. C.S. 6107(a) ("a hearing shall be held") and by a PFA plaintiff's due process right to be heard at a meaningful time and in a meaningful manner, including the right to have counsel, to cross-examine defendant, and to present other witnesses and evidence.
http://www.courts.state.pa.us/OpPosting/Superior/out/a29001_06.pdf
Plaintiff/appellant filed a pro se PFA and trial court conducted a hearing under 23 Pa. C.S. 6107(b), at which defendant unexpectedly appeared and denied the allegations of abuse. The trial court denied the temporary order, stating that it was unable to determine credibility. The trial court did not set or conduct a final 10-day hearing on the merits under 23 Pa. C.S 6107(a).
The appellate court held that it was error not to hold a plenary final hearing within 10 days. Such a hearing is required by the statute, 23 Pa. C.S. 6107(a) ("a hearing shall be held") and by a PFA plaintiff's due process right to be heard at a meaningful time and in a meaningful manner, including the right to have counsel, to cross-examine defendant, and to present other witnesses and evidence.
driver's license - suspension - delay
Orloff v. PennDOT - Commonwealth Court - December 18, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/136CD06_12-18-06.pdf
In a 4-3 decision, the court held that a) there was an "unreasonable delay chargeable to PennDOT [which] led the licensee to believe that his operating privilege would not be impaired; and b) "prejudice would result by having his operating privilege suspended after such delay."
The case had been decided in the licensee's favor by the trial court, which had held that DOT had not properly proven its case by use of copies of electronic transmissions from another state, which had reported a DUI conviction to Pennsylvania. DOT appealed and the Commonwealth Court reversed in part, affirmed in part, and remanded the case back to the trial court for consideration of several legal issues. The trial judge died and the case languished there for about 5 years until DOT sent the court a letter asking that the case be be listed for hearing, at which time the licensee raised the issue of delay.
DOT's contention that this was judicial delay for which it was not responsible was rejected. The court said that the "General Assembly placed in PennDOT the responsibility to prosecute licenses suspension cases....[and the] responsibility for moving a case forward under circumstances where it is reasonable for it to be expected to do so," in which event "the delay is attributable to PennDOT....PennDOT was responsible for taking the appropriate action to have the case heard and, absent such action to carry out its responsibility to prosecute the appeal, PennDOT is chargeable with the delay."
The court also held that the licensee had established prejudice from the unreasonable delay in that he was "able to demonstrate that he changed his circumstances to his detriment in reliance on his belief that his operating privileges would not be impaired....[T]he loss of a job or required closing of a business requiring a driver's license constitutes prejudice.....Also prejudice is established when a licensee has changed jobs to a position that requires driving as part of the new job's duties....[or] by showing the an owner changed his job duties so that a license is necessary for the financial well-being of his company."
The dissent argued that the delay was caused by the lower court and should not be attributable to PennDOT, and that the court had created an "unworkable standard for future cases where a licenses suspension is remanded to this Court or to a court of common pleas solely for reconsideration of a legal issue."
http://www.courts.state.pa.us/OpPosting/CWealth/out/136CD06_12-18-06.pdf
In a 4-3 decision, the court held that a) there was an "unreasonable delay chargeable to PennDOT [which] led the licensee to believe that his operating privilege would not be impaired; and b) "prejudice would result by having his operating privilege suspended after such delay."
The case had been decided in the licensee's favor by the trial court, which had held that DOT had not properly proven its case by use of copies of electronic transmissions from another state, which had reported a DUI conviction to Pennsylvania. DOT appealed and the Commonwealth Court reversed in part, affirmed in part, and remanded the case back to the trial court for consideration of several legal issues. The trial judge died and the case languished there for about 5 years until DOT sent the court a letter asking that the case be be listed for hearing, at which time the licensee raised the issue of delay.
DOT's contention that this was judicial delay for which it was not responsible was rejected. The court said that the "General Assembly placed in PennDOT the responsibility to prosecute licenses suspension cases....[and the] responsibility for moving a case forward under circumstances where it is reasonable for it to be expected to do so," in which event "the delay is attributable to PennDOT....PennDOT was responsible for taking the appropriate action to have the case heard and, absent such action to carry out its responsibility to prosecute the appeal, PennDOT is chargeable with the delay."
The court also held that the licensee had established prejudice from the unreasonable delay in that he was "able to demonstrate that he changed his circumstances to his detriment in reliance on his belief that his operating privileges would not be impaired....[T]he loss of a job or required closing of a business requiring a driver's license constitutes prejudice.....Also prejudice is established when a licensee has changed jobs to a position that requires driving as part of the new job's duties....[or] by showing the an owner changed his job duties so that a license is necessary for the financial well-being of his company."
The dissent argued that the delay was caused by the lower court and should not be attributable to PennDOT, and that the court had created an "unworkable standard for future cases where a licenses suspension is remanded to this Court or to a court of common pleas solely for reconsideration of a legal issue."
UC - vol. quit - racial/ethnic harassment, profanity
The Western & Southern Life Insurance Company - Commomwealth Court - Decembr 18, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/1347CD06_12-18-06.pdf
Held, that the UCBR's findings that a) the claimant was subject to racial and ethnic slurs, profanity, and physical threats, and that b) claimant acted with common sense and did all he reasonably could to preserve his job before quitting were supported by substantial evidence, and that the Board did not commit any error in applying the relevant law.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1347CD06_12-18-06.pdf
Held, that the UCBR's findings that a) the claimant was subject to racial and ethnic slurs, profanity, and physical threats, and that b) claimant acted with common sense and did all he reasonably could to preserve his job before quitting were supported by substantial evidence, and that the Board did not commit any error in applying the relevant law.
Pennsylvania Bulletin of December 23, 2006
http://www.pabulletin.com/secure/data/vol36/36-51/index.html
court rules - proposed - electronic filing and service of legal papers - comments due 2-16-07 http://www.pabulletin.com/secure/data/vol36/36-51/2503.html
state police - uniform crime reporting act
http://www.pabulletin.com/secure/data/vol36/36-51/2542.html
professional & occupation affairs - schedule of civil penalties http://www.pabulletin.com/secure/data/vol36/36-51/2510.html
crime victims compensation
http://www.pabulletin.com/secure/data/vol36/36-51/2509.html
court rules - proposed - electronic filing and service of legal papers - comments due 2-16-07 http://www.pabulletin.com/secure/data/vol36/36-51/2503.html
state police - uniform crime reporting act
http://www.pabulletin.com/secure/data/vol36/36-51/2542.html
professional & occupation affairs - schedule of civil penalties http://www.pabulletin.com/secure/data/vol36/36-51/2510.html
crime victims compensation
http://www.pabulletin.com/secure/data/vol36/36-51/2509.html
evidence - child witness - hearsay - child "unavailable"
Commonwealth v. Kriner - Superior Court - January 2, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/e03003_06.pdf
The hearsay statement of a child victim/witness under 12 years of age is admissible under 42 Pa. C.S. 5985.1 to prove certain criminal offenses if, inter alia, the child is "'unavailable" as a witness.
The statute defines "unavailable" as "serious emotional distress that would substantially impair the child's ability to communicate." This definition is exclusive. There is "no other manner, method, procedure or definition of what constitutes unavailability." Thus, the death of a child witness does not come within this statutory definition of unavailability.
http://www.courts.state.pa.us/OpPosting/Superior/out/e03003_06.pdf
The hearsay statement of a child victim/witness under 12 years of age is admissible under 42 Pa. C.S. 5985.1 to prove certain criminal offenses if, inter alia, the child is "'unavailable" as a witness.
The statute defines "unavailable" as "serious emotional distress that would substantially impair the child's ability to communicate." This definition is exclusive. There is "no other manner, method, procedure or definition of what constitutes unavailability." Thus, the death of a child witness does not come within this statutory definition of unavailability.
forum selection clause - validity
Patriot Commercial Leasing Company v. Kremer Restaurant Enterprises
http://www.courts.state.pa.us/OpPosting/Superior/out/A24012_06.pdf
In this case involving two commercial entities, the court held that forum selection clauses are presumed to be valid when the parties have freely agreed that litigation shall be conducted in a particular forum and where the agreement is not unreasonable at the time of litigation. Such a clause will be considered unreasonable "only where its enforcement would, under all circumstances existing at the time of litigation, seriously impair a party's ability to pursue his cause of action....Mere inconvenience or additional expense is not the test of unreasonableness." The "modern trend is to uphold the enforceability of forum selection clauses where those clauses are clear and unambiguous."
A "forum selection clause in a commercial contract between business entities is presumptively valid and will be deemed unenforceable only when: 1) the clause itself was inducted by fraud or overreaching; 2) the forum selected in the clause is so unfair or inconvenient that a party, for all practical purposes, will be deprived of an opportunity to be heard; or 3) the clause is found to violate public policy."
http://www.courts.state.pa.us/OpPosting/Superior/out/A24012_06.pdf
In this case involving two commercial entities, the court held that forum selection clauses are presumed to be valid when the parties have freely agreed that litigation shall be conducted in a particular forum and where the agreement is not unreasonable at the time of litigation. Such a clause will be considered unreasonable "only where its enforcement would, under all circumstances existing at the time of litigation, seriously impair a party's ability to pursue his cause of action....Mere inconvenience or additional expense is not the test of unreasonableness." The "modern trend is to uphold the enforceability of forum selection clauses where those clauses are clear and unambiguous."
A "forum selection clause in a commercial contract between business entities is presumptively valid and will be deemed unenforceable only when: 1) the clause itself was inducted by fraud or overreaching; 2) the forum selected in the clause is so unfair or inconvenient that a party, for all practical purposes, will be deprived of an opportunity to be heard; or 3) the clause is found to violate public policy."
landlord-tenant - covenant of quiet enjoyment
Kohl v. PNC Bank Natl. Assn. et al. - Pennsylvania Supreme Court - December 27, 2006 majority http://www.courts.state.pa.us/OpPosting/Supreme/out/J-129-2005mo.pdf
concur/dissent http://www.courts.state.pa.us/OpPosting/Supreme/out/J-129-2005cd.pdf
In a 5-1 decision, the court held that a "suit by a landlord which substantially impairs a tenant's possessory interest in a leasehold, brought in bad faith, maliciously, or otherwise without probable cause and primarily for a purpose unrelated to seeking legal redress, constitutes a breach of the landlord's [implied] covenant of quiet enjoyment," citing the lower court decision in the case, 863 A.2d 23, 31 (Pa. Super. 2004) and Raker v. G.C. Murphy Co., 58 A.2d 18 (Pa. 1948).
The court mentioned the "need to protect a litigant's free access to the courts under Article I, sec. 11, of the Pennsylvania Constitution ("All courts shall be open...") and noted that "that law does not punish parties who avail themselves of the courts except in very limited circumstances manifesting bad faith, in order to avoid the potential chilling effect individuals' willingness to seek legal redress."
In discussing the covenant of quiet enjoyment, the court noted that it is "implied in all leases" and stated that it is "settled in this state that any wrongful act of the landlord which results in an interference of the tenant's possession, in whole or in part, is an eviction for which the landlord is liable in damages to the tenant." The covenant is breached by such acts as threatening eviction if the tenant's boyfriend visited the tenant at the property. On the other hand, there has to be "more than mere infringement of the tenant's rights." The act of the landlord must "substantially impair...a tenant's possessory interest in a leasehold."
concur/dissent http://www.courts.state.pa.us/OpPosting/Supreme/out/J-129-2005cd.pdf
In a 5-1 decision, the court held that a "suit by a landlord which substantially impairs a tenant's possessory interest in a leasehold, brought in bad faith, maliciously, or otherwise without probable cause and primarily for a purpose unrelated to seeking legal redress, constitutes a breach of the landlord's [implied] covenant of quiet enjoyment," citing the lower court decision in the case, 863 A.2d 23, 31 (Pa. Super. 2004) and Raker v. G.C. Murphy Co., 58 A.2d 18 (Pa. 1948).
The court mentioned the "need to protect a litigant's free access to the courts under Article I, sec. 11, of the Pennsylvania Constitution ("All courts shall be open...") and noted that "that law does not punish parties who avail themselves of the courts except in very limited circumstances manifesting bad faith, in order to avoid the potential chilling effect individuals' willingness to seek legal redress."
In discussing the covenant of quiet enjoyment, the court noted that it is "implied in all leases" and stated that it is "settled in this state that any wrongful act of the landlord which results in an interference of the tenant's possession, in whole or in part, is an eviction for which the landlord is liable in damages to the tenant." The covenant is breached by such acts as threatening eviction if the tenant's boyfriend visited the tenant at the property. On the other hand, there has to be "more than mere infringement of the tenant's rights." The act of the landlord must "substantially impair...a tenant's possessory interest in a leasehold."
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