custody - support - lesbian couple, sperm donor

Jacob v. Jacob - Superior Court - April 30, 2007

http://www.courts.state.pa.us/OpPosting/Superior/out/s15032_07.pdf

Sperm donor-father of children held liable for support -- along with lesbian couple -- on grounds of equitable estoppel and by statute, 23 Pa. C.S. 4321(2). Father -- played active part in children's lives -- ordered joined as indispensable party.

Custody award of lower court confirmed, giving
- shared legal custody to biological mother and her former partner (Appellant)
- primary physical custody to biological mother
- partial physical custody to mother's former partner and biological father (separately)

custody - setting trial date w/in 180 days of filing

Dietrich v. Dietrich - Superior Court - April 20, 2007

http://www.courts.state.pa.us/OpPosting/Superior/out/S15041_07.pdf

The court held that, since a trial was not scheduled in this case within 180 days of the date the complaint was filed, as required by Pa. R.C.P 1915.4(b) http://www.pacode.com/secure/data/231/chapter1915/s1915.4.html, the order that resulted from a trial that took place more than 180 days after filing had to be vacated and the case remanded "to restore the immediately-preceding custody order....Either party may then file a petition to modify custody pursuant to Chapter 53" of the state domestic relations act, 23 Pa. CS, and Pa RCP 1915.4. Go figure.

UC - quit v. fire - "park your truck"

Bell v. UCBR - Commonwealth Court - filed 2-20-07, ordered reported 4-20-07

http://www.courts.state.pa.us/OpPosting/CWealth/out/1806CD06_4-20-07.pdf

Journeyman plumber's argument that his supervisor's use of the phrase "park your truck" meant that he had been fired was rejected. Claimant was held to have voluntarily quit when he left the job after a confrontation, during which the supervisor used the phrase.

The UCBR resolved all critical factual issues in favor of the employer, including that the supervisor's statement that "if Claimant did not like working with [the supervisor] or Employer, provided Claimant with the option to continue his employment and did not possess the immediacy and finality of a firing."

There were also findings that the claimant had made numerous prior requests to be laid off, had not questioned the supervisor about the meaning of his statement, and that continuing work was available. Claimant's testimony and argument that "park your truck" had a special meaning in the profession--you're fired--was rejected under the totality of circumstances in the case.

PFA - withdrawal - expungement

Commonwealth v. Charnik - Superior Court - April 3, 2007
http://www.courts.state.pa.us/OpPosting/Superior/out/s69024_06.pdf

This case involves a PFA defendant's request for expungement of a) two indirect criminal contempt convictions and b) the underlying PFA order itself. The trial court and Superior Court denied both requests.

Plaintiff got a final PFA order following a contested hearing. Later, Defendant was charged with and found guilty of two (2) instances of indirect criminal contempt, for violating the final PFA order. Plaintiff later filed a petition to withdraw the PFA order, seven months after it had been entered. The trial court granted the petition. Defendant then moved to expunge both the PFA record and the record of his contempt convictions. The trial court denied both requests and the Superior Court affirmed.

conviction records - The Superior Court rejected the request to expunge the contempt convictions, stating that the "Pennsylvania legislature has strictly regulated expungement of records of convicted persons. Conviction records may be expunged only where: 1) the subject of the information reaches the age of seventy and has been free from arrest or prosecution for ten years; or 2) where the individual has been dead for three years. Criminal History Record Information Act, 18 Pa. C.S. sec. 9122(b)." (emphasis in original)

non-conviction records -
The Superior Court termed the issue of the expungement of the underlying PFA "more complicated."

It held (in n. 3) that the trial did not have jurisdiction to set aside the final PFA order seven months after it had entered it, since there had been no appeal or reconsideration of that order. Query: does this mean that a PFA plaintiff does not have the right to withdraw her/his case? See, e.g., 23 Pa. C.S. 6105(e)(2) ("Vacated or expired orders shall be purged from the registry.")

In any event , the court went on to discuss the expungement issue in detail, distinguishing between a case where a final PFA order is entered after a hearing and a case which is discontinued before the entry of a final order, e.g., where it is withdrawn after the entry of a temporary order, without any hearing and before a plaintiff has met her/his burden of proof. "Thus, when a PFA petition...has been dismissed by court order [when neither party appears at the final hearing] or the PFA proceedings never evolve beyond the temporary order stage..., expungement is proper as a matter of law" since the PFA process was "not completed" and therefore lacked the "safeguards of due process."

The court said that expungement was not proper in other circumstances and held that the decision in Carlacci v. Mazaleski, 798 A.2d 186 (Pa. 2002), should be read as "expressly limiting the remedy of expungement of PFA records to those cases where...no facts were brought forth to substantiate a finding of abuse and no final order was entered...."

In the case at bar, the request for expungement was rejected, because the final order was entered after a contested hearing at which "facts were brought forth proving the allegations of abuse by a fair preponderance of the evidence, and [the defendant] has not appealed that determination...."

Query: would the have reached the same result where the final order was entered by agreement, without any admission?

UC - hearing - continuance

Skowronek v. UCBR - Commonwealth Court - April 9, 2007

http://www.courts.state.pa.us/OpPosting/CWealth/out/2150CD06_4-9-07.pdf

The referee's denial of counsel's request for a continuance of the UC hearing was affirmed and no abuse of discretion was found, under the following circumstances:

last-minute request - The request was made just one day prior to the hearing on July 20th. The hearing notice had been sent out on July 7th. The court noted that the request was less the 24 hours prior to the hearing and was faxed when the referee office was closed, at 6:30 p.m. on the last business day before the hearing. It also cited case law saying that "last-minute requests for continuances will not be viewed favorably....."

no contact information supplied - The request did not contain contact information for claimant's counsel. The contact information was at the bottom of the attorney's stationery and did not appear on the fax, having apparently been cut off.

no good cause established - The request was vague and did not establish "good cause" on it face. The attorney said only that "I will be unavailable due to a previously scheduled appointment." The court said that this request was "vague" and similar to another case, where a continuance was requested for "unspecified personal reasons." In this case, the court said that the request did "not provide sufficient information from which the referee could determine proper cause existed to continue the hearing. Given the timing of the requests and its vague nature, no abuse of discretion is apparent."

wages - WPCL - attorney fees

Zdrok v. Main Line Mortgage Co. - Superior Court - April 5, 2007

http://www.courts.state.pa.us/OpPosting/Superior/out/a32002_06.pdf

This case was remanded for a calculation and award of attorney fees to the prevailing party below. A fee award is mandatory in an action brought under the Wage Payment and Collection Law, 43 P.S. sec. 260.9a(f), citing Oberneder v. Link Computer Corp, 696 A.2d 148, 151 (Pa. 1997). "This conclusion promotes the statute's purpose to protect employees when employers breach a contractual obligation to pay wages."

Pennsylvania Bulletin of April 7, 2007

http://www.pabulletin.com/secure/data/vol37/37-14/index.html

court rules - additional defendants - cross claims - etc.
http://www.pabulletin.com/secure/data/vol37/37-14/591.html

drivers' licenses - physical examination
http://www.pabulletin.com/secure/data/vol37/37-14/594.html

disability - determination of another agency - substantial weight

Sell v. Barnhart - ED Pa. - March 28, 2007

http://www.paed.uscourts.gov/documents/opinions/07D0401P.pdf

This case was remanded because the ALJ did not give proper weight to the disability determination of another agency, the Veterans Administration.

The "Third Circuit has held that a determination made by another agency that a person is 'disabled' is entitled to 'substantial weight.' [citing cases.] The ALJ, however only gave the VA's determination 'probative' weight....Moreover, the ALJ did not provide a detailed explanation for rejecting the VA's determination.

The case was remanded "for the sole purpose of giving the Veteran's [sic] Administration's finding that Plaintiff was 100% disabled during the relevant period 'substantial' rather than merely 'probative' weight. If the Commission decides to reject the VA's determination under the 'substantial weight' standard, the Commissioner must give a detailed explanation for rejecting that determination."

Pennsylvania Bulletin of March 31, 2007

http://www.pabulletin.com/secure/data/vol37/37-13/index.html

court rules - mortgage foreclosure - execution on personal property - UCC sec. 9404(a)
http://www.pabulletin.com/secure/data/vol37/37-13/537.html

IRRC - regulations approved - welfare - special MA and home health agency services
http://www.pabulletin.com/secure/data/vol37/37-13/564.html

disability - all evidence - forest/trees - treating physician

Martinez-Ortiz v. Astrue - ED Pa. - March 27, 2007

http://www.paed.uscourts.gov/documents/opinions/07D0389P.pdf

This disability case was remanded because

- treating physician - The ALJ did not give proper weight to the treating physician's opinion, which is "normally entitled to significant weight, and...cannot be disregarded 'for no reason or for the wrong reason.'"

- expression of opinion about disability - The ALJ improperly rejected the opinion of a treating physician whom he said was trying to qualify the claimant for benefits. The court responded by saying the "a treating doctor's opinion cannot be rejected because it discusses whether the plaintiff is disabled."

- all of the evidence - The ALJ failed to evaluate the claimant's overall condition and "instead relied upon certain discrete findings of physicians...and used those findings to reject" the treating physician's opinion. "In doing so, the ALJ unacceptably focused on the trees to the exclusion of the forest."

courts - appeals - filing by fax

Estate of Karschner - Superior Court - February 28, 2007

http://www.courts.state.pa.us/OpPosting/Superior/out/s38031_06.pdf

The appellate court stated (in what may be dicta) that, under the rules of civil and appellate procedure, filing an appeal by fax is not proper. "The Rules of Civil Procedure categorically prohibit the 'filing of legal papers with the prothonotary by facsimile transmission. Pa. RCP 205.3(a), note. The question then becomes whether that prohibition [in the note] informs our treatment of a filing required by the rules of this Court. We find that it does." The court found support for its ruling in the internal operating procedures of the Supreme Court, which limit fax transmissions to emergency motions only. See, 210 Pa. Code sec. 63.6(c).

Despite this, the appellate court considered the merits of the case, because 1) the appellant mailed a notice of appeal, which was received by the appellant court within about 40 days of the entry of the final order in the docket of the trial court (although not within the 30 days required by Pa.RAP 903(a); and 2) the prothonotary of the trial court never made an entry in the docket that the required notation under Pa. RCP 236(b) -- that appropriate notice of the entry of the trial court judgment had been given to the parties. Since that entry was not made, the 30-day appeal period for filing an appeal was held to have never begun, hence the appellate court's decision on the merits. Still, it would seem to be better practice not to rely on a notice of appeal which is filed by fax in the appellate court.

Is not Pennsylvania procedure a thing to behold at times? Or is this just an isolated phenomenon and an unjust basis on which the judge our state practice -- like New Jersey's reputation, based solely and wrongfully on a relatively small uninhabitable, grotesque area of land just outside NYC, instead of on all its beautiful, non-grotesque places to which Pennsylvanians and others flee for fun?

admin. law - policies v. regulations

Eastwood Nursing & Rehab. Center v. DPW - 910 A.2d 134 (Pa. Cmwlth. 2006)

http://www.courts.state.pa.us/OpPosting/CWealth/out/1421CD05_11-3-06.pdf

DPW issued a Statement of Policy (SOP), which the petitioner argued was an improper and ineffective unpromulgated regulation. "It is well settled law that an agency's substantive regulations, when properly enacted under the Commonwealth Documents Law (CDL), [45 P.S. sec. 1102-1602] have the force and effect of law and enjoy a general presumption of reasonableness....The CDL defines a 'regulation' as 'any rule or regulation, or order in the nature of a rule or regulation, promulgated by an agency under statutory authority in the administration of any statute administered by or relating to the agency....' 45 P.S. § 1102(12). When an agency issues a regulation, the CDL requires the agency to provide notice of a proposed rule to the public, receive comments from interested parties, and hold hearings when appropriate. 45 P.S. §§ 1201, 1202...."

"Conversely, an interpretive rule, referred to in Section 102 of the CDL as a"statement of policy," is defined as: 'any document, except an adjudication or a regulation, promulgated by an agency which sets forth substantive or procedural personal or property rights, privileges, immunities, duties, liabilities or obligations of the public or any part thereof, and includes, without limiting the generality of the foregoing, any document interpreting or implementing any act of Assembly enforced or administered by such agency. 45 P.S. § 1102(13). In other words, a statement of policy is 'one that tracks a statute and does not expand upon its plain meaning; such a rule need not be issued in accord with the CDL.' " (emphasis added)

In PHRC v. Norristown Area School District, 374 A.2d 671, 679 (Pa. 1977), the Supreme Court "articulated the distinction between substantive rules which must be promulgated through rule-making procedures and statements of policy which require no such procedures" as follows: The critical distinction between a substantive rule and a general statement of policy is the different practical effect that these two types of pronouncements have in subsequent administrative proceedings. . . . A properly adopted substantive rule establishes a standard of conduct which has the force of law. . . . The underlying policy embodied in the rule is not generally subject to challenge before the agency. general statement of policy, on the other hand, does not establish a 'binding norm'. [It is not finally determinative of the issues or rights to which it is addressed. The agency cannot apply or rely upon a general statement of policy as law because a general statement of policy only announces what the agency seeks to establish as policy.] A policy statement announces the agency's tentative intentions for the future. When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued. "

The statement of policy is an "informational device...[which] erves several beneficial functions. By providing a formal method by which an agency can express its views, the general statement of policy encourages public dissemination of the agency's policies prior to their actual application in particular situations. Thus the agency's initial views do not remain secret but are disclosed well in advance of their actual application. Additionally, the publication of a general statement of policy facilitates long range planning within the regulated industry and promotes uniformity in areas of national concern.

"A regulation is a governmental agency's exercise of delegated legislative power to create a mandatory standard of beha-vior. A regulation is binding on a reviewing court if it conforms to the grant of delegated power, is issued in accordance with proper procedures, and is reasonable. In contrast, a statement of policy is a governmental agency's statutory interpretation which a court may accept or reject depending upon how accurately the agency's interpretation reflects the meaning of the statute.....

"Pennsylvania follows the 'binding norm test' to assess whether an agency's pronouncement is a regulation or a statement of policy..... 'A binding norm' means that the agency is bound by the statement until the agency repeals it, and if the statement is binding on the agency, it is a regulation . [I]n determining whether an agency action is a regulation or a statement of policy, one must look to the extent to which the challenged pronouncement leaves the agency free to exercise discretion to follow or not follow the announced policy in an individual case...... In ascertaining whether an agency has established a binding norm, the reviewing court must consider: (1) the plain language of the provision; (2) the manner in which the agency has implemented the provision; and, (3) whether the agency's discretion is restricted by the provision. "

public employment - right of accompaniment by union rep.

Commonwealth, Office of Administration v. PLRB - Supreme Court - Feb. 20, 2007

http://www.courts.state.pa.us/OpPosting/Supreme/out/J-14-2006mo.pdf

Under the state Public Employee Relations Act, 43 P.S. 1101.101 et seq., a public employee has the right to be accompanied by a union representative during an interview in which the employee reasonably fears that discipline may be imposed by the employer. Such a right of accompaniment during an investigatory interview includes the employee's choice of a union representative, when the representative is reasonably available and there are no extenuating circumstances.

admin. law - agency interpretation of statute

Malt Beverages Distributors Assn. v. Liquor Control Board - Cmwlth. Court- Feb. 23, 2007

http://www.courts.state.pa.us/OpPosting/CWealth/out/896CD06_2-23-07.pdf

While courts traditionally accord the interpretation of the agency charged with administation of a statute some deference, the meaning of a statute is essentially a question of law for the court. Generally an administrative agency's interpretation of a statute for which it has enforcement responsibility is entitled to substantial deference. However, where an administative interpretation is inconsistent with the statute itself, or where the statutes's meaning is unambiguous, such an interpretation carries little or no weight.

admin. law - agency interpretation of its own regulations

Tire Jockey Services, Inc. v. Dept. of Environmental Protection - Pa. S.Ct. - February 20, 2007

http://www.courts.state.pa.us/OpPosting/Supreme/out/J-30-2005mo.pdf

There is a two-step analysis when reviewing an agency's interpretation of its governing regulations: (1) whether the interpretation is erroneous or inconsistent with the regulations, and 2) whether the regulation is consistent with the statute under which it was promulgated.

When an agency adopts a regulation pursuant to it own legislative rule-making power, as opposed to its interpretive rule-making power, it is valid and binding on courts as a statute, so long as it is a) adopted within the agency's granted power, b) issued pursuant to proper procedure, and c) reasonable.

When a court reviews a regulation issued pursuant to an agency's legislative rule-making power, the court may not substitute its own judgment for that of the agency to demonstrate that the agency has exceeded its administrative authority. It is not enough that the prescribed system may appear to be unwise or burdensome of inferior to another. Lack of wisdom in exercising agency power is not equivalent to abuse. What has been ordered must appear to be so entirely at odds with fundamental principles as to be the expression of a whim rather than an exercise of judgment.

Regarding the reasonableness prong, appellate courts accord deference to agencies and reverse agency determinations only if they were made in bad faith or they constituted a manifest or flagrant abuse of discretion or a purely arbitrary execution of the agency's duties or functions.

UC - willful misconduct - corrections officer

Department of Corrections v. UCBR - Commonwealth Court - February 28, 2007

http://www.courts.state.pa.us/OpPosting/CWealth/out/1205CD06_2-28-07.pdf

A corrections officer who heard rumors of a planned attack on an inmate was guilty of willful misconduct for not reporting the rumors and not intervening when he heard the inmate being beaten. The officer's fear of reprisals and fear for his own safety did not constitute good cause for his actions.

The Court said that its conscience was shocked by the Board's conclusion "that a corrections officer who refuses to report a threat of violence against an inmate and refuses to render aid to an inmate being beaten could use fear for his own personal safety as good cause justification for his refusal to render aid....We can do nothing but express our outrage" that the DOC's Office of Professional Responsibility was aware of and condoned claimant's conduct and that of others in his situation.

Citing its decision in Williams v. UCBR, 648 A.2d 1321 (Pa. Cmwlth. 1994), the court noted its prior holdings that a "corrections officer, like law enforcement officials, occupy positions of great responsibility and trust, and thus, must adhere to demanding standards, which are higher than those applied to many other professions."

As noted in a concurring opinion, this statement is in direct conflict with the Supreme Court's decision in Navickas v. UCBR, 778 A.2d 284, 290-1 (Pa. 2001), where the court rejected a higher standard of care for a health care worker, stating that that is a "question...of policy...not posed by the Unemployment Compensation Law we are called upon to construe. The Act sets for a single governing standard of willful misconduct, one that does not draw distinctions based upon the type or nature of the employee involved."

Pennsylvania Bulletin of February 24, 2007

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

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).

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.

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.'"