Spadoni v. Easton Area School District - ED Pa. - May 22, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0587P.pdf
Pennsylvania does not recognize an independent cause of action for breach of the covenant of good faith and fair dealing. Temple Univ. Hosp., Inc. v. Group Health, Inc., 2006 WL 146426, at *5 (E.D. Pa. Jan. 12, 2006) (Pratter, J.) (quoting Lyon Fin. Servs. v. Woodlake Imaging, LLC, 2005 WL 331695, at *8 (E.D. Pa. Feb. 9, 2005) (Diamond, J.)).
“There may be an express or implied covenant of good faith and fair dealing in any contract between the parties, but if so, its breach is a breach of contract rather than an independent breach of duty of good faith and fair dealing.” Temple Univ. Hosp. Inc., 2006 WL 146426, at *5 (quoting Engstrom v. John Nuveen & Co., 668 F. Supp. 953, 958 (E.D. Pa. 1987)).
Because breach of the covenant of good faith and fair dealing is a breach of contract action, a complaint must allege the proper elements of a breach of contract action to survive a motion to dismiss. Temple Univ. Hosp., 2006 WL 146426, at *6 (citing McAllister v. Royal Carribean Cruises, Ltd., 2003 WL 23192102, at *4 (E.D. Pa. Sept. 30, 2003) (Kauffman, J.)).
Friday, May 30, 2008
disability - severity - remand
Bishop v. Astrue
http://www.paed.uscourts.gov/documents/opinions/08D0583P.pdf
I agree with the ALJ that there is little, if any, medical evidence supporting the level of disability alleged by plaintiff. I also respect that the ALJ’s credibility determination is entitled to deference.
However, I am bound by Third Circuit law which provides that benefits may be denied at step two of the sequential evaluation only if there are less than slight abnormalities which would have no more than a minimal effect on an individual's ability to work and that step two is designed to screen out only groundless claims.
In this case, resolving any doubt in favor of the applicant, as I must under the law, I find that based upon the record evidence, Bishop’s claim is not groundless and, thus, the ALJ legally erred when he found that Bishop’s trigeminal neuralgia/primary trochlear headache was not a severe impairment. Id. As a result, this case must be remanded to the ALJ to determine whether Bishop is disabled due to her severe impairment of trigeminal neuralgia/primary trochlear headache and other non-severe impairment.
Although due to the ALJ’s legal error this case must be remanded, I hesitate, for based on the record, I find it highly unlikely that Bishop’s impairments are severe enough to preclude all work. See Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)... ; Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989)....However, it is not my duty to make the ultimate disability determination, as that decision is reserved solely for the Commissioner. 20 C.F.R. § 404.1527(e)(1). My role is limited to determining whether the decision of the ALJ is legally sufficient and supported by substantial evidence....Therefore, the case must be remanded in order for the ALJ to supplement his findings in a manner consistent with this opinion.
http://www.paed.uscourts.gov/documents/opinions/08D0583P.pdf
I agree with the ALJ that there is little, if any, medical evidence supporting the level of disability alleged by plaintiff. I also respect that the ALJ’s credibility determination is entitled to deference.
However, I am bound by Third Circuit law which provides that benefits may be denied at step two of the sequential evaluation only if there are less than slight abnormalities which would have no more than a minimal effect on an individual's ability to work and that step two is designed to screen out only groundless claims.
In this case, resolving any doubt in favor of the applicant, as I must under the law, I find that based upon the record evidence, Bishop’s claim is not groundless and, thus, the ALJ legally erred when he found that Bishop’s trigeminal neuralgia/primary trochlear headache was not a severe impairment. Id. As a result, this case must be remanded to the ALJ to determine whether Bishop is disabled due to her severe impairment of trigeminal neuralgia/primary trochlear headache and other non-severe impairment.
Although due to the ALJ’s legal error this case must be remanded, I hesitate, for based on the record, I find it highly unlikely that Bishop’s impairments are severe enough to preclude all work. See Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)... ; Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989)....However, it is not my duty to make the ultimate disability determination, as that decision is reserved solely for the Commissioner. 20 C.F.R. § 404.1527(e)(1). My role is limited to determining whether the decision of the ALJ is legally sufficient and supported by substantial evidence....Therefore, the case must be remanded in order for the ALJ to supplement his findings in a manner consistent with this opinion.
Thursday, May 29, 2008
custody - relocation
Hogrelius v. Martin - Superior Court - May 29, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/s16015_08.pdf
The court affirmed a decision granting mother permission to move with child to Virginia, where they would live with mother's new husband.
A lot of the opinion dealt with economic factors, including the fact that the stepfather alone earned more than both parents combined.
The court also rejected father's claims that the proposed alternate arrangements for his partial custody were not adequate, because they involved a reduction in his custody time and a longer commute (5.5 hours each way). The court rejected this contention as well, stating:
In addressing this prong of the Gruber analysis, a court’s determination is not whether the alternative schedule would maintain the current level of the non-custodial parent’s interaction with the children, but rather whether the substitute arrangements “will foster adequately an ongoing relationship” between the non-custodial parent and the children....This Court addressed a similar contention in Goldfarb v. Goldfarb, 861 A.2d 340, 346 (Pa.Super. 2004), and concluded that the distance between the noncustodial parent and his relocated children is not the controlling concern. We stated, 'If it were, no necessity for a Gruber analysis would ever have arisen, as physical proximity would be a sine qua non of most if not all custody determinations.' Id. Thus, although an alternative custody schedule necessarily reduces the frequency of a parent’s interaction with a child because of the distance involved, relocation should not be denied for that reason alone....Gruber, 583 A.2d at 185-86. See also Ketterer v. Seifert, 902 A.2d 533, 539 (Pa.Super. 2006) (fact that move of considerable distance will increase cost and logistical problems of maintaining contact between non-custodial parent and child will not necessarily preclude relocation when other factors favor it).
The court found that the proposed custody schedule for the father -- alternating weekends, most holidays, and seven weeks during the summer, as well as alternate holidays, and during extended breaks from school - would increases father’s extended, overnight custody and would adequately foster a healthy relationship between father and child.
http://www.courts.state.pa.us/OpPosting/Superior/out/s16015_08.pdf
The court affirmed a decision granting mother permission to move with child to Virginia, where they would live with mother's new husband.
A lot of the opinion dealt with economic factors, including the fact that the stepfather alone earned more than both parents combined.
The court also rejected father's claims that the proposed alternate arrangements for his partial custody were not adequate, because they involved a reduction in his custody time and a longer commute (5.5 hours each way). The court rejected this contention as well, stating:
In addressing this prong of the Gruber analysis, a court’s determination is not whether the alternative schedule would maintain the current level of the non-custodial parent’s interaction with the children, but rather whether the substitute arrangements “will foster adequately an ongoing relationship” between the non-custodial parent and the children....This Court addressed a similar contention in Goldfarb v. Goldfarb, 861 A.2d 340, 346 (Pa.Super. 2004), and concluded that the distance between the noncustodial parent and his relocated children is not the controlling concern. We stated, 'If it were, no necessity for a Gruber analysis would ever have arisen, as physical proximity would be a sine qua non of most if not all custody determinations.' Id. Thus, although an alternative custody schedule necessarily reduces the frequency of a parent’s interaction with a child because of the distance involved, relocation should not be denied for that reason alone....Gruber, 583 A.2d at 185-86. See also Ketterer v. Seifert, 902 A.2d 533, 539 (Pa.Super. 2006) (fact that move of considerable distance will increase cost and logistical problems of maintaining contact between non-custodial parent and child will not necessarily preclude relocation when other factors favor it).
The court found that the proposed custody schedule for the father -- alternating weekends, most holidays, and seven weeks during the summer, as well as alternate holidays, and during extended breaks from school - would increases father’s extended, overnight custody and would adequately foster a healthy relationship between father and child.
UC - voluntary quit - "purely personal reasons"
Johnson v. UCBR - Commonwealth Court - May 29, 2008 - UNREPORTED DECISION
http://www.courts.state.pa.us/OpPosting/CWealth/out/27CD08_5-29-08.pdf
Claimant was denied UC benefits when she quit her part-time, weekend job without good cause under sec. 4021(b) of the UC Law. Her desire to spend more time with elderly family members was not good cause, in the absence of proof that her presence was required for them to get proper care. Her reason for leaving was thus "purely personal." She also failed to establish that she discussed the issue with her employer or made other efforts to preserve her job.
"Under certain circumstances, the family obligations of a claimant may constitute necessitous and compelling cause to quit employment. Du-Co Ceramics Co. v. UCBR, 546 Pa. 504, 686 A.2d 821 (1996).
For instance, in Pittsburgh Pipe and Coupling Company v. UCBR, 401 Pa. 501, 165 A.2d 374 (1960), the Supreme Court affirmed the granting of benefits to a claimant who quit his employment to return home and take care of his wife, who had suffered a disabling spinal injury, and their children.
Similarly, in Beachem v. UCBR, 760 A.2d 68 (Pa. Cmwlth. 2000), we concluded that a claimant who quit his employment to move back in with his eleven-year-old son, who was having emotional and behavioral problems, established necessitous and compelling cause for quitting, thereby entitling him to unemployment compensation benefits.
We have also granted benefits to a claimant when he quit his employment to move back home, in part, to take care of his ailing father. Speck v. UCBR, 680 A.2d 27 (Pa. Cmwlth. 1996).
However, in Green v. UCBR, 529 A.2d 597 (Pa. Cmwlth. 1987), we explained that while family obligations may constitute a necessitous and compelling reason to leave one's employment, the reasons may not be purely personal."
http://www.courts.state.pa.us/OpPosting/CWealth/out/27CD08_5-29-08.pdf
Claimant was denied UC benefits when she quit her part-time, weekend job without good cause under sec. 4021(b) of the UC Law. Her desire to spend more time with elderly family members was not good cause, in the absence of proof that her presence was required for them to get proper care. Her reason for leaving was thus "purely personal." She also failed to establish that she discussed the issue with her employer or made other efforts to preserve her job.
"Under certain circumstances, the family obligations of a claimant may constitute necessitous and compelling cause to quit employment. Du-Co Ceramics Co. v. UCBR, 546 Pa. 504, 686 A.2d 821 (1996).
For instance, in Pittsburgh Pipe and Coupling Company v. UCBR, 401 Pa. 501, 165 A.2d 374 (1960), the Supreme Court affirmed the granting of benefits to a claimant who quit his employment to return home and take care of his wife, who had suffered a disabling spinal injury, and their children.
Similarly, in Beachem v. UCBR, 760 A.2d 68 (Pa. Cmwlth. 2000), we concluded that a claimant who quit his employment to move back in with his eleven-year-old son, who was having emotional and behavioral problems, established necessitous and compelling cause for quitting, thereby entitling him to unemployment compensation benefits.
We have also granted benefits to a claimant when he quit his employment to move back home, in part, to take care of his ailing father. Speck v. UCBR, 680 A.2d 27 (Pa. Cmwlth. 1996).
However, in Green v. UCBR, 529 A.2d 597 (Pa. Cmwlth. 1987), we explained that while family obligations may constitute a necessitous and compelling reason to leave one's employment, the reasons may not be purely personal."
Wednesday, May 28, 2008
disability - findings and reasons
Levine v. Astrue - ED Pa. - March 27, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0368P.pdf
The court ordered a remand due to several unexplained conflicts and inconsistencies the ALJ’s findings, which are "not for an appellate court to explain....See Fargnoli v. Massanari, 247 F.3d 34, 41-42 (3d Cir. 2001)."
"Despite finding that the treating physician’s opinion was entitled to controlling weight, ...the ALJ did not discuss these limitations in his assessment of RFC, even though “a clear and satisfactory explanation” must accompany an ALJ’s finding of RFC. Fargnoli, 47 F.3d at 41....The ALJ’s opinion below is deficient in this respect because it does not specifically discuss the mental impairments the treating physician reported."
"The ALJ’s decision did not explain the conflict between the skill level the ALJ found plaintiff to have and the skill requirements of the jobs the VE testified the plaintiff could perform. The VE and the ALJ must explain such inconsistencies on the record, and if they have not, the matter must be remanded. See Burns, 312 F.3d at 127 (requiring that conflicts between an ALJ’s findings and the DOT definitions be explained “on the record and that the ALJ explain in his decision how the conflict was resolved”). This matter is therefore remanded so that the ALJ can explain these inconsistencies."
http://www.paed.uscourts.gov/documents/opinions/08D0368P.pdf
The court ordered a remand due to several unexplained conflicts and inconsistencies the ALJ’s findings, which are "not for an appellate court to explain....See Fargnoli v. Massanari, 247 F.3d 34, 41-42 (3d Cir. 2001)."
"Despite finding that the treating physician’s opinion was entitled to controlling weight, ...the ALJ did not discuss these limitations in his assessment of RFC, even though “a clear and satisfactory explanation” must accompany an ALJ’s finding of RFC. Fargnoli, 47 F.3d at 41....The ALJ’s opinion below is deficient in this respect because it does not specifically discuss the mental impairments the treating physician reported."
"The ALJ’s decision did not explain the conflict between the skill level the ALJ found plaintiff to have and the skill requirements of the jobs the VE testified the plaintiff could perform. The VE and the ALJ must explain such inconsistencies on the record, and if they have not, the matter must be remanded. See Burns, 312 F.3d at 127 (requiring that conflicts between an ALJ’s findings and the DOT definitions be explained “on the record and that the ALJ explain in his decision how the conflict was resolved”). This matter is therefore remanded so that the ALJ can explain these inconsistencies."
appeal - time - unreasonably short appeal period
Premier Comp Solutions, LLC v. Dept. of General Services - Commonwealth Court - May 28, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/570MD07_5-28-08.pdf
This case involves petitioner's challenge to respondent's award of a single-source contract, in which there was no public notice or competitive bidding, as required by Article III, sec. 22, of the state constitution. The case was brought in the the Commonwealth Court's original jurisdiction.
DGS filed POs, claiming that Premier did not challenge its decision within the 7-day period set out in the regulations. The court held that Premier did not have a legally enforceable interest and thus couldn't challenge the DGS decision in any event.
However, the court did discuss the 7-day appeal period, stating in dicta tha if Premier did have such an interest, then a statute
"foreclosing its right to challenge a contract within such a short period of time [seven (7) days] would implicate due process rights. See Luke v. Cataldi 593 Pa. 461, 932 A.2d 45 (2007). Moreover, such a remedy is not an available or adequate remedy. See Pentlong Corp. v. GLS Capital, Inc., 780 A.2d 734 (Pa. Cmwlth. 2001). If we were to hold otherwise, administrative agency decisions could be made virtually unchallengeable – a decision could made in secret making it impossible for any interested party to take an appeal."
Query: Could this issue be raised in the landlord-tenant context of the 10-day period to appeal an MDJ judgment?
http://www.courts.state.pa.us/OpPosting/CWealth/out/570MD07_5-28-08.pdf
This case involves petitioner's challenge to respondent's award of a single-source contract, in which there was no public notice or competitive bidding, as required by Article III, sec. 22, of the state constitution. The case was brought in the the Commonwealth Court's original jurisdiction.
DGS filed POs, claiming that Premier did not challenge its decision within the 7-day period set out in the regulations. The court held that Premier did not have a legally enforceable interest and thus couldn't challenge the DGS decision in any event.
However, the court did discuss the 7-day appeal period, stating in dicta tha if Premier did have such an interest, then a statute
"foreclosing its right to challenge a contract within such a short period of time [seven (7) days] would implicate due process rights. See Luke v. Cataldi 593 Pa. 461, 932 A.2d 45 (2007). Moreover, such a remedy is not an available or adequate remedy. See Pentlong Corp. v. GLS Capital, Inc., 780 A.2d 734 (Pa. Cmwlth. 2001). If we were to hold otherwise, administrative agency decisions could be made virtually unchallengeable – a decision could made in secret making it impossible for any interested party to take an appeal."
Query: Could this issue be raised in the landlord-tenant context of the 10-day period to appeal an MDJ judgment?
time - computation
Rodriguez v. Board of Probation and Parole - Commonwealth Court - May 28, 2008 - UNREPORTED DECISION
http://www.courts.state.pa.us/OpPosting/CWealth/out/2154CD07_5-28-08.pdf
In a case in which a prisoner challenged the actions of the Board as untimely, the court set out the regulatory and statutory rules for counting time:
1 Pa. Code § 31.1 sets forth how days are to be counted for time periods in regulations. It provides “in computing a period of time prescribed or allowed . . . regulations of the agency . . . ., the day of the act, event or default after which the designated period of time begins to run may not be included, . . . . The last day of the period so computed shall be included, unless it is Saturday, Sunday or a legal holiday in this Commonwealth, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday nor a holiday.”4
n. 4 - Section 1908 of the Statutory Construction Act, 1 Pa. C.S. §1908, counts days in statutes in the same manner. It provides: “When any period of time is referred to in any statute, such period in all cases, . . . shall be so computed as to exclude the first and include the last day of such period[.]”
http://www.courts.state.pa.us/OpPosting/CWealth/out/2154CD07_5-28-08.pdf
In a case in which a prisoner challenged the actions of the Board as untimely, the court set out the regulatory and statutory rules for counting time:
1 Pa. Code § 31.1 sets forth how days are to be counted for time periods in regulations. It provides “in computing a period of time prescribed or allowed . . . regulations of the agency . . . ., the day of the act, event or default after which the designated period of time begins to run may not be included, . . . . The last day of the period so computed shall be included, unless it is Saturday, Sunday or a legal holiday in this Commonwealth, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday nor a holiday.”4
n. 4 - Section 1908 of the Statutory Construction Act, 1 Pa. C.S. §1908, counts days in statutes in the same manner. It provides: “When any period of time is referred to in any statute, such period in all cases, . . . shall be so computed as to exclude the first and include the last day of such period[.]”
Tuesday, May 27, 2008
disability - remand - additional evidence, findings
Bauer-Cromartie v. Astrue - ED Pa. - May 21, 2008
http://www.paed.uscourts.gov/documents/opinions/08D0565P.pdf
additional evidence
The court remanded the case because of the ALJ's failure to follow the Appeals Council's insructions to gather further evidence about one of claimant on plaintiff’s impairments. "[A]lthough the likelihood that plaintiff’s impairment meets the de minimus standard for severity is high, it is impossible for me to properly evaluate whether this is, in fact, the case. McCrea v. Commr., 370 F.3d 357, 360 (3d Cir. 2004)."
Pursuant to 20 C.F.R. § 404.1512(f), the court ordered the ALJ to obtain a "consultative exam and take any other appropriate measures needed to properly evaluate plaintiff’s claim including consultation with a medical expert and questioning of plaintiff at a hearing, if necessary," if "more salient records regarding the impairment are not available..."
statement of evidence to support findings
The court also ordered the to "clearly set forth the evidence supporting her physical RFC determination [concerning claimant's arthritis] and, if necessary, obtain a physical RFC statement from a medical professional." The ALJ had found that the now 62 year-old claimant could do medium work -- lifting 50 pounds occasionally and 25 pounds frequently -- in spite of her arthritis.
http://www.paed.uscourts.gov/documents/opinions/08D0565P.pdf
additional evidence
The court remanded the case because of the ALJ's failure to follow the Appeals Council's insructions to gather further evidence about one of claimant on plaintiff’s impairments. "[A]lthough the likelihood that plaintiff’s impairment meets the de minimus standard for severity is high, it is impossible for me to properly evaluate whether this is, in fact, the case. McCrea v. Commr., 370 F.3d 357, 360 (3d Cir. 2004)."
Pursuant to 20 C.F.R. § 404.1512(f), the court ordered the ALJ to obtain a "consultative exam and take any other appropriate measures needed to properly evaluate plaintiff’s claim including consultation with a medical expert and questioning of plaintiff at a hearing, if necessary," if "more salient records regarding the impairment are not available..."
statement of evidence to support findings
The court also ordered the to "clearly set forth the evidence supporting her physical RFC determination [concerning claimant's arthritis] and, if necessary, obtain a physical RFC statement from a medical professional." The ALJ had found that the now 62 year-old claimant could do medium work -- lifting 50 pounds occasionally and 25 pounds frequently -- in spite of her arthritis.
Friday, May 23, 2008
UC - willful misconduct - medical condition - expert testimony
Philadelphia Parking Authority v. UCBR - Commonwealth Cour - May 22, 2008 - UNREPORTED DECISION
http://www.courts.state.pa.us/OpPosting/CWealth/out/2157CD07_5-22-08.pdf
Reversing the referee and UCBR, the court held that a claimant who admitted to being habitually late did not establish good cause for this violation of the employer rules with her lay testimony about a medical condition - obsessive-compulsive disorder (OCD), holding that she needed expert testimony to prove the diagnosis and its effects.
"To meet its burden of proof in establishing willful misconduct as to the violation of a work rule, an employer must establish the existence of the rule, that the employee was aware of the rule and that the rule was violated....Once employer has met its burden, the burden shifts to the claimant to prove that the rule was unreasonable or that there was good cause for violating it."
The employer established the rule and claimant's violation. The court held that claimant did not establish good cause.
The court said that, while it was "sympathetic with Claimant, we cannot neglect the fact that Claimant failed to present expert testimony as to the nature of her mental disorder. Claimant merely testified that she had OCD, which caused her to wash her hands after each of her morning activities and, thus, caused her to be late for work. Expert testimony was needed to provide a proper diagnosis of Claimant’s mental disorder and to explain how the mental disorder affects Claimant’s judgment and behavior. Expert testimony was also necessary to explain how a diagnosis of OCD could cause a person to be habitually late for work involuntarily, i.e., why simply waking earlier would not rectify the problem or why the disorder would cause someone to be one hour late for work one day, but only thirty minutes late for work the following day. As Claimant failed to present sufficient evidence establishing that her OCD condition constituted good cause for violating Employer’s work rule regarding excessive tardiness, the Board erred in concluding that Claimant’s actions did not rise to the level of willful misconduct.
http://www.courts.state.pa.us/OpPosting/CWealth/out/2157CD07_5-22-08.pdf
Reversing the referee and UCBR, the court held that a claimant who admitted to being habitually late did not establish good cause for this violation of the employer rules with her lay testimony about a medical condition - obsessive-compulsive disorder (OCD), holding that she needed expert testimony to prove the diagnosis and its effects.
"To meet its burden of proof in establishing willful misconduct as to the violation of a work rule, an employer must establish the existence of the rule, that the employee was aware of the rule and that the rule was violated....Once employer has met its burden, the burden shifts to the claimant to prove that the rule was unreasonable or that there was good cause for violating it."
The employer established the rule and claimant's violation. The court held that claimant did not establish good cause.
The court said that, while it was "sympathetic with Claimant, we cannot neglect the fact that Claimant failed to present expert testimony as to the nature of her mental disorder. Claimant merely testified that she had OCD, which caused her to wash her hands after each of her morning activities and, thus, caused her to be late for work. Expert testimony was needed to provide a proper diagnosis of Claimant’s mental disorder and to explain how the mental disorder affects Claimant’s judgment and behavior. Expert testimony was also necessary to explain how a diagnosis of OCD could cause a person to be habitually late for work involuntarily, i.e., why simply waking earlier would not rectify the problem or why the disorder would cause someone to be one hour late for work one day, but only thirty minutes late for work the following day. As Claimant failed to present sufficient evidence establishing that her OCD condition constituted good cause for violating Employer’s work rule regarding excessive tardiness, the Board erred in concluding that Claimant’s actions did not rise to the level of willful misconduct.
admin. law - due process - notice of charges
Goslin v. State Board of Medicine - Commonwealth Court - May 23, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/1830CD07_5-23-08.pdf
A registered nurse was charged by the State Board of Medicine with various offenses involving whether she was properly licensed to practice midwifery.
She was found to have violated a section of the law barring "practicing as a midwife without a license and for holding herself out to the public as a midwife."
She appealed, inter alia, on the ground that "the Board deprived her of due process by failing to provide notice that she was charged with violating" that section of the law. The Court agreed.
The court said that in an administrative proceeding, the essential elements of due process are notice and an opportunity to be heard.....The purpose of the notice requirement is to afford the person reasonable notice of the charges against her so that she will have sufficient opportunity to answer the charges....For such notice to be adequate, it must at the very least contain a sufficient listing and explanation of charges so that the individual can know against what charges she must defend herself if she can.
The court concluded that "[g]iven the different purposes" of the two statutes, the charges against the nurse the one act, did not give her adequate notice to defend against the offenses charged in the other, which she was found to have violated.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1830CD07_5-23-08.pdf
A registered nurse was charged by the State Board of Medicine with various offenses involving whether she was properly licensed to practice midwifery.
She was found to have violated a section of the law barring "practicing as a midwife without a license and for holding herself out to the public as a midwife."
She appealed, inter alia, on the ground that "the Board deprived her of due process by failing to provide notice that she was charged with violating" that section of the law. The Court agreed.
The court said that in an administrative proceeding, the essential elements of due process are notice and an opportunity to be heard.....The purpose of the notice requirement is to afford the person reasonable notice of the charges against her so that she will have sufficient opportunity to answer the charges....For such notice to be adequate, it must at the very least contain a sufficient listing and explanation of charges so that the individual can know against what charges she must defend herself if she can.
The court concluded that "[g]iven the different purposes" of the two statutes, the charges against the nurse the one act, did not give her adequate notice to defend against the offenses charged in the other, which she was found to have violated.
predatory lending - definitions - N.J. case
Nowosleska v. Steele, et al. - N.J. Superior Court, Appellate Division - May 19, 2008
http://www.judiciary.state.nj.us/opinions/a5759-06.pdf
Borrowers moved to open a default judgment entered against them in a case in which they "were induced to pay with the title to property valued at $405,000 in order to pay off debts totaling $145,000." The various transactions included a $50,000 fee to one of the lenders.
In its opinion opening the default judgment based on possible "grave injustice" and "equity and justice" under N.J. law, the court mentioned several definitions of "predatory lending," as follows:
While predatory lending is a general concept not subject to precise definition, one authority has described it as: a mismatch between the needs and capacity of the borrower . . . In essence, the loan does not fit the borrower, either because the borrower's underlying needs for the loan are not being met or the terms of the loan are so disadvantageous to that particular borrower that there is little likelihood that the borrower has the capability to repay the loan. Assocs. Home Equity Servs. , Inc. v. Troup, 343 N.J. Super. 254, 267 (App. Div. 2001) (quoting Daniel S. Ehrenberg, If the Loan Don't Fit, Don't Take It: Applying the Suitability Doctrine to the Mortgage Industry to Eliminate Predatory Lending, 10 J. Affordable Housing & Community Dev. L. 117, 119-20 (Winter 2001)).
HUD Treasury Task Force on Predatory Lending, Curbing Predatory Home Mortgage Lending 17-24 (2000) http://www.huduser.org/Publications/pdf/treasrpt.pdf discusses predatory lending in general and the difficulty in providing a definition of predatory lending. Predatory lending includes "the practice of making loans containing interest rates, fees or closing costs that are higher than they should be in light of the borrower's credit and net income, or containing other exploitative terms that the borrower does not comprehend." Henry v. Lehman Commercial Paper, Inc. 471 F.3d 977, 984 (9th Cir. 2006); see also Debra Pogrund Stark, Unmasking the Predatory Loan in Sheep's Clothing: A Legislative Proposal, 21 Harv. BlackLetter L.J. 129, 134 (2005) (stating that "predatory lending is the situation where a mortgage broker or mortgage lender engages in fraudulent, deceptive or sharp practices to induce borrowers (often the elderly or minorities) to enter into 'bad' loans," which would include loans that are overpriced, loans where there is no net economic benefit to the borrower, loans where the borrower cannot afford the payment so the lender is relying on the borrower's equity for payment, and loans with other exploitative terms not understood by the borrower).
http://www.judiciary.state.nj.us/opinions/a5759-06.pdf
Borrowers moved to open a default judgment entered against them in a case in which they "were induced to pay with the title to property valued at $405,000 in order to pay off debts totaling $145,000." The various transactions included a $50,000 fee to one of the lenders.
In its opinion opening the default judgment based on possible "grave injustice" and "equity and justice" under N.J. law, the court mentioned several definitions of "predatory lending," as follows:
While predatory lending is a general concept not subject to precise definition, one authority has described it as: a mismatch between the needs and capacity of the borrower . . . In essence, the loan does not fit the borrower, either because the borrower's underlying needs for the loan are not being met or the terms of the loan are so disadvantageous to that particular borrower that there is little likelihood that the borrower has the capability to repay the loan. Assocs. Home Equity Servs. , Inc. v. Troup, 343 N.J. Super. 254, 267 (App. Div. 2001) (quoting Daniel S. Ehrenberg, If the Loan Don't Fit, Don't Take It: Applying the Suitability Doctrine to the Mortgage Industry to Eliminate Predatory Lending, 10 J. Affordable Housing & Community Dev. L. 117, 119-20 (Winter 2001)).
HUD Treasury Task Force on Predatory Lending, Curbing Predatory Home Mortgage Lending 17-24 (2000) http://www.huduser.org/Publications/pdf/treasrpt.pdf discusses predatory lending in general and the difficulty in providing a definition of predatory lending. Predatory lending includes "the practice of making loans containing interest rates, fees or closing costs that are higher than they should be in light of the borrower's credit and net income, or containing other exploitative terms that the borrower does not comprehend." Henry v. Lehman Commercial Paper, Inc. 471 F.3d 977, 984 (9th Cir. 2006); see also Debra Pogrund Stark, Unmasking the Predatory Loan in Sheep's Clothing: A Legislative Proposal, 21 Harv. BlackLetter L.J. 129, 134 (2005) (stating that "predatory lending is the situation where a mortgage broker or mortgage lender engages in fraudulent, deceptive or sharp practices to induce borrowers (often the elderly or minorities) to enter into 'bad' loans," which would include loans that are overpriced, loans where there is no net economic benefit to the borrower, loans where the borrower cannot afford the payment so the lender is relying on the borrower's equity for payment, and loans with other exploitative terms not understood by the borrower).
Thursday, May 22, 2008
veterans - representation of claimants - accreditation - atty. fees - disagreement
http://edocket.access.gpo.gov/2008/pdf/E8-10779.pdf
SUMMARY: The Department of Veterans Affairs (VA) is amending its regulations governing the representation of claimants for veterans benefits in order to implement provisions of the Veterans Benefits, Health Care, and Information Technology Act of 2006, and to reorganize and clarify existing regulations.
As amended, the regulations establish the procedures and rules necessary for VA to facilitate the paid representation of claimants by accredited agents and attorneys after a Notice of Disagreement has been filed with respect to a case.
The purpose of these regulations is to fulfill Congress’ direction that agents and attorneys may be paid for services rendered after a Notice of Disagreement is filed with respect to a decision by an agency of original jurisdiction while ensuring that claimants for veterans benefits have responsible, qualified representation.
DATES: Effective Date: The final rule is effective June 23, 2008.
SUMMARY: The Department of Veterans Affairs (VA) is amending its regulations governing the representation of claimants for veterans benefits in order to implement provisions of the Veterans Benefits, Health Care, and Information Technology Act of 2006, and to reorganize and clarify existing regulations.
As amended, the regulations establish the procedures and rules necessary for VA to facilitate the paid representation of claimants by accredited agents and attorneys after a Notice of Disagreement has been filed with respect to a case.
The purpose of these regulations is to fulfill Congress’ direction that agents and attorneys may be paid for services rendered after a Notice of Disagreement is filed with respect to a decision by an agency of original jurisdiction while ensuring that claimants for veterans benefits have responsible, qualified representation.
DATES: Effective Date: The final rule is effective June 23, 2008.
Tuesday, May 20, 2008
social security - Ticket to Work and Self-Sufficiency Program - amendments
http://edocket.access.gpo.gov/2008/pdf/E8-10879.pdf
SUMMARY: We are revising our regulations for the Ticket to Work and Self-Sufficiency Program (Ticket to Work program), which was authorized by the Ticket to Work and Work Incentives Improvement Act of 1999.
The Ticket to Work program provides Social Security Disability Insurance and disabled Supplemental Security Income beneficiaries expanded options for access to employment services, vocational rehabilitation services, and other support services.
We are revising our prior rules to improve the overall effectiveness of the program to maximize the economic self-sufficiency of beneficiaries through work opportunities.
We have based these revisions on our projections of the future direction of the Ticket to Work program, our experience using the prior rules, and recommendations made by commenters on the program.
DATES: These final rules are effective July 21, 2008.
SUMMARY: We are revising our regulations for the Ticket to Work and Self-Sufficiency Program (Ticket to Work program), which was authorized by the Ticket to Work and Work Incentives Improvement Act of 1999.
The Ticket to Work program provides Social Security Disability Insurance and disabled Supplemental Security Income beneficiaries expanded options for access to employment services, vocational rehabilitation services, and other support services.
We are revising our prior rules to improve the overall effectiveness of the program to maximize the economic self-sufficiency of beneficiaries through work opportunities.
We have based these revisions on our projections of the future direction of the Ticket to Work program, our experience using the prior rules, and recommendations made by commenters on the program.
DATES: These final rules are effective July 21, 2008.
Monday, May 19, 2008
education - free eduction - child support is not "compensation"
Velazquez v. East Stroudsburg School District - Commonwealth Court - May 19, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/1530CD07_5-19-08.pdf
Under 24 P.S. 13-1302 and 22 Pa. Code 11.19, a child has a right to attend school without payment of tuition in the district in which his custodial grandmother lives, despite grandmother's receipt of court-ordered support from one of his parents.
The child had lived with his grandmother for most of his life. The child's father was incarcerated and the mother was living in North Carolina or Florida. The grandmother received public assistance and was required to seek support from the parents. That support was not "compensation" for maintaining the child. Despite the receipt of support, the grandmother was "supporting the child gratis as if it were [her] own."
The trial court "mischaracterized the child support payments received by [the grandmother] as compensation to reach its erroneous conclusion that she did not support the child gratis as if he were her own child. Parents are liable for support of their children who are unemancipated and 18 years of age or younger, 23 Pa. C.S. §4321(2), and parents must provide for reasonable expenses of raising their children....The order imposed against the child's mother was for payment of child support to fulfill her obligation to provide child care expenses for the child, not to compensate the grandmother for her services."
Furthermore, grandmother was required to seek child support from the parents under 55 Pa. Code §187.23(b)....Her receipt of public assistance is not deemed personal compensation or gain, see 22 Pa. Code §11.19(a), and it would be absurd to conclude that the child support payments represent personal compensation when she was required to seek the payments in order to receive public assistance.
The case sub judice is clearly distinguishable from Brenner ex rel. Johnson v. West Shore School District, 780 A.2d 726 (Pa. Cmwlth. 2001). Unlike the parents in Brenner, the child's parents are not involved in any of the child's daily needs, and his mother provides only minimal child support. The father is incarcerated, and his mother resides out of state. The grandmother is the child's sole caregiver and provides all of his daily needs. She continuously supports him throughout the year, not merely during the school term, and she assumes all responsibilities for meeting school requirements and for making education-related decisions in the absence of his parents....The Brenner holding, therefore, does not support the School District's position.
The purpose of Section 1302 of the School Code is to prevent district 11 shopping....The evidence fails to establish, and the School District does not suggest, that grandmother was engaged in district shopping when she sought to re-enroll Jher grandson in the School District. Because grandmother established the child's entitlement to receive free school privileges in the School District, the Court concludes that the trial court committed an error of law and accordingly reverses its order.
This case was litigated by the Education Law Center in Philadelphia http://www.elc-pa.org/
http://www.courts.state.pa.us/OpPosting/CWealth/out/1530CD07_5-19-08.pdf
Under 24 P.S. 13-1302 and 22 Pa. Code 11.19, a child has a right to attend school without payment of tuition in the district in which his custodial grandmother lives, despite grandmother's receipt of court-ordered support from one of his parents.
The child had lived with his grandmother for most of his life. The child's father was incarcerated and the mother was living in North Carolina or Florida. The grandmother received public assistance and was required to seek support from the parents. That support was not "compensation" for maintaining the child. Despite the receipt of support, the grandmother was "supporting the child gratis as if it were [her] own."
The trial court "mischaracterized the child support payments received by [the grandmother] as compensation to reach its erroneous conclusion that she did not support the child gratis as if he were her own child. Parents are liable for support of their children who are unemancipated and 18 years of age or younger, 23 Pa. C.S. §4321(2), and parents must provide for reasonable expenses of raising their children....The order imposed against the child's mother was for payment of child support to fulfill her obligation to provide child care expenses for the child, not to compensate the grandmother for her services."
Furthermore, grandmother was required to seek child support from the parents under 55 Pa. Code §187.23(b)....Her receipt of public assistance is not deemed personal compensation or gain, see 22 Pa. Code §11.19(a), and it would be absurd to conclude that the child support payments represent personal compensation when she was required to seek the payments in order to receive public assistance.
The case sub judice is clearly distinguishable from Brenner ex rel. Johnson v. West Shore School District, 780 A.2d 726 (Pa. Cmwlth. 2001). Unlike the parents in Brenner, the child's parents are not involved in any of the child's daily needs, and his mother provides only minimal child support. The father is incarcerated, and his mother resides out of state. The grandmother is the child's sole caregiver and provides all of his daily needs. She continuously supports him throughout the year, not merely during the school term, and she assumes all responsibilities for meeting school requirements and for making education-related decisions in the absence of his parents....The Brenner holding, therefore, does not support the School District's position.
The purpose of Section 1302 of the School Code is to prevent district 11 shopping....The evidence fails to establish, and the School District does not suggest, that grandmother was engaged in district shopping when she sought to re-enroll Jher grandson in the School District. Because grandmother established the child's entitlement to receive free school privileges in the School District, the Court concludes that the trial court committed an error of law and accordingly reverses its order.
This case was litigated by the Education Law Center in Philadelphia http://www.elc-pa.org/
admin. law - impartial tribunal - right of expression - state constitution
Day v. Civil Service Commission - Commonwealth Court - May 19, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/550CD05_5-19-08.pdf
Police officer was dismissed after publicly criticizing fellow officers, contrary toi departmental regulations. The court upheld the civil service decision to dismiss the officer.
due process - impartial tribunal - state constitution
While rejecting his claim on the facts, the court recognized that under Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1992), due process is violated where prosecutorial and adjudicatory functions are commingled, and that "the due process rights of Pennsylvania citizens are broader than those afforded by the U.S. Constitution."
This was clarified in Stone and Edwards Insurance Agency, Inc. v. Department of Insurance, 538 Pa. 276, 648 A.2d 304 (1994), where the court said that: [T]he form of impermissible “appearance” of bias and partiality proscribed in Lyness must clearly be one that arises from an actual environment of commingled functions. Given the nature and constraints of our various governmental bodies, the question of due process reasonably involves an inquiry into the nature of the process actually provided. Id., 538 Pa. at 281-282, 648 A.2d at 307." However, the court found "no evidence whatsoever of a commingling of functions" in the case, "not even an appearance of impropriety."
right of expression - state constitution
A person's free speech rights under Article 1, Section 7 of Pennsylvania Constitution are "broader free expression rights than does the federal constitution. Pap’s A.M. v. City of Erie, 571 Pa. 375, 812 A.2d 591 (2002). Notwithstanding this broader penumbra, Pennsylvania law allows an employer to implement a chain of command policy to regulate the time, manner, and place of expression....We must remember that speech can also constitute conduct, and an employee’s conduct, in the workplace, may be regulated by the employer. Fuller v. Borough of Waynesburg, 503 A.2d 1031 (Pa. Cmwlth. 1986)...."
In this case, the "department’s regulation, which prohibited criticism of the department made to the public rather than to the appropriate supervisory personnel, was not constitutionally overbroad. Id., at 1033, n.4. The chain of command policy regulating procedures to follow when making complaints of improper conduct by fellow officers and superiors is necessary for the orderly and efficient operation of paramilitary organizations, such as a police department."
http://www.courts.state.pa.us/OpPosting/CWealth/out/550CD05_5-19-08.pdf
Police officer was dismissed after publicly criticizing fellow officers, contrary toi departmental regulations. The court upheld the civil service decision to dismiss the officer.
due process - impartial tribunal - state constitution
While rejecting his claim on the facts, the court recognized that under Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1992), due process is violated where prosecutorial and adjudicatory functions are commingled, and that "the due process rights of Pennsylvania citizens are broader than those afforded by the U.S. Constitution."
This was clarified in Stone and Edwards Insurance Agency, Inc. v. Department of Insurance, 538 Pa. 276, 648 A.2d 304 (1994), where the court said that: [T]he form of impermissible “appearance” of bias and partiality proscribed in Lyness must clearly be one that arises from an actual environment of commingled functions. Given the nature and constraints of our various governmental bodies, the question of due process reasonably involves an inquiry into the nature of the process actually provided. Id., 538 Pa. at 281-282, 648 A.2d at 307." However, the court found "no evidence whatsoever of a commingling of functions" in the case, "not even an appearance of impropriety."
right of expression - state constitution
A person's free speech rights under Article 1, Section 7 of Pennsylvania Constitution are "broader free expression rights than does the federal constitution. Pap’s A.M. v. City of Erie, 571 Pa. 375, 812 A.2d 591 (2002). Notwithstanding this broader penumbra, Pennsylvania law allows an employer to implement a chain of command policy to regulate the time, manner, and place of expression....We must remember that speech can also constitute conduct, and an employee’s conduct, in the workplace, may be regulated by the employer. Fuller v. Borough of Waynesburg, 503 A.2d 1031 (Pa. Cmwlth. 1986)...."
In this case, the "department’s regulation, which prohibited criticism of the department made to the public rather than to the appropriate supervisory personnel, was not constitutionally overbroad. Id., at 1033, n.4. The chain of command policy regulating procedures to follow when making complaints of improper conduct by fellow officers and superiors is necessary for the orderly and efficient operation of paramilitary organizations, such as a police department."
consumer - credit cards - bank overdrafts - proposed rules
http://edocket.access.gpo.gov/2008/pdf/E8-10247.pdf
SUMMARY: The Federal Reserve Board, Office of Thrift Savings, and National Credit Union Administration (collectively, the Agencies) are proposing to exercise their authority under section 5(a) of the Federal Trade Commission Act to prohibit unfair or deceptive acts or practices.
The proposed rule would prohibit institutions from engaging in certain acts or practices in connection with consumer credit cards accounts and overdraft services for deposit accounts.
This proposal evolved from the Board’s June 2007 Notice of Proposed Rule under the Truth in Lending Act and OTS’s August 2007 Advance Notice of Proposed Rulemaking under the Federal Trade Commission Act.
The proposed rule relates to other Board proposals under the Truth in Lending Act and the Truth in Savings Act, which are published elsewhere in today’s Federal Register.
DATES: Comments must be received on or before August 4, 2008.
SUMMARY: The Federal Reserve Board, Office of Thrift Savings, and National Credit Union Administration (collectively, the Agencies) are proposing to exercise their authority under section 5(a) of the Federal Trade Commission Act to prohibit unfair or deceptive acts or practices.
The proposed rule would prohibit institutions from engaging in certain acts or practices in connection with consumer credit cards accounts and overdraft services for deposit accounts.
This proposal evolved from the Board’s June 2007 Notice of Proposed Rule under the Truth in Lending Act and OTS’s August 2007 Advance Notice of Proposed Rulemaking under the Federal Trade Commission Act.
The proposed rule relates to other Board proposals under the Truth in Lending Act and the Truth in Savings Act, which are published elsewhere in today’s Federal Register.
DATES: Comments must be received on or before August 4, 2008.
Truth in Savings Act- overdrafts - proposed rule
http://edocket.access.gpo.gov/2008/pdf/E8-10243.pdf
SUMMARY: The Federal Reserve Board (Board) proposes to amend Regulation DD, which implements the Truth in Savings Act, and the staff commentary to the regulation, to provide additional disclosures about account terms and costs associated with overdrafts.
The proposed amendments would set forth content and timing requirements for a notice to consumers about any right to opt out of an institution’s overdraft service.
Requirements for disclosing overdraft fees on periodic statements would be expanded to apply to all institutions and not solely to institutions that promote the payment of overdrafts.
The proposed amendments also address balance disclosures provided in response to balance inquiries from consumers.
DATES: Comments must be received on or before July 18, 2008.
SUMMARY: The Federal Reserve Board (Board) proposes to amend Regulation DD, which implements the Truth in Savings Act, and the staff commentary to the regulation, to provide additional disclosures about account terms and costs associated with overdrafts.
The proposed amendments would set forth content and timing requirements for a notice to consumers about any right to opt out of an institution’s overdraft service.
Requirements for disclosing overdraft fees on periodic statements would be expanded to apply to all institutions and not solely to institutions that promote the payment of overdrafts.
The proposed amendments also address balance disclosures provided in response to balance inquiries from consumers.
DATES: Comments must be received on or before July 18, 2008.
FTC - FCRA - risk-based pricing - proposed rule
http://edocket.access.gpo.gov/2008/pdf/E8-10640.pdf
SUMMARY: The Board and the Commission are publishing for comment proposed rules to implement the risk-based pricing provisions in section 311 of the Fair and Accurate Credit Transactions Act of 2003 (FACT Act), which amends the Fair Credit Reporting Act (FCRA).
The proposed rules generally require a creditor to provide a risk-based pricing notice to a consumer when the creditor uses a consumer report to grant or extend credit to the consumer on material terms that are materially less favorable than the most favorable terms available to a substantial proportion of consumers from or through that creditor.
The proposed rules also provide for two alternative means by which creditors can determine when they are offering credit on material terms that are materially less favorable.
The proposed rules also include certain exceptions to the general rule, including exceptions for creditors that provide a consumer with a disclosure of the consumer’s credit score in conjunction with additional information that provides context for the credit score disclosure.
DATES: Comments must be received on or before August 18, 2008.
SUMMARY: The Board and the Commission are publishing for comment proposed rules to implement the risk-based pricing provisions in section 311 of the Fair and Accurate Credit Transactions Act of 2003 (FACT Act), which amends the Fair Credit Reporting Act (FCRA).
The proposed rules generally require a creditor to provide a risk-based pricing notice to a consumer when the creditor uses a consumer report to grant or extend credit to the consumer on material terms that are materially less favorable than the most favorable terms available to a substantial proportion of consumers from or through that creditor.
The proposed rules also provide for two alternative means by which creditors can determine when they are offering credit on material terms that are materially less favorable.
The proposed rules also include certain exceptions to the general rule, including exceptions for creditors that provide a consumer with a disclosure of the consumer’s credit score in conjunction with additional information that provides context for the credit score disclosure.
DATES: Comments must be received on or before August 18, 2008.
Truth in Lending - credit cards - proposed rule
http://edocket.access.gpo.gov/2008/pdf/E8-10242.pdf
SUMMARY: On June 14, 2007, the Board published proposed amendments to Regulation Z, which implements the Truth in Lending Act (TILA), and to the staff commentary to the regulation, following a comprehensive review of TILA’s rules for open-end (revolving) credit that is not home-secured.
The proposed revisions addressed disclosures provided with credit card applications and solicitations, at account-opening, on periodic statements, when terms are changed on an account, and in advertisements.
The Board is seeking comment on a limited number of additional revisions to the regulation and commentary. New proposed amendments address creditors’ responsibilities to establish reasonable instructions for receiving timely payments and when a due date falls on a weekend or holiday.
Creditors’ responsibilities when investigating a claim of unauthorized transactions or an allegation of a billing error are also addressed.
Advertisements for deferred interest plans would be required to provide additional information about how interest could be imposed.
Comments submitted to the Board in response to the June 2007 proposed revisions remain under consideration by the Board and need not be submitted a second time.
DATES: Comments must be received on or before July 18, 2008.
SUMMARY: On June 14, 2007, the Board published proposed amendments to Regulation Z, which implements the Truth in Lending Act (TILA), and to the staff commentary to the regulation, following a comprehensive review of TILA’s rules for open-end (revolving) credit that is not home-secured.
The proposed revisions addressed disclosures provided with credit card applications and solicitations, at account-opening, on periodic statements, when terms are changed on an account, and in advertisements.
The Board is seeking comment on a limited number of additional revisions to the regulation and commentary. New proposed amendments address creditors’ responsibilities to establish reasonable instructions for receiving timely payments and when a due date falls on a weekend or holiday.
Creditors’ responsibilities when investigating a claim of unauthorized transactions or an allegation of a billing error are also addressed.
Advertisements for deferred interest plans would be required to provide additional information about how interest could be imposed.
Comments submitted to the Board in response to the June 2007 proposed revisions remain under consideration by the Board and need not be submitted a second time.
DATES: Comments must be received on or before July 18, 2008.
Friday, May 16, 2008
support - paternity - estoppel - right to hearing
Lebanon County CYW v. Wagner - Superior Court - May 14, 2008
http://www.phfa.org/consumers/homeowners/real.aspx
“[I]n any child support matter in which paternity is denied on the grounds of estoppel, the trial court must conduct a hearing on the issue of estoppel and determine whether the mother is estopped from pursuing her claim against the alleged father.” Freedman v. McCandless, 654 A.2d 529, 533 (Pa. 1995) (emphasis added).
“Only when the doctrine of estoppel does not apply will the mother be permitted to proceed with a paternity claim against a putative father with the aid of a blood test.” Jones v. Trojak, 634 A.2d 201, 206 (Pa. 1993) (citation omitted). Thus, it was improper for the trial court to order genetic tests without providing Appellant a hearing on the issue of estoppel.
The fact that the child was in the custod of the county CYS is of no moment. The agency stands in the shoes of the parent and is bound by the parent's conduct concerning paternity.
http://www.phfa.org/consumers/homeowners/real.aspx
“[I]n any child support matter in which paternity is denied on the grounds of estoppel, the trial court must conduct a hearing on the issue of estoppel and determine whether the mother is estopped from pursuing her claim against the alleged father.” Freedman v. McCandless, 654 A.2d 529, 533 (Pa. 1995) (emphasis added).
“Only when the doctrine of estoppel does not apply will the mother be permitted to proceed with a paternity claim against a putative father with the aid of a blood test.” Jones v. Trojak, 634 A.2d 201, 206 (Pa. 1993) (citation omitted). Thus, it was improper for the trial court to order genetic tests without providing Appellant a hearing on the issue of estoppel.
The fact that the child was in the custod of the county CYS is of no moment. The agency stands in the shoes of the parent and is bound by the parent's conduct concerning paternity.
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