civil procedure - prothonotary - duty to accept pleadings

Sollenberger v. Lee, Prothonotary - Commonwealth Court - June 8, 2007

http://www.courts.state.pa.us/OpPosting/CWealth/out/82CD07_6-8-07.pdf

"The prothonorary is not an administrative officer who has the discretion to interpret or implement rules or statutes....Therefore if documents tendered for filing are proper on their face and in conformity with rules of court, a prothonotary does not have the discretion to refuse to enter them...."

Supreme Court Holds that Parents Can Pursue IDEA Claims in Federal Court

The United States Supreme Court has held that parents seeking to enforce rights granted to their children under the Individuals with Disabilities Education Act (IDEA) have independent, enforceable rights, which are not limited to procedural and reimbursement-related matters but encompass the entitlement to a free appropriate public education for their child and that these right may be enforced by the parents in the federal courts on their own behalf without the assistance of legal counsel.

In Winkelman v. Parma City School District, decided May 21, 2007, the Court reversed the order of the Sixth Circuit Court of Appeals dismissing the Winkelmans’ appeal unless they obtained counsel to represent their son, Jacob.

The Sixth Circuit relied on Cavanaugh v. Cardinal Local School Dist., 409 F. 3d 753 (2005), where the Court of Appeals had rejected the proposition that IDEA allows nonlawyer parents raising IDEA claims to proceed pro se in federal court. The court ruled that the right to a free appropriate public education “belongs to the child alone,” 409 F. 3d, at 757, not to both the parents and the child. It followed, the court held, that “any right on which the [parents] could proceed on their own behalf would be derivative” of the child’s right, ibid., so that parents bringing IDEA claims were not appearing on their own behalf.

The Supreme Court reversed, concluding that IDEA grants parents independent, enforceable rights. These rights, which are not limited to certain procedural and reimbursement-related matters, encompass the entitlement to a free appropriate public education for the parents’ child.

The Court stated that the Court of Appeals erred when it dismissed the Winkelmans’ appeal for lack of counsel. Parents enjoy rights under IDEA; and they are, as a result, entitled to prosecute IDEA claims on their own behalf.

View the Decision (Legal Information Institute - Cornell Law School)

custody - standing - step-grandparents - parents not separated

Helsel v. Puricelli - Superior Court - May 21, 2007

http://www.courts.state.pa.us/OpPosting/Superior/out/a07037_07.pdf

A step-grandfather is not a "grandparent" under the the Custody and Grandparents Visitation Act (GVA), 23 Pa. C.S. 5301 et seq.

Even if he were, he would not have standing under the facts of this case, in which the parents, who had been separated for more than 6 months at one time, were back together as an intact family at the time the step-grandfather filed his action. Sec. 5312 allows a grandparents to seek "reasonable partial custody or visitation" where the parents "have been separated for six months or more..." The court held that the "GVA only applies where parents separated at least six months before the filing of the custody petition and remain separated at the time the petition is filed."

custody - standing

Morgan v. Weiser - Superior Court - May 7, 2007

http://www.courts.state.pa.us/OpPosting/Superior/out/a41021_06.pdf

Biological father whose parental rights were terminated does not stand in loco parentis to the child, given that, after the termination, he had minimal partial custody of child, paid minimal child support, and did not live with the child in a familial setting at any time. His contact with the child was "akin to babysitting and caretaking."

attorneys fees - reasonableness

McMullen v. Kurtz - Superior Court - May 17, 2007

http://www.courts.state.pa.us/OpPosting/Superior/out/A37007_06.pdf

Legal fees in a contract must be reasonable even if the contract providing for the award of such fees does not specify that they must be reasonable. A reasonableness requirement is "implicit in the agreement."

In determining reasonableness, the court must consider, inter alia, how complicated the issues the issues in the underlying case were.

consumer protection - drug/medical/dental ads

Commonwealth v. Peoples Benefit Services - Commonwealth Court - May 14, 2007

http://www.courts.state.pa.us/OpPosting/CWealth/out/557MD05_5-14-07.pdf

The Attorney General sued PBS for consumer protection violations, alleging that PBS ads could confuse or mislead consumers into believing that PBS and its goods/services are government related, in violation of the CPL, 73 P.S. sec. 201-1 et seq.

The Commonwealth's request for a preliminary injunction was denied, even though the judge who heard the case found that PBS designed its campaign with the intent to take advantage of confusing changes to Medicare Part D and the PBS deliberately attempted to "push the envelope" with its marketing materials. The Court in this opinion denied both parties' request for summary judgment, finding that there were still unresolved issues of material fact.

However, the court set out some important CPL principles, including that an act/practice is deceptive or unfair it is has the capacity or tendency to deceive. Neither the intention to deceive nor an actual deception must be proved. Rather it need only be show that the acts/practices are capable of being interpreted in a misleading way. The test for the court is to determine the overall impression arising from the totality of what is said, as well as what is reasonably implied in the ad or solicitation. The CPL is to be construed liberally to effectuate its objective of protecting consumers from fraud and unfair or deceptive business practices.

Pennsylvania Bulletin of May 5, 2007

http://www.pabulletin.com/secure/data/vol37/37-18/index.html

MDJs - Rule 112- availability and temporary assignment - civil and possessory actions
http://www.pabulletin.com/secure/data/vol37/37-18/774.html

welfare - MA - Healthy Beginnings - Health Horizons - federal poverty guidelines 2007
http://www.pabulletin.com/secure/data/vol37/37-18/806.html

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.