60 http://uponfurtherreview.philadelphiabar.org/wa/default Upon Further Review en-us Upon Further Review The Month in Workers' Compensation: June, 2017 At-A-Glance Mitchell I. Golding, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=3fbd0e85-ac44-45be-915e-a83389465120 Thu, 3 Aug 2017 15:08:45 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/wc_aug17.jpg" width="200" height="100" border="0" vspace="10" hspace="10" alt="Article Image"/> <p> <strong><u>PARTIAL DISABILITY</u></strong> </p> <ul> <li> <p> A claimant who suffers a loss of earning power attributable to her work-related injury when she returns to work in a modified-duty position with her pre-injury employer and thereafter accepts a permanent position specifically created and offered to her by her pre-injury employer at a loss of wages is entitled to Partial Disability. </p> <p> Therefore, the Claimant was entitled to partial disability where the Claimant, who had suffered an injury recognized by a Medical Only Notice of Compensation Payable was entitled to Partial Disability where the Claimant had returned to work following her work-related injury in a modified-duty position with Employer as a telemetry R.N. at no loss of earnings and thereafter was offered and voluntarily accepted a permanent position created by Employer in the Care Management Department and that resulted in wage loss though she remained capable of performing the modified-duty telemetry R.N. position at the time that she accepted the permanent care management position. </p> <p> Employer, on its own, created and offered Claimant a permanent light-duty position within her restrictions at a loss of earnings for which it now claims no liability. </p> <p> The court reasoned "We simply cannot permit employers to evade the payment of pre-injury wages or partial disability benefits by creating and offering permanent, lower-paying positions to claimants that are within the restrictions imposed by the claimants' work-related injuries." </p> </li> <li> <p> A claimant is entitled to partial disability benefits if her earning power is decreased as a result of her work-related injury. Thus, a claimant whose earning power is not affected by her work-related injury is not entitled to partial disability benefits, even though her earnings may be less than her pre-injury earnings. </p> </li> </ul> <p> <em>Holy Redeemer Health System v. WCAB (Lux)</em> No. 768 C.D. 2016 (Decision by Judge Brobson FILED, June 6, 2017) 6/17 </p> <p> <strong><u>ATTORNEY FEES</u></strong> </p> <ul> <li> <p> The Pa. Supreme Court grants Petition for Allowance of Appeal and asserts it will address the following issues: </p> <ol type="a"> <li> Did the Commonwealth Court err when it held, without legal precedent, that a workers' compensation claimant's attorney must disgorge and return unreasonable contest attorney's fees if the employer ultimately prevails? </li> <li> Is the disgorgement and return of unreasonable contest attorney's fees when the employer ultimately prevails better left to the legislature rather than the courts? </li> </ol> </li> <li> <p> It will be recalled that the Commonwealth Court had held that an employer was entitled to recover from claimant's counsel the invalid unreasonable contest attorney fees award that it was required to pay to counsel because the employer would not be entitled to reimbursement for such costs from the Supersedeas Fund. </p> <p> The Commonwealth Court had reasoned that an order to refund unreasonable contest attorney fees involves no repayment of compensation benefits, and denying a refund order would result in unjust enrichment by allowing an unsuccessful claimant's counsel to keep funds that may only be awarded where the claimant is the prevailing party. </p> <p> The Commonwealth Court therefore ordered Counsel to refund to Employer the $14,750 in unreasonable contest attorney fees that Employer paid to Counsel following reversal of the WCJ's decision that has assessed unreasonable contest attorney fees against the Employer. </p> </li> </ul> <p> <em>County of Allegheny v. WCAB (Parker)</em> No. 31 WAL 2017 (PER CURIAM, June 6, 2017) 6/17 </p> <p> <strong><u>NOTICE OF STOPPING TEMPORARY COMPENSATION</u></strong> </p> <ul> <li> <p> The Employer did not issue an untimely Notice of Stopping Temporary Compensation pursuant to the 5 day rule set forth by Section 406.1(d)(5)(i), of the Act where: </p> <ol type="1"> <li> <p> The Employer issued the Notice of Temporary Compensation Payable (NTCP) on June 6, 2012; </p> </li> <li> <p> The Employer made payment for the closed period of May 15, 2012- June 6, 2012 on June 14, 2012; and </p> </li> <li> <p> The Employer did not issue the Notice of Stopping Temporary Compensation until June 15, 2012. </p> <p> The five days from which the employer has to issue the Notice of Stopping Temporary Compensation, pursuant to Section 406.1(d)(5)(i), is calculated from when compensation must be paid, which was by June 27, 2012, and not from the last period for which compensation was payable ended. </p> <p> This is consistent with the language of Section 406.1(a), which provides that "compensation shall be paid not later than the twenty-first day" after an agreement, NCP or NTCP. The five days is calculated from when compensation must be paid, not the last period for which compensation is payable ended. </p> <p> This means the Employer had 21 days from June 6, 2012 or until June 27, 2012 to make payment on the NTCP. The Notice of Stopping Temporary Compensation was timely because it was issued within 5 days of 21 day time period it was required to make payment. </p> </li> </ol> </li> </ul> <p> <em>Jones v. WCAB (Villanova University)</em> No. 1531 C.D. 2016 (Decision by Judge Pellegrini, March 30, 2017) 6/17 </p> <p> <strong><u>IRE</u></strong> </p> <ul> <li> <p> Pennsylvania Supreme Court finds unconstitutional in its entirety the IRE provision of Section 306(a.2) of the Workers’ Compensation Act that allows employers to demand that a claimant following the receipt of 104 weeks of total disability to undergo an IRE during which a physician must determine the" degree of impairment" that is due to the claimant’s compensable injury and results in modification of the claimant's compensation status from total to partial resulting in a limitation of 500 more weeks of benefits if the impairment is found to be less than 50%. </p> <p> The Court decided that Section 306 (a.2 ) violates the non-delegation doctrine embodied by the Pa. Constitution by giving the AMA unfettered discretion over Pennsylvania's’ impairment-rating methodology. </p> </li> </ul> <p> <em>Protz v. WCAB(Derry Area School District)</em>, No.7 WAP 2016 (Decision by Justice Wecht, June 20, 2017) </p> <p> <strong><u>PENALTY/ ATTORNEY FEE/UNINSURED EMPLOYERS GUARANTY FUND</u></strong> </p> <ul> <li> <p> The fact that the Employer based in Texas was not insured in Pennsylvania and did not have the financial ability to pay the WCJ's order granting the Claimant's Claim Petition did not relieve it of its obligations under the Act to make payment within 30 days of the receipt of the WCJ's order, notwithstanding the fact that the Claimant also filed a Penalty Petition against the Uninsured Employers Guaranty Fund (Fund) who subsequently commenced payment. </p> <p> Although the Employer argued that the Fund was aware of the fact that it had not paid the Claimant compensation benefits prior to the initiation of the Penalty Petition and, thus, its delay in providing benefits to the Claimant was unreasonable, the Commonwealth Court agreed with the WCJ who noted that the obligation to pay the WCJ's award granting the Claim Petition was on Employer and the fact that the Fund ultimately commenced such payments did not relieve Employer of its obligation. </p> <p> There is no precedent or specific statutory language that relieves an employer from the obligation to pay an award due to purported financial inability to satisfy its obligation. </p> <p> Therefore, penalties were appropriate against the Employer where the WCJ issued an order granting the claimant's Claim Petition on April 3, 2014, the Employer and the Fund filed supersedeas requests with the Board that were denied on May 20, 2014 and the Fund did not begin to make biweekly payments to Claimant until September 1, 2014. </p> <p> The Court pointed out that the Fund was not created to protect an uninsured employer or otherwise shield such an employer from its obligations under the Act, as evidenced by section 1605(b) of the Act, which authorizes the Department of Labor and Industry, on behalf of the Fund, to seek reimbursement of any award paid by the Fund, as well as penalties, interest and attorney fees, from the responsible employer. The Fund was created so a third-party that would be responsible for the payment of claims to protect an injured worker and his right to be compensated for work-related injuries. </p> </li> <li> <p> The Fund is not considered an insurer and is not subject to penalties or unreasonable contest attorney fees. </p> </li> <li> <p> Pa.R.A.P. 2744 provides that an appellate court may award reasonable counsel fees and damages for delay at the rate of six percent if the court determines that the appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate, or vexatious. </p> <p> A frivolous appeal implies that no justiciable question has been presented and that the appeal is readily recognizable as devoid of merit in that there is little prospect of success. </p> <p> In this matter the court declined to assess attorney fees for frivolous appeal against the Employer because although Employer's arguments were ultimately unsuccessful, the court could not conclude that the same were frivolous or meant solely for delay. </p> </li> </ul> <p> <em>CMR Construction of Texas v. WCAB (Begly)</em>, No. 693 C.D. 2016 (Decision by Judge McCullough, June 26, 2017) 6/17 </p> <p> <strong><u>COURSE AND SCOPE</u></strong> </p> <ul> <li> <p> The Claimant, who was a roofer and a traveling employee, suffered an injury in the course and scope of his employment where he injured himself after he jumped off a roof because a ladder had been removed and where he first waited one-half hour for help and he tried calling two employees for help before he jumped but got their voicemail. </p> <p> Whether a claimant is a traveling or stationary employee is relevant for determining whether an injury sustained while on a departure from work duties is compensable. Injuries sustained by traveling employees are given more latitude when considered if compensable. In this matter claimant was a traveling employee and, as such, he was entitled to a presumption that he was furthering Employer's business when he was injured. </p> <p> To rebut this presumption, the employer bears the burden of proving that the claimant's actions were so foreign to and removed from his or her usual employment as to constitute job abandonment thereof. </p> <p> While Claimant's decision to jump was not advisable, may not have been a smart move, and may have been misguided, the court could not say that it was so unreasonable as to make the action so foreign to and removed from Claimant's job as to constitute an abandonment of that job. Rather, here, Claimant was a traveling employee who had reasonably used the ladder of other trades people at that job site to enter and exit the working area, and who unexpectedly found his means of egress removed when his job was over. </p> </li> <li> <p> Although jumping off a roof was not one of Claimant's job duties, exiting a work site was a necessary component of any job and so advanced Employer's business and affairs. </p> </li> </ul> <p> <em>Wilgro Services, Inc. v. WCAB (Mentusky)</em>, No. 1932 C.D. 2016 (Decision by Judge McCullough: June 28, 2017) 6/17 </p> <p> <strong><u>CREDIT</u></strong> </p> <ul> <li> <p> The pension benefit offset provision of Section 204(a) of the Act focuses on the extent to which benefits are funded by the employer. </p> <p> Therefore, the employer was entitled to an offset to the extent it funded the claimant's maximum single life annuity in a monthly amount equivalent to a life annuity payable to the claimant from the effective date of retirement with the provision that at his death, the unpaid balance would be payable to his beneficiary. </p> <p> This was despite the fact that the Claimant instead voluntarily chose a joint and survivor annuity, which required Employer to fund both his and his wife's annuity benefits in an equivalent amount to Claimant's maximum single life annuity but resulted in a monthly lower payout to the Claimant since it was actuarially presupposed a continuing pension would be paid to Claimant's spouse following his death. </p> <p> Although Claimant was receiving a reduced payment under this option, Employer did not receive a corresponding reduction in the amount it must fund Claimant's pension benefits. Rather, the reduction in Claimant's payment was necessary to enable Employer to provide funding for a survivor benefit for Claimant's wife. Thus, because Employer was partially funding both the annuity to Claimant and the survivor annuity for Claimant's wife, Employer was entitled to an offset for Claimant's maximum single life annuity regardless of the monthly amount paid solely to Claimant. </p> </li> <li> <p> The employer is not required to calculate the workers' compensation offset based on the net maximum single life annuity after taxes. </p> <p> An employer may calculate the pension offset based on the gross amount of the other benefit received by the employee, subject to a correction once the employee notifies the insurer he has paid the required tax consistent with 34 Pa. Code &sect;123.4(f), which provides, in pertinent part: </p> <blockquote> <p> The insurer shall repay the employee for amounts previously offset, and paid in taxes, from workers' compensation benefits, when the offset was calculated on the pretax amount of the benefit received. </p> </blockquote> <p> In this matter, when Claimant initially retired, he chose to have taxes taken out. He was therefore entitled to reimbursement from Employer for taxes paid. </p> </li> <li> <p> Even though Claimant filed the offset review petition, Employer, as the party seeking the pension offset and a change in the status quo, bears the burden of proof regarding its entitlement. </p> </li> </ul> <p> <em>Harrison v. WCAB (Commonwealth of Pennsylvania)</em>, No. 658 C.D. 2016 (Decision by Judge Simpson, June 28, 2017) 6/17 </p> Third Circuit Determines Standard to Apply on Habeas Where State Knowingly Presented or Failed to Correct Perjured Testimony Upon Further Review Staff http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=599a8f9f-ae1d-4c44-96a1-c29f738f43d6 Thu, 3 Aug 2017 15:32:34 -0400 PRECEDENTIAL<br> <div style="text-align: center;"> UNITED STATES COURT OF APPEALS<br> FOR THE THIRD CIRCUIT<br> ________________<br> No. 15-3427<br> ________________<br> VANCE HASKELL,<br> Appellant<br> v.<br> SUPERINTENDENT GREENE SCI;<br> ATTORNEY GENERAL PENNSYLVANIA;<br> DISTRICT ATTORNEY ERIE COUNTY<br> ________________<br> Appeal from the United States District Court for the Western District of Pennsylvania <br>(D.C. Civil Action No. 1-10-cv-00149) <br>District Judge: Honorable Susan Paradise Baxter <br>________________ <br>Argued March 27, 2017<br> </div> <p> Before: AMBRO, VANASKIE, and<br> RESTREPO, Circuit Judges<br> (Opinion filed August 1, 2017) </p> <p> Lisa B. Freeland, Esquire<br> Federal Public Defender<br> Elisa A. Long, Esquire (Argued)<br> Assistant Federal Public Defender<br> Office of Federal Public Defender<br> 1001 Liberty Avenue<br> 1500 Liberty Center<br> Pittsburgh, PA 15222<br> Counsel for Appellant<p></p> Mark W. Richmond, Esquire (Argued)<br> Erie County Office of District Attorney<br> 140 West 6th Street<br> Erie, PA 16501<br> Counsel for Appellee<br> </p> <div style="text-align: center;"> ________________<br> OPINION OF THE COURT<br> </div> <p> ________________<br> AMBRO, Circuit Judge </p> <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/third_aug17.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10" alt="Article Image"/> <p> A gunman murdered Darrell Cooley in a bar in Erie, Pennsylvania, in December 1994. Nearly four years later, the Commonwealth of Pennsylvania indicted and tried Vance Haskell for Cooley's murder. The primary issue at the trial was whether Haskell was the gunman. In addition to circumstantial evidence linking Haskell to the murder, the Commonwealth presented four eyewitnesses. But one of these eyewitnesses recanted his pre-trial testimony implicating Haskell and two had previously denied that they would be able to identify the shooter. The fourth eyewitness, Antoinette Blue, did provide consistent testimony claiming she could identify the shooter. What's more, she claimed to expect nothing in return from the Commonwealth in exchange for her testimony. But this last claim was untrue. Both Blue and the prosecutor knew that she expected to receive help in her own pending criminal matters in exchange for her testimony. The prosecutor failed to correct Blue's statement; he even went on to rely on it and vouch for Blue in his closing argument. </p> <p> Haskell filed a habeas petition challenging his conviction as tainted by perjured testimony in violation of his Fourteenth Amendment right to due process. We must decide whether Haskell is entitled to relief once he has shown a reasonable likelihood the false testimony could have affected the judgment of the jury, <em>Giglio v. United States</em>, 405 U.S. 150, 154 (1972) (citing <em>Napue v. Illinois</em>, 360 U.S. 264, 271 (1959)), or whether he must also show Blue's perjured testimony caused him "actual prejudice" under the standard in <em>Brecht v. Abrahamson</em>, 507 U.S. 619, 637-38 (1993). We hold that Brecht does not apply when the State has knowingly presented or failed to correct perjured testimony. In those circumstances a petitioner carries his burden when he makes the reasonable likelihood showing required by Giglio and Napue. Because Haskell has done so here, we grant his petition. </p> <ol type="I"> <li> BACKGROUND <p> In the early hours on December 10, 1994, a man entered a bar called Jethroe's Steakhouse in Erie, Pennsylvania with a semiautomatic weapon (described at trial as an "Uzi") and opened fire. He shot roughly 14 times, killing Darrell Cooley and wounding Kevin Twillie. The shooter fled the scene with another man, Curtis Mathis. </p> <p> Mathis was convicted in November 1995 for his role in these crimes (two counts of hindering apprehension of the shooter). He did not identify the shooter and received three to seven years in prison. </p> <p> A year into his sentence, Mathis, hoping that his cooperation would result in parole, communicated with Detective Sergeant James Skindell to cooperate in the ongoing investigation to identify the shooter. He provided a videotaped statement in which he named Vance Haskell (whom Mathis also called "Hakeem") as the shooter. Haskell was charged with Cooley's murder, aggravated assault of Twillie, unlawful carrying of a firearm, and several related crimes in November 1997. His trial began ten months later. </p> <p> As noted, the primary issue at trial was the identity of the shooter. The Commonwealth's prosecutor, Matthew R. Hayes, presented testimony from over 40 witnesses; only four-Mathis, Roseanna Wayne, Dorothea Roberts, and Blue-ever claimed to be able to identify Haskell as the shooter, and all except Blue had denied-either at trial or before-that they could do so. </p> <ol type="A"> <li> Trial Testimony <p> Haskell is from Rochester, New York, but the Commonwealth presented evidence that he was in Erie, Pennsylvania around the time of the murder. Felicia Clark testified that Haskell and Mathis had been staying at her Erie apartment in Franklin Terrace in the weeks leading up to the shooting. The two drove from Rochester to Erie with Clark's brother, and evidence suggests that he drove Haskell away from Erie between December 9th and 11th: Clark's uncle testified at trial that he had loaned his car to her brother on December 9, 1994; when he got it back two days later, it had been driven 586 miles, and police later matched to Haskell fingerprints on beer bottles left in the car. </p> <p> Nine witnesses testified that the unknown shooter was wearing a puffy coat; although two of them recalled the coat being blue or black in color, the other seven described it as green. Eight witnesses testified that Mathis and an unidentified shooter were in Jethroe's together and fled after the shooting. One man who was in the parking lot during the shooting testified that he saw Mathis and Haskell running toward the alley behind Jethroe's. He noted that Haskell was wearing a "big fluffy jacket." Also, three witnesses testified that Mathis and someone else took a cab to Franklin Terrace. One of them was the cab driver, although his only recollection was of picking up two black men from Red's Tavern, which is not far from Jethroe's. A resident of Franklin Terrace picked Haskell out of a photo line-up and said he had been at her home after the shooting. </p> <p> Two witnesses testified they previously saw Haskell with a gun similar to the firearm recovered in an alley near Jethroe's. One said that he had seen Haskell several times at Felicia Clark's home with "a nine-millimeter pistol, 380 automatic, an Uzi, like, type machine gun." J.A. 745. He also identified the recovered Uzi as the gun he saw Haskell carrying. The other testified that she had seen Haskell with a black firearm "slightly bigger than your average handgun" four days before the shooting and that he was wearing a green down coat at that time. Id. at 683. </p> <p> In sum, these witnesses placed Haskell in Erie near Jethroe's around the time of the shooting and put two key items associated with the shooter in his possession: a large gun and a green, fluffy jacket. But none of them saw Haskell shoot the victims. </p> <p> Four individuals presented eyewitness testimony of the shooting. But each witness's testimony came with a few problems for the prosecution. </p> <p> The first, Mathis, who had put the Commonwealth on Haskell's trail and had already been convicted of assisting the shooter's escape, recanted his previous statements on the stand. In Mathis's videotaped statement, he said that he and Haskell went to Jethroe's together that night and, while he did not witness the shooting occur, he saw Haskell immediately after wearing a green "puffy" coat and holding a smoking gun. Mathis also stated that he fled the bar with Haskell, that Haskell threw the gun under a vehicle in an alley and tossed off his coat, and that they went to another nearby bar. From there they got into a cab to head toward Franklin Terrace. In the video Mathis was shown a photo line-up and identified Haskell. </p> <p> But at trial Mathis recanted his videotaped statement and testified instead that he was at Jethroe's at the time of the shooting but was not there with Haskell. He claimed he did not witness anyone with a gun; he left the bar in a car he drove himself and went to a place known as the "Holly" rather than the Franklin Terrace housing project.<sup><a href="#1">1</a></sup> Mathis agreed that, when he gave the videotaped statement, his "only concern [was] getting out of jail[.]" Id. at 629. He related that he reviewed police reports of the murder (of which he had copies from his own involvement in the case) in order to tell the police and prosecutors what they wanted to hear-that is, what would make their case against Haskell. </p> <p> Second, Roseanna Wayne only stated that Haskell's appearance was not inconsistent with that of the shooter. Id. at 348 ("If the hair was down lower, the beard was off the face, the mustache was off the face &hellip; [,] [i]t look [sic] like the shooter."). But earlier in her testimony she said she was not sure she could identify the shooter. Id. ("Q. If you saw that person again, the person that was doing the shooting, do you think you'd recognize that person? A. No. I don't know."). At other moments in her testimony, Wayne appeared to be more confident, id. at 357 ("Sir, he look just like the man."), but she also admitted on cross-examination that she had never seen Haskell before the day she testified in court, id. at 357 ("Q. Never seen Mr. Haskell before today? A. No, sir."). </p> <p> The third eyewitness, Dorothea Roberts, testified in court that she was at Jethroe's on the night of the shooting and that she saw the shooter. She further testified that Haskell was the shooter and identified him in court. However, about three months after the shooting, Roberts had told Detective Skindell that she did not see the shooter. On cross-examination, Roberts denied this and said that if Detective Skindell wrote that in his report, he must have lied. Roberts also testified that she was currently in the Erie County Jail on charges of simple assault. Id. at 483. </p> <p> With three eyewitnesses who each made questionable identifications of Haskell, Prosecutor Hayes called Antoinette Blue to the stand. She testified that she saw Haskell shoot Cooley and had met Haskell before the shooting took place, strengthening the power of her identification. As context, Blue stated that she had seen Haskell around town for a few weeks, and, 20 minutes before the shooting, she smoked marijuana with him, Mathis, Felicia's Clark's brother, and a woman named Yolanda in Jethroe's parking lot. That night, Blue did not report to the police that she was able to identify the shooter. </p> <p> She never spoke with the police about the incident until three years later in February of 1998. </p> </li> <li> Blue's Communications with the Commonwealth <p> Blue was in the Erie County Jail when she finally spoke to the police about the shooting. Two warrants brought her there. One was issued for a parole violation following her conviction for disorderly conduct and resisting arrest. The second stemmed from her failure to appear for sentencing after pleading guilty to a charge of attempted theft. </p> <p> And Blue had other troubles in Mercer County. She was arrested there and charged with receiving stolen property, criminal conspiracy, unsworn falsification, three misdemeanor counts of retail theft, and four summary counts of retail theft. It was following this arrest that police transported her to the Erie County Jail because of that County's two outstanding warrants. Back in Erie, she reached out to Detective Skindell to cooperate in Haskell's case. </p> <p> Blue lied when she testified at Haskell's preliminary hearing on March 18, 1998. When asked on cross-examination whether she had "any criminal charges pending against [her,]" she left out her numerous pending charges in Mercer County and responded that she was "just [in jail] on a probation violation." Id. at 79. </p> <p> Blue also testified adamantly that she never discussed with anyone whether cooperating with Haskell's prosecution would help her get out of jail and that "it never occurred to [her]" that cooperation might be helpful to her. Id. at 109-10. But just two days after testifying at the preliminary hearing, Blue received sentences on her parole violations that (despite having picked up additional charges in Mercer County) resulted in her release from custody. </p> <p> Within weeks of the preliminary hearing, Detective Skindell informed Mercer County authorities that Blue was a cooperating witness in Erie County's case against Haskell. Skindell also told Blue's Mercer County defense attorney about her cooperation, and the attorney responded by sending a strongly worded letter to the Mercer County DA demanding a favorable outcome on Blue's pending charges due to her cooperation in the Haskell case. Finally, the prosecutor in Haskell's case, Hayes, reached out to the Mercer DA, who informed Hayes that the judge in Blue's case would be told of her cooperation at sentencing.<sup><a href="#2">2</a></sup> </p> <p> In September 1998, Blue testified at Haskell's trial. On cross-examination, Haskell's attorney pointed out that Blue was released from jail after she testified at Haskell's preliminary hearing. But Blue denied that the Erie County judge was aware of her cooperation and said that the timing of her release was "just a coincidence." Id. at 522. </p> <p> She also denied that she cooperated with the police in exchange for help with her criminal matters. When asked on what charges she was in jail at the time she communicated with Detective Skindell, Blue again mentioned only her probation violation and said nothing about her charges in Mercer County. </p> <p> Haskell's attorney then asked several questions aimed at revealing Blue's motivation to cooperate. </p> <p> Q. And did you contact the District Attorney's Office because you wanted some help to get out of jail?<br> A. Get out for what? I wasn't facing a lot of time, what did I need help for?<br> Q. So you didn't – this never came into your mind that you wanted to get help to get out of jail?<br> A. No. Get out for what?<br> Id. at 517.<br> On re-direct, Prosecutor Hayes attempted to dispel the notion that Blue had agreed to cooperate in order to receive some benefit in her own criminal matters.<br> Q&hellip; . Have you been promised anything by us to come in here and explain what you just explained?<br> A. No.<br> Q. Do you anticipate receiving any consideration for it?<br> A. Do I what?<br> Q. Do you expect to get something out of testifying?<br> A. No, sir.<br> Id. at 521.<br> On re-cross, Blue again insisted that she would receive no benefit for testifying.<br> Q. You didn't ask anybody to take [your testimony] into consideration?<br> A. No, sir.<br> Q. You don't think anybody was aware of that?<br> A. No, sir.<br> Id. at 522.<br> </p> <p> In his closing argument, Prosecutor Hayes ridiculed the idea that Blue would benefit from her testimony and vouched for her credibility: </p> <blockquote> <p> Antoinette says that she sees Haskell over at the [sic] Felicia Clark's place. She also sees him out in the parking lot, and here she is the one that is trying to get all this benefit from this-this valuable testimony. And what she says she's doing out there, she's committing a crime. She's smoking marijuana. That should help her pretty well. Id. 1033-34. </p> <p> So, yes, she gives her statement [three] years later; yes, it's during the time she's in prison. Is it a lie? Of course not. It's not a lie&hellip; . She's not a liar, at least not about what happened here. And, if she's not a liar and if her information is good, here's your man. Id. 1036. </p> </blockquote> <p> Just over a month after Haskell's trial, Blue pled guilty in her Mercer County case to one count of retail theft and unsworn falsification. Before sentencing, Hayes sent the Court of Common Pleas of Mercer County a letter in which he explained that Blue gave "very important" testimony at Haskell's trial. Id. at 19. </p> <p> The Mercer County DA recommended a probationary sentence. Blue received a suspended sentence of one to four years in prison with 18 months of probation for the theft charge and a sentence of costs only on the unsworn falsification charge. </p> </li> <li> Procedural History <p> At trial Haskell was convicted of first-degree murder, unlawful carrying of a firearm, possessing an instrument of crime, aggravated assault, and reckless endangerment. He was sentenced to life imprisonment plus a 15-30 month period of incarceration consecutive to his life sentence. </p> <p> Haskell pursued his claim that Blue's testimony violated his right to due process in Pennsylvania's Post Conviction Relief Act ("PCRA") Court, which held that his perjured-testimony challenge was time barred. But once Haskell filed his habeas petition with the District Court under 28 U.S.C. &sect; 2254, the Commonwealth expressly stated in its Answer that this claim was not procedurally defaulted and that the District Court must review it on the merits. Accordingly, it considered the merits, and because the PCRA Court had not reached them, it reviewed the claim de novo. On appeal, the Commonwealth makes no objection to the District Court's on-the-merits review of Haskell's perjured-testimony claim. </p> <p> The District Court held that Blue's testimony was false and that the prosecutor knew or should have known it was. However, it denied Haskell's request for relief because he failed to show that Blue's perjured testimony had a substantial and injurious effect or influence on the jury's verdict, which the Court believed he was required to demonstrate pursuant to Brecht, 507 U.S. at 627. Haskell requested, and we granted, a certificate of appealability. </p> </li> </ol> </li> <li> JURISDICTION AND STANDARD OF REVIEW <p> The District Court had subject matter jurisdiction to consider Haskell's petition under 28 U.S.C &sect; 2254, and we have jurisdiction to hear his appeal under 28 U.S.C. &sect;&sect; 1291&amp;2253. "Because the District Court did not hold an evidentiary hearing and, instead, based its decision on its review of the state court record, we apply a plenary standard of review of its decision and order." <em>Branch v. Sweeney</em>, 758 F.3d 226, 232 (3d Cir. 2014) (citing <em>Duncan v. Morton</em>, 256 F.3d 189, 196 (3d Cir. 2001)). </p> </li> <li> ANALYSIS <ol type="A"> <li> The Reasonable Likelihood Standard <p> A state violates the Fourteenth Amendment's due process guarantee when it knowingly presents or fails to correct false testimony in a criminal proceeding. See Napue, 360 U.S. at 269; Giglio, 405 U.S. at 153; see also <em>Lambert v. Blackwell</em>, 387 F.3d 210, 242 (3d Cir. 2004). Consequently, "the [Supreme] Court has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." <em>United States v. Agurs</em>, 427 U.S. 97, 103 (1976), holding modified by <em>United States v. Bagley</em>, 473 U.S. 667 (1985). </p> <p> "[T]he same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." Giglio, 405 U.S. at 153 (quoting Napue, 360 U.S. at 269); see also Lambert, 387 F.3d at 242. A conviction must be set aside even if the false testimony goes only to a witness's credibility rather than the defendant's guilt. Napue, 360 U.S. at 270. </p> <p> The standard of review applicable to perjured testimony claims is "strict." Agurs, 427 U.S. at 104. This is so "not just because [those claims] involve prosecutorial misconduct, but more importantly because they involve a corruption of the truth-seeking function of the trial process." Id. </p> <p> Accordingly, in order to establish his claim, Haskell must show that (1) Blue committed perjury, (2) the Commonwealth knew or should have known that the testimony was false, (3) the false testimony was not corrected, and (4) there is a reasonable likelihood that the perjured testimony could have affected the judgment of the jury. Lambert, 387 F.3d at 242. </p> <p> Uncontested facts in the record demonstrate that Haskell has satisfied the first three elements. Blue lied when she testified-both at Haskell's preliminary hearing and at his trial-that she expected nothing in return for her testimony. She expected and eventually received favorable treatment at sentencing for her Mercer County charges. The Commonwealth, of course, knew Blue's testimony was false and failed to correct it. Turning to the final inquiry, we conclude that there is a reasonable likelihood that Blue's false testimony could have affected the jury's judgment. Blue was a key witness. All the other eyewitnesses had significant problems with their testimony. Mathis recanted on the witness stand and claimed that Haskell was not the shooter. Wayne and Roberts had both previously said that they would not be able to identify the shooter. Thus Blue, who claimed to have met Haskell before the shooting, provided strong evidence that Haskell was the shooter. As the Commonwealth put it in its closing argument at Haskell's trial, "this [is] valuable testimony." J.A. 1034. And the Commonwealth's decision to vouch for Blue's credibility only emphasizes her importance. Id. at 1036 ("It's not a lie&hellip; . She's not a liar, at least not about what happened here. And, if she's not a liar and if her information is good, here's your man."). </p> <p> Given her central role, knowledge of the benefit she received in exchange for her testimony-substantial help with her own pending criminal charges-poses a reasonable, and significant, likelihood of affecting the judgment of the jury. See Napue, 360 U.S. at 270 ("Had the jury been apprised of the true facts &hellip; it might well have concluded that [the witness] had fabricated testimony in order to curry the favor of the very representative of the State who was prosecuting the case in which [he] was testifying, for [he] might have believed that such a representative was in a position to implement (as he ultimately attempted to do) any promise of consideration."). </p> <p> Moreover, the facts of this case are in line with those in Napue and Giglio, the cases in which the Supreme Court initially articulated when false testimony requires relief. In Napue, as in Haskell's trial, a key witness falsely testified "that he had been promised no consideration for his testimony, and [] the Assistant State's Attorney handling the case had known this to be false." Napue, 360 U.S. at 267. And much like our case, Napue concerned the identification of assailants in a bar-room murder that the key witness was in a unique position to provide. Id. at 264 ("[The key witness's] testimony was extremely important because the passage of time and the dim light in the cocktail lounge made eyewitness identification very difficult and uncertain, and because some pertinent witnesses had left the state."). Finally, the benefit for which the Napue witness had bargained was the same as Blue's: "a recommendation for a reduction of his &hellip; sentence [in his own criminal matter] would be made and, if possible effectuated." Id. at 266. </p> <p> Giglio also involved a witness's false statement that he had been promised nothing in return for his testimony. 405 U.S. at 152. The witness there was promised immunity from prosecution by a government attorney but denied it on the stand. Id. And, like our case, the prosecution returned to and emphasized the false testimony in its summation of the case. Id. The Supreme Court emphasized that "whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor." Id. at 154. Recognizing the importance of this key witness's testimony, the Court found that his "credibility &hellip; was therefore an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it." Id. at 154-55. Because this fact was kept from the jury, due process required a new trial. </p> <p> Thus there is little doubt Haskell has met the standard set by Napue and Giglio. </p> </li> <li> Brecht <p> Meeting this standard, however, does not end our inquiry. Although the Supreme Court has held that the Giglio/Napue "materiality" standard discussed above is equivalent to the harmless-error standard articulated in <em>Chapman v. California</em>, 386 U.S. 18, 24 (1967) (requiring the beneficiary-the prosecution-of a constitutional error to demonstrate that it was harmless beyond a reasonable doubt), see Bagley, 473 U.S. at 680 n.9<sup><a href="#3">3</a></sup>, the Commonwealth contends that Haskell must also meet the separate actual-prejudice standard of Brecht, 507 U.S. at 637. It held that when constitutional trial errors are raised in habeas proceedings, as opposed to on direct review, the petitioner is generally entitled to relief only if he can show "actual prejudice." Id. at 631. This occurs when the error had a "substantial and injurious effect or influence in determining the jury's verdict." Id. (quoting <em>Kotteakos v. United States</em>, 328 U.S. 750, 776 (1946)). "[I]f a judge has `grave doubt' about whether an error affected a jury in this way, the judge must treat the error as if it did so." <em>O'Neal v. McAninch</em>, 513 U.S. 432, 438 (1995) (internal quotation marks omitted). </p> <p> Brecht relied on three characteristics of habeas proceedings to ground the distinction between harmless error under Chapman applicable on direct review (putting the burden on the prosecution) and the heightened prejudice requirement it was announcing for habeas (that is, collateral) review (burdening the convicted petitioner seeking relief). First, "the State[] [has] [an] interest in the finality of convictions that have survived direct review within the state court system[,]" which review under Chapman's harmless-beyond-a-reasonable-doubt standard would undermine. Brecht, 507 U.S. at 635. Second, values of comity and federalism favor the Brecht standard because "[f]ederal intrusions into state criminal trials frustrate both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights." Id. (citing <em>Engle v. Isaac</em>, 456 U.S. 107, 128 (1982)). Third, "liberal allowance of the writ degrades the prominence of the trial itself, and at the same time encourages habeas petitioners to relitigate their claims on collateral review[.]" Id. (internal citations, quotation marks, brackets, and ellipses omitted). </p> <p> But these concerns do not apply to all constitutional errors, and thus, there are a number of exceptions to Brecht's actual-prejudice requirement. The Court recognized in Brecht itself that structural constitutional errors, like denial of the right to counsel, are not subject to harmless-error review. Id. at 630. Moreover, it noted that, "in an unusual case, a deliberate and especially egregious error of the trial type, or one that is combined with a pattern of prosecutorial misconduct, might so infect the integrity of the proceeding as to warrant the grant of habeas relief, even if it did not substantially influence the jury's verdict." Id. at 638 n.9. </p> <p> The Court identified another exception in <em>Kyles v. Whitley</em>, 514 U.S. 419, 435 (1995), when it held that Brecht's standard does not apply when the state has violated <em>Brady v. Maryland</em>, 373 U.S. 83 (1963), by suppressing evidence favorable to the defendant. The Court explained that it "had previously rejected [substantial and injurious effect] as the standard governing constitutional disclosure claims[.]" Kyles, 514 U.S. at 436 (citing Agurs, 427 U.S. at 112). Once a petitioner demonstrates "`a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,'" the inquiry is over, and a petitioner meeting Brecht's substantial-and-injurious-effect (or actual-prejudice) standard is unnecessary. Id. at 435 (quoting Bagley, 473 U.S. at 682). </p> <p> Like the suppression of evidence, presentation of perjured testimony also violates Brady. See Agurs, 427 U.S. at 103 (describing three situations to which Brady applies: (1) the government's knowing presentation of or failure to correct false testimony; (2) its failure to provide requested exculpatory evidence; and (3) its failure to volunteer exculpatory evidence never requested). Cf. Bagley, 473 U.S. at 679 n.8 ("In fact, the Brady rule has its roots in a series of cases dealing with convictions based on the prosecution's knowing use of perjured testimony."). However, the Court in Kyles, a habeas case, explicitly declined to consider whether Brecht applies to collateral review of convictions tied to knowing use of perjured testimony. Kyles, 514 U.S. at 433 n.7 ("[W]e do not consider the question whether Kyles's conviction was obtained by the knowing use of perjured testimony and our decision today does not address [Brecht's applicability to] any claim under the first Agurs category."). </p> <p> Our Court also has not resolved whether Brecht applies to cases like the one before us. In a case preceding Kyles, we held that the Brecht standard does indeed apply to habeas petitions alleging a prosecutor's knowing use of perjured testimony. <em>Robinson v. Arvonio</em>, 27 F.3d 877, 885 (3d Cir. 1994), cert. granted, judgment vacated, 513 U.S. 1186 (1995). But the Supreme Court vacated our judgment in Robinson and remanded the case for further consideration in light of O'Neal, 513 U.S. at 438, which clarified the Brecht standard as requiring relief when "a judge has grave doubt about whether an error" "had substantial and injurious effect or influence upon the jury[.]" </p> <p> We, in turn, remanded the case back to the District Court and did not hear a subsequent appeal. See Order, <em>Robinson v. Arvonio</em>, et al., Case No. 92-5667 (Oct. 10, 1995). Because an order of the Supreme Court "vacating the judgment of the Court of Appeals deprives that court's opinion of precedential effect[,]" County of Los <em>Angeles v. Davis</em>, 440 U.S. 625, 634 n.6 (1979) (quoting <em>O'Connor v. Donaldson</em>, 422 U.S. 563, 577-78 n.12 (1975)), we have explicitly recognized that Robinson is no longer binding precedent. <em>Hassine v. Zimmerman</em>, 160 F.3d 941, 960 n.30 (3d Cir. 1998). </p> <p> Thereafter we have discussed (without mention of Brecht) the proper standard to apply to habeas petitions involving perjured-testimony claims. In Lambert, 387 F.3d at 242, we noted that when "the prosecution's case includes perjured testimony and the prosecution knew, or should have known, of the perjury &hellip; [or] when the government, although not soliciting false evidence, allows it to go uncorrected when it appears at trial[,] &hellip; the conviction must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." We went on to quote Bagley's statement that although this rule is stated in terms that treat the knowing use of perjured testimony as error subject to harmless error review, it may as easily be stated as a materiality standard under which the fact that testimony is perjured is considered material unless failure to disclose it would be harmless beyond a reasonable doubt. Lambert, 387 F.3d at 242 (quoting Bagley, 473 U.S. at 679). The implication is that, for perjured-testimony claims raised in habeas proceedings, the materiality and harmless-error standards are one and the same. <br><br>Accordingly, Brecht's standard would not apply. But, as noted, Lambert made no reference to Brecht. Perhaps this was because it concluded that the statements cited were not perjured. See id. at 243, 245, 252 & 266. In any event, Lambert does not resolve by a holding whether habeas petitioners must meet Brecht's actual-prejudice hurdle. </p> <p> Our sister Circuits are split on the question. Relying on Kyles, the Ninth Circuit has rejected application of Brecht to perjured-testimony cases. <em>Hayes v. Brown</em>, 399 F.3d 972, 984 (9th Cir. 2005) ("Even though this case comes to us on habeas review, we do not conduct an additional harmless error analysis under Brecht[.]'"). Analogizing to claims brought under <em>Strickland v. Washington</em>, 466 U.S. 668 (1984), the Ninth Circuit noted that "federal courts do not conduct a separate Brecht analysis in ineffective assistance of counsel claims." Id. at 985. Whenever the applicable test is "derived from the Agurs materiality standard" (e.g., claims involving suppression of evidence, ineffective assistance of counsel, or perjured testimony), Brecht does not apply. Id. ("When the Supreme Court has declared a materiality standard, as it has for this type of constitutional error, there is no need to conduct a separate harmless error analysis."). </p> <p> The First, Sixth, Eighth, and Eleventh Circuits have disagreed, applying Brecht to habeas petitions raising perjured testimony claims. See <em>Gilday v. Callahan</em>, 59 F.3d 257, 268 (1st Cir. 1995); <em>Rosencrantz v. Lafler</em>, 568 F.3d 577, 587-90 (6th Cir. 2009); <em>United States v. Clay</em>, 720 F.3d 1021, 1026-27 (8th Cir. 2013); <em>Trepal v. Sec'y, Florida Dep't of Corr.</em>, 684 F.3d 1088, 1111-13 (11th Cir. 2012). </p> <p> The First Circuit, which issued its decision prior to the Ninth Circuit's ruling in Hayes, reasoned that "[a]pplying th[e] [reasonable-likelihood] standard in most cases involving perjury or its equivalent will likely result in a finding of constitutional error." Gilday, 59 F.3d at 268. "Scaling that lower materiality hurdle, however, still will leave the petitioner facing the Brecht harmless error inquiry into whether the perjured testimony in fact had a substantial and injurious effect or influence on the jury's verdict." Id. Brecht does not apply to evidentiary-withholding claims, by contrast, because those claims already require "a court to find an impact on the jury verdict sufficiently substantial to satisfy the Brecht harmless error test." Id. </p> <p> The Sixth Circuit agreed with the First and rejected the Ninth Circuit's intervening opinion, asserting that the Hayes Court "erred in failing to distinguish false-testimony claims from Brady withholding claims." Rosencrantz, 568 F.3d at 590. The Eleventh Circuit followed suit three years later. Trepal, 684 F.3d at 1113 (holding Brecht applied because "the more lenient Giglio materiality standard leaves room for the possibility that perjured testimony may be material under Giglio but still be harmless under Brecht"). </p> <p> Four years after Rosencrantz, the Eighth Circuit joined the majority, applying Brecht because "the materiality standard for false testimony is lower, more favorable to the defendant, and hostile to the prosecution as compared to the standard for a general Brady withholding violation." Clay, 720 F.3d at 1026 (internal quotation marks and citation omitted). </p> <p> We favor-and therefore adopt-the Ninth Circuit's approach. As that Court recognized, Kyles suggests that for the three types of due-process violations discussed in Agurs there is no need to perform a separate harmless-error analysis under Brecht. Hayes, 399 F.3d at 985 (citing Kyles, 514 U.S. at 436). This is because for these violations the materiality and harmless-error standards merge. See Bagley, 473 U.S. at 678-80. That is, the test for materiality supplies the test for harmlessness and there is no need to look to Brecht to supply a harmless-error standard. Hayes, 399 F.3d at 985. </p> <p> More importantly, the concerns behind Brecht do not reach claims of perjured testimony presented by the state. To repeat, the Supreme Court's imposition of Brecht's harmless error standard was motivated by three concerns: (1) "the State[] [has] [an] interest in the finality of convictions that have survived direct review within the state court system"; (2) "[f]ederal intrusions into state criminal trials frustrate both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights"; and (3) "liberal allowance of the writ degrades the prominence of the trial itself, and at the same time encourages habeas petitioners to relitigate their claims on collateral review[.]" Brecht, 507 U.S. at 635 (internal citations, quotation marks, brackets, and ellipses omitted). These are weighty interests no doubt, but they do not reach the facts before us. </p> <p> The Supreme Court has long counseled that "a deliberate deception of court and jury by the presentation of testimony known to be perjured &hellip; is [] inconsistent with the rudimentary demands of justice[.]" <em>Mooney v. Holohan</em>, 294 U.S. 103, 112 (1935). Put differently, "[it is a] well-established rule that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair[.]" Bagley, 473 U.S. at 678-79. In Brecht itself the Court recognized "the writ of habeas corpus has historically been regarded as an extraordinary remedy, a bulwark against convictions that violate fundamental fairness." 507 U.S. at 633 (internal quotation marks omitted). Thus it is difficult to see how concerns of finality would trump rudimentary demands of justice and fundamental fairness when those are precisely the values the writ of habeas corpus is intended to protect. </p> <p> Second, when the state knowingly presents perjured testimony, we are not presented with a "good-faith attempt[] to honor constitutional rights," Id. at 635, but instead with a bad-faith effort to deprive the defendant of his right to due process and obtain a conviction through deceit. After all, courts apply Napue's "strict standard of materiality" to perjured-testimony cases "not just because they involve prosecutorial misconduct, but more importantly because they involve a corruption of the truth-seeking function of the trial process" by the state itself. Agurs, 427 U.S. at 104. </p> <p> Third, there is little chance that excluding perjured testimony claims from Brecht analysis will "degrade[] the prominence of the trial itself[.]" Brecht, 507 U.S. at 635. A defendant will usually be unable to litigate his claims of perjured testimony at "the trial itself" because the trial is where the perjury occurs. And it is possible, even likely, that petitioners will not know of the prosecution's use of perjured testimony until after the opportunity for direct review has passed. </p> <p> Finally, the First and Sixth Circuits note that, without Brecht review, perjured testimony faces a lower bar than suppression claims. Gilday, 59 F.3d at 268; Clay, 720 F.3d at 1026. But to us that seems to be a feature, not a bug. If suppression of evidence (and thereby, the truth) is a serious constitutional error, its fabrication is a greater error still. That is why the Supreme Court set out differing materiality standards for the three types of error that implicate Brady: (1) the government's knowing presentation of or failure to correct false testimony, (2) its failure to provide requested exculpatory evidence, and (3) its failure to volunteer exculpatory evidence never requested. See Agurs, 427 U.S. at 103-06. Presenting false testimony cuts to the core of a defendant's right to due process. It thus makes sense that "the materiality standard for false testimony is lower, more favorable to the defendant, and hostile to the prosecution as compared to the standard for a general Brady withholding violation." Clay, 720 F.3d at 1026. </p> <p> At root is how can a defendant possibly enjoy his right to a fair trial when the state is willing to present (or fails to correct) lies told by its own witness and then vouches for and relies on that witness's supposed honesty in its closing? As the Supreme Court recited in Napue, [i]t is of no consequence that the falsehood bore upon the witness' credibility rather than directly upon defendant's guilt. A lie is a lie, no matter what its subject, and, if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth. 360 U.S. at 269-70 (quoting <em>People v. Savvides</em>, 136 N.E.2d 853, 854-55 (N.Y. 1956)) (internal ellipses omitted). </p> <p> For these reasons, we hold that the actual-prejudice standard of Brecht does not apply to claims on habeas that the state has knowingly presented or knowingly failed to correct perjured testimony. A reasonable likelihood that the perjured testimony affected the judgment of the jury is all that is required. </p> <p> Haskell has demonstrated that there is a reasonable likelihood that Blue's false testimony could have affected the judgment of the jury. Hence he is entitled to relief. He need not go on to show that this error had a substantial and injurious effect or influence in determining the jury's verdict because, when the state has corrupted the truth-seeking function of the trial by knowingly presenting or failing to correct perjured testimony, the threat to a defendant's right to due process is at its apex and the state's interests are at their nadir. Accordingly, we grant Haskell's habeas petition and remand for further proceedings consistent with this opinion. </p> </li> </ol> </li> </ol> <p> <small> <sup><a name="1">1</a></sup> The Commonwealth presented a great deal of testimony to rehabilitate Mathis's videotaped testimony. Among the more important details of his initial story corroborated by other witnesses were that Mathis and the shooter left the bar together, that a gun recovered from under an old truck left for many years in the alley near Jethroe's resembled the gun used by the shooter, and that Mathis and another man went to the home of Felicia Clark's neighbor in Franklin Terrace after the shooting. </small> </p> <p> <small> <sup><a name="2">2</a></sup> I am aware that Ms. Blue faces a misdemeanor retail theft charge in Mercer County. I spoke with the prosecutor in that case and he explained he had already arrived at a Plea Agreement in her case&hellip; . I also explained that Ms. Blue was assisting in this prosecution. He indicated to me that this assistance would not alter his approach to his prosecution. He indicated he would make the assistance known at the time of her sentencing in Mercer County&hellip; . The only understanding I am aware of is for Ms. Blue's cooperation. We would make the sentencing Judge aware of this cooperation.<br> J.A. 1720 (Letter From Hayes to Haskell's Defense Counsel dated April 30, 1998). </small> </p> <p> <small> <sup><a name="3">3</a></sup> [It is a] well-established rule that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. Although this rule is stated in terms that treat the knowing use of perjured testimony as error subject to harmless-error review, it may as easily be stated as a materiality standard under which the fact that testimony is perjured is considered material unless failure to disclose it would be harmless beyond a reasonable doubt. The Court in Agurs justified this standard of materiality on the ground that the knowing use of perjured testimony involves prosecutorial misconduct, and more importantly, involves a corruption of the truth-seeking function of the trial process.<br> Bagley, 473 U.S. at 678-80 (internal citations and quotation marks omitted). </small> </p> McGuire v. Russo and Legal Malpractice Claims: Clarity or Chaos? Gaetan J. Alfano and Douglas E. Roberts http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=6f5f2fbb-d887-43bc-b80e-175c945fdabf Thu, 3 Aug 2017 15:11:50 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/malpractice_aug17.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10" alt="Article Image"/> <p> The Pennsylvania Supreme Court's decision to take up <em>McGuire v. Russo</em> has caused consternation among practitioners, as the Court may overturn 26-year-old precedent that limits legal malpractice actions arising from settled cases. Indeed, the Court's Order permitting the appeal states the issue ominously: </p> <blockquote> <p> Should this Court overturn its decision in <em>Muhammad v. Strassburger, McKenna, Messer, Shilobod &amp; Gutnick</em>, 587 A.2d 1346 (Pa. 1991), which bars legal malpractice suits following the settlement of a lawsuit absent an allegation of fraud, even in instances where an attorney's negligence led to a lesser settlement. </p> </blockquote> <p> To be sure, the Court could overturn <em>Muhammad</em> wholesale. But the final phrase of the issue statement – "even … where an attorney's negligence led to a lesser settlement" – indicates that it may merely clarify the case's meaning. And clarity may be needed. Subsequent cases have interpreted <em>Muhammad</em> inconsistently and carved-out various exceptions. Thus, the doctrine has become virtually inscrutable. </p> <p> <em>Muhammad</em> involved a couple who lost an infant to complications from general anesthesia. <em>Id.</em> at 1347. They sued the hospital and two physicians for medical malpractice and, after discovery, accepted a settlement for $26,500. <em>Id</em>. The Muhammads then sued the attorney who had negotiated the settlement on their behalf for legal malpractice.<em> Id</em>. at 1348. </p> <p> <em>Muhammad</em> addresses the too-bad contract a scenario where the litigant comes to second-guess the amount of a settlement to which she has agreed.<em> Id</em>. As the Court stated, "sanctioning these 'Monday-morning-quarterback' suits would be to permit lawsuits based on speculative harm; something with which we cannot agree." <em>Id</em>. at 1352 n.13. But the rule that flows from Muhammad is not, on its face, limited to suits based on the amount of the settlement. Instead, it forecloses all malpractice suits seeking to relitigate a settlement, except where a party was fraudulently induced into settling. <em>Id.</em> at 135. </p> <p> Because of the tension between the narrow factual circumstances addressed in <em>Muhammad</em> and its apparently broader holding, courts have not interpreted the decision consistently. Based on the "unqualified articulation of its 'simply stated'" rule, one Superior Court panel found that <em>Muhammad </em>"proclaims a clear, bright line rule which, absent fraud, shields attorneys from legal malpractice claims sounding in negligence or contract where they involve cases concluded by completed settlement." <em>Miller v. Beschler</em>, 621 A.2d 595, 598 (Pa. Super. 1993). </p> <p> Subsequent decisions, however, have "limited [<em>Muhammad</em>] to the facts of that case." <em>McMahon v. Shea</em>, 688 A.2d 1179, 1182 (Pa. 1997). Accordingly, courts have green-lighted legal malpractice suits where the litigant alleged that the settlement agreement was legally deficient or that he received improper advice about the effects of settlement. <em>Banks v. Jerome Taylor &amp; Assocs</em>., 700 A.2d 1329, 1332 (Pa. Super. Ct. 1997). Another Superior Court decision found <em>Muhammad</em> inapplicable where a litigant fired her lawyers for an alleged lack of preparation and was then compelled to accept a settlement offer when she could not find subsequent counsel by the trial date. <em>White v. Kreithen,</em> 644 A.2d 1262, 1265 (Pa. Super. 1994). </p> <p> These exceptions suggest that a litigant can plead around<em> Muhammad</em> by basing the claim not on the amount of the "too-bad contract" but on a predicate act of negligence committed by the lawyer that affected the settlement process. But in the McGuire matter now before the Supreme Court, the Superior Court rejected that notion. Instead, it applied <em>Muhammad's</em> broad prohibition despite the litigant's claim that attorney errors – failing to include a claim for age discrimination and to exhaust administrative remedies before the U.S. Equal Employment Opportunity Commission – had weakened her bargaining position and forced her to accept a $7000 settlement. </p> <p> The Supreme Court now has the opportunity to clarify <em>Muhammad's</em> meaning or assess its viability. On the one hand, the Court can simply clarify under what circumstances, if any, a litigant may bring a legal malpractice suit based on a matter that has settled. Thus, even a decision that appears to narrow <em>Muhammad</em> may benefit practitioners simply by lending predictability to the doctrine. Alternatively, a decision overruling <em>Muhammad</em> likely would open the floodgates to legal malpractice claims based on the sort of "Monday morning-quarterbacking" that has been foreclosed for almost three decades. </p> <p> <em>Gaetan J. Alfano is immediate past Chancellor of the Philadelphia Bar Association and a partner at Pietragallo Gordon Alfano Bosick &amp; Raspanti, LLP.<br/> Douglas E. Roberts is a senior associate in the Government Enforcement, Compliance, and White Collar Litigation and Qui Tam Practice Groups in the Philadelphia Office of Pietragallo Gordon Alfano Bosick &amp; Raspanti, LLP.</em> </p> Federal Employees, the First Amendment, Whistleblower Protection and the False Claims Act: Why Federal Employees Should Blow the Whistle Jesse Klaproth http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=686b1bba-5fb8-4c37-a11d-572d29c7991e Thu, 3 Aug 2017 16:37:40 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/whistleblow_aug171.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10" alt="Article Image"/> <p> The First Amendment Protects Federal Employees </p> <p> An anonymous Twitter user with the handle @ALT_USCIS has been critically tweeting about the Trump administration's immigration ban. This alone would not garner much attention, but the anonymous user purports to be a disaffected employee of the United States Citizenship and Immigration Services, which means (if the anonymous user is being truthful) that a federal employee is publicly criticizing the executive branch that he or she works for. To the Trump administration, this would make the person a "leaker", but just because a person works for the administration does not mean they have relinquished their First Amendment rights, which protects most speech by federal employees with some limited exceptions. </p> <p> One of the many common misconceptions that non-lawyers hold is that the First Amendment protects all speech – not so. When you publicly tweet, Instagram, or post something to Facebook or Google+ that offends broad swaths of the public, who in turn boycott your store, contact your employer, or pull advertising from your television show, the First Amendment is not implicated. Why? Because the First Amendment, like the entire Bill of Rights, only protects citizens from government action. So, if you tweet something critical of Trump and the FBI arrests you, then your First Amendment rights have been violated. When your private employer fires you because you tweeted something offensive and stupid, the First Amendment will not save you. </p> <p> <em>Twitter v. U.S. Department of Homeland Security</em> </p> <p> Now that we have covered how and when the First Amendment applies, let's turn back to the anonymous Twitter user who may be a federal employee. The critical tweets drew the ire of Mr. Trump and his administration and the Department of Homeland Security ("DHS") decided that the best and highest use of your tax dollars was to find and silence the federal employee. To figure out who the employee was, DHS served Twitter with an administrative summons, demanding that Twitter provide DHS with documents to "unmask" the anonymous Tweeter. Can DHS do that? Yes and no. DHS is empowered to issue such a summons, but only related to records dealing with importing merchandise, which was not the case here. So, DHS was acting outside the limited authority it has to issue such a summons – again, your tax dollars at work. </p> <p> But, it was not just DHS overstepping its authority that was the problem. The summons was also directly implicating the First Amendment, which is supposed to protect citizens, including federal employees, from having their speech silenced by the government. Twitter stepped up and took the fight to DHS, filing a lawsuit to enjoin DHS from enforcing the summons. Rather than continuing to dig, DHS threw down its shovel and withdrew the summons. Twitter responded by withdrawing the lawsuit. </p> <p> From the start, the actions of DHS made no sense. First, it had no authority to issue the summons. Second, even if DHS found out who the anonymous user was, what were they going to do? If the Tweeter was fired, demoted, suspended or suffered from any other adverse employment action for tweeting about matters of public concern (immigration), then it would violate the Tweeter's First Amendment rights and the anonymous Twitter user would have a pretty good lawsuit. The whole charade was an exercise in futility and the protections put in place by the Founders once again served as a bulwark against government intrusion into personal liberties. </p> <p> Federal Whistleblower Protection Act </p> <p> Although not at issue in the DHS debacle, federal employees who report illegality, gross mismanagement, wasting money, abuse of authority or public policy violations are protected from agency retaliation. So, if you are employed by a federal agency and you report that you have a reasonable belief that your agency has engaged in misconduct, it is illegal for the agency to threaten to take or to take retaliatory actions against you, such as firing you, suspending you, demoting you, failing to promote you, giving you a poor performance review etc&hellip; </p> <p> Federal False Claims Act (Qui Tam) </p> <p> Any person or entity, including federal government employees (See <em>Little v. Shell Expl.&amp;Prod. Co.</em>, 690 F.3d 282, 289 (5th Cir. 2012), holding that federal employees have standing under the False Claims Act), that know of any person, company, government contractor, medical treatment provider, or anyone else who knowingly presents a false or fraudulent claim for payment (invoice) to the federal government, conspires with others to submit a false or fraudulent claim for payment, or conceals or avoids an obligation to pay the federal government is protected under the False Claims Act 31 U.S.C. &sect;3729 et seq. for reporting such fraud. In other words, if you work for a federal agency and become aware of a government contractor submitting false or fraudulent invoices to your agency, you can (and should) blow the whistle on the fraud. Likewise, if you work for the private company or government contractor and become aware that your employer is billing the federal government for goods or services that it did not provide, is overbilling the federal government or is otherwise submitting false invoices or knowingly be overpaid by the federal government, the False Claims Act will also protect you from speaking out. But, even if you are not a federal employee or are employed by a contractor, vendor, or company doing business with the federal government, if you have first-hand knowledge of fraud against the government, you can bring a claim under the False Claims Act. </p> <p> The False Claims Act is the most powerful vehicle for whistleblowing because it not only protects the whistleblower from retaliation, it rewards the whistleblower by giving them a percentage of any money recovered by the government. Typically, fraud against the federal government tends to be large, not small, which means whistleblowers can recover many millions. The New York Times profiled a medical doctor who has utilized his knowledge of Medicaid fraud to make millions of dollars. See: </p> <p> Unlike the First Amendment and Whistleblower Protection Act, a whistleblower (including federal employee) under the False Claims Act is not only protected, he or she is incentivized to blow the whistle. However, also unlike the First Amendment and Federal Whistleblower Protection Act, blowing the whistle under the False Claims Act requires an attorney because to report the fraud, you must file a complaint in federal court under seal. After the complaint is filed, the Department of Justice will investigate the allegations in the complaint and decide whether it will take over the case. If the DOJ does not take the case, then the whistleblower can prosecute the action with his or her private counsel on behalf of the United States, i.e. qui tam. The whistleblower is known as a relator. </p> <p> False Claims Act or Qui tam actions carry stiff civil penalties. The United States is entitled to three times the amount of damages sustained by the United States of America, plus a civil penalty of $10,000 for each fraudulent billing submission. What does a relator receive for blowing the whistle? 15 to 25 percent of the proceeds recovered by the United States of America decides to intervene and 25 percent if it does not; plus attorney's fees and costs. That is a huge incentive, especially if the whistleblower uncovers massive billing fraud. </p> <p> The message to employees is clear: If you see something; say something – even if you are a federal employee. </p> <p> <em>Jesse Klaproth is a partner at Klaproth Law PLLC, with offices in Philadelphia and Washington, D.C., and practices in the areas of employment law, consumer protection, personal injury and business services.</em> </p> The Month in Workers' Compensation: April - May 2017 At A Glance Mitchell I. Golding, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=d19c4df0-9ad9-4596-be39-3a08343f6853 Wed, 14 Jun 2017 15:37:19 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/workerscomp_june17.jpg" width="200" height="100" border="0" vspace="10" hspace="10"alt="Article Image"/> <p> <strong><u>COLLATERAL ESTOPPEL/ HEART AND LUNG ACT</u></strong> </p> <ul> <li> <p> An arbitrator's award of Heart and Lung benefits did not collaterally estop the WCJ from making her own determination as to Claimant's disability because Employer did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action. </p> </li> <li> <p> To employ the precept of collateral estoppel in a workers' compensation proceeding following a Heart and Lung determination, there must be a two-part inquiry into the amount at risk and the governing procedure. </p> <p> <u>The amount at risk</u> – The amount at risk in a Heart and Lung claim differs from what is at risk in a workers' compensation claim, because Heart and Lung benefits cease when the claimant's disability is determined to be permanent. The absence of a specified time limit does not transform the temporary nature of Heart and Lung benefits into lifetime benefits. Consequently, benefits under the Heart and Lung Act are temporary, i.e., until the claimant returns to work or is found to be permanently disabled, but benefits under the Workers' Compensation Act may last a claimant's lifetime. </p> <p> The temporary nature of Heart and Lung benefits, as opposed to potential lifetime benefits under the Workers' Compensation Act, renders the amount in controversy between the two schemes incomparable. </p> <p> <u>Governing procedure</u>- The governing procedure in a Heart and Lung case differs from the governing procedure in a workers' compensation case. The Heart and Lung Act requires an arbitration proceeding that is more ad hoc and informal when compared to a proceeding governed by the Workers' Compensation Act. This is most notable with regard to the standards for the admission of medical evidence and the level of detail required in a WCJ's decision. </p> </li> <li> <p> Collateral estoppel, also known as issue preclusion, prevents the litigation of questions of law or issues of fact that have already been litigated in a court of competent jurisdiction. The doctrine of collateral estoppel is based on the policy that a losing litigant does not deserve a rematch after fairly suffering a loss in adversarial proceedings on an issue identical in substance to the one he subsequently seeks to raise. </p> <p> Collateral estoppel will foreclose re-litigation of issues of fact or law in subsequent actions where the following criteria are met: (1) the issue in the prior adjudication is identical to the one presented in the later action; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication; (4) the party against whom collateral estoppel is asserted has had a full and fair opportunity to litigate the issue in the prior action; and (5) the determination in the prior proceeding was essential to the judgment in that action. </p> </li> </ul> <p> <em><u>Merrell v. WCAB (Commonwealth of Pennsylvania Department of Corrections)</u> No. 493 C.D. 2016 (Decision by Judge Leavitt, April 3, 2017)</em> 4/17 </p> <p> <strong><u>ATTORNEY FEES/ MEDICAL BILLS/PENALTY</u></strong> </p> <ul> <li> <p> The employer improperly denied medical bills resulting in the imposition of penalties and unreasonable contest attorney fees where (1) its denial was premised upon its belief that the entity billing for the physical therapy was different than the entity performing the physical therapy and (2) it failed to submit any evidence contrary to billing entity's position that the treatment was rendered by that entity in connection with a joint venture that was entered into between it and another physical therapy group, which was the basis for the Employer denying the bills. </p> <p> In this matter PTI, who was the billing entity, leased space and employees from a physical therapy group for PTI's Workers' Compensation business and PTI then paid a flat rate to the group for use of the facility and use of their employees. The leased employees were employees of the group, but were independent contractors with respect to PTI under a staffing lease agreement. </p> <p> There was no information from CMS, the Bureau or any state or federal law enforcement agency indicating that the arrangement between PTI and the physical therapy group was unlawful or fraudulent. </p> </li> <li> <p> Pursuant to Section 440(a) of the Act in any contested case where an insurer contests liability in whole or in part, a WCJ shall award counsel fees to an employee in whose favor the matter has been finally adjudicated unless the employer provides a reasonable basis for the contest. Section 440 is intended to deter unreasonable contests of workers' compensation claims and to ensure that successful claimants receive compensation undiminished by costs of litigation. </p> <p> The issue of whether an employer's contest is reasonable is a legal conclusion based on the WCJ's findings of fact. </p> <p> In this matter, Employer's failure to provide any evidence that establishes the alleged illegality of the joint venture or PTI's status as a health care provider, supported the WCJ's finding that Employer engaged in an unreasonable contest and the award of attorney's fees was proper. </p> </li> <li> <p> The WCJ did not err by awarding a penalty of 50%. Section 435(d) (i) of the Act gives a WCJ discretion to impose a penalty which may be increased to fifty per centum in cases of unreasonable or excessive delays. </p> <p> Here, the WCJ did not abuse its discretion in imposing a 50 percent penalty where Employer persisted in denying PTI's bills and, as the WCJ found, then failed to submit any evidence or credible testimony to refute PTI's status as the provider or demonstrate that there was anything illegal or improper about the leasing arrangements between PTI and the physical therapy group. </p> </li> </ul> <p> <em><u>Derry Township Supervisors and Selective Insurance Company of America v. WCAB (Reed)</u>, No. 751 C.D. 2016 </em>(Decision by Judge Pellegrini, January 30, 2017)4/17 </p> <p> <strong><u>SUBROGATION</u></strong> </p> <ul> <li> <p> Pa. Supreme Court grants employer's Petition for Allowance of Appeal and agrees to address the following issues: </p> <blockquote> <ol type="1"> <li> <p> Is compensation payable pursuant to Article III of the Pennsylvania Workers' Compensation Act, when the Claimant suffers a work related injury and is concurrently entitled to benefits under the Pennsylvania Workers' Compensation Act and the Heart and Lung Act? </p> </li> <li> <p> Did the Commonwealth Court err in its determination that a self-insured municipality is not entitled to subrogation, to the extent of the compensation payable pursuant to Article III of the Pennsylvania Workers' Compensation [Act], when it has concurrent obligations to an injured State Trooper under the Pennsylvania Workers' Compensation Act and the Heart and Lung Act? </p> </li> </ol> </blockquote> </li> <li> <p> It will be recalled that the Commonwealth Court had held that the employer was not entitled to subrogation against the claimant's third party recovery resulting from a motor vehicle accident although the claimant stipulated to such right where Claimant was a public safety employee and his benefits fell under the Heart and Lung Act. </p> <p> Pursuant to Section 1722 of the MVFRL, a claimant is precluded from recovering the amount of benefits paid under the Heart and Lung Act from the responsible tortfeasors. There can be no subrogation out of an award that does not include these benefits. </p> </li> </ul> <p> <em><u>Pennsylvania State Police v. WCAB (Bushta)</u>, No. 483 WAL 2016, (Decision by PER CURIAM, April 18, 2017) </em>4/17 </p> <p> <strong><u>OCCUPATIONAL DISEASE/ STATUTE OF REPOSE/MEDICAL TESTIMONY/DEATH CLAIM</u></strong> </p> <ul> <li> <p> A claimant can establish a right to benefits for an 'injury' in the nature of a work-related disease as an injury claim under Section 301(c)(1) of the Act. This would include a repetitive/cumulative death claim that alleges exposure to carcinogenic agents in the workplace over an extended period of time resulted in decedent's bladder cancer and death. </p> <p> This is consistent with the law that provides that for aninjury to be compensable under the Act, it is not required that the injury resultedfrom any sudden occurrence or accident; it may be due to daily trauma. </p> <p> In order for a fatal claim to be compensable under Section 301(c) (1) of the Act, an employee's death must occur within three hundred weeks after the injury. For a fatal disease as injury claim to be compensable under Section 301(c) of the Act, the employee's hazardous exposure is the injury from which the 300 week look-back period must be calculated. </p> <p> A claimant who litigates a death claim resulting from exposure to chemicals as an injury claim under Section 301(c)(1) of the Act must prove the death of decent occurred within 300 weeks of the last date of injurious exposure to the agent causing the disease, whether or not such last exposure was disabling. </p> <p> Therefore, where decedent died on June 23, 2006 the claimant had the burden to prove that decent was exposed to chemicals at work resulting in his bladder cancer up to 300 weeks prior to the date or up to September 22, 2000. </p> </li> <li> <p> Whether a hazard exists is a question of fact for the WCJ to determine. Since claimant's exposure is a factual question, the claimant need not present scientific evidence or expert testimony to prove the existence of the hazard in the workplace. The WCJ may rely solely on the testimony of the claimant or other witnesses to prove the existence of and exposure to the hazard. </p> <p> Lay testimony of first-hand knowledge of a hazard gained from practical experience can be sufficient to prove the existence of and exposure thereto. However, the testimony of a lay person appears to require testimony of personal experience with the illness-causing element and personal knowledge. </p> </li> <li> <p> In the case of a Fatal Claim Petition, the surviving family member has the burden to prove that the injury or disease was a substantial contributing cause in bringing about the death of the employee. If the causal connection is not obvious, the connection must be established by unequivocal medical testimony. </p> <p> Medical testimony is unequivocal if a medical expert testifies, after providing foundation for the testimony, that, in his professional opinion, he believes or thinks a fact exists. </p> </li> <li> <p> In this matter, the WCJ issued a reasoned decision supported by substantial evidence where she found that the claimant fulfilled her burden of proof by presenting credible fact witnesses who worked in the same environment as the claimant and who testified credibly based on their first-hand knowledge of chemical and environmental hazards that the decedent was exposed to within 300 weeks of his death. </p> <p> The claimant's medical expert testified credibly that the environment in which the claimant worked played a substantial contributing factor toward development of the bladder cancer that resulted in his death. </p> </li> </ul> <p> <em><u>Kimberly Clark Corporation v. WCAB (Bromley)</u>, No. 656 C.D. 2016 (Decision by Judge Covey, May 4, 2017) </em>5/17 </p> <p> <strong><u>INDEPENDENT CONTRACTOR/ CONSTRUCTION WORKPLACE MISCLASSIFICATION ACT/ LATE ANSWER</u></strong> </p> <ul> <li> <p> Employment status is a critical threshold determination for liability. Independent contractors are not eligible for workers' compensation. The nature of a working relationship is a question of law based on the facts presented in each case. It is the claimant's burden to prove the existence of an employer-employee relationship. </p> <p> The WCJ did not commit an error of law by determining that the claimant was an independent contractor consistent with the Misclassification Act that sets forth the criteria for determining whether a construction worker is an independent contractor or an employee for purposes of workers' compensation and unemployment compensation where: </p> <blockquote> <ol type="1"> <li> <p> The individual has a written contract to perform such services. </p> </li> <li> <p> The individual is free from control or direction over performance of such services both under the contract of service and in fact. </p> </li> <li> <p> As to such services, the individual is customarily engaged in an independently established trade, occupation, profession or business. </p> </li> </ol> </blockquote> <p> In this matter the defendant satisfied all three elements where the evidence reflected: </p> <ul type="square"> <li> <p> First, there was a written contract between the clamant and defendant to perform work as a roofer. It was not that the contract was of indefinite duration. The Misclassification Act does not require a contract of specified duration; it requires only a written contract. </p> <blockquote> <p> The court further disagreed that it is impossible for contracts of indefinite duration to have a defined scope of work, as required by Section 3(b) (2), of the Misclassification Act. </p> <p> The court also disagreed that is "impossible" to maintain liability insurance during the term of a contract with indefinite duration, as required by Section 3(b) (6). The court pointed out the absence of a fixed contract period is irrelevant to maintenance of a liability insurance policy. Insurance is governed by a totally separate contract and may change from time to time for reasons having nothing to do with the agreement between construction contractors. </p> </blockquote> </li> <li> <p> Second, the WCJ did not err where she concluded the claimant was free from control or direction over performance of the roofing services. Control exists where the putative employer possesses the right to select the employee; the right and power to discharge the employee. </p> <blockquote> <p> Here, though the defendant expected the clamant to be present to do his work, they did not direct the manner in which Claimant did the work. This is a critical feature of the master-servant relationship. </p> <p> Per the court, "Expecting an independent contractor to meet quality standards as a condition of being compensated is the mark of prudence by any person who engages a contractor to do construction work." </p> </blockquote> </li> <li> <p> Third, the WCJ did not err by determining claimant was customarily engaged in an independently established trade. </p> <blockquote> <p> The fact defendant allowed Claimant to use his tools did not negate the fact that Claimant brought necessary tools to the job. Claimant also had to fix any mistakes in his work at his own expense pursuant to the January 2012 contract, which stated that "Kriner's Quality Roofing Services shall not pay for mistakes made by hired Contractors. Contractors will fix mistakes at own expense and recover materials or property if necessary." </p> <p> The record also established that Claimant performed the same or similar services for two other roofing companies. Moreover, Claimant's Facebook page stated that he was an independent roofing contractor. </p> </blockquote> </li> </ul> </li> <li> <p> The defendant was not barred by the filing of a late answer to the claimant's Claim Petition from raising the defense that the clamant was not an employee but rather an independent contractor. </p> <p> This is because conclusions of law are not deemed admitted by a late answer to the claim petition. It is well settled that the existence of an employer-employee relationship is a question of law based on the facts presented in each case. </p> <p> Accordingly, although Claimant filed a claim petition identifying defendant as his employer, defendant's failure to file a timely answer to the petition did not constitute an admission on this point and did not obviate Claimant's burden of establishing an employer/employee relationship. </p> <p> The question of whether the claimant was an employee or an independent contractor is a question of law that is to be decided by a tribunal. </p> </li> </ul> <p> <em><u>Hawbaker v. WCAB(Kriner's Quality Roofing , Services and Uninsured Employer Guaranty Fund)</u>, No. 224 C.D. 2016 </em>(Decided by Judge Leavitt, Filed February 13, 2017, Ordered reported May 10, 2017) 5/17 </p> Comments Sought on Proposed Revisions to Local Bankruptcy Rules and Forms Upon Further Review Staff http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=c535dc6f-d0ef-4800-9216-23c24f13109b Wed, 14 Jun 2017 15:36:26 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/commentssought_june17.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10"alt="Article Image"/> <p> Following is the announcement of proposed revisions and invitation for comments issued by Chief U.S. Bankruptcy Judge Eric L. Frank. Readers should visit the court's web page <a href="http://www.paeb.uscourts.gov/news/proposed-revisions-local-bankruptcy-rules-and-forms">here</a> to access links to proposed changes to the local rules and forms and a comments form. </p> <p> Proposed Revisions to the Local Bankruptcy Rules and Forms </p> <p> Friday, May 26, 2017 </p> <p> To: The Public </p> <p> From: Eric L. Frank, Chief U.S. Bankruptcy Judge </p> <p> Re: Proposed Revisions to the Local Bankruptcy Rules and Forms </p> <p> In March 2014, at the request of the bankruptcy court, the Eastern District of Pennsylvania Bankruptcy Conference reconstituted its Local Rules Committee for the purpose of engaging in a review of our local rules. The Local Rules Committee has prepared a draft Report recommending substantial revisions to the local rules and some revisions to the local forms, including a proposed mandatory form chapter 13 plan. </p> <p> Before submitting the Report and proposed Local Rules and Forms to the Board of Bankruptcy Judges, the Conference Local Rules Committee is seeking informal comment from the public. </p> <p> Available on this web page are drafts of proposed revisions to this district's Local Bankruptcy Rules and Local Bankruptcy Forms. </p> <p> The proposed revisions to the current rules are sufficiently substantial as to make it difficult to decipher a "red-line" comparison to the current local rules. Therefore, in connection with your review of the rules and forms, you may wish to consult the Summaries of the Rules and Forms. The Summaries were prepared by the Professor Walter J. Taggart, who served as the Reporter for the Local Rules Committee and also are available on this web page. </p> <ol type="1"> <li> <p> Proposed Local Bankruptcy Rules </p> </li> <li> <p> Proposed Local Bankruptcy Forms </p> </li> <li> <p> LBR – Summary of Proposed Changes </p> </li> <li> <p> Summary of Proposed Changes – Forms </p> </li> </ol> <p> THE DEADLINE TO SUBMIT A COMMENT IS JUNE 22, 2017. </p> Pennsylvania Supreme Court Adopts Language Access Plan Charles J. Klitsch, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=e77219e1-ff12-44bb-ad60-1b96c8ba77a2 Wed, 14 Jun 2017 15:35:48 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/supremecourt_june17.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10" alt="Article Image"/> <p> In the past twenty years, the need for interpreters in Pennsylvania's courtrooms has increased significantly. According to the United States Census Bureau's 2011 American Community Survey, 1,237,714 Pennsylvanians, approximately 10.3% of the population, speak a language other than English at home. Of course, this does not mean that more than a million Pennsylvanians do not speak English. The same survey reported that 62.6% of Pennsylvanians who speak a language other than English at home state that they speak English "very well." </p> <p> Nevertheless, this means that more than 462,000 Pennsylvanians acknowledge that they have limited English proficiency. Thousands more Pennsylvanians are deaf or hard of hearing to the point where they have an inability to understand or communicate the spoken English language. </p> <p> This communication barrier is a serious access to justice issue that must be addressed to enable all Pennsylvanians to fully participate in judicial proceedings and court services. </p> <p> In 2015, the Pennsylvania Supreme Court created a Language Access Advisory Group, consisting of judges, court administrators, court interpreters, legal services providers and elected government officials, to prepare a statewide plan to guide the judiciary in meeting communications challenges by providing quality language access services to non-English-speaking and deaf court users. </p> <p> The Language Access Advisory Group has concluded its work and the Pennsylvania Supreme Court has approved the 49-page Language Access Plan. Among the elements of the Plan are increased language access training, new data collection procedures, boosting the availability of translated local court forms and signage, developing methods for early identification of a need for language services and creating procedures to monitor language access complaints. </p> <p> Read the full Plan <a href="http://www.pacourts.us/assets/files/setting-5486/file-5972.pdf?cb=11e5cd">here</a>. </p> Redemption Available Immediately After a Sheriff's Sale James W. Cushing, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=5a7529e6-ddfb-4896-8fc4-c53e4bc3607d Thu, 15 Jun 2017 09:36:21 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/redemption_june172.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10"alt="Article Image"/> <p> In the recent matter of City of Philadelphia v. F.A. Realty Investors Corp., 95 A.3d 377 (Pa.Cmwlth.2014), the Court had the opportunity to tackle a matter of first impression when interpreting 53 P.S. Section 7293 with regard to when a property owner may redeem his property after a sheriff's sale. </p> <p> In F.A., the piece of real estate at issue ("the Property") was subject to a tax delinquency which led to an order by the trial court to sell the Property at a sheriff's sale in order to satisfy the aforesaid tax delinquency. Not long after the order was entered, the Property was sold at sheriff's sale. Immediately after the sale, Defendant filed to redeem the Property, but its petition to do so was dismissed by the trial court. </p> <p> According to 53 P.S. 7293, a property owner may redeem a property sold at sheriff's sale "at any time within nine months from the date of the acknowledgment of the sheriff's deed therefore, upon payment of the amount bid at such sale." The City of Philadelphia argued that Defendant's immediate action to redeem the Property was premature as it acted prior to the acknowledgment of the deed. The trial court agreed with the City's interpretation and application of the statute when it dismissed Defendant's petition. </p> <p> When interpreting the statute cited above, the Court first noted that, per 1 Pa.C.S. Sections 1921 and 1922, and the cases decided thereunder, statutory construction ought not lead to an absurd result, and when there is ambiguity in the language of a statute, the court may look to the intent of the legislature to help provide interpretive guidance. The Court also explained that the redemption statute is to be liberally construed in order to effect justice, pointing out that the purpose of sheriffs' sales is not to strip a property owner of his real estate, but simply to collect on municipal claims. </p> <p> Defendant argued that making them wait until the sheriff's deed is acknowledged would likely, and unjustly, lead to unnecessary additional fees, costs, taxes, and/or interest and, therefore, its prompt action could avoid these costs. </p> <p> The Court observed that the applicable statute has at least two interpretations. The first being that the phrase "at any time" literally means at any time, without regard to when the acknowledgment occurs, as long as it is within the nine month time frame. The second interpretation begins the nine month period for redemption at the time of acknowledgment. </p> <p> As the language is, in the Court's view, ambiguous, it looked to legislative intent and, on that basis concluded that the legislature would not try and increase a property owner's difficulty to redeem property. Indeed, a property owner may retain possession of a house sold at sheriff's sale until the sale is completed by the acknowledgment and delivery of the deed obtained at the sale. As a result, the Court believed it would be an absurd result to disallow a property owner from redeeming his property while he is in possession of it simply because the deed had technically not been acknowledged. </p> <p> Finally, Pennsylvania law prohibits the redemption of a vacant property after the date of acknowledgment. In light of the above, namely that absurd results are to be avoided and that the purpose of sheriffs' sales is not to strip someone of his property but merely to ensure municipal claims are satisfied, it would seem that the City of Philadelphia's arguments would disallow someone from redeeming a vacant property at all. In other words, if a property is vacant, an owner cannot redeem it after acknowledgment and, if the City's interpretation of 53 P.S. 7293 is correct, he would not be able to redeem it before either, and this would be an absurd result, not to mention an unjust one, preventing an owner from redeeming his property. </p> <p> So, in sum, in light of the above, and after review of the applicable statutes, the Court ruled that a property owner can redeem his property sold at sheriff's sale at any time up to nine months after acknowledgment of the sale. </p> Personal Injury Litigation: Advising Your Client About Discovery and Social Media Jeffrey Lowenthal http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=d22e465f-3777-4662-ad69-601f1c10f7fd Wed, 14 Jun 2017 15:34:45 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/personalinjury_june17.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10"alt="Article Image"/> <p> In personal injury cases, defense attorneys frequently request access to the victim's social media accounts. As the <a href="https://www.americanbar.org/publications/blt/2014/01/02_dibianca.html">American Bar Association </a>(ABA) notes, the defense is often granted this access as part of discovery. </p> <p> Both plaintiffs and defendants are able to use discovery to 'investigate' the opposing side. In modern personal injury cases, social media has become a big part of discovery. To be on the safe side, your clients should simply assume that anything that they post on social media will eventually end up under the microscope in the courtroom. Of course, this is not always true, but it is better to be safe rather than sorry. </p> <p> Lawyers representing plaintiffs in personal injury cases need to be proactive in advising their clients of the risks inherent in social media. Lawyers should advise clients to avoid posting anything that can be used against them, even if the defense can only do so by taking their post out of context. </p> <p> More specifically, lawyers should provide their clients with the following advice with regard to social media posts that could adversely affect their personal injury claim: </p> <ol type="1"> <li> <p> Posts about your case: Anything you post on social media that directly pertains to your case can be brought up in the course of personal injury litigation. As such, you should never post anything about your personal injury claim. Do not post anything regarding conversations you have had with your attorney or anything regarding conversations you have had with the insurance company. While social media is designed to let you share what is going on in your life, you need to keep quiet during active litigation. </p> </li> <li> <p> Posts about your physical condition: You should also avoid making posts about your medical treatment, physical condition or your recovery. This is true even if you are not making the post in direct reference to your case. Unfortunately, what you say can, and often will, be taken out of context by the defense. For example, imagine that you were injured in a car accident, and that you are now undergoing physical therapy. If you make a social media post about how a therapy session "went well" and you are "happy with your progress" the defense may try to use that post as evidence that your injury is not actually that bad. This can be incredibly frustrating, as understandably you may want to share your progress with your loved ones, without it being used against you. Still, you need to be ready for what you will be up against. </p> </li> <li> <p> Photographs: You should assume that any picture of yourself that you post on social media will be reviewed and potentially used as evidence in your personal injury case. A simple picture of you smiling and enjoying a day at the park could even be spun into a narrative by the big insurance company's defense team. Far too often, victims post seemingly innocuous photos without considering how they might be viewed by the opposing party. </p> </li> <li> <p> Getting tagged in posts by friends: Finally, posts made by your social media friends can also potentially be used against you. This includes both photographs and text. Until your claim is resolved, you should ask your friends, family, co-workers and acquaintances to avoid posting anything about you or your case. </p> </li> </ol> <p> <strong>The Best Advice You Can Give Your Client: Stay Off of Social Media Until Your Case is Resolved</strong> </p> <p> When it comes to social media and personal injury litigation, the best practice is to simply stop posting. Certainly, a client should never post anything about their case, their medical treatment or their recovery. However, beyond that, in far too many cases, personal injury victims inadvertently damage their own claim by making a post that they feel is totally unrelated to their injury or condition. Ultimately, the best protection is to temporarily suspend all social media accounts until the claim is completely settled. </p> <p> <small><em>Jeffrey Lowenthal is the founding and managing partner of the Pennsylvania personal injury law firm of <a href="https://lowenthalabrams.com/" target="_blank">Lowenthal&amp;Abrams</a>. He focuses his practice on personal injury cases, including auto accidents and slip and falls.</em></small> </p> Philadelphia Bar Association Opposes Legislation Reducing Time for Eviction to Eleven Days Charles J. Klitsch, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=9a6d14a3-1f04-4982-990b-151639f7779d Wed, 28 Sep 2016 17:04:47 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/letter_sept16.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10" alt="Article Image"/> <p> Few matters are more essential to one's well-being than having a stable place to call home. It is the mooring post that secures us against life's storms and the sheltered nest where we can take comfort in a place that is safe and warm. Preserving families, maintaining neighborhood stability and having a reliable place to call home are intertwined. </p> <p> Consequently, it has long been the position of the Philadelphia Bar Association that when tenants face the loss of their homes, they should be afforded a reasonable period of time to seek legal advice, appeal or find another place to live. </p> <p> <a href="https://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1/HB_1715_PN_2582.pdf">House Bill 1715, Printer's No. 2582</a>, introduced this session in the Pennsylvania General Assembly, takes a different approach. This legislation would shorten the period for eviction after entry of a judgment of possession to only eleven days. </p> <p> The Philadelphia Bar Association vigorously opposes House Bill 1715. On September 20, 2016, Chancellor Gaetan J. Alfano, Chancellor-Elect Deborah R. Gross and Vice Chancellor Mary F. Platt sent a strongly worded letter to House Urban Affairs Committee Chairs Scott A. Petri and Thomas R. Caltagirone voicing this Association's opposition to House Bill 1715. Read the letter <a href="https://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1/PhiladelphiaBarLetterOpposingHB1715.pdf">here</a>. </p> The Month in Workers' Compensation: July-August 2016 At-a-Glance Mitchell I. Golding, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=6353c087-fd8d-48a2-a5ef-7682095b83d2 Wed, 28 Sep 2016 16:19:43 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/workerscomp_sept16.jpg" width="200" height="100" border="0" vspace="10" hspace="10"alt="Article Image"/> <p> <strong><u>ATTORNEY FEES/APPEAL/ LITIGATION COSTS/COLLATERAL ESTOPPEL</u></strong> </p> <ul> <li> <p> An award of attorney's fees and litigation costs to a prevailing claimant is not automatic. Therefore, even if the absence of an award of attorney's fees was inadvertent, the mistake goes to the merits of the case rather than to the satisfaction of the award, and it cannot be corrected by way of a Petition to Review under Section 413 of the Act. </p> <p> The claimant would need to remedy the failure to receive attorney's fees and litigation costs by filing an appeal, even if the claimant prevailed on the merits of the case. </p> </li> <li> <p> Generally, a party who prevailed in a proceeding below is not an aggrieved party and, consequently, has no standing to appeal. However, courts allow a party to appeal where the remedy awarded is claimed to be insufficient. </p> <p> In this matter, although Claimant prevailed before the WCAB in his appeal of the suspension order, he only prevailed in part, because the Board did not address his request for costs and attorney's fees. As a result, and because an award of attorney's fees is not automatic, Claimant was adversely affected by the WCAB's decision, and thus, he was aggrieved. </p> <p> Claimant's proper remedy was to request reconsideration by the Board or file an appeal to the Commonwealth Court. Claimant failed to do either. Since the WCAB's order that failed to award litigation costs and attorney fees was final the claimant was not permitted to collaterally attack the WCAB's final order by filing a Petition to Review that sought reimbursement of attorney's fees and litigation costs. </p> </li> </ul> <p> <em>Byfield v. WCAB (Philadelphia Housing Authority)</em>, No. 2002 C.D. 2015(Decision by Judge Wojcik, July 26, 2016). </p> <p> <strong><u>OCCUPATIONAL DISEASE/MEDICAL TESTIMONY</u></strong> </p> <ul> <li> <p> To establish that a firefighter's cancer is an occupational disease, pursuant to Section 108(r) of the Act, the firefighter must show that he has been diagnosed with a type of cancer <em><strong>"caused by</strong></em> exposure to a known carcinogen which is recognized as a Group 1 carcinogen." By using the words "<em><strong>caused by</strong></em>" it is incumbent upon Claimant to prove that his cancer is a type of cancer caused by the Group 1 carcinogens to which he was exposed in the workplace to establish an occupational disease. Only then do the presumptions in Section 301(e) and (f) of the Act come into play. </p> <p> Section 301 (e) provides: </p> <blockquote> <em>If it be shown that the employe, at or immediately before the date of disability, was employed in any occupation or industry in which the occupational disease is a hazard, it shall be presumed that the employe's occupational disease arose out of and in the course of his employment, but this presumption shall not be conclusive.</em> </blockquote> <p> Section 301 (f) provides in pertinent part: </p> <blockquote> <em>Compensation pursuant to cancer suffered by a firefighter shall only be to those firefighters who have served four or more years in continuous firefighting duties, who can establish direct exposure to a carcinogen referred to in section 108(r) relating to cancer by a firefighter and have successfully passed a physical examination prior to asserting a claim under this subsection or prior to engaging in firefighting duties and the examination failed to reveal any evidence of the condition of cancer. The presumption of this subsection may be rebutted by substantial competent evidence that shows that the firefighter's cancer was not caused by the occupation of firefighting.</em> </blockquote> <p> This presumption relieves the firefighter of the need to prove that his cancer was <em><strong>caused by</strong></em> his workplace exposure and not another cause. So long as the firefighter can show four years of continuous service and the absence of cancer prior to that service, he is entitled to compensation under Section 301(f) of the Act, </p> </li> <li> <p> The WCAB's affirmation of the WCJ's granting of Claimant's Claim Petition was vacated and this matter was remanded because the WCAB erred in concluding that if Claimant had cancer generally and was exposed to any Group 1 carcinogens, he had met his initial burden. The WCAB failed to give effect to the words "<em><strong>caused by</strong></em>" between "cancer suffered by a firefighter" and "exposure to a known [Group 1] carcinogen" as used in Section 108(r) of the Act. </p> <p> Upon remand, the claimant had to establish that melanoma is caused by a Group 1 carcinogen, thus rendering it an occupational disease under Section 108(r). Only at that point would the presumption in Section 301(e) come into play and assist Claimant, who is relieved of having to rule out other causes for his melanoma, such as his outdoor lifestyle. </p> <p> The WCJ must then determine whether Claimant had "four or more years in continuous firefighting duties, can establish direct exposure to a carcinogen referred to in Section 108(r) and successfully passed a physical examination prior to engaging in firefighting duties and the examination failed to reveal any evidence of the condition of cancer. </p> </li> <li> <p> Upon remanding this matter, the Commonwealth Court directed the WCAB to determine whether the Act requires a medical expert to satisfy Pennsylvania Rule of Evidence 702, i.e., the Frye standard. This Rule provides: </p> <blockquote> <p><em>A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:</em> </p> <ol type="a"> <li><em>the expert's scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;</em></li> <li><em>the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and</em></li> <li><em>the expert's methodology is generally accepted in the relevant field.</em></li> </ol> </blockquote> </li> </ul> <p> <em>City of Philadelphia Fire Department v. WCAB (Sladek)</em>, No. 579 C.D. 2015 (Decision by Judge Leavitt, August 12, 2016). </p> <p> <strong><u>LONGSHORE ACT</u></strong> </p> <ul> <li> <p> The WCJ did not err by holding that the Longshore Act had exclusive jurisdiction over the Claimant's injury where the ship on which Claimant was injured was located "on the water." The Longshore Act provides employees who are injured over navigable waters while performing traditionally maritime functions remain exclusively in the jurisdiction of the Longshore Act. </p> </li> <li> <p> An employee is entitled to benefits under the Workers' Compensation Act when he establishes that he suffered a work-related injury in Pennsylvania that occurred in the course of an employment relationship. See Sections 101 and 301(c) (1) of the Workers' Compensation Act. Alternatively, an employee is entitled to benefits under the Longshore Act if he establishes that his disability is the result of "an injury occurring upon the navigable waters of the United States." </p> <p> Maritime employees who are injured over navigable waters while performing traditionally maritime functions remain exclusively in the jurisdiction of the Longshore Act. </p> </li> </ul> <p> <em>Savoy v. WCAB (Global Associates)</em>, No. 2613 C.D. 2015 (Decision by Judge Leavitt, August 25, 2016). </p> First Judicial District's 2015 Annual Report Provides Detailed Statistics and Information on Court Initiatives Upon Further Review Staff http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=6da9c9ae-04b1-43c8-bc29-34b973685165 Wed, 28 Sep 2016 16:18:36 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/annualreport_sept16.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10"alt="Article Image"/> <p> Highlights of the First Judicial District's 2015 Annual Report include: </p> <ul> <li>A successful application was made for a $3.5 million MacArthur Foundation grant to fund criminal justice reform.</li> <li>In April 2015 the Family Court Help Center was opened as a resource for pro se litigants to obtain forms and information related to domestic relations matters, staffed by volunteer attorneys.</li> <li>The diversionary programs in the Municipal Court Criminal Division continue to succeed. In 2015, in excess of 6,709 cases were diverted from the Court's standard calendars, saving costs associated with formal trials, court related police overtime and lengthy prison stays for nonviolent offenders.</li> <li>The number of arbitration cases filed in the Court of Common Pleas Civil Division continues a long decline, with 11,775 cases filed in 2015, down from 17,993 cases filed in 2009.</li> <li>Implementation of the Summary Trial Appeal Program in the Municipal Court, Traffic Division.</li> </ul> <p> Read the full report on the First Judicial District website <a href="http://courts.phila.gov/pdf/report/2015-First-Judicial-District-Annual-Report.pdf">here</a>. </p> The Gist of a Legal Malpractice Action James W. Cushing, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=c50e665e-7b2c-4698-8673-dc87148f7717 Wed, 28 Sep 2016 16:23:57 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/gist_sept16.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10"alt="Article Image"/> <p> There are times when a disgruntled client believes his case was mishandled by his attorney to such an extent that he needs to bring suit against the attorney to make him whole. When bringing such a suit, a client can bring an action against his attorney sounding in tort for legal malpractice and/or an action sounding in breach of contract. </p> <p> A malpractice claim addresses whether an attorney performed his duties according to the accepted standards of practice and is subject to a two year statute of limitations. A breach of contract claim addresses whether the attorney fulfilled his duties according to the contract that an attorney has with his client and is subject to a four year statute of limitations. According to the so-called "gist-of-the-action" rule, a litigant may not bring a tort claim (e.g.: legal malpractice) against someone if the legal duty that is claimed to have been breached by the opposing party is created by the terms of a contract. </p> <p> It is not uncommon for both legal malpractice and breach of contract claims to be raised simultaneously by disgruntled clients against their attorneys, and the recent matter of <em>New York Central Mutual Insurance Company and St. Paul Mercury Insurance Company v. Margolis Edelstein and Michael T. Savitsky</em>, United States Court of Appeals for the Third Circuit, Case No. 15-1541 helps provide guidance regarding which is the more appropriate claim. </p> <p> The <em>New York Central </em>matter centered on an attorney’s representation of an automobile insurance company with regard to the coverage it elected to provide (or lack thereof) for an automobile accident. At the conclusion of the case, the insurance company believed it received poor, indeed substandard, legal advice from its attorney which, as a result, led to its suing its attorney for breach of contract. The defendant attorney filed a motion to dismiss (which was granted, leading the insurance company to appeal to the Third Circuit) based on the "gist-of-the-action" rule. The successful argument proffered by the attorney was that, regardless of the labeling provided by the insurance company, its claim was actually a malpractice claim. The impact of a breach of contract claim being construed as a malpractice claim is that it shortens the applicable statute of limitations from four years (for contracts) to two years (for torts), which would lead to the dismissal of the insurance company’s claims as they were filed more than two years after the incident giving rise to its case against its attorney. </p> <p> The Court indicated that a claim for breach of contract must arise from the duties created by a contract and not duties created through a "broader social duty." The duty at issue under a contract claim must be one which a party would not otherwise have been obliged to do but for the terms of the contract. </p> <p> According to the Court, the obligation for an attorney to perform his duties competently is one which looks to "broader social duties" and not simply the specific terms of a contract. According to the contract at issue, the attorney in this case was tasked with researching, drafting, and communicating a legal opinion to the insurance company regarding exposure to civil liability flowing from a specific automobile accident. To that end, the Court observed that the attorney did research, draft, and communicate the aforesaid legal opinion to the insurance company. Consequently, the attorney did not breach the contract. The insurance company’s claim is, more-or-less, that the attorney did a poor job in researching, drafting, and communicating the legal opinion, which is distinct from claiming the attorney did not perform the tasks he was contracted to do. In other words, as the Court pointed out, the insurance company’s claim "arises from [the attorney’s] negligent performance of his contractual duty obligations and, therefore, sounds in tort." </p> <p> Due to the above, the Court construed the breach of contract claim against the attorney as a malpractice claim, and, therefore, applied the two year statute of limitations for a malpractice claim to the insurance company’s claims, which resulted in the dismissal of those claims due to being time barred. </p> <p> The decision above is beginning to be adopted generally as it has already been applied in the matter of <em>Rinker v. Amori</em>, Case No.: 3:15-1293, 2016 US Dist. Lexis 36712 at 19-20 (M.D. Pa. Mar. 22, 2016) and is consistent with the Pennsylvania Supreme Court case <em>Bruno v. Erie Insurance</em>, 106 A.3d 48 (Pa. 2014). </p> <p> So, practitioners should be aware and vigilant to ensure they are compliant with the "gist-of-the-action" rule, and remember that, regardless of how a case is labeled, a court will look to the substance of the claims made to determine whether it sounds in contract or in tort. </p> Third Circuit: Defective Indictment Not Structural Error Requiring Automatic Reversal Burton A. Rose, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=6e82ce6e-4d79-45b4-8912-31d43ce2188b Wed, 17 Aug 2016 15:00:25 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/id_aug16.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10"alt="Article Image"/> <p> In <em>United States v. Terrell Stevenson</em>, 2016 WL 4191134 (August 9, 2016), a panel of the United States Court of Appeals for the Third Circuit was presented with a direct appeal from a criminal conviction in the United States District Court for the Middle District of Pennsylvania. </p> <p> Among the issues raised in that direct appeal was a contention that the indictment did not adequately state the essential elements of one of the offenses: fraud in relation to identification documents prohibited by 18 U.S.C. &sect;1028. The appellant alleged that the indictment did not include a specific averment regarding the interstate commerce element of the law. </p> <p> The panel was composed of Judges Smith, Hardiman and Schwartz; Judge Hardiman wrote the opinion for the panel. There was no dissent. </p> <p> The panel ruled that an indictment which fails to include all the central elements of the charged offense is subject to harmless error review when the issue was raised in the trial court and that a defective indictment does not constitute a structural error that would require automatic reversal. </p> <p> The Panel acknowledged that the United States Court of Appeals for the Ninth Circuit has taken the view that a defective indictment does require automatic reversal, and cited <em>United States v. Omer</em>, 395 F3d 1087 (2005); however, Judge Hardiman noted that the ninth circuit is the lone circuit that takes that position. Six other courts of appeal have taken the view that harmless error review applies when an indictment’s omission of an essential element is challenged in District Court. The Third Circuit now joins that group and thereby overruled its prior decision in <em>United States v. Spinner</em>, 180 F3d 514 (1999) (holding that a similar omission was a fundamental defect depriving the court of jurisdiction and was not susceptible to harmless error review). </p> <p> In this case, since the trial jury found the appellant guilty after receiving explicit instructions as to the facts necessary to convict him on the interstate commerce element beyond a reasonable doubt, a rational grand jury would certainly have had adequate probable cause to charge him with each and every element of the fraudulent identification offense. Therefore this error was harmless. </p> <p> Consequently, appellant’s conviction and 360 month sentence were affirmed. </p> Chief Judge McKee: Presiding Judge or Magistrate Has Sole Discretion in Requests for Interim Payment of Counsel Upon Further Review Staff http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=2dd1aa91-eace-428e-a02b-3d55640bc830 Wed, 17 Aug 2016 16:20:17 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/numbers_aug16.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10"alt="Article Image"/> <p> In a bid to streamline the payment process, Third Circuit Court of Appeals Chief Judge McKee has ordered that in extended or complex cases where counsel has been appointed under the Criminal Justice Act, 18 U.S.C. &sect;3006A, responsibility for review of requests to submit interim vouchers for compensation for pending matters rests solely with the presiding judge or magistrate. See Chief Judge McKee's <a href="https://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1/StandingOrderonRequestsforLeavetoSubmitInterimVouchers.pdf">August 9 Order</a>. </p> The Month in Workers' Compensation: June 2016 At-a-Glance Mitchell I. Golding, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=6f7be589-70ed-4be6-a362-9be5f917508f Wed, 17 Aug 2016 14:59:06 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/medical_aug16.jpg" width="200" height="100" border="0" vspace="10" hspace="10" alt="Article Image"/> <p> <strong><u>APPEAL/ INTERLOCUTORY ORDER</u></strong> </p> <ul> <li> <p> An order by a Workers' Compensation Judge ("WCJ") denying a Joinder Petition is a final order and not interlocutory, because the order disposes entirely of the issues set forth in the Joinder Petition. Therefore, it is subject to an immediate appeal. </p> <p> However, a party may take an appeal <em>nunc pro tunc</em> where there has been a breakdown in the administrative process. A breakdown in the administrative process occurs when the party seeking to appeal an order in an untimely manner establishes that its delay in taking action was caused by extraordinary circumstances involving fraud, a breakdown in the administrative process, or non-negligent circumstances related to the claimant, his counsel, or a third party. </p> <p> When an adjudicator erroneously labels an order as "interlocutory" and the order not only fails to advise a litigant of the right to appeal, which is the custom in Workers' Compensation matters, but rather affirmatively directs the litigant that he or she may not appeal an order, there may be grounds to seek <em>nunc pro tunc</em> review. </p> <p> In this matter the Court directed that the Uninsured Employers Guaranty Fund be given an opportunity to establish that a breakdown in the administrative process occurred such that the Board should have considered its appeal <em>nunc pro tunc</em> where the WCJ dismissed the Joinder of a carrier and erroneously labeled its order an interlocutory and not subject to appeal rather than a final order. </p> </li> </ul> <p> <em>Uninsured Employers Guaranty Fund v. WCAB (Gerretz, Reliable Wagon and Auto Body, Inc., and Somerset Casualty Insurance Company)</em>, No. 445 C.D. (Decision by Judge Brobson, June 14, 2016) 6/16 </p> <p> <strong><u>MEDICAL BENEFITS /ATTORNEY FEES</u></strong> </p> <ul> <li> <p> The WCJ did not err in denying Claimant's counsel a 20 percent attorney fee chargeable to the Claimant's medical bills where the WCJ concluded that the Claimant failed to establish that any particular work performed specifically advanced the payment of medical bills to warrant a 20 percent attorney fee of the medical bill payments and where the WCJ found that testimony did not establish that the fee agreement provided counsel with 20 percent of the medical bills paid. </p> <p> Consequently, counsel did not demonstrate to the WCJ why such a fee was justified in light of the time and effort expended on obtaining medical benefits for Claimant. The WCJ was also correct in finding that counsel's requested fee was unreasonable in light of the work performed. </p> </li> <li> <p> Upon determining whether medical bill payments should be included in a contingent fee agreement, the WCJ must assess: (1) whether the claimant and counsel intended for counsel to receive a percentage of the medical bill payments; and (2) whether the fee is reasonable. </p> <p> In addition, a reasonableness inquiry in this context should address the amount and degree of difficulty of the work performed by the attorney upon obtaining payment of medical benefits. This requires a <em>quantum meruit</em> analysis. </p> <p> Thus, counsel seeking a contingent fee on medical bill payments in addition to the <em>per se</em> reasonable 20 percent contingent fee on indemnity benefits must demonstrate to the WCJ why such a fee is justified in light of the time and effort expended on obtaining medical benefits for the claimant. </p> </li> <li> <p> Although the provider would be prohibited from going after the claimant for the difference between the amount billed and the Medicare-based reimbursement rates, the Act would not prohibit the provider from seeking reimbursement from the claimant for the balance resulting payment of an amount less than the Medicare-based reimbursement rates resulting from counsels 20% attorney fee chargeable to the medical bill. </p> <p> The court voiced its concern that a claimant may not be aware that her counsel's interest in receiving attorney's fees based on medical benefit payments can be in conflict with the claimant's own financial interests. As expressed by Judge Pellegrini in a prior decision, "at the minimum," a claimant should be informed "of the potential conflict and informed that he may wish to employ an attorney to advise him of the reasonableness of the fees sought by his counsel." </p> </li> </ul> <p> <em>Righter v. WCAB (Righter Parking</em>), No. 1356 C.D. 2015 No. 1356 C.D. 2015 (Judge Cohn Jubelirer, June 14, 2016) 6/16 </p> Third Circuit Voids Residual Clause of Sentencing Guidelines Section 4B1.2 Burton A. Rose, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=0aee244a-3a7d-47e8-9801-db80f09ed925 Wed, 17 Aug 2016 14:58:29 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/jail_aug16.jpg" width="200" height="100" vspace="10" hspace="10" align="left" alt="Article Image"/> <p> There is nothing more important in federal criminal practice than what happens at sentencing. With the United States Department of Justice reporting a 93 percent conviction rate, almost all federal prosecutions seem to end up in a sentencing hearing. Under the United States Sentencing Guidelines, if someone is determined to be a career offender, then the length of their sentence can be enormous. Therefore it becomes crucial to find out if your client has a criminal history that will warrant him or her being adjudicated as a career offender. </p> <p> In <em>United States v. Michael Calabretta</em>, 2016 WL 3997215, July 26, 2016, docket number 14-3969, a panel of the United States Court of Appeals for the Third Circuit ruled that Sentencing Guideline Section 4B1.2, concerning career offender status, cannot survive the recent decision of <em>Johnson v. United States</em>, 135 S. Ct. 2551 (2015). In that case, the United States Supreme Court ruled that the residual clause of the Armed Career Criminal Act was too vague as it did not define with specificity what constitutes a violent crime. </p> <p> In <em>Calabretta</em>, the appellant had a prior conviction for eluding the police. The United States District Court for the District of New Jersey held that this was a crime of violence under the residual clause of the applicable sentencing guideline. The defendant was determined to be a career offender and sentenced accordingly. There was no objection at the time of sentencing to the crime of eluding being considered as part of his career offender history. </p> <p> The Third Circuit panel, in an opinion written by Judge Chagares and joined by Judge Jordan, ruled that under the <em>Johnson</em> decision, it was plain error for the District Court to consider that conviction as a crime of violence. The residual clause of Section 4B1.2 suffered from vagueness the same way that the residual violent felony definition in the Armed Career Criminal Act was condemned by the <em>Johnson</em> Court. </p> <p> Judge Fisher dissented on the basis that this error was not plain since the District Court had carefully considered all of the appropriate sentencing factors in this case and the defendant's lawyer had not lodged an objection to the application of the residual clause. Judge Fisher was concerned that this ruling would improperly expand the scope of the doctrine of plain error which allows an appellate court to decide on the merits an issue that had not been properly advanced and preserved in the trial court. </p> Closing the Statute of Limitations Loop in Uninsured Motorist Arbitrations Charles F. Forer, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=12221bc0-372d-492a-9536-de9559811dd7 Wed, 17 Aug 2016 14:57:42 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/crash_aug16.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10"alt="Article Image"/> <p> <em>Author's note: This article describes a hypothetical situation.</em> </p> <p> When it comes to protecting clients, Bob does not let his guard down. He knows the value of being prompt. For instance, he takes lots of steps to avoid the running of the statute of limitations. </p> <p> So when it came time to represent long-time and now seriously injured client Karen in an uninsured motorist ("UM") arbitration, Bob did it all by the book. </p> <p> On April 5, 2011, Karen was injured in a hit and run accident. She had excellent coverage – her insurance policy included an endorsement for UM coverage of $1,000,000 per incident. An endorsement had an arbitration clause requiring Karen and the insurer to arbitrate any disputes over liability and damages. </p> <p> Bob knew a four-year statute of limitations, 42 PA. CONS. STAT. ANN. &sect; 5525(a)(8), applies to claims for uninsured motorist benefits. He knew he had to file the arbitration demand within four years of the April 5, 2011 accident date. Even a first grader could figure that out. </p> <p> Bob moved quickly after meeting with Karen. By letter dated June 2, 2011, he notified Karen's insurer of her UM claim; the notification included a lengthy summary of Karen's medical records and a detailed analysis of her lost earnings. The letter sought the entire policy limits of $1 million. After all, Karen had suffered through three major operations. She faced a recovery of more than one year. She probably would never work again. Two months post-accident, she was in constant pain. </p> <p> The insurer's counsel on August 1, 2011 sent a reservation-of-rights letter to Bob. On November 5, 2011, the insurer took a statement under oath from Karen. On December 8, 2011, Bob – upset with the several-month delay – informed the insurer's lawyer he was going to appoint an arbitrator. Two weeks later, Bob designated Karen's arbitrator. In January 2012, the insurer designated its arbitrator. </p> <p> Then things sat, seemingly for good reason. The insurer made a settlement offer that was close to Bob's bottom range of settlement. Bob naturally believed he would be able to settle the UM claim without going through the costs and delays of an arbitration. In fact, the additional time since his initial June 2, 2011 letter allowed Bob to buttress his settlement position due to Karen's additional operations and her continued absence from work with no return date in sight. </p> <p> Bob was not the only one moving forward. The two party-arbitrators exchanged e-mails regarding the appointment of the neutral arbitrator. They were close to agreement. </p> <p> However, this "progress" led nowhere. Bob reduced his settlement demand, but the insurer refused to raise its offer. The two party-arbitrators continued to exchange e-mails, but they could not agree on the neutral arbitrator. </p> <p> Days led to weeks. Weeks led to months. And months led to years. Still no movement. More letters, more e-mails, more medical records. </p> <p> Then, on August 13, 2015, more than four years after the accident, the insurer filed a declaratory judgment action. The complaint sought a determination that the statute of limitations time barred Karen's UM claim. How could the claim be time barred when Bob put the insurer on notice a mere two months post-accident, when Bob formally sought arbitration eight months post-accident, and when the insurer did not claim it was prejudiced by any delay? </p> <p> A few months later, the insurer sought summary judgment. Bob restrained himself. He did not seek sanctions in response to the motion. Instead, he laid out the undisputed facts of record that unquestionably illustrated how he had expeditiously acted. Bob's brief pointed out the "obvious problems" (Bob's language) with the insurer's approach – that it would require insureds to bring premature lawsuits to protect their rights even when there is not a present controversy. This approach would burden insureds, tortfeasors, insurers, and courts. Talk about "hurry up and wait." </p> <p> The one catch with Bob's response to the insurer's summary judgment motion: the trial court granted the motion and determined the statute of limitations barred Karen's UM claim. Where did Bob go wrong? </p> <p> First the basics: </p> <ol type="1"> <li> <p>A UM claim is subject to the same four-year statute of limitations that applies to contract actions. 42 PA. CONS. STAT. ANN. &sect; 5525(a)(8); <em>Hopkins v. Erie Ins. Co</em>.¸ 65 A.3d 452, 456 (Pa. Super. 2013).</p> </li> <li> <p>The statute of limitations on a UM claim begins to run when "(1) the insured was in a motor vehicle accident, and (2) the insured sustained bodily injury as a result of that accident, and (3) the insured knows of the uninsured status of the owner or operator." <em>Boyle v. State Farm Automobile Ins. Co</em>., 456 A.2d 156, 162 (Pa. Super. 1983).</p> </li> <li> <p>When a hit-and-run driver whom the insured cannot identify injures the insured, the insured "presumptively" knows, as of the accident date, the hit-and-run vehicle was uninsured. <em>Seay v. Prudential Property&amp;Casualty Ins. Co.</em>, 543 A.2d 1166, 1169 (Pa. Super. 1988) ("Using the objective standard, a reasonable person would have known as of the day of the accident that the vehicles were unidentified and therefore presumptively uninsured.").</p> </li> </ol> <p> However, these principles do not complete the picture, because an insured seeking UM benefits tolls the running of the statute of limitations only by filing a petition to appoint arbitrators or to compel arbitration. Sending letters and e-mails as part of an attempt to settle the UM claim, providing medical records and authorizations to obtain other medical records, seeking arbitration, appointing the insured's arbitrator, discussing the ground rules of the arbitration proceeding – none of these actions tolls the statute of limitations. </p> <p> What should Bob have done? Here is what the Superior Court recently said: </p> <blockquote> <p> [I]n accordance with Hopkins, the statute of limitations &hellip; was not tolled merely because the parties were engaged in correspondence, in an attempt to resolve the uninsured motorist benefits claim. Rather, pursuant to Hopkins, [plaintiff] was at all times required to commence his "action" within the required time-period, by filing a<em> praecipe</em> for a writ of summons, a complaint, a petition to appoint arbitrator, or a petition to compel arbitration, with the prothonotary. </p> </blockquote> <p> <em>Erie Ins. Exchange v. Bristol</em>, 2016 Pa. Super. Unpub. LEXIS 1886, at *15 (Pa. Super. May 27, 2016). </p> <p> Hurry up, Bob – file your papers in court even if you then have to wait. Otherwise, you let your guard down and your client's UM case goes "kaput." A first grader knows what that means. </p> <p> Charles F. Forer is a member in the Philadelphia office of Eckert Seamans Cherin &amp; Mellott, LLC, where he practices all types of Alternative Dispute Resolution, both as a neutral and as counsel to parties engaged in ADR. He is a former co-chair of both the Philadelphia Bar Association’s Alternative Dispute Resolution Committee and the Fee Disputes Committee. He is a frequent lecturer and writer on the use of ADR in a variety of settings. You can reach him at (215) 851-8406 and <a href="mailto:cforer@eckertseamans.com">cforer@eckertseamans.com</a>. </p> Will Greater Cooperation in Harrisburg Lead to Faster Passage of a Budget? Charles J. Klitsch, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=fa782e3d-b6df-499c-b1a9-3af01692b8c1 Fri, 24 Jun 2016 13:11:25 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/cooperate_june16.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10"alt="Article Image"/> <p> Last year at this time, legislative leaders and Governor Wolf were not speaking with each other. What a difference a year makes - or at least the realization that this is an election year. While the 2016-17 state budget is not yet set in stone, significant progress is being made in plans to raise revenue needed to close the gap between money generated under the current tax structure and the amount needed to fund anticipated expenditures. Look for increased gambling options and loosening restrictions on alcohol sales, both of which are expected to generate increased tax revenue. Also expect to see additional taxes on tobacco products. There has not been any discussion of expanding the sales tax to include legal services - yet. Courtesy of Crisci Associates, we present the latest <a href="https://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1/Pbar_tracking-2015-16-June23.pdf">Pennsylvania House and Senate Legislative Tracking Report</a>. </p> The Month in Workers' Compensation: May 2016 At-A-Glance Mitchell I. Golding, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=dccab13c-b240-46fd-aaeb-86b584141425 Fri, 24 Jun 2016 11:39:40 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/workerscomp_june16.jpg" width="200" height="100" border="0" vspace="10" hspace="10"alt="Article Image"/> <p> <u><strong>STATUTORY EMPLOYER</strong></u> </p> <ul> <li><p> Pennsylvania Supreme Court grants employer's Petition for Allowance of Appeal to address the issue of whether a franchisor may be subject to liability as a statutory employer under Section 302(a) of the Workers' Compensation Act. </p><p> Commonwealth Court, in the underlying decision written by Judge McGinley dated October 6, 2015, held that the franchisor, Saladworks, LLC, was not the statutory employer of the injured claimant pursuant to Section 302(a) where it's uninsured franchisee, G21 LLC d/b/a Saladworks (G21), did not perform a regular or recurrent part of the business, occupation, profession, or trade of Saladworks. </p><p> The Commonwealth Court reasoned that Section 302(a) of the Act provides that an entity must subcontract to have work performed that is a regular or recurrent part of its business in order to be considered a statutory employer. The Court also noted that a portion of 302(a) provides: </p> <blockquote> <p><em>For purposes of this subsection, a person who contracts with another . . . <strong>(2) to have work performed of a kind which is a regular or recurrent part of the business, occupation, profession or trade of such person shall be deemed a contractor, and such other person a subcontractor.</strong> (Emphasis added.)</em></p> </blockquote> <p> Based upon its reading of 302(a) the Commonwealth Court concluded that although Saladworks and G21 were connected through its Franchise Agreement, Saladworks, LLC was not in the restaurant business or the business of selling salads. Saladworks' business was the sale of franchises to franchisees that desire to use its name and "System" and marketing expertise. Therefore the franchisee did not perform a regular or recurrent part of the business, occupation, profession, or trade of Saladworks, meaning Saladworks could not be held to be the statutory employer. </p> </li> </ul> <p> <em>Saladworks, LLC v. WCAB (Gaudioso and Uninsured Employers Guaranty Fund)</em>, No. 971 MAL 2015 (PER CURIAM, May 3, 2016) 5/16 </p> <p> <u><strong>UNINSURED EMPLOYERS GUARANTY FUND/MEDICAL BENEFITS</strong></u> </p> <ul> <li><p> The term "compensation" used under Article XVI of the Act is defined by Section 1601 of the Act as including both disability and medical benefits. Therefore, pursuant to 1603(b) of the Act, a claimant who fails to give notice of a claim to the UEGF within 45 days of the date it learned the employer is uninsured is not entitled to compensation and medical until the date if gives notice. </p><p> Notwithstanding the fact of claimant's failure to give notice to the UEGF within 45 days, the clamant was not responsible to his providers for past due medicals. This is because employees injured while working for uninsured employers do not assume the costs of medical treatment provided to them prior to notice being given to the UEGF. Medical providers are prohibited from requiring injured employees to pay for work-related treatment by Section 306(f.1)(7) of the Act, which states "A provider shall not hold an employe liable for costs related to care or service rendered in connection with a compensable injury under this act." </p><p> Medical providers, however, maintain their right to pursue a remedy outside the workers' compensation system against uninsured employers to cover the expenses incurred in the treatment of injured employees. </p> </li> </ul> <p> <em>Commonwealth of Pennsylvania, Department of Labor and Industry, Uninsured Employers Guaranty Fund v. WCAB (Kendrick and Timberline Tree &amp; Landscaping LLC)</em> No. 1849 C.D. 2014 (Decision by Judge Cohn Jubelirer FILED, May 9, 2016) 5/16 </p> <p> <u><strong>IRE/WCJ</strong></u> </p> <ul> <li><p> The Pennsylvania Supreme Court reverses the Commonwealth Court and holds that a WCJ may validly reject the uncontradicted opinion of an IRE expert chosen by the Bureau regarding the degree of impairment and the WCJ is not required to identify substantial contrary evidence in the record to support such rejection.</p> </li> <li><p> A physician's impairment rating opinions pertaining to IREs conducted under Section 306(a.2) (6) are subject to vetting through the "traditional administrative process." Therefore, it was not improper for the WCJ to reject the opinion of the physician who performed the IRE that was "an underdeveloped, out-of-specialty opinion." </p></li> <li><p> The Commonwealth Court, upon reversing the WCJ, erred in its conclusions that a workers' compensation judge lacks the authority to reject uncontradicted testimony by an IRE physician and that, in the present case, the WCJ was required to identify substantial contrary evidence in the record to support such rejection. </p><p> The Supreme Court stated that it disapproved of the Commonwealth Court decision, to the degree that the Commonwealth Court had fashioned, essentially, an uncontradicted medical evidence rule for IREs. </p></li> <li><p> The employer bears the burden to establish grounds for modification based upon an IRE requested in excess of 60 days from the 104th week of total disability. Even when the medical testimony is of an IRE physician chosen by the Bureau, the WCJ is free to accept or reject employer's evidence. The fact that the Bureau (and not employers) selects IRE physicians, is insufficient to justify a judicial policymaking decision to implement a specialized approach to IREs conducted under Section 306(a.2)(6). </p></li> <li><p> In the context of assessing an IRE opinion it is improper for the WCJ to harken back to the full range of claimant's initial work-related injuries since an IRE assesses the examinee's present condition. In this regard, medical improvements occurring between the time of the initial injury and the examination may resolve impairments. </p><p> It is also improper to "lump" medical conditions since the AMA Guides themselves establish broad categories of impairments tied to functional sub-units of a whole person, such as the nervous system.</p> </li> </ul> <p> <em>IA Construction Corporation v, WCAB (RHODES)</em> No. 18 WAP 2015 (Decision by Chief Justice Saylor) 5/16 </p> Formerly Admitted Attorney May Not Engage in Law-Related Activities, with Limited Exceptions Under PA R.D.E. 217(j) Paul Kazaras, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=b29329a6-ac2f-4e4c-9934-10879fe2e1c0 Fri, 24 Jun 2016 11:38:58 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/former_june16.jpg" width="200" height="100" border="0" vspace="10" hspace="10"alt="Article Image"/> <p> <strong>THE PHILADELPHIA BAR ASSOCIATION<br> PROFESSIONAL GUIDANCE COMMITTEE</strong><br> Opinion 2016-4<br> (June 2016)<br> </p> <p> The Inquirer is a disbarred attorney. The Inquirer has presented the Committee with a job description to review in order to determine whether it comports with Pennsylvania Rule of Disciplinary Enforcement 217(j) concerning the types of law-related activities that a "formerly admitted attorney" may engage in during the period that the formerly admitted attorney is disbarred or suspended from the practice of law in Pennsylvania. </p> <p> The job description submitted by the Inquirer is entitled "Director of Risk Management (Legal and Governmental Affairs)." The proposed Director of Risk Management would report directly to the General Counsel of the Company. The Inquirer raised concerns with certain components of the proposed job including "assisting with the preparation of contracts, leases and other documents" and serving as the "liaison between the Company and the outside attorneys in litigation matters." Notably, as part of serving as the liaison between the Company and outside counsel, the Director of Risk Management would be "the principal point of contact for assigned counsel, assist counsel in assembling materials to respond to discovery requests, and communicate the status of pending litigation" to senior staff. </p> <p> There is no question that the Inquirer, as a disbarred attorney, is considered a formerly admitted attorney under the Pennsylvania Rules of Disciplinary Enforcement and that this job – in its entirety – constitutes a law-related activity. </p> <p> For several reasons, the Committee concludes that, while the Inquirer may engage in certain activities contained in the proposed job description, the Inquirer cannot assume this position in its current form without potentially violating Pennsylvania Rule of Disciplinary Enforcement ("PA RDE") 217(j) given that certain activities could constitute providing legal advice or opinion and certain communications with outside counsel go beyond mere ministerial activities. </p> <p> PA RDE 217(j) states as follows: </p> <p> (j) A formerly admitted attorney may not engage in any form of law-related activities in this Commonwealth except in accordance with the following requirements: </p> <ol type="1"> <li><p> All law-related activities of the formerly admitted attorney shall be conducted under the supervision of a member in good standing of the Bar of this Commonwealth who shall be responsible for ensuring that the formerly admitted attorney complies with the requirements of this subdivision (j). If the formerly admitted attorney is engaged by a law firm or other organization providing legal services, whether by employment or other relationship, an attorney of the firm or organization shall be designated by the firm or organization as the supervising attorney for purposes of this subdivision. </p></li> <li><p> For purposes of this subdivision (j), the only law-related activities that may be conducted by a formerly admitted attorney are the following: </p> <ol type="i"> <li>legal work of a preparatory nature, such as legal research, assembly of data and other necessary information, and drafting of transactional documents, pleadings, briefs, and other similar documents;</li> <li>direct communication with the client or third parties to the extent permitted by paragraph (3); and</li> <li>accompanying a member in good standing of the Bar of this Commonwealth to a deposition or other discovery matter or to a meeting regarding a matter that is not currently in litigation, for the limited purpose of providing clerical assistance to the member in good standing who appears as the representative of the client.</li> </ol> </li> <li><p> A formerly admitted attorney may have direct communication with a client or third party regarding a matter being handled by the attorney, organization or firm for which the formerly admitted attorney works only if the communication is limited to ministerial matters such as scheduling, billing, updates, confirmation of receipt or sending of correspondence and messages. The formerly admitted attorney shall clearly indicate in any such communication that he or she is a legal assistant and identify the supervising attorney. </p></li> <li><p> Without limiting the other restrictions in this subdivision (j), a formerly admitted attorney is specifically prohibited from engaging in any of the following activities: </p> <ol type="i"> <li>performing any law-related activity for a law firm, organization or lawyer if the formerly admitted attorney was associated with that law firm, organization or lawyer on or after the date on which the acts which resulted in the disbarment or suspension occurred through and including the effective date of disbarment or suspension;</li> <li>performing any law-related services from an office that is not staffed by a supervising attorney on a full time basis;</li> <li>performing any law-related services for any client who in the past was represented by the formerly admitted attorney;</li> <li>representing himself or herself as a lawyer or person of similar status;</li> <li>having any contact with clients either in person, by telephone, or in writing, except as provided in paragraph (3);</li> <li>rendering legal consultation or advice to a client;</li> <li>appearing on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, hearing officer or any other adjudicative person or body;</li> <li>appearing as a representative of the client at a deposition or other discovery matter;</li> <li>negotiating or transacting any matter for or on behalf of a client with third parties or having any contact with third parties regarding such a negotiation or transaction;</li> <li>receiving, disbursing or otherwise handling client funds.</li> </ol> </li> <li><p> The supervising attorney and the formerly admitted attorney shall file with the Disciplinary Board a notice of engagement, identifying the supervising attorney and certifying that the formerly admitted attorney’s activities will be monitored for compliance with this subdivision (j). the supervising attorney and the formerly admitted attorney shall file a notice with the Disciplinary Board immediately upon the termination of the engagement between the formerly admitted attorney and the supervising attorney. </p></li> <li><p> The supervising attorney shall be subject to disciplinary action for any failure by either the formerly admitted attorney or the supervising attorney to comply with the provisions of this subdivision (j). </p></li> </ol> <p> Clearly, the activities described in the Inquiry and the accompanying job descriptions for the Director of Risk Management are law-related. While certain job functions associated with the position of the Director of Risk Management, including the preparation of draft contracts, leases and other related documents and legal research, and monitoring proceedings and carrying out compliance and risk management assessments, may be permissible under the supervision of either the General Counsel or another supervising attorney, other job functions clearly implicate the prohibited activities contained in Rules 217(j)(3) and (4). </p> <p> Among the potentially problematic job functions include the following: (1) "Assist General Counsel in developing advice on broad range of topics, including litigation management, compliance and regulatory issues and leasing support"; (2) "Manage relationships with outside counsel in connection with litigation matters"; (3) "Report and manage claims"; (4) "Ensure risk management policies and strategies are in compliance with applicable regulations, funding requirements, and strategic imperatives of the corporation"; (5) "Identify, evaluate and analyze risks inherent to the operations and strategic direction of the corporation"; (6) "Formulate, implement, administer and evaluate risk management strategies to effectively and cost-effectively manage risk"; (7) "Provide information to relevant official bodies and stakeholders as necessary and appropriate"; and (8) "Assist in the development of policies and procedures to ensure compliance." </p> <p> While some of the aforementioned functions may be fine insofar as they are done exclusively with and at the discretion of the General Counsel, there is no question that the General Counsel and those working under him serve as counsel to the organization. </p> <p> In essence, internal communications by the Inquirer with other representatives of the Company – where the General Counsel is not present or is not participating – would appear to violate Rule 217(j)(4)(vi) in that the Inquirer may be providing legal consultation or advice to a client. </p> <p> Similarly, the job description raises concerns about the level of communications between the Director of Risk Management, outside counsel and other third parties. </p> <p> There is no question that, based upon the job description, those discussions would go well beyond mere ministerial matters and could potentially include evaluations and recommendations for settlement, the analysis of claims, analysis of legal issues and positions of the Company, etc. Those kinds of discussions would go beyond the limitations proscribed by Rule 217(j)(3) and are prohibited. </p> <p> As a result, the Committee is concerned that the job description for the Director of Risk Management as it is presently formulated could create a potential problem for the Inquirer in trying to comply with Rule 217 of the Pennsylvania Rules of Disciplinary Enforcement. </p> <p> <em>Caveat: The foregoing opinion is advisory only and is based upon the facts set forth above. The opinion is not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. It carries only such weight as an appropriate reviewing authority may choose to give to it.</em> </p> Doggone It! Court Cannot Condone Canine Custody James W. Cushing, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=ca911183-e036-4f4d-95af-dd448255381b Fri, 24 Jun 2016 11:38:44 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/puppy_june16.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10"alt="Article Image"/> <p> Many Americans have pets, and regardless of whether these pets are dogs, cats, lizards or fish, many pet owners think of their pets as members of the family. What happens when a pet is owned by a married couple who decide to divorce? The landmark Pennsylvania Superior Court case of <em>Desanctis v. Pritchard</em>, 803 A.2d 230 (2002) has answered this question rather definitively. </p> <p> In Desanctis, the parties were married for about nine years. While they were married, they purchased their family dog, Barney, from the SPCA. As part of their divorce agreement, the parties, using terms typically reserved for child custody matters, awarded wife "full custody" of Barney while husband received what is tantamount to "visitation." </p> <p> Not long after their divorce, wife moved a fair distance away from husband and discontinued making Barney available to the husband for visits. Due to wife's actions, husband filed a complaint against wife in equity. Husband sought injunctive relief to,<em> inter alia</em>, force wife to provide Barney to him, and modify the "custody" arrangement for Barney to ensure he had more time with his pooch. Wife filed preliminary objections to husband's complaint that were granted by the Court of Common Pleas, which resulted in the dismissal of husband's complaint, leading him to file an appeal to Pennsylvania Superior Court. </p> <p> In its review of husband's complaint and the preliminary objections, and the applicable law, the Pennsylvania Superior Court first pointed out that pets, regardless of our emotional attachment to them, are simply personal property. The court ruled that the agreement explicitly awarded the dog to wife. The court further ruled that any terms in an agreement which award a type of custody of the dog are void on their face. </p> <p> Although it may be tough for animal lovers to hear, the court, rather bluntly, stated that a visitation schedule for a dog is analogous, in law, "to a visitation schedule for a table or a lamp." As a result, pursuant to 23 Pa.C.S.A. Section 3503, property rights dependant upon a marital relationship are terminated upon divorce and, therefore, pursuant to 23 Pa.C.S.A. 3504, the parties to a divorce are to have "complete freedom" as to their property upon divorce. An agreement to somehow share property is not, by definition, complete freedom. </p> <p> So, a divorce, in addition to dissolving the relationship between a husband and wife, also serves to potentially dissolve the relationship with a person and his pet. This is important to remember when separating as one may want to claim the pet as soon as possible in order to try and do as much as possible to retain the pet post-divorce. </p> First Judicial District Prepares for Democratic National Convention Upon Further Review Staff http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=6c566a60-fa39-41a1-a64c-7540a34e7c8e Fri, 24 Jun 2016 11:39:24 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/dnc_june16.jpg" width="200" height="100" border="0" vspace="10" hspace="10" alt="Article Image"/> <div style="text-align: center;"><strong>FIRST JUDICIAL DISTRICT OF PENNSYLVANIA </strong><br><strong> ADMINISTRATIVE GOVERNING BOARD OF THE FIRST JUDICIAL DISTRICT OF PENNSYLVANIA </strong><br><strong> No 02 of 2016<br><br></strong></div><div style="text-align: center;"> In re: Democratic National Convention – July 25, 2016 – July 28, 2016<br><br></div><div style="text-align: center;"> <strong>ORDER </strong></div> <p> AND now, this 14th day of June, 2016, in order to address questions posed regarding the operations of the First Judicial District of Pennsylvania ("District") and all Courts and Departments of the Philadelphia Courts ("Philadelphia Courts") during the Democratic National Convention, which will be held in Philadelphia from Monday July 25, 2016 to Thursday July 28, 2016, IT IS HEREBY ORDERED and DECREED as follows: </p> <ol type="1"> <li><p> The First Judicial District of Pennsylvania ("District") and all Courts and Departments of the Philadelphia Courts ("Philadelphia Courts") will be open for business as usual. The filing offices of the Philadelphia Courts will also remain open pursuant to their established schedules. </p></li> <li><p> All Municipal Court and Court of Common Pleas cases (civil, criminal, juvenile, dependency, domestic relations, and Orphans’ Court cases) will be heard as scheduled unless continued on or before their scheduled date. </p></li> <li><p> Continuance requests in dependency and delinquency proceedings are governed by Pa.Rs.J.C.P. 122 and 1122. Continuance requests in criminal cases are governed by Pa.R.Crim.P. 106. In the event a continuance is granted, the judge shall indicate to which party the period of delay caused by the continuance shall be attributed and whether the time will be included in or excluded from the computation of time within which trial must commence in accordance with Rule 600. </p></li> <li><p> The District has been informed that in light of the anticipated attendance at the various Democratic National Convention sponsored events, the Police Department will re-deploy most if not all of the police witnesses scheduled to testify in connection with scheduled juvenile, dependency, criminal and other matters to the Democratic National Convention detail. Given the importance of ensuring that victims and others are not subjected to the inconvenience of being called for cases that cannot be heard, the Court requests the prosecution and defense bar to actively collaborate to identify cases, as far in advance of July 25, 2016 as possible, that could be continued until after July 28, 2016 without prejudicing the rights of the involved parties. </p></li> <li><p> To the extent the prosecution, defense counsel and unrepresented defendants cannot agree to the continuance of impacted cases, continuance requests must be made by the District Attorney’s Office, the defendant’s attorney of record, or the defendant (if not represented) on a case by case basis and will be determined by the appropriate judge on a case by case basis. </p></li> </ol> <p> This Order shall be filed with the Office of Judicial Records in a Docket maintained for orders issued by the Administrative Governing Board of the First Judicial District of Pennsylvania, and shall be submitted to the Pennsylvania Bulletin for publication. Copies of the order shall be submitted to the Administrative Office of Pennsylvania Courts, American Lawyer Media, The Legal Intelligencer, Jenkins Memorial Law Library, and the Law Library for the First Judicial District of Pennsylvania, and shall be posted on the website of the First Judicial District of Pennsylvania: <a href="http://www.courts.phila.gov/regs">www.courts.phila.gov/regs</a>. </p> <p> <strong>BY THE COURT:</strong> <br> /s/ Sheila Woods-Skipper </p> <hr/> <p> Honorable Sheila Woods-Skipper<br> Chair, Administrative Governing Board, FJD <br>President Judge, Court of Common Pleas, Philadelphia County </p> Attacking the Arbitrator for Bias Charles F. Forer, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=18b61c90-7dcf-4680-9aae-63dba4bbdc0b Fri, 24 Jun 2016 11:46:47 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/abc_june16.jpg" width="200" height="100" vspace="10" hspace="10" align="left" alt="Article Image"/> <p> Bob has lost his share of arbitration proceedings. However, he never had experienced such a vindictive arbitrator who at every stage of the proceeding went out of his way to harm Bob's client. Two illustrations: </p> <ol type="1"> <li>The arbitration award identified Bob's client as "a perjurer" even though the other side - ABC, LLC - did not make any such contention and there was nothing in the record to support this charge.</li> <li>The arbitration award said Bob's client "customarily" sued anyone and everyone "in order to get his way, no matter how specious the claim." Again, a groundless assertion.</li> </ol> <p> Bob feared everyone in cyberspace would learn about this damaging and unfair award. Bob's client would be doomed. All because of a biased arbitrator who got the facts and law wrong and then chose to broadcast his animosity. </p> <p> Bob was so dissatisfied that he concluded that the arbitrator's antics demanded a "big picture approach." Bob wanted to make an example of this arbitrator so no one else ever suffered the way Bob's client suffered. </p> <p> To achieve this grand strategy, Bob took the obvious step (to him anyway) - he sued the arbitrator. The complaint alleged that the arbitrator's misconduct tainted and made a mockery of the process. The requested relief: a declaratory judgment directing the arbitrator to modify, take down or redact the final award to conform to what really took place at the arbitration hearing. </p> <p> Bob believed he would discover facts that would explain the arbitrator's (mis)conduct. Bob figured the arbitrator had issued other awards in favor of ABC or its lawyer's other clients. Bob suspected ABC or its lawyer had paid lots of money to the arbitrator. Bob's eyes danced with delight as he considered his deposition questions: </p> <ul> <li>Have you been an arbitrator in other matters when ABC was a party?</li> <li>How much has ABC (or its lawyers) paid you for your past arbitration services?</li> <li>Do you anticipate getting more arbitration work from ABC or its lawyers?</li> <li>How many times have you ruled in favor of ABC or its lawyers' other clients? Against ABC or its lawyers' other clients?</li> <li>Before this arbitration began, did you disclose all of your relationships with ABC and its lawyers?</li> <li>Why do you hate my client so much? (Whoops - Bob quickly deleted this question from his outline.)</li> </ul> <p> Bob never got a chance to try out his deposition questions. Nor did he ever have the opportunity to serve the document requests he had so much fun preparing. Why not? Because the court granted the arbitrator's motion to dismiss the complaint based on the doctrine of "arbitral immunity" - disregarding Bob's argument that "the arbitrator cannot hide behind the doctrine of `arbitral immunity' to shield his biased, corrupt conduct that was pervasive and undermined the integrity of the arbitration." </p> <p> What is wrong with this argument? Should Bob have counseled his client to ignore the unfair arbitration award? If so, what would prevent the arbitrator from pulling these same stunts in the future? </p> <p> Before filing the complaint against the arbitrator, Bob should have considered the well-settled doctrine of arbitral immunity, which "protects arbitrators from civil liability for acts within their jurisdiction arising out of their arbitral functions in contractually agreed upon arbitration hearings." <em>Sathianathan v. Pacific Exchange, Inc.</em>, 248 Fed. Appx. 345, 347 (3d Cir. 2007) (per curiam). </p> <p> The doctrine safeguards the arbitration process. If a party could willy nilly sue an arbitrator, the arbitrator then would run scared; his or her independence and unfettered judgment would go down the drain. Put simply, the doctrine aims "to protect the decision-maker from undue influence and protect the decision-making process from reprisals by dissatisfied litigants." <em>Sacks v. Dietrich</em>, 663 F.3d 1065, 1069 (9th Cir. 2011) (citations omitted). </p> <p> Applying the arbitral immunity doctrine, courts have dismissed claims against arbitrators and arbitration organizations in response to all kinds of claims. A brief sampling: </p> <ul> <li>Alleged conspiracy between arbitrator and a party in exchange for payment. <em>Garland v. US Airways</em>, Inc., 270 Fed. Appx. 99 (3d Cir. 2008).</li> <li>Allegedly failing to send notice of the arbitration hearing to the claimant and failing to select the arbitration panel in accordance with the arbitral organization's rules - leading to an ex parte hearing before arguably biased arbitrators. <em>Austern v. Chicago Bd. Options Exchange, Inc.</em>, 898 F.2d 882 (7th Cir. 1990).</li> <li>Arbitral organization's alleged failure to provide a neutral arbitrator. <em>Hopper v. American Arbitration Ass'n</em>, 2016 U.S. Dist. LEXIS 37217 (C.D. Cal. March 22, 2016).</li> <li>Allegedly failing to provide proper notice of the arbitration claim. <em>Gill v. Financial Industry Regulatory Authority, Inc.</em>, 2013 U.S. Dist. LEXIS 44088 (S.D.N.Y. March 6, 2013).</li> <li>Alleged corruption and bias. <em>Pham v. Financial Industry Regulatory Authority, Inc.</em>, 2013 U.S. Dist. LEXIS 23446 (N.D. Cal. Feb. 20, 2013).</li> </ul> <p> So do arbitrators get a green light to be biased? </p> <p> Back to basics. The heart of Bob's gripe: the arbitrator made biased and even corrupt decisions. There is a remedy for this claim - a petition to vacate the arbitration award, at the conclusion of the proceeding, in accordance with the Federal Arbitration Act, which identifies "evident partiality or corruption in the arbitrators, or either of them" as a basis to vacate an arbitration award, 9 U.S.C. § 10(a)(2); or in accordance with the Pennsylvania Uniform Arbitration Act, 42 PA. CONS. STAT. ANN. § 7341 ("fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award"). </p> <p> Nevertheless, Bob is still out of luck. He had three months to file his petition to vacate if he were proceeding under the Federal Arbitration Act. 9 U.S.C. § 12 ("Notice of a motion to vacate, modify, or correct an award must be served upon the adverse party or his attorney within three months after the award is filed or delivered."); <em>Hunsinger v. Carr</em>, 2016 U.S. Dist. LEXIS 68437, at *21 (E.D. Pa. May 24, 2016). And he had only thirty days if were proceeding under the Pennsylvania Uniform Arbitration Act. 42 PA. CONS. STAT. ANN. § 7342(b); <em>Dipietro v. Glidewell Laboratories</em>, 2015 Pa. Super. Unpub. LEXIS 3051, at *10-*11 n.8 (Pa. Super. Aug. 21, 2015) ("any challenge to the arbitration award [must] be made in an appeal to the Court of Common Pleas by the filing of a petition to vacate or modify the arbitration award within 30 days of the date of the award"). </p> <p> The moral of the story? If you cry foul, do so to the proper ref at the proper time. At least if you want a shot at relief. </p> Amendments to Philadelphia's "Ban the Box" Law Are Now in Effect Tim McCarthy http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=0e4011a8-2a82-4c84-9b17-3bb8f8106d43 Wed, 25 May 2016 16:36:46 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/box_may16.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10"alt="Article Image"/> <p> On March 14, 2016, amendments to Philadelphia Fair Chance Hiring Law went into effect. Colloquially known as "Ban-the-Box," the amendments to Philadelphia's ordinance place significant restrictions on the ability of employers to conduct and consider criminal background checks in the hiring process. While the ordinance has been in effect for some time and is codified at &sect; 9-3501 <em>et seq.</em>, the recent amendments include a number of provisions that cannot be ignored by employers. </p> <p> For decades, Pennsylvania employers have been subject to the Criminal History Record Information Act (CHRIA), which allows employers to consider a job applicant's felony and misdemeanor convictions "only to the extent to which they relate to the applicant's suitability for employment." The recent amendments to Philadelphia's ban-the-box ordinance incorporate these protections, but extend much further. First, the law now applies to all private employers with at least one employee in the City, whereas the pre-amendment ordinance applied only to employers with ten or more employees. </p> <p> Moreover, whereas criminal background inquiries could previously be made after the first interview, any such questions must now be delayed until after a "conditional offer of employment" has been extended to the prospective employee. A conditional offer of employment is defined in the statute as an offer of employment "which may be withdrawn only if the employer subsequently determines that the applicant (i) has a conviction record which, based on an individualized assessment as required by [the ordinance], would reasonably lead an employer to conclude that the applicant would pose an unacceptable risk in the position applied for; or (ii) does not meet other legal or physical requirements of the job." </p> <p> Any non-pending criminal arrests not resulting in a conviction may not be considered. Similarly, the ordinance makes any policy of automatically excluding applicants with a conviction <em>per se</em> unlawful. Instead, when a background reveals a conviction, employers may not reject the applicant unless the record "includes conviction for an offense that bears such relationship to the employment sought that the employer may reasonably conclude that the applicant would <em>present an unacceptable risk to the operation of the business or to co-workers or customers, and that exclusion of the applicant is compelled by business necessity</em>." The ordinance enumerates six factors to be considered in determining whether the conviction record presents an unacceptable risk. Moreover, only convictions occurring fewer than seven years from the date of the inquiry may be considered (excluding any intervening periods of incarceration). </p> <p> If ultimately an employer determines that an applicant's rejection is compelled by business necessity, the employer must notify the applicant in writing and attach a copy of the criminal history report. The applicant must then be afforded ten business days to provide an explanation or to dispute the record's accuracy. </p> <p> A number of relatively small caveats in favor of employers have been included in the law. First, if an applicant voluntarily discloses information pertaining to his or her conviction history, the employer may discuss what has been disclosed at that time. Second, employers can give notice to applicants that a criminal background check will be conducted in the event a conditional offer of employment is ultimately made. Any such notice must be "concise, accurate, made in good faith and shall state" that the background check "will be tailored to the requirements of the job." Similarly, the ordinance expressly states that it does not apply where criminal background inquiries or adverse actions taken based on criminal history "are specifically authorized or mandated by any other applicable law or regulation." </p> <p> The amendments further provide for a private right of action, the creation of a "Fair Criminal Record Screening Advisory Committee" and a posting requirement. Moving forward, private Philadelphia employers should be aware of the increased restrictions now imposed in the use of criminal background checks in hiring. Background check policies should also be reevaluated for compliance with the ordinance. A full-text PDF of the ordinance is available <a href="https://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1/BanTheBoxOrdinance.pdf">here</a>. </p>