Upon Further Review

Public Interest Spotlight: What is Public Interest Worth

Sara Jacobson, Esq. — Fri, 13 Jan 2012 09:34:54 -0500

If it's a tough time to be an attorney, then it's a particularly tough time to be a public interest lawyer or dependent on the public interest community for legal services. The same way a protracted weakened economy means fewer clients willing to pay for legal help in the private sector, it also means an increased demand for the shrinking pool of free legal services. Because the state and the city continue to bring in lower tax revenue than expected, there is less public money available to support legal services ⁱ. These funding realities mean that some essential statewide programs like Homeowners' Emergency Mortgage Assistance Program (HEMAP), which provided short-term, temporary funding to cure loan delinquencies for qualifying homeowners, were completely eliminated last year ⁱⁱ. Locally, Community Legal Services (CLS) was forced to lay off a significant percentage of staff last year due to budget cuts, and Philadelphia Legal Assistance (PLA), which took recent hits to their funding, is expected to announce staff layoffs this month as well ⁱⁱⁱ. Friends from the Defender Association say they can't remember how many years it's been since they received even a cost of living increase. Hiring freezes and staffing cuts mean fewer attorneys available to help at a time when the need for legal services for the poor is growing.

Explanations of political wrangling in Harrisburg and city budget concerns don't do much for the grandmother who turns to the Senior Law Center for help averting foreclosure on her mortgage, the child who relies on the Support Center for Child Advocates to provide a lawyer to fight for his best interest, or the veteran who needs legal help upon returning home from service abroad. Sound dire? It is, but the situation was perhaps best summed up by long-time CLS lawyer Sharon Dietrich in her speech accepting the Pioneer Award at the ACLU's Bill of Rights Dinner this past December. After talking about the grim realities facing the public interest community today she said, "Now is not a time to despair. Now is the time to fight."

She's right, and in Philadelphia, there are lots of ways to fight. You don't have to be a public interest lawyer to contribute to the public interest community, and this Bar Association will help you find ways to contribute. Yes, the Public Interest Community consists of the dedicated attorneys who toil on the front line providing legal services every day for little money and less recognition, but it is also includes the law firm lawyers and the sole practitioners who volunteer their time or give financially to help make the work of the public interest agencies possible. It includes the judges who find ways to increase access to justice in their courtrooms. If it doesn't include you yet, it should.

The Bar Association can help you find ways to join the fight. If you are already an attorney doing this work every day or currently volunteering your time or contributing your money, thank you. For everybody else, do more and do it now. Commit to contributing at least 25 hours of your time this year to one of the many agencies that does legal work on an issue about which you care ^iv. If you look, you will find a local agency doing work that is near and dear to your heart. To find out who is doing what, check the Volunteer Opportunities page of the Bar web site here. If the hectic demands of practice and life mean you cannot give time, then give money. Contribute the financial equivalent of at least 25 billable hours. If public interest is worth 25 hours of volunteer time, it should be worth at least that much when translated to dollars ^v. The Bar Association can help you figure out where to give. To pick places for individual contribution, look at the Directory of Public Interest Legal Organization page on the Bar web site here. If you prefer your donation to have broad impact, give to the Bar Foundation. The Bar Foundation provides grants to many local legal organizations. Learn more about it here.

Another way to learn more about the Philadelphia's vibrant Public Interest Community is to join the Public Interest Section. You'll get updates about the work of our many committees, and you'll receive a link to the monthly Bar Calendar of public interest agency events. As part of the section you can learn more about the work of our Civil Gideon Task Force, which works for recognition of a right to a free lawyer in civil cases and works to increase access to justice for the public. This year the section will work to strengthen our connections between public interest lawyers, pro bono minded private practitioners, judges, and academics. We will hold forums on how judges can increase access to justice from the bench, how to transition from practice to academia, and how private attorneys can keep their public interest street cred. Joining the section costs $20. To do so, fill out the simple form on the Bar website here.

Times are dire, but now is the time to fight, not despair. Philadelphia has an amazing public interest community. There are a many organizations working on a variety of issues. There's the Bar Association, here to back them up. And then there's you. The Public Interest community is only capable of what we all put into it, and it's worth fighting for. Because to that grandmother, to that child, to that veteran, the help they get from their public interest lawyer is worth the world to them- but only if they can get it.

ⁱ The state's revenues are approximately $487 million below projections. McDonald, Shannon. Corbett cuts agencies' spending amid news of lagging revenues, (Newsworks Feed, January 4, 2012). Governor Corbett ordered a 10% freeze in legal services funding this month. Governor Corbett Orders Freeze of Nearly $160 Million in State Spending, (Pennsylvania Legal Aid Network E-news). In October of last year, Mayor Nutter asked City department managers to plan for additional 2% cuts because city tax revenues fell short of projections. Warner, Bob. Nutter asks city departments to draft plans for 2% cut, (Philadelphia Inquirer, October 4, 2011).

ⁱⁱShindle, Kim HEMAP foreclosure assistance ends due to budget cuts, (PA Association of Realtors Industry News, July 15, 2011).

ⁱⁱⁱFederal funding for LSC was reduced to $348 million this year, funding at 2007 levels. House-Senate Agreement Cuts LSC Funding (Legal Services Corporation press release, November 15, 2011). For information about Interest on Lawyer Trust Account (IOLTA) funding cuts see Pal, Neeta, Funding Shortfalls Force More Low-Income Families to Face Critical Legal Needs Alone, (Brennan Center for Justice, April 22, 2011).

^ivThe American Bar Association Model Rules of Professional Conduct say that each lawyer should volunteer at least fifty hours of pro bono service annually. See Model Rule 6.1. Pennsylvania Rules of Professional Conduct are somewhat different. See PA Rule 6.1.

^vComment 9 to Rule 6.1 of the ABA Model Rules of Professional Responsibility of the ABA urges lawyers to contribute an amount of money that is the "reasonable equivalent to the value of the hours of service that would have otherwise been provided."

Social Media Sites “Likes” New Law’s Status

Theodore Y. Choi, Esq. — Fri, 13 Jan 2012 09:27:29 -0500

In the episode entitled “The Barbarian Sublimation” of the television show The Big Bang Theory, Sheldon complains to his roommate Leonard that the addiction of their neighbor Penny to online gaming, and her constant questioning about how to defeat certain boards and enemies, has caused him great aggravation and detracted from his daily night’s sleep. When Leonard asks Sheldon why he doesn’t simply tell Penny to leave him alone, Sheldon replies, “I did! I told her, I texted her, I sent out a very emphatic Twitter, I even changed my Facebook status to ‘Sheldon Cooper wishes Penny would leave him alone!’ I don’t know what else to do!”

Now more than ever, people are using social media sites as their primary means of communication. The proliferation of social media sites such as Facebook, MySpace, LinkedIn, and Twitter have allowed people to create a virtual identity as an extension of their actual, daily lives. The staggering growth in the number of users using social media sites has overcome the traditional means of communication giving it a major push towards becoming obsolete. As of the year 2011, the Pew Internet&American Life Project reports that 65% of online adults now use social networking sites, up from 61% just a year ago. In fact, the use of social media sites have permeated our daily lives to such a significant extent that only email and Internet search engines, such as Google, accounts for more time spent on the Internet.

It comes with no surprise that the expansion of the social media revolution has brought about significant changes to the employment landscape. As personal information is easily accessible through one’s social media page, employers have utilized this information to make employment decisions such as hiring, firing, and when conducting background checks. Recently, even with the plethora of information that could be garnered from an employee’s social media page, new cases have suggested that employers must tread with caution before accessing and using this information when making employment decisions.

One of the most recent challenges to an employment action based on information gained from an individual’s personal social media site came across the National Labor Relations Board (“NLRB”). On October 27, 2010, the NLRB’s Hartford Regional Office issued a complaint against the American Medical Response Team of Connecticut, Inc. (“AMR”) which alleged that an ambulance service unlawfully terminated an employee for making negative remarks about her supervisor on her personal Facebook page. In this case, AMR’s employee, Dawnmarie Souza, was asked by her supervisor to complete an incident report in response to a customer complaint filed against her. This was to be performed and presented during an investigatory interview. As Souza had reasonable cause to believe that disciplinary action would result against her, she requested Union representation during this interview. However, AMR denied her request and even threatened her with discipline for making such a request.

When Souza returned home later that day, she logged into her personal Facebook page and posted negative remarks about her supervisor using several expletives. Her comments drew supportive responses from her co-workers and led to further negative comments about the supervisor from Souza. AMR suspended Souza and later terminated her based on her Facebook postings on the grounds that they violated the company’s Internet policy which prohibited employees from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.

Following an investigation into Souza’s unfair labor practice charge, the NLRB issued a complaint alleging that AMR’s Internet policy, as well as their act of terminating Souza, interfered with her rights to engage in protected concerted activity under the National Labor Relations Act (“NLRA”). Most states, including Pennsylvania, abide by the Employment-At-Will Doctrine which provides that an employer is free to hire and fire an employee for good cause, bad cause, any cause, or no cause at all, and the employee is equally free to quit, strike, or otherwise cease work, subject to termination in violation of public policy or based on discriminatory motives. In the case of AMR, the NLRB has seemed to create an extra niche into the protections afforded to employees.

Section 7 of the NLRA states that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection …” Under Section 8(a)(1) of the NLRA, it is an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of those rights. Although it is not specifically defined, the term concerted activity generally encompasses two (2) or more employees acting together in furtherance of matters of mutual interest, such as issues regarding employee compensation, benefits or improving workplace conditions. To engage in a concerted activity, an employee must work with or on the authority of another co-worker and not just simply for his own interests. However, a single employee acting on behalf of others, or who is initiating group action, or who has discussed the matter with co-workers, can also be engaged in protected concerted activity. The NLRB has extended the protections of employees and their right to comment on social media sites regarding their wage, hours and working conditions, regardless of whether the employer is unionized or not.

In the case of Atlantic Steel Co., the NLRB developed a four part test to determine whether an employee’s activities lose their protected status due to insubordinate statements. Specifically the board considers (1) the place of the discussion, (2) the discussion’s subject matter, (3) the nature of the employee’s outburst, and (4) whether the outburst was provoked by the employer’s unfair labor practice.

The case against AMR was recently settled whereby AMR agreed to (1) revise its overly broad Internet policy rules; (2) ensure that its rules do not improperly restrict employees from discussing their wages, hours and terms and conditions of employment with other co-workers while not at work; and (3) not discipline or discharge employees for engaging in such conduct. Similarly, recent NLRB decisions display a recent trend towards deciding that employees do not lose the protections afforded to them under the NLRA notwithstanding their premeditated use of profane or obscene language toward a supervisor. In fact, in the case of AMR, Acting General Counsel Lafe Solomon equated Souza’s Facebook postings with that of a typical water cooler discussion between co-workers discussing their working conditions. Even though the case was settled, it does not provide a blanket protection in all instances of comments made through social media networks. Nevertheless, it serves as a useful reminder that employers can no longer draft broad employment policies and prohibit employees from making disparaging or criticizing their employer or supervisors. Public employers should also be weary in that any policy that restricts an employee’s ability to post public comments while off duty on a social networking site or Internet may implicate that employee’s First Amendment rights.

Although the NLRB’s position on this new protection has yet to be subject to judicial scrutiny, for now it seems that social media networking rights have prevailed over employer control.

Google Does That? Five New and Interesting Services from the Leader in Web Search

Dan Giancaterino — Fri, 13 Jan 2012 09:28:31 -0500

Last September, Google announced it was having "a fall spring-clean" in order to eliminate projects that either weren't performing well or didn't fit into the company's future plans. As I write this article they have announced the closing of 22 products and features.[1]

Despite this extensive product purge, Google continues to add new features to its core search capability. This article will cover 5 new services that Google has added in the last year or so, listed in alphabetical order.[2]

Flight Search

Google acquired ITA Software, producer of advanced flight software used by many major airlines, in 2010. After clearing some regulatory hurdles, Google introduced the first version of Flight Search (www.google.com/flights/) in September 2011.

Do we need yet another site that lets us search for the best airline fares? Absolutely. This site stands out from the others because of the advanced tools available for narrowing by date and time, number of stops, and cost. It feels more like a desktop or mobile app than a website.

Let's say that I want to fly from Philadelphia to San Francisco next month. All I have to do is enter the airport code, sfo, in the destination box. I don't have to worry about the dates because the Calendar button will take care of that. I can drag the highlighted trip dates into the future and use the sliders to shorten or lengthen my trip.

If time truly is money to me, then the Limits button is my best friend. I can use the sliders on the X- and Y-axes to find flights that match my preferences for duration and price.

In late 2011 Google began integrating Flight Search into its core search service. Thus, a Google search for, say, flights to san francisco will include Flight Search results.

One caveat: you can't book your flight through Google Flight Search; the service simply sends you to the airline's website for that.

Google Scholar (Caselaw and Law Journals)

Google Scholar (scholar.google.com) has been indexing federal and state cases, as well as legal journals, for a couple of years now. (I decided to stretch my definition of a "new service" so that I could include Scholar in this article.) I use it for my "first pass" research. That is, I go to Google Scholar first to get an initial set of cases to review before turning to Fastcase or Lexis or Westlaw. Why? It's quick. I don't have to log in to use the service. I usually have Google open in a browser tab anyway, so I can simply use Google's navigation bar to switch over to Scholar.

The Scholar homepage features a radio button for limiting my search to Legal opinions and journals. I prefer to use the Advanced Search page because it gives me more options. I can select all federal cases, or just Pennsylvania cases, or I can even view all the available jurisdictions and use the checkboxes to pick-and-choose the ones I want.

Scholar doesn't offer a citation research service such as Shepard's or KeyCite. Many of the cases you retrieve will, however, have cited by links in their snippets on the results page. For example, each of the first 49 hits I retrieved (out of a total of 167) by searching Pennsylvania cases for the query erisa were cited by at least 1 other document. If I click on the link I'll get a list of other cases, books, and legal articles that have cited that case. I can even search within the citing documents to see if any of them cite yet another case I'm also interested in.

My only beef with the service is Google's lack of transparency with regard to coverage. I can't say for sure where they get their cases and law journal articles, what the exact years of coverage are, and whether or not there are any gaps. Here's the sum total of what Google says about that:

Currently, Google Scholar allows you to search and read published opinions of US state appellate and supreme court cases since 1950, US federal district, appellate, tax and bankruptcy courts since 1923 and US Supreme Court cases since 1791. In addition, it includes citations for cases cited by indexed opinions or journal articles which allows you to find influential cases (usually older or international) which are not yet online or publicly available.[3]

Public Data Search

In 2010 Google launched a nifty tool for searching and visualizing public data from the U.S. Census Bureau, the International Monetary fund, the World Bank, the Organization for Economic Cooperation and Development, and many other organizations. Its user interface was completely overhauled in late 2011 to make it even more useful.

Let's say that I want to compare the life expectancies for American and Swedish citizens. I'll navigate to www.google.com/publicdata, type life expectancy into the search box, and click on the search button. I'll click on the first hit, Life expectancy at birth, total (years), from the World Bank. On the lower left-hand side of the page there is a list of countries. I'll click the checkboxes next to Sweden and the United States. (I'm going to leave World checked as well.) The line chart on the right will update to show the 3 corresponding life expectancies. I can switch to a bar, map, or bubble chart if I want to visualize the data differently.

The link button is really useful. It allows me to embed the chart into a Web page, as I've done here:

Search By Image

Searching for images has gotten a lot better in the last 5 years or so. That said, it's still somewhat problematic. It's often very difficult to specify exactly what you want -- try searching for purple and pink sunset over a white sandy beach with a girl in a green dress walking into the surf! You wish you could just say to the search engine, "Show me images that are similar to this one."

Last June you got your wish. Google Image Search lets you do it in any of 3 ways. Once you navigate to images.google.com you'll see a camera icon at the right-hand edge of the search box. Click on it and the search box will expand with 2 options: Paste image URL and Upload an image. If you have copied the Web address of an image -- not the address of the page in which it is contained, but the address of the image itself -- you can paste it into the box. If you are willing to give Google a copy of one of your pictures, click on Upload an image and you can navigate to its location on your computer. And -- this is the coolest option of them all -- if you have an image open in one browser tab, you can drag it into the search box.

If you'll pardon the pun, a picture is worth a thousand words, so check out the video below to see how search by image works.

Search by image isn't perfect. It will return pictures that obviously match some, but not all of the desired characteristics. As you can see with my Gashouse Gang example in the video, the first 20 or so hits were pretty good. However, I also retrieved images simply because they were black and white, or because they featured baseball players. Give Google some time, they'll work the bugs out.

Voice Search

Voice search for Android mobile phones is nothing new -- it's been around for about 3 years now. However Google has only offered it for laptops and desktops since last June. Moreover, it's only available for the Google Chrome browser. If you use IE or Firefox, you're out of luck. And, obviously, you'll need a microphone -- either built-in or external -- for this to work.

When you navigate to www.google.com in Chrome, you'll see a microphone icon at the right-hand edge of the search box. Click on it and a pop-up bubble will prompt you to speak your search terms. After a pause, you'll see the results page for your search. While working on this article I tried a few multi-word searches. My queries for third circuit court rules and how to reformat a hard drive worked perfectly. My favorite name search, mark messier (the retired hockey player) was also handled flawlessly. However, a search for my name was translated variously as dan jones arena or and john catarino. (This is not surprising. If I had a dollar for every time I've had to spell my name for people ...)

This service is great for attorneys who have integrated tools such as Dragon Naturally Speaking into their practices or for those with limited physical mobility. However, Google Voice Search doesn't work as well if you are in an environment with lots of background noise. Also, if you work in a cubicle or share office space, you may not want to be spouting queries such as cures for foot fungus for all to hear.

Keeping Up With Google

I'm often asked how busy attorneys can keep up with all the changes at Google. It's not easy, but here are 2 tools that can help.

The Google Products Page (www.google.com/intl/en/about/products/index.html) is a handy list of Google's product offerings, organized by categories such as Web, Mobile, Social, etc. You might want to add the page to your bookmarks or favorites and check it often.

The Official Google Blog (googleblog.blogspot.com) is updated regularly with, as the page's masthead says, "Insights from Googlers into our products, technology and the Google culture." I recommend that you subscribe to it with your RSS Reader (if you use one) or bookmark it.

Notes and References

[1] See 3 Official Google Blog posts at googleblog.blogspot.com/2011/09/fall-spring-clean.html, googleblog.blogspot.com/2011/10/fall-sweep.html, and googleblog.blogspot.com/2011/11/more-spring-cleaning-out-of-season.html.

[2] Features and search results are current as of late December 2011.

[3] Quoted from the Google Scholar Help page at scholar.google.com/intl/en/scholar/help.html.

Ethics Spotlight: Representing Clients in Limited Scope Engagements

Paul Kazaras, Esq. — Fri, 13 Jan 2012 09:28:46 -0500

’Limited Scope Representation’ often referred to with the shorthand misnomer of “ghostwriting” has been a controversial issue for quite some time. Joint opinion 2011-100, just released by the Philadelphia Bar Association Professional Guidance Committee as well as the Pennsylvania Bar Association Legal Ethics and Professional Responsibility Committees, represents months of work on providing comprehensive guidance to those who are providing, or thinking about providing limited representation to clients. The opinion represents an up to date and helpful discussion of all the ethical issues posed by such limited engagement arrangements, and the appendices also provide valuable comparisons with other jurisdictions on this point as well.

Joint Formal Opinon 2011-100 may be found here.

Supreme Court Denies Capital PCRA Brady Claim

Burton A. Rose, Esq. — Thu, 15 Dec 2011 10:11:06 -0500

On November 30, 2011, the Supreme Court of Pennsylvania decided Com. v. Walker, 2011 WL 5966253, No. 480 CAP. In this capital appeal, Appellant claimed, inter alia, that the Commonwealth violated his due process rights and Brady v. Maryland, 373 U.S. 83 (1963), by withholding the victim’s criminal history from the defense.

A prosecutor has an obligation to disclose all exculpatory information material to the guilt or punishment of an accused, including evidence of an impeachment nature. To establish a Brady violation, an appellant must demonstrate that the evidence at issue was favorable to him, because it was either exculpatory or could have been used for impeachment, the prosecution either willfully or inadvertently suppressed the evidence, and prejudice ensued. The evidence at issue must have been material evidence that deprived the defendant of a fair trial. Favorable evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.

The Appellant argued that this evidence would have been helpful to his defense, as it supported his claim that the victim was the aggressor. He contended that trial counsel asked the Commonwealth to disclose the victim’s criminal history and was told there was none; however, the Appellant contended that the victim had an extensive criminal history involving assaultive behavior. The PCRA court held this issue was meritless, as the victim’s arrest record would have been inadmissible at trial because, at the time of the shooting, the victim had not been convicted of any of these charges.

Justice Eakin wrote for the Court and affirmed the denial of this claim by the lower court based on its holding that the victim’s arrest record would have been inadmissible at trial. However, the Supreme Court specifically noted that it is currently reviewing the issue of whether Brady’s materiality requirement is satisfied where the undisclosed evidence would not have been admissible at trial. See Commonwealth v. Willis, 968 A.2d 224, 225 (Pa.2009).

Billy Nolas, Esq. represented the Appellant, which prompted Chief Justice Castille, in a concurring opinion, to once again display significant annoyance at the Federal Defenders for becoming involved in a state court appeal.

Till Death Do Us Part? The Dissolution Dilemma for Same-Sex Married Couples

Tiffany L. Palmer, Esq. — Thu, 15 Dec 2011 11:15:54 -0500

Imagine that you and your spouse were married a decade ago. Over the years, you acted as many married couples do; you had a nice wedding, had children, purchased a home, and contributed to household expenses – of course, all without keeping track of who paid for what. And now imagine that, as happens so often, your marriage is no longer working. You’d like to file for divorce – except when you attempt to file, something bizarre happens. You’re told that you cannot have access to the divorce courts of the state where you live because, despite the fact that your marriage was perfectly legal where it was entered into, the state where you now live simply refuses to acknowledge that the marriage legally exists. As much as that may sound like some kind of matrimonial-themed Twilight Zone episode, that is the reality for thousands of same-sex couples in our region.

The law in this area is rapidly changing as the number of states that recognize a marriage or a marriage-like status has tripled in just two years. In June 2011, New York became the sixth and largest state to grant marriage licenses to same-sex couples. Pennsylvania is now bordered by three states (New York, New Jersey and Delaware) that grant either marriages or civil unions to same-sex couples. Pennsylvania residents are crossing state lines to get married, and residents of those states are moving to Pennsylvania with valid marriages and civil unions. Yet, many of those couples are unaware of the legal complications that they could encounter if faced with the need to dissolve those unions in Pennsylvania.

Pennsylvania’s statutory scheme contains a Defense of Marriage Act (PA DOMA), which states: “It is hereby declared to be the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman. A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth.” Pa.C.S. § 1704 (2005). Thus, Pennsylvania will neither grant nor recognize same-sex marriages. However, since PA DOMA is entirely silent on the issue of dissolution, the law in this area is unclear and evolving.

All foreign jurisdictions permitting same-sex marriage or its equivalent, with the exception of a new law in California, require that at least one party to the divorce establish residency ranging from six months to one year prior to filing for divorce in their courts. Thus, a same-sex couple who resides in Pennsylvania will not simply be able to file for divorce in the state in which they were married, without actually moving to that state. This leaves many couples with only one feasible jurisdictional option – Pennsylvania, where the law is unclear. Whether a court in Pennsylvania may grant a divorce for a same-sex marriage despite DOMA has not yet been addressed by any appellate courts. Two trial courts in Pennsylvania have addressed the question and dismissed divorce complaints filed by individuals seeking same-sex divorces.

However, the same is not true for civil unions. Pennsylvania’s DOMA predates the existence of civil unions (Vermont granted the first in 2000, while PA DOMA was passed in 1996), so it is entirely silent as to civil unions. Consequently, at least two trial courts have granted dissolution decrees for civil unions under a theory of general equity jurisdiction.

The inability to dissolve a same-sex union exposes individuals to the legal risks associated with remaining in a same-sex marriage or civil union after a separation. These risks include: the possible inability to obtain a marriage or civil union to another person in the future; the inability to obtain domestic partner health insurance benefits in the future from a new partner; possible liability for the debts of a spouse even after the actual end of the relationship; complications during probate of an estate including a spouse seeking an elective share of an estate; and numerous other legal hazards.

If a couple cannot obtain a divorce in Pennsylvania, one party may consider moving to another jurisdiction and establishing residency there in order to later file for divorce to avoid these risks. If a move to a state that recognizes same-sex marriages or civil unions is not possible, parties should enter into a comprehensive post-nuptial agreement or property settlement agreement and include a provision that the parties agree to proceed with a no-fault divorce if it becomes available in the jurisdiction or any other jurisdiction where either party may reside in the future. Such an agreement may prevent unexpected litigation between the parties or their estates in the future. However, this may not be possible in high-conflict cases where no agreement may be reached.

Until there is more certainty and uniformity regarding recognition of same-sex marriages and civil unions and the ability to dissolve them in Pennsylvania, “till death do us part” may be a reality for couples, giving new meaning to those vows spoken at the ceremony.

Beneficiary of Estate Successful in Fraudulent Transfer Action

Ryan Harmon, Esq. — Thu, 15 Dec 2011 11:27:05 -0500

In John Pfuhl v. Dawn Rene Sandy and Dr. Anthony Abdalla, (Phila. County, June Term, 2008, No. 00644), the beneficiary of an estate brought a successful declaratory judgment action against a property owner who claimed to be a bona fide purchaser of a mixed-use property in Philadelphia. By order dated October 31, 2011, issued after a one-day trial in front of the Honorable Eugene Edward J. Maier, S.J., the Court held Plaintiff to be the rightful owner of the subject property, and that because the executrix of the estate had fraudulently conveyed title from the estate to herself and thereafter sold the property to the third party purchaser, title never vested with the alleged bona fide purchaser. As such, title to the subject property was ordered returned to the Plaintiff.

The declaratory judgment action was initially filed in 2008 in conjunction with two Orphans’ Court actions, In re Estate of Hilda Hession, No. 733 AP&PR of 2008, wherein the same Plaintiff/beneficiary challenged the authenticity of certain codicils admitted for probate and further challenged gifts made pursuant to a power of attorney granted by the decedent, including a gift of the aforementioned mixed-use property to Defendant/executrix. In a thirty six (36) page Opinion issued by The Honorable Joseph D. O’Keefe, Administrative Judge of the Orphans’ Court, the Court held that the codicils were forged by the Defendant/executrix (a niece of the decedent) or procured by undue influence imposed by the Defendant/executrix at a time when the decedent lacked the capacity understand the nature of her actions. Further, the Court found that the significant gifts made pursuant to the power of attorney were invalid and not authorized under Pennsylvania law. Among the bequests and gifts rescinded and/or revoked pursuant to Judge O’Keefe’s Opinion was the transfer of title to the mixed-use property made by the Defendant/executrix to herself.

A second action in the Court of Common Pleas was necessary because, prior to Plaintiff’s discovery of the fraudulent transfer, the Defendant/executrix sold the mixed-use property to a third party who had no knowledge of the of the previous fraudulent transfer. The third party alleged he was the rightful owner of the property because he had no notice of the fraud and, as such, was a bona fide purchaser for value. Plaintiff successfully argued at trial that because the fraudulent transferor never had valid legal title to the subject property and a grantee (in this case, the third party purchaser) can acquire only whatever interest a grantor owns and can convey, the third party purchaser had no valid entitlement to the subject property. Although the deed itself was not forged, the fraudulent actions by the Defendant/executrix in securing title to the property vitiated any subsequent transaction, including the transfer to the third party purchaser.

America Invents Act Provides Sweeping Patent Reform

Alan G. Towner, Esq. — Thu, 15 Dec 2011 11:27:27 -0500

The America Invents Act (“AIA”) was signed into law on September 16, 2011. It is the first major overhaul of the U.S. patent law since the 1950’s.

Most significantly, the AIA converts the United States from a “first-to-invent” standard to a “first-inventor-to-file” standard of determining priority, thereby bringing the United States into better harmony with the patent laws of foreign countries. The conversion to the first-inventor-to-file system becomes effective on March 16, 2013.

Prior to this change, inventors could rely on prior conception of their invention to establish priority over others, even if they were not the first one to submit a patent application to the United States Patent and Trademark Office (“USPTO”). Under the new law, priority is simply determined by the date that an inventor files his or her patent application. As a consequence, there may often be a “race to the Patent Office,” as inventors working in similar fields try to avoid the loss of patent rights to their competitors. This fundamental change is considered by some to benefit large companies and institutions with well-established patent procedures that enable prompt patent filings. However, there is some concern that smaller companies and individual inventors without the resources or knowledge of the new law may be placed at a disadvantage under the first-inventor-to-file system.

Another major change implemented by the AIA is an increased ability to challenge the validity of patents at the USPTO. Inter Partes Review and Post-Grant Review procedures will allow challengers to ask the USPTO to reconsider whether a patent has been properly granted. Under the Inter Partes Review procedure, a challenger can submit “prior art” to the USPTO and, if there is a reasonable likelihood that the challenger would prevail, the petition for review will be granted. Both the patent owner and the challenger will have opportunities for limited discovery and to make oral arguments before a newly named Patent Trial and Appeal Board (“PTAB”).

Under the Post-Grant Review procedure, anyone other than the patent owner may challenge the validity of a US patent within 9 months of its issue date. The USPTO Post-Grant Review procedures are modeled after European patent opposition procedures that have been used for many years. In addition to submitting “prior art” to the USPTO, a challenger utilizing the Post-Grant Review procedure may attack the validity of a recently issued U.S. patent on several other statutory grounds that were historically only available in infringement actions brought in federal courts.

The new Inter Partes Review and Post-Grant Review procedures will take many patent validity disputes out of federal courts and into the USPTO. Unlike the “clear and convincing” standard that must be met in order to invalidate a patent in federal court, the USPTO will use a “preponderance of the evidence” standard when determining whether patents are valid. While this lower evidentiary standard may benefit those seeking to invalidate a patent, if a challenger is not successful at the USPTO, the challenger may be estopped from challenging validity of the patent later in federal court.

The patentability of “business methods” has been a hot topic for several years, culminating in the 2010 Bilski Supreme Court decision, which may have weakened, but did not eliminate, the ability to obtain patents for business methods. In the AIA, Congress has taken what some consider to be a further step to limit patent protection for business methods by allowing anyone who has been sued or charged with infringement of a business method patent to petition the USPTO under a procedure similar to the Post-Grant Review procedure. Beginning September 16, 2012, such alleged infringers can attack a patent if it covers a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service, except for patents for technological inventions. Congress did not define what constitutes a “technological invention,” leaving it to the USPTO and the Court of Appeals for the Federal Circuit to develop the boundaries of what business methods are sufficiently “technological” to avoid additional scrutiny at the USPTO.

The AIA has also curtailed “false patent marking” suits. Under the old patent law, it was an offense to falsely mark goods as “patented,” and statutory fines of up to $500 could be imposed for every such offense. Any individual could bring a qui tam action based on false patent marking of a product, and could share half of any money recovered with the U.S. government. In recent years, significant monetary awards in lawsuits brought under the false marking statute spawned a cottage industry of individuals seeking to benefit from such recoveries. Now, only the U.S. government is able to sue for statutory damages for false marking. Individuals who claim products were falsely marked may bring a civil action, but can only recover compensatory damages to the extent they can prove that they suffered a “competitive injury.”

The AIA has quickly and drastically changed the landscape of patent protection in the United States. Inventors seeking patent coverage should be aware of the new first-inventor-to-file system and other new requirements impacting the content of their patent applications and the timing of their patent efforts. Those seeking to enforce their patents, and those accused of patent infringement, should be cognizant of the new Inter Partes Review and Post-Grant Review procedures at the USPTO, and should consider how such procedures may impact their patent litigation strategies.

PA Supreme Court Rules on Expert Testimony on Prescription Drugs in DUI

Burton A. Rose, Esq. — Thu, 15 Dec 2011 11:40:14 -0500

The Supreme Court of Pennsylvania has decided the case of COMMONWEALTH of Pennsylvania, Appellant v. Michelle Necole GRIFFITH, Appellee, 2011 WL 5176800, No. 56 MAP 2010 (Nov. 2, 2011), an appeal from a ruling of the Superior Court, Commonwealth v. Griffith, 985 A.2d 230 (Pa.Super.2009), No. 1315 MDA 2008, dated July 2, 2009, which reversed a Judgment of Sentence of the Berks County Court of Common Pleas, Criminal Division, at No. CP–06–CR–0003318–2006 dated June 25, 2008. This case was before Justices CASTILLE, SAYLOR, EAKIN, BAER, TODD, McCAFFERY, and ORIE MELVIN. Justice McCaffery wrote the Opinion for the full court.

The issue presented in this case was whether expert testimony is required to convict a defendant of driving under the influence of a drug or combination of drugs, 75 Pa.C.S. § 3802(d)(2), when the drugs in question are prescription medications. The Court declined to read into subsection 3802(d)(2) a mandatory requirement for expert testimony to establish that the defendant’s inability to drive safely was caused by ingestion of a drug, even if it is a prescription drug, or drug combination. Under the general impairment provision set forth in subsection 3802(a)(1), a blood or breath test to determine alcohol level is not required; rather, a different standard is used, i.e., imbibing a sufficient amount of alcohol such that one is rendered incapable of safely driving.

In this case, the Appellee drove her vehicle when she was incapable of safely driving; this element was not before the court. The only question was whether the evidence was sufficient to establish that Appellee’s inability to drive safely was the result of the influence of a drug or combination of drugs. At trial, an experienced police officer testified that he closely observed Appellee’s behavior, demeanor, unsteadiness, and inability to perform field sobriety tests, all of which led him to request laboratory tests for the detection of controlled substances in Appellee’s blood. Appellee admitted taking one prescription medication in the morning of the day of her arrest. Two other Schedule IV controlled substances, to wit, Valium and a related metabolite, were detected in her blood. Therefore, the Commonwealth’s evidence was sufficient to establish, beyond a reasonable doubt, that Appellee violated subsection 3802(d)(2), and the ruling of the Superior Court was reversed.

Attorney Jill M. Scheidt of Rabenold Koestel Scheidt of Wyomissing represented the Appellant. John B. Mancke, Esq. appeared for the PA Association of Criminal Defense Lawyers as Amicus Curiae.

Click to download Opinion Commonwealth of Pennsylvania v. Griffith

Network Automation, Inc.: The Ninth Circuit's Attempt to Provide Clarity on Whether the Use of Trademarks as Keywords Constitutes "Use in Commerce"

Brandon S. Bruce, Esq. — Thu, 15 Dec 2011 11:40:30 -0500

In accordance with 15 U.S.C. § 1127(2) of the Trademark Act of 1946 (the Lanham Act), a claimant must make a prerequisite showing of use in commerce for federal trademark infringement claims involving Internet marketing; however, judicial attempts over the years to interpret what constitutes use in commerce have resulted in inconsistent and confusing applications of trademark law. The Ninth Circuit, acutely aware of this surrounding uncertainty regarding the use in commerce test, especially in regards to whether using a mark to generate search-result links and sponsored links is considered use in commerce, attempted to provide clarity to the test for trademark infringement on the Internet. The Courts opinion in Network Automation, Inc. v. Advanced Systems Concepts, Inc. 638 F.3d 1137 (9th Cir. 2011) is significant because it expressly found that the use of a trademark as a search engine keyword triggering the display of a competitor's advertisement is a use in commerce within the meaning of the Lanham Act, following the Second Circuits interpretation in Rescuecom Corp. v. Google Inc., 562 F.3d 123, 127 (2d Cir. 2009) holding that Google's sale of trademarks as search engine keywords is a use in commerce. The relevant facts of Network Automation are as follows: Network purchased the keyword ActiveBatch from popular search engines such as Google and Microsofts Bing, which triggered a results page showing www.NetworkAutomation.com as a sponsored link. The problem is the term ActiveBatch is a registered trademark of Network Automations competitor, Advanced Systems Concepts. Since the Ninth Circuits decision in AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979) the non-exhaustive list of relevant factors courts use for determining whether there is confusion between related goods in regards to trademark infringement are: 1) strength of the mark; 2) proximity of the goods; 3) similarity of the marks; 4) evidence of actual confusion; 5) marketing channels used; 6) type of goods and the degree of care likely to be exercised by the purchaser; 7) defendants intent in selecting the mark; and 8) likelihood of expansion of the product lines. Twenty years after Sleekcraft there was Brookfield Commc'ns, Inc. v. West Coast Entm't Corp., 174 F.3d 1036, 1054 (9th Cir. 1999) in which the Ninth Court tried to reconcile existing trademark law with problems specific to the Internet. Thus, Brookfield became known as the standard for dealing with trademark infringement on the Internet and the application of the eight-factor test created in Sleekcraft, which attributed judicial emphasis and thereby greater importance to the Internet trinity or Internet troika, i.e., 1) the similarity of the marks; 2) the relatedness of the goods and services offered; and 3) the simultaneous use of the Internet as a marketing channel. The Court in Network Automation limited the Brookfield troika analysis as restricted to domain name disputes and thereby not controlling for trademark infringement claims based on search engine keyword advertising. The Court reasoned that in light of the multifaceted nature of the Internet and emerging technologies it is inappropriate to give priority to the troika factors in every trademark infringement case on the Internet irrespective of the specific type of online commercial activity before the court. The Ninth Circuit clarified its position in Network Automation opining that courts deciding trademark infringement on the Internet must evaluate the facts of each specific case as well as other factors which might be more relevant to the issue of consumer confusion. In particular, the Ninth Circuit held that [i]n determining the proper inquiry for this particular trademark infringement claim, we adhere to two long stated principles: the Sleekcraft factors 1) are non-exhaustive, and 2) should be applied flexibly, particularly in the context of Internet commerce. Finally, because the sine qua non of trademark infringement is consumer confusion, when we examine initial interest confusion, the owner of the mark must demonstrate likely confusion, not mere diversion. Ultimately, the Ninth Circuit in Network Automation reversed the district court because it omitted other relevant factors and did not weigh the Sleekcraft factors flexibly to match the specific facts of the case like 1) the strength of the mark; 2) the evidence of actual confusion; 3) the type of goods and degree of care likely to be exercised by the purchaser; and 4) the labeling and appearance of the advertisements and the surrounding context on the screen displaying the results page. Therefore, a general principle to take from Network Automation is that courts are encouraged to maintain flexible approaches in the area of trademark law while avoiding the adoption of excessively rigid or mechanical application of factors.

Episcopalian Evicted and Vestry Vacated

James W. Cushing, Esq. — Thu, 10 Nov 2011 14:04:50 -0500

As he was leaving Canterbury Cathedral on December 29, 1170, King Henry II of England, frustrated with Archbishop of Canterbury St. Thomas à Becket, mumbled under his breath those fateful words [w]ill no one rid me of this turbulent priest? Four knights who accompanied the King heard his grumble and, later that same day, returned to the Cathedral and martyred the great Saint on the stairs leading to the quire. Fortunately for the Rt. Rev. (now Bishop) David Moyer (Bp. Moyer), the Episcopal Diocese of Pennsylvania was able to rid itself of him in a much less bloody way, but it took a rather impressive amount of litigation to do it. Over the last decade or so, due to theological division, with the Episcopal Church (Episcopal Church or National Church) choosing to proceed down a wide and liberal road and the orthodox within it choosing to proceed down a narrow and traditional road, a variety of civil litigation has emerged across the country between the Episcopal Church and the orthodox within it. The litigation has mostly regarded the status of church property held by an orthodox congregation within a liberal diocese, the status of an orthodox diocese within the liberal National Church, or the status of an orthodox clergyman relative to a liberal bishop above him. The issues described above in general have been raging since about 2002 specifically in Montgomery County Court between Bp. Moyer, who was once an orthodox Episcopal priest and rector of the parish Church of the Good Shepherd in Rosemont (Good Shepherd), and the liberal Episcopal Diocese of Pennsylvania (the Diocese) and its equally liberal diocesan bishop, Rt. Rev. Charles E. Bennison (Bp. Bennison). I have written about the above issues and the litigation between Good Shepherd, Bp. Moyer, and the Diocese and/or Bp. Bennison previously in Upon Further Review. With regard to the issue of property ownership, my January 9, 2009, article National Church v. Regional Diocese: Property Ownership by a Religious Institution (which can be found here), described the legal issues surrounding the property disputes within the Episcopal Church. My March 9, 2009, article Episcopalian In-Fighting Spreads to Montgomery County Courthouse (which can be found here), described the legal issues surrounding the defrocking of Bp. Moyer by Bp. Bennison. Although the precise issues in the above cited articles are slightly beyond the scope of the instant article, they certainly can help the reader get a clearer picture of the legal landscape over which Good Shepherd, the Episcopal Church, the Diocese, Bp. Moyer, and Bp. Bennison have trod in Montgomery County Court to set the tone for the matter described below, In Re: the Church of the Good Shepherd Rosemont, Pennsylvania Incorporated, No.: 09-0609. Suffice it to say here that the Court has essentially ruled that Bp. Moyer is no longer an employee of the Diocese and has no right to engage in clerical functions within the context of the Diocese and/or the Episcopal Church. The matter before the Court in In Re: the Church of the Good Shepherd Rosemont, Pennsylvania Incorporated is the determination of who has rightful control over the property of Good Shepherd and whether Bp. Moyer may reside in the its rectory. The Diocese and the Episcopal Church (Petitioners) filed a Petition for Citation against Good Shepherd, Bp. Moyer, and members of Good Shepherds parish Vestry (the layman's governing body) for possession of the Good Shepherd property and the removal of both Bp. Moyer and the Vestry members for attempting to obstruct and/or remove Petitioners from possession and/or control of the aforesaid property. After a complex web of responsive pleadings, including a series of opposing preliminary objections, the Petitioners filed for Summary Judgment against Good Shepherd and it is in the context of summary judgment that Judge Stanley Ott entered the Order at issue herein. The Court reviewed the history of Good Shepherds property. Good Shepherd was incorporated in 1870 and in the charter for the parish it declared that it was a member of both the National Church and Diocese. The charter is consistent with the canons and constitutions of both the Diocese and National Church which mandate that parish property is held in trust for the Diocese and, in turn, the National Church. The canons and constitutions also prohibit parish property from being alienated without the consent of the Diocese. The deed to the parish was transferred to the Diocese in 1910 but was subsequently deeded back to the parish in 1967 with the proviso that it be used for worship according to the doctrine and discipline of the National Church. The primary issue addressed by Judge Ott is who or what controls Good Shepherds property. In support of its petition, Petitioners set forth six (6) arguments: (1) Good Shepherd announced that it is no longer a part of the Diocese and/or National Church and was seeking affiliation with another denomination; (2) Good Shepherd continued to employ Bp. Moyer despite his defrocking in 2002 and the Diocesan canons requiring parishes to only employ clergy licensed by the Diocese; (3) Bp. Moyer entered Holy Orders in another denomination; (4) Good Shepherd has employed other priests not licensed by the Diocese; (5) Good Shepherd has used parish assets to support activities to subvert the Episcopal Church and/or the Diocese; and (6) the diocesan canons authorize the bishop, with consent of the Standing Committee (the Diocese's layman's governing body), after a determination has been made that a parish ceased to act in accordance with the Diocese's constitution and canons, to take necessary measures to take over the parish's property. The Diocese, through both its Standing Committee and bishop, believed that due to the actions of Bp. Moyer and the members of the Vestry, Good Shepherd had ceased to act within the canons and constitution of the Diocese and were taking necessary measures to take over its property. Good Shepherd, in response to the Petition, answered the above six (6) arguments as follows: (1) it denied that it has determined to sever ties with the National Church or Diocese; (2) it alleged Bp. Moyer, though not licensed in the Diocese, was licensed by other Dioceses of the Episcopal Church, Anglican Communion, and the Archbishop of Canterbury; (3) it alleged parish assets are still used for the benefit of the Episcopal Church; (4) it denied that the Episcopal Church was hierarchical; (5) it denied that Bp. Moyer entered Holy Orders in a different church; and (6) it alleged the applicable canons and constitutions, when read in concert, do not indicate parish property is held in trust. Finally, Good Shepherd provided various arguments that the Diocesan Bishop of Pennsylvania did not have authority, under the canons and constitution, to bring the action against it. As an initial matter, the Court, due to the United States Constitutions First Amendment guarantee of the freedom to practice ones religion, ruled that it could not inquire into the propriety of the internal governance or administration of the Church at issue. Further, it also refused, on the same grounds, to rule as to whether Bp. Moyer, who received Holy Orders in another branch of Anglicanism, can still be deemed an Episcopal priest. Regardless of the preceding, the Judge did not believe that either of the above was necessary to make a ruling on the Petition at issue. The Court ruled that although a church was involved, neutral legal principles could be applied to resolve the property dispute raised in the Petition without directly engaging any religious issues. After all of the above were considered, the Diocese elected to restrict the relief it sought simply to a determination that the rector (Bp. Moyer) and the Vestry members be removed. Presumably the Diocese believed that all of the property dispute issues would be moot if it could successfully oust the rector and Vestry members who they believed were actively engaged in separating Good Shepherd from the Diocese and/or the National Church. In analyzing the Episcopal Church's structure, the Court found that it is hierarchical in nature, with a National Church having authority over a diocese which, in turn, has authority over a parish. The Court found that the Vestry of Good Shepherd could be viewed as having taken action to attempt to sever Good Shepherd from both the Diocese and the Episcopal Church. The Court, in the previous case, also found that Bp. Moyer had been defrocked in 2002 and is without license to function as a priest in either the Diocese or the Episcopal Church. With consideration of the above findings, the Judge ruled that it is the will of the Petitioners to evict both Bp. Moyer and the Vestry members and that they had authority to do it. The Petitioners decided to oust Bp. Moyer and the Vestry members because of the very divergent theological and ecclesiastical views between the parties and the Court refused to get involved in those issues. As Bp. Moyer is no longer employed by either the Diocese or National Church, and the Diocese, within an hierarchical church, having control over its property, the Diocese simply has the authority to evict Bp. Moyer out of Good Shepherds rectory and remove the Vestry members from their positions. Due to the Courts ruling, Bp. Moyer must vacate the rectory immediately, and the Vestry members must immediately step down. Like the knights who martyred St. Thomas, the Petitioners herein, with reference to Bp. Moyer and the Vestry members, can say [l]et us away this fellow will arise no more.

Wal-Mart Stores, Inc. v. Betty Dukes, et al., The Supreme Court Steps In to Rein In Class Action Litigation

Shelly R. Pagac, Esquire — Thu, 15 Dec 2011 11:40:49 -0500

On June 20, 2011, the United States Supreme Court refused to certify a class action lawsuit against Wal-Mart, which would have comprised approximately 1.5 million members. The three named Plaintiffs seeking to represent the class claimed they had been discriminatorily denied promotions and pay in violation of Title VII because the local supervisors exercised unfettered discretion over pay and promotion matters. Interestingly, their legal theory, which may have doomed their case, was that the claimed discrimination to which they had been subjected was common to every one of Wal-Mart’s female employees. The Supreme Court held because the Plaintiffs provided no convincing proof of a company-wide discriminatory pay and promotion policy, the class could not establish the existence of any common question. Because no common question existed, the Supreme Court refused to certify the class.

How did the Supreme Court reach its conclusion refusing to certify the class? In reaching its decision, the Supreme Court did not focus on the incredible size of the class to demonstrate that joinder of all members was impracticable, which perhaps would have been an easier approach, but focused on the requirement that there must be questions of law or fact common to all members of the proposed class in order for the class to be certified.

In finding there was no commonality within the class, the Court reasoned that the Rule 23 language requiring commonality is easy to misread since any competently crafted class complaint literally raises common questions. Simply asking whether all the plaintiffs work for Wal-Mart, or whether managers have discretion over pay, or whether an unlawful employment practice existed are not sufficient questions to obtain class certification. As the Court explained, commonality requires the plaintiff to demonstrate that the class members have suffered the same injury and not merely that they have all suffered a violation of the same provision of law. “Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor. That contention, moreover, must be of such a nature that it is capable of class-wide resolution—which means that determination of its truth or falsity will resolve an issue that is essential to the validity of each one of the claims in one stroke.” Id. at 9.

In order to establish a nationwide class, Plaintiffs had to present proof that Wal-Mart operated under a general policy of discrimination. In order to do so, the class relied on three forms of proof: (1) statistical evidence; (2) anecdotal reports of discrimination; and (3) the testimony of a sociologist, Dr. William Bielby.

First, the Court rejected the sociologist’s testimony. The Supreme Court noted that Dr. Bielby could not determine with any specificity how regularly stereotypes play a meaningful role in employment decisions at Wal-Mart. During his deposition, “Dr. Bielby conceded that he could not calculate whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” Id. at 13. Because Bielby had no answer to that question, the Court stated it could “safely disregard what he has to say.” Id. at 14.

Next, the Plaintiffs attempted to rely on statistical analysis in establishing that a common question existed. The plaintiffs presented a regression analysis in which the statistician compared region by region the number of women promoted into management positions with the percentage of women in the available pool of hourly workers. The statistician concluded that there were statistically significant disparities between men and women at Wal-Mart, and these disparities could only be explained by gender discrimination. The Court rejected the impact of these studies, and explained that one named plaintiff’s experience of discrimination was insufficient to infer that discriminatory treatment was typical of the employer’s employment practices.

Finally, the Court found respondents’ anecdotal evidence suffered from the same defect in that, just because one individual claimed they had been discriminated against, that did not mean that every female had been discriminated against. Respondents had filed some 120 affidavits reporting incidents of discrimination—about one for every 12,500 class members—relating to only about some 230 out of Wal-Mart’s 3,400 stores. The Court reasoned that even if every single one of these accounts was true, it would not demonstrate that the entire company operated under a general policy of discrimination.

This decision, along with the Supreme Court’s recent decision in AT&T v. Concepcion, in which the Supreme Court upheld AT&T’s arbitration provision in its consumer contracts requiring parties to bring suit in their individual capacities, rather than as a plaintiff or class member in any purported class or representative proceeding, suggests the beginning of a trend of Supreme Court decisions designed to control and rein in the ever-broadening scope of class action litigation in the employment law context and beyond. Both of these decisions can be viewed as critical of class action litigation and may be a signal that the class action heyday is over, or at least is on its way to being controlled.

Follow Up Story: Jordan Brown's New Decertification Hearing

Brad V. Shuttleworth, Esq. — Thu, 20 Oct 2011 15:54:38 -0400

For months, we've been following the story of the case of Jordan Brown. The parties have been fighting for nearly two years about whether the 13 year-old defendant will face trial as an adult or proceed through the juvenile-justice system. After an interlocutory appeal, the Pennsylvania Superior Court ruled in Commonwealth v. Jordan Anthony Brown that the Fifth Amendment right against self-incrimination applies to juvenile decertification proceedings, and that a trial court cannot take into consideration whether a child accepts responsibility for an alleged crime in making a determination to transfer a defendant's case to juvenile court.

For background, in Commonwealth of Pennsylvania v. Jordan Brown, the 13 year-old defendant was charged as an adult for the alleged murder of his father's fiancé, Kenzie Houk, and her unborn child. They were killed when she was shot in the back of the head while she was sleeping. Brown was just 11 years-old when Houk was killed. If convicted as an adult, he faces a mandatory-minimum prison sentence of life.

As further background, in March of 2010, a judge denied Brown's petition to transfer his case from the criminal court to the juvenile court under the Juvenile Act provision of 42 Pa.C.S. Sec. 6322, at a hearing commonly known as a decertification hearing. At the decertification hearing, the trial court considered that he had not admitted to the murders in determining that he is not amenable to rehabilitation in the juvenile-justice system. At a decertification hearing, the Pennsylvania Juvenile Act, 42 Pa.C.S. Sec. 6322, requires that the juvenile establish that the transfer of his or her case will serve the public interest. Under Section 6355 (a)(4)(iii), the Juvenile Act enumerates certain factors that a court must consider in determining whether the transfer serves the public interest, none of which require the acceptance of responsibility or an admission to an offense, but one factor requires a court to consider "whether the child can be rehabilitated prior to the expiration of the juvenile court jurisdiction," which is once the child reaches the age of twenty-one.

Then, Brown took an interlocutory appeal from the trial court's order denying his petition to decertify his case and transfer the matter to juvenile court. The Pennsylvania Superior Court held that the trial court's taking into consideration the fact that Brown did not admit to the offense in determining that he could not be rehabilitated before the expiration of juvenile court jurisdiction violated his Fifth Amendment right against self-incrimination. The Superior Court then vacated the trial court's order denying decertification and ordered a new decertification hearing.

After a new decertification hearing, the trial court ordered Brown's case to be transferred to juvenile court in late August. Not taking into consideration Brown's purported lack of acceptance of responsibility made all the difference in the court's new ruling. The court noted in its opinion that the testimony of the doctor who testified about the lack of acceptance of responsibility was pivotal in its first ruling denying decertification. At the new hearing, there was only expert testimony before the court on behalf of the defendant, which went unchallenged by the government.

To view the trial court's latest order and opinion from the Juvenile Law Center's website, click here.

So What Can You Do with a Law Degree?

Albertine Y. DuFrayne, Esq. — Thu, 20 Oct 2011 15:54:52 -0400

Do you ever wonder if this is as good as it gets? You think that there must be something that you can add to your career to balance with the billable hours. Or maybe you are looking for a hobby outside of your law practice or to supplement your main source of income. Many lawyers and law students often wonder if practicing law is all there is, yet are not sure what to do with their law degree. The Solo and Small Firm Committee recently hosted a panel discussion on this topic to address alternative career possibilities and activities that are merely additions to the practice of law.

The panel focused on using the skills that are inherent to lawyers to assist with transferring to other careers. Some of the skills that you already have that help include analytical thought, public speaking, and, of course, the always important networking.

Michelle Wexler explained that she actively pursued a career outside of the practice of law after a fairly "normal" legal career in which she served as a judicial law clerk and then worked as a litigation associate with a civil defense firm. Seeking a change, Michelle began a consulting business to provide development and strategic planning services to non-profits. She sought out mentors and others more experienced in the area of her interest by attending networking events and asking for meetings with individuals from whom she thought she could learn. Ultimately, Michelle joined the Department of External Affairs at the Wharton School of Business as an Associate Director of the Wharton Fund. Michelle noted that the most important thing to making a career change is to do your research, including finding out whether you will need malpractice insurance, working out your own personal financial issues, and anything else that needs to be done to get your ducks in a row before going jobless. Once you make the decision to officially change your career, network as much as possible.

If you are looking to continue with the practice of law, but are not interested in maintaining a full caseload of your own clients, or are looking to supplement your income as you start to build your own practice, you can consider working as a per diem attorney. Stacy N. Lilly explained that she uses her law degree to make a living in a freelance attorney capacity. She is a sole practitioner who serves small businesses and entrepreneurs, providing legal advice and representation in litigation, commercial transactions, and business planning. Stacy helps with overflow projects and otherwise fills the gaps when firms need the extra help from an experienced attorney on a project or single uncontested representation. Stacy stressed the importance of networking, not being afraid to specifically ask if anyone needs help on a freelance basis, and continually following up with existing contacts. Flexibility, dependability and quick turnaround on assignments are important to ensuring repeat per diem work.

If you are not interested in leaving your law practice, you can also supplement a desire to feel more fulfilled with another interest outside of your daily law practice.

By day, Arthur Bugay is a Partner in the law firm of Galfand Berger, LLP where he specializes in litigation. After practicing for a while, Art realized that, while he likes his job, he also wanted to actively engage his interest in economics. Art found a position teaching economics and business law courses at Temple University and Moravian College on an adjunct basis. Although teaching in an adjunct capacity is not much of a financial benefit and grading papers and exams can take a great deal of time, Art enjoys teaching adjunct as it helps to "round out the edges" as to his interests.

Like Art, I practice law and also maintain outside interests. I am an associate with Petrelli Law, P.C., where I have a busy family law practice. I've always been artistic and enjoyed creating things. In my spare time, I knit and make bead jewelry, some of which I list for sale online at Albertine's Creations on Etsy as a hobby. Etsy is an e-commerce website focused on handmade and vintage items as well as arts and crafts supplies that follows the tradition of open craft fairs, giving sellers personal storefronts. It has been described as a "crafty cross between Amazon and eBay" and "your grandma's basement." Maintaining an Etsy shop is similar to any other business, including a law firm. Additionally, my knitting and beadwork allow me to network with people I would not otherwise meet about my crafts and my law practice. It's mutually beneficial as I occasionally learn lessons through Albertine's Creations that assist with the law practice.

The bottom line is that if there is something other than the daily law firm grind in which you are interested, you should follow your passion. Your law degree and practice have laid the groundwork for you to network, speak and write concisely, and a host of other skills that will transfer to whatever you want to do. Whether it is a full career change, stepping outside of what we normally think of as a law firm practice with freelance work, teaching adjunct or anything else you may be interested in, find a way to do it.

Supreme Court Rules on Luring Child Into Car

Burton A. Rose, Esq. — Thu, 20 Oct 2011 16:03:06 -0400

The Supreme Court of Pennsylvania has decided the case of COMMONWEALTH of Pennsylvania v. Walter J. HART, III, Appellant, 2011 WL 4469985, No. 9 MAP 2010 (Sept. 28, 2011). This was an appeal from the Order of the Superior Court entered on February 5, 2009 at No. 285 EDA 2008, 970 A.2d 468, affirming a Judgment of Sentence of the Court of Common Pleas, Delaware County, Criminal Division, at No. 3057–2006. The case was before Justices CASTILLE, SAYLOR, EAKIN, BAER, TODD, McCAFFERY, and ORIE MELVIN. Justice Todd wrote the Opinion.

The Court considered the question as to whether a person who offers a child a ride without previously obtaining the permission of a parent of the child, but who otherwise lacks criminal intent to harm the child, may be convicted of luring a child into a motor vehicle under 18 Pa.C.S.A. § 2910. Appellant sought review from the Court for his claim that the evidence was insufficient to sustain his conviction for violating Section 2910 based on his contention that he did not engage in conduct that constituted "luring."

Section 2910, Luring a child into a motor vehicle or structure, provides in pertinent part:

(a) Offense.—Unless the circumstances reasonably indicate that the child is in need of assistance, a person who lures or attempts to lure a child into a motor vehicle or structure without the consent, express or implied, of the child's parent or guardian commits a misdemeanor of the first degree.

(b) Affirmative defense.—It shall be an affirmative defense to a prosecution under this section that the person lured or attempted to lure the child into the structure for a lawful purpose.

Thus the Commonwealth must establish beyond a reasonable doubt to convict an individual of the offense of attempted luring of a child into a motor vehicle that the individual attempted to lure a child into a motor vehicle, without the express or implied consent of the child's parent or guardian and under circumstances which did not reasonably indicate the child is in need of assistance.

With respect to the offenses of attempted luring of a child into a motor vehicle, the nonjury trial judge, Judge Ann Osborne, expressly stated she found no evidence that Appellant had any intent to harm the children, and that she believed the circumstances showed no reason to believe that the defendant had any evil or improper intent. However, the trial court found that Appellant's offer of a ride to the victims was sufficient to constitute an attempt to lure. The trial court subsequently sentenced Appellant to 18 months' probation. As an automatic result of his convictions, Appellant was statutorily mandated to register for ten years as a sex offender under Megan's Law.

The Appellant filed an appeal to the Superior Court, arguing that the evidence was insufficient as a matter of law to sustain his conviction, because his offer of a ride to the children, by itself, did not constitute a "lure" or an attempt to "lure," given that he did not offer the children any enticement to get into his car, nor did he command or otherwise threaten them. Appellant also argued that he had no ill intent in offering the children a ride. A three judge panel of the Superior Court affirmed Appellant's conviction.

The Supreme Court held that an attempt to lure under Section 2910 does not occur upon the mere offer of a ride in a motor vehicle to a child, but, rather, involves only situations where a child is provided a further enticement or inducement to enter the vehicle, in addition to the offer of the ride, particularly under such circumstances which suggest the child is being led into a potentially harmful situation. This enticement or inducement may be the promise of a pleasurable reward for entry into the vehicle such as receiving money or a treat such as candy or ice cream. Likewise, a similar attractive temptation could be created with the promise of the opportunity for the child to view an object of interest like a toy, a game, or a puppy.

An enticement or inducement may also take the form of a directive or a command to a child to enter a car, which suggests deleterious consequences to the child if he or she does not obey. The prospect of relief from a prospective adverse outcome can be a sufficient inducement for the child to go along with the command, and, hence, bring it within the ambit of an attempted lure. A brazen order to a child to enter a vehicle made by a stranger creates a strong fear-based incentive for the child to follow that particular course of action, as he or she subjectively may believe that is the only way to avoid harm. This conduct is also proscribed by Section 2910.

Justice Todd noted that there is no express requirement for a conviction under Section 2910 that the Commonwealth also separately prove that a person who attempts to lure a child into an automobile do so with the purpose of harming the child. Nevertheless, an innocent offer of a ride to a child out of a sincere desire to be helpful to the child, where was no opportunity to secure the child's parent's permission, nor clear proof that their consent could be implied, is not a crime under this law.

In this case, the Appellant offered two boys from his neighborhood a ride to school. He extended no other enticement, nor did he offer any other inducement to the boys for them to enter his car. Likewise, he did not direct or command them to enter his vehicle, nor did he threaten them with harm if they failed to accept his offers of a ride. Consequently, the mere act of offering the ride, standing alone, did not fall within the common, ordinary, and accepted meaning of a "lure." The evidence, therefore, was insufficient as a matter of law to support the Appellant's conviction for attempted luring.

Accordingly, the order of the Superior Court was reversed and Appellant was discharged.

Media attorney Mary Elizabeth Welch represented the Appellant.

The Month in Pennsylvania Workers’ Compensation: September 2011 At-A-Glance

Mitchell I. Golding, Esq. — Thu, 20 Oct 2011 16:30:42 -0400

COURSE AND SCOPE/FATAL CLAIM

In a fatal claim petition, the surviving family member bears the burden of proving all of the elements necessary to support an award under the Act.
To be entitled to benefits, Section 301(c)(1) of the Act, requires that the surviving family member demonstrate that the decedent's injury arose in the course of employment and was causally related thereto.
There are two situations in which an injury may be sustained in the course of employment:

The first is where the employee is injured, on or off the employer's premises, while furthering the employer's business.

The second is where the employee, although not actually working, is on the premises under the employer's control; is required by the nature of his employment to be there; and sustains injuries as a result of the condition of the premises or operation of the business.
The WCJ did not commit an error of law, upon finding that the decedent who was at home at the time of his fatal head injury did not die in the course and scope of employment under the first criteria, where the record was unclear as to how Decedent was injured, where Decedent was injured, and at what specific time Decedent was injured. Perhaps more importantly, even if the cause, location, and time of Decedent's injury were established, there was nothing in the record demonstrating what Decedent was doing when he was injured.

This is despite the fact evidence established that that the Employer approved Decedent's home-office as a secondary work premises, and that Decedent was working from his home-office on the date of his death. Claimant's testimony that Decedent slipped and hit his head while outside smoking a cigarette—i.e., attending to his personal comfort—or retrieving business mail was speculative at best.

Werner Deceased v. WCAB (Greenleaf Service Corporation), No. 25 C.D. 2011 (Decision by Judge Brobson, September 1, 2011) 10/11

SUCCESSOR-IN-INTEREST/ HEARING LOSS/MEDICAL BILLS

Whether an employer is a successor-in-interest to the entity that the claimant worked for, whose assets were acquired depends on the totality of the circumstances on how the plant or corporation is acquired; if the circumstances establish that the new owner is a successor-in-interest, it is not a new employer.
With respect to successor liability in this Pennsylvania, it is well-established that when one company sells or transfers all of its assets to another company, the purchasing or receiving company is not responsible for the debts and liabilities of the selling company simply because it acquired the seller's property.

This general rule of non-liability can be overcome, however, if it is established that (1) the purchaser expressly or implicitly agreed to assume liability, (2) the transaction amounted to a consolidation or merger, (3) the purchasing corporation was merely a continuation of the selling corporation, (4) the transaction was fraudulently entered into to escape liability, or (5) the transaction was without adequate consideration and no provisions were made for creditors of the selling corporation

Therefore, the claimant's present employer was not the successor-in-interest to claimant's prior employer where the Asset Purchase Agreement provided that it was strictly a sale of assets between the two entities and was not intended to be a sale of any liabilities.

Because there was no merger or consolidation, the transaction expressly excluded workers compensation claims and there was no allegation that the transaction was fraud to escape liability to pay compensation or defraud creditors, and there was no indication that the sale was not for fair value, the WCAB properly determined that claimant's present employer was not a successor-in-interest and not responsible for 100% of Claimants binaural hearing loss but only was responsible for the hearing loss attributable to the claimant's employment with the new employer.
Since the claimant's employer was not a successor-in-interest responsible for 100% of claimant's binaural hearing loss it was not responsible for payment of 100% of claimant's medical expenses because the concept of joint and several liability for medical expenses involving hearing loss cases are not embodied in the Act. Once it is determined that an employer is liable for an injury under the Act, the employer is required to pay a claimants reasonable and necessary medical expenses that are causally related to the injury.

Section 306(c) (8) (IV) of the Act states:

An employer shall be liable only for the hearing impairment caused by such employer. If previous occupational hearing impairment or hearing impairment from non occupational causes is established at or prior to the time of employment, the employer shall not be liable for the hearing impairment so established whether or not compensation has previously been paid or awarded.

This means that in a hearing loss case, when there is more than one employer responsible for a claimants hearing loss, each employer shall be liable only for the hearing impairment caused by each employer.

Therefore, since claimant's employer was only responsible for the hearing loss incurred while Claimant was in its employ, the WCAB did not err in modifying the WCJ's order and determining that it was only responsible for 26.61% of Claimants related medical expenses representing that portion of Claimants hearing loss for which it was responsible.

McClure v. WCAB (Cerro Fabricated Products and PMA Group) No. 388 C.D. 2011 (Decision by Judge Pellegrini, 2011) 10/11

TERMINATION/LITIGATION COSTS

An employer seeking to terminate a claimant's benefits must prove that a claimant's disability has ceased, or that any existing injury is not the result of the work-related injury. An employer may satisfy this burden by presenting unequivocal and competent medical evidence of the claimant's full recovery from the work-related injury.
Within the context of an employer's termination petition, the employer may not relitigate the nature of any accepted work-related injury that has previously been established. As such, a medical opinion that does not recognize the work-relatedness of an injury previously determined to be work-related is insufficient to support a termination of benefits.

A medical expert need not necessarily believe that a particular work injury actually occurred to be considered competent. The expert's opinion will be competent if he assumes the presence of a previously accepted work-related injury and finds it to be resolved by the time of his examination.

Therefore, employer's medical experts testimony was competent to support a Petition for Termination where he voiced skepticism that he claimant suffered work related bilateral thoracic outlet, which was recognized as compensable by prior WCJ who denied a prior Petition for Termination, but for the purposes of his opinion of recovery, accepted this diagnoses.
Section 440(a) of the Act authorizes an award to a claimant for a reasonable sum for certain litigation costs. In order for litigation costs to be considered reasonable, and thus reimbursable under Section 440(a), they must "relate to the matter at issue on which Claimant prevailed."

The WCJ did not commit an error where he denied counsels request for reimbursement of litigation costs for a successfully litigated Petition seeking reimbursement of travel expenses where the claimant's testimony the sole basis for the WCJ's award of travel reimbursement costs, whereas the claimant's medical experts testimony, which generated the litigation cost, was rejected as not credible by the WCJ and was not related to the matter at issue on which Claimant prevailed.

O'Neill v. WCAB (News Corp. Ltd.) No. 2203 C.D. 2010 (Decision by Judge Kelley, June 15, 2011) 10/11

PSYCHIATRIC CLAIM

When the claimant alleges a psychic injury, "he must prove that he was exposed to abnormal working conditions and that his psychological problems are not a subjective reaction to normal working conditions." Psychic injury cases are highly fact-sensitive and the working conditions must be considered in the context of the specific employment.

While there is no bright-line test or a generalized standard, we consider whether the working conditions were foreseeable or could have been anticipated.

If the employer provided training to its employees on how to handle a specific working condition, that working condition could have been anticipated.

Therefore, where the clamant worked in a state liquor store in a high crime neighborhood the claimant was not subject to abnormal working conditions where employer provided Claimant with training on workplace violence – some of which was specifically geared toward robberies and thefts – as well as "pamphlets and educational tools on the handling of a robbery." Given these facts, the Claimant could have anticipated being robbed at gunpoint.
When determining whether a working condition is abnormal, the court considers the frequency of its occurrence in the specific industry.

In this matter Employer presented uncontested evidence that there had been 99 robberies of its southeastern Pennsylvania retail stores since 2002, which equates to 15 robberies per year or more than one per month. Given the frequency Employer's stores had been robbed and the proximity of the recent incidents, robberies of liquor stores is a normal condition of retail liquor store employment in today's society.

PA Liquor Control Board V. WCAB(Kochanowicz), No. 760 C.D. 2010 ( Decision by Judge Pellegrini, May 11, 2011) 10/11

COURSE AND SCOPE/ WCJ/CLAIM PETITION

In a Claim Petition proceeding, the claimant bears the burden of proving all elements necessary to support an award. An injury is compensable under Section 301(c) (1) of the Act only if the injury arises in the course of employment and is causally related to thereto.

An injury may be sustained "in the course of employment" under Section 301(c) (1) of the Act where the employee is injured on or off the employer's premises while actually engaged in furtherance of the employer's business or affairs.

The operative phrase "actually engaged in the furtherance of the business or affairs of the employer," which is usually expressed as "in the course of employment," must be given a liberal construction. An activity that does not further the affairs of the employer will take the employee out of the course and scope of employment and serve as a basis for denial of the claim by the WCJ. Determining whether an employee is acting in the course of employment at the time of an injury is a question of law, which must be based on the findings of fact made by the WCJ.

To determine whether Claimant was actually engaged in the furtherance of Employer's business or affairs the court must consider the nature of the employment and Claimant's conduct.

Based upon the WCJ's credibility determination that claimant was not hired as a Security Guard but was solely hired to be an "Event Ambassador" whose job was to sit and remain in the Lexus tent and watch the car, the clamant was not in "furtherance of the business or affairs of the employer" at the time of his injury where the claimant left his work station and wandered around the premises and was found by the WCJ to have "abandoned his position."
The WCJ is the ultimate fact finder in workers' compensation cases, and we are bound by the WCJ's findings of fact if they are supported by substantial evidence. It does not matter that there is evidence of record which could support a finding contrary to that made by the WCJ, the only inquiry is whether there is evidence of record which supports the WCJ's finding. The WCJ, however, cannot capriciously disregard competent, relevant evidence, and "capricious disregard is found when the fact-finder ignores relevant, competent evidence."

Credibility determinations are within the exclusive province of the WCJ and the courts only inquiry is whether there is evidence of record which supports the WCJ's finding. It does not matter that there is evidence of record which could support a finding contrary to that made by the WCJ.

Lewis v. WCAB (Andy Frain Services, Inc.) No. 1501 C.D. 2010 (Decision by Judge Brobson, September 22, 2011) 10/11

IMPAIRMENT RATING EVALUATION (IRE)

The sole purpose of an IRE is to assess the claimant's degree of impairment. Whether the claimant is recovered or disabled is not relevant. An IRE that assigns a zero impairment rating to a work injury does not render the IRE invalid. This is because the AMA Guides require objective evidence before a condition can be rated.

Therefore, WCJ committed an error of law upon denying employer's Petition for Modification based upon an IRE of under 50% where the Bureau appointed IRE examiner acknowledged the claimant's compensable RSD and Brachial Plexus injury but rated them as having zero impairment because he did not find objective evidence of those conditions, or that they impaired Claimant, on the day of the IRE.

Most significantly, the IRE physician did not opine that Claimant had not sustained RSD and Brachial Plexus injury and he did not opine that Claimant was completely recovered from these conditions. He simply explained that he did not find objective evidence of those conditions, or that they impaired Claimant, on the day of the IRE.
Given that an IRE takes place on one specific day does not render the IRE findings invalid because the claimant's manifests increased symptomatology following the performance of the IRE. This is because both the Act and the AMA Guides anticipate and, indeed, require an impairment rating to be based on the claimant's condition on a particular day, i.e., the "date of the IRE physician's evaluation." The IRE produces a snapshot of the claimant's condition at the time of the IRE, not a survey of the claimant's work-related injuries over a period of time.

Fact that claimant's medical expert testified to findings of RSD five months after the IRE did not render the IRE invalid because this evidence would be relevant if Claimant's full recovery had been at issue. However, it does not undermine the validity of the IRE where the issue is degree of impairment, not ability to work. Moreover, the Bureau designated IRE physician could not rely on another physician's notes to do his IRE, and he certainly could not rely on notes made five months after he did the IRE and issued his impairment rating.
The employer who requests an IRE beyond 60 days following 104 weeks of total disability must file a petition to have the claimant's status changed from total to partial. Both the employer and claimant may introduce evidence relevant to a claimant's impairment, without elaborating on the type of evidence needed to rebut an IRE done by a Department-appointed physician.

The impairment rating system was developed by the AMA to quantify the monetary loss caused by a personal injury in an objective way. The AMA Guides have been used by states and the federal government for many years to determine eligibility to a variety of workers' compensation and related benefits. In Pennsylvania, initial eligibility for total disability benefits under the Act is based upon the opinion of a medical expert, not upon the AMA Guides.

However, the Act uses the impairment rating system to limit the duration of benefits. A claimant who has reached maximum medical improvement and has an impairment rating below 50 percent will have his status changed from total to partial disability. At the end of 10 years, or 500 weeks, the claimant's benefits terminate unless the claimant persuades a fact finder that his impairment rating has risen to at least 50 percent.

Under Section 306(a.2) of the Act, an impairment rating determination is issued after an examination by a physician assigned by the Department, who has been approved by the Department as a professional trained to conduct IREs and to establish impairment ratings using the most recent edition of the AMA Guides. The official IRE is not done by a claimant's physician or by the employer's preferred IME physician. The IRE physician must do a physical examination of the claimant using the AMA Guides to assess the level of the claimant's impairment. If an employer's modification petition is granted, the claimant's benefit status is changed "as of the date of the IRE physician's evaluation."
Commonwealth Court comments in a footnote "some commentators counsel against using a treating physician to do the IRE. This is because the impairment rating system seeks objective and consistent results. It is difficult for the treating physician to approach the impairment rating with the desired objectivity."

Westmoreland Regional Hospital v. WCAB (Pickford) No. 1188 C.D. 2009 (Decision by Judge Leavitt, September 23, 2011) 10/11

The Month in Pennsylvania Workers’ Compensation: August 2011 At-A-Glance

Mitchell I. Golding, Esq. — Thu, 15 Sep 2011 12:36:24 -0400

An update on cases including the following issues: Filed on Date, Reasoned Decision / Medical Testimony / Capricious Disregard, Reinstatement / Surveillance / Termination for Cause.

APPEAL

When a private postmark is used to mail an appeal and no U.S. postmark is present, the appeal is filed on the date received by the Board.

Under Section 111.3 of the Special Rules, an appeal is considered filed as of the date of the United States Postal Service postmark on the envelope. When a party uses a private postmark, the appeal is deemed filed as of the date the Board receives the appeal.
Therefore, the WCAB did not commit an error of law where it quashed the claimant’s appeal where at the time the Board received Claimant’s appeal, the only evidence as to the date of mailing was the private postmark on the envelope and where the claimant did not include a copy of the form in her appeal document mailed to the Board, nor did she mail it separately to the Board. Further, Claimant did not identify on the Form 3817 the case to which it pertained.
Under Section 423(a) of the Act, a party has 20 days to file an appeal with the Board. Appeals filed after this timeframe are untimely and divest the Board of jurisdiction to reach the merits of the issues raised in the appeal.
Neither the Act nor the Special Rules authorize a party to use United States Postal Service Form 3817 Certificate of Mailing. Pennsylvania Rule of Appellate Procedure 1514 requires parties to use this form, or comparable forms, in appeals from governmental bodies to our appellate courts. However, this rule and its requirements are not applicable in proceedings before the Board. Because Rule 1514 does not apply to agencies, Form 3817s are not determinative of filing dates in agency appeals.

Rule 1514 has two critical requirements for using Form 3817. First, the form must identify the case to which it pertains. Pa. R.A.P. 1514(a). Second, the party must include the form in the mailing, or mail it separately to the prothonotary. The clear import of these requirements is that they enable the prothonotary to view the case docket number and the United States Postal Service postmark on the Form 3817 and to immediately determine whether a filing is timely.

Mills v. WCAB (School District of Harrisburg) No. 1958 C.D. 2010 (Decision by Judge Simpson, June 15, 2011) 9/11

REASONED DECISION/ MEDICAL TESTIMONY / CAPRICIOUS DISREGARD

There is no requirement in the law that the WCJ’s decision be “well-reasoned” in the sense that a reviewing court agrees with the reasoning offered. The reasoned decision requirement is simply that the WCJ must articulate some objective reasoning to facilitate appellate review of the same. The decision is a reasoned one which does, indeed, facilitate effective appellate review.

While the law does not require that a decision be “well reasoned,” it does require that the decision be free from abuse of discretion, and free from material legal error.
The WCJ, upon denying the claimant’s Petition for Reinstatement, did not author a reasoned decision where he made the erroneous presupposition that use of the term “degenerative” automatically rules out a finding of causal connection to a prior work injury, which it does not. On several prior occasions, the Commonwealth Court has established the principle that mere reference to the “degenerative nature” of a claimant’s injury is insufficient in ruling out work-relatedness, as the Court has made the determination that a degenerative condition may be activated or accelerated by work-related trauma. In other words, degenerative changes may be attributable to a claimant’s work injury. A diagnosis that a condition is “degenerative” merely describes the condition, and does not, in itself, address the issue of causation.

Therefore the WCJ committed an error of law where he failed to distinguish between degenerative disability produced by work-related trauma, and degenerative disability which is not related to Claimants work where the claimant’s medical expert testified that Claimants degenerative disability was the natural progression of her original work injury. In failing to recognize the distinction between degenerative disability produced by work-related trauma and non-work-related degenerative disability, the WCJ erred by misreading claimant’s medical expert’s testimony and the misapplication of the law as a result.
Although generally a WCJ may disregard the testimony of any witness, even though the testimony is uncontradicted, he does not have the discretion to capriciously disregard competent evidence without a reasonable explanation or without specifically discrediting it. At the very least the findings and conclusions of the fact finder must have a rational basis in the evidence of record and demonstrate an appreciation and correct application of underlying principles of substantive law to that evidence. When a WCJ rejects uncontradicted evidence and makes findings or conclusions which have no rational basis in the evidence of record, that WCJ capriciously disregards competent evidence. Simply stated, a WCJ may not reject credible and uncontradicted medical evidence without explaining why the evidence is rejected.

Furthermore, a capricious disregard of evidence occurs when the fact-finder deliberately ignores relevant, competent evidence.

The WCJ disregarded competent evidence where she rejected claimant’s medical expert’s unrefuted testimony based upon a misapplication of the law.

Green v. WCAB (US Airways) No. 2539 C.D. 2010 (Decision by Judge Butler, August 22, 2011) 9/11

REINSTATEMENT/ SURVEILLANCE/ TERMINATION FOR CAUSE

A claimant whose benefits are suspended upon a return to a light-duty job is ordinarily entitled to a reinstatement of benefits if he is subsequently separated from his employment. However, reinstatement will be denied if the employer can demonstrate that employment is available within the claimant’s restrictions or would have been available but for the circumstances which merit allocation of the consequences of the discharge to the claimant, such as the claimant’s lack of good faith. Whether the claimant was discharged for conduct evidencing a lack of good faith is a question for the WCJ, as fact finder, to determine.

A claimant is entitled to a reinstatement upon his discharge, but only where the discharge is not based upon the conduct of the claimant.

The WCJ did not commit an error of law upon denying the claimant’s Petition for Reinstatement where the claimant, upon return to modified duty, was discharged by the employer because surveillance evidence showed Claimant to be performing activities well beyond his asserted “severe limitations” and to be running a home improvement business, notwithstanding the clamant had returned the Bureau forms denying outside employment or income.
The argument that the surveillance only covered a limited period of time was an attack on the weight to be given the evidence, which is a matter entrusted to the WCJ.
An employer is required to pay total disability benefits until it can provide the claimant a job within his capabilities or establish that there is work in the job market that he can perform. Not being candid but, rather, misrepresenting what a claimant can do will lead an employer to pay total disability benefits to which the claimant is not entitled. This is a serious breach of trust.
Where Employer proved that Claimant misrepresented his abilities and the facts around his self-employment, he was not entitled to a reinstatement of benefits.
A claimant need not be aware of a work rule in order to have a discharge be considered his responsibility.

Here the claimant was dismissed because he told the Bureau, Employer and medical professionals that he did not work and could not work because of his physical limitations notwithstanding surveillance that showed otherwise. Lying about matters material to one’s compensation eligibility does not require a specific work rule before a WCJ can find, as fact, that a discharge was the result of misconduct.

Sauer v. WCAB (Verizon Pennsylvania, Inc.) No. 1316 C.D. 2010 (Decision by Judge Leavitt, June 15, 2011) 9/11

11th Circuit Okays Life Without Parole for 17 Year Old Killer

Burton A. Rose, Esq. — Thu, 15 Sep 2011 14:21:12 -0400

THE UNITED STATES COURT OF APPEALS for the ELEVENTH CIRCUIT has decided the case of KENNETH LOGGINS, Appellant, versus KIM T. THOMAS, Interim Commissioner, Alabama Dept. of Corrections, and the ATTORNEY GENERAL OF THE STATE OF ALABAMA, No. 09-13267, 2011 WL 3903402 (September 7, 2011). This was an appeal from the United States District Court for the Northern District of Alabama.

Kenneth Loggins was convicted and sentenced to death in 1995 for a brutal murder. Because he was seventeen years old when he committed the murder, the state courts eventually set aside his death sentence based on Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183 (2005), which held that it is unconstitutional to execute anyone who is under eighteen years of age at the time of the crime. Thus Loggins was resentenced to life imprisonment without parole.

Loggins then sought to escape his life without parole sentence, contending that it, too, is an unconstitutional penalty for him because he was not yet eighteen years old at the time he committed the murder. Loggins appealed the district court’s denial of his 28 U.S.C. § 2254 petition seeking relief from the life without parole sentence, arguing that sentencing a juvenile to life without the possibility of parole constitutes cruel and unusual punishment.

The Court ruled that, under habeas law, no Supreme Court decision clearly establishes that the state court could not order the trial court to impose on Loggins a mandatory sentence of life imprisonment without parole after it had vacated his death sentence in order to comply with the Roper decision, and that this decision does not prevent a state from imposing a life without parole sentence on a defendant who committed a murder at age seventeen.

Hell's Kitchen: Getting to the Meat of the Case

James W. Cushing, Esq. — Fri, 16 Sep 2011 14:18:45 -0400

On July 18, 2011, the Superior Court of New Jersey issued a decision in the matter of Gupta, et al. v. Asha Enterprises, LLC et al., Docket No.: A-3059-09T2, in the context of a motion for summary judgment and its response. After hearing arguments and reviewing briefs, the Court affirmed in part and reversed in part the lower court’s decision and remanded the case accordingly.

Most legal remedies include various types of financial and equitable damages, such as liquidated, punitive, compensatory, and specific performance for a wide variety of claims, including breach of contract, physical and/or emotional injuries and defective products. By contrast, the Gupta case presents what seems to be a unique claim seeking an unusual remedy. The Plaintiffs in Gupta found themselves spiritually patronizing Hell’s Kitchen after a sort, having been served religiously inappropriate/impure food despite ordering the opposite. The Gupta case asks the Court to determine whether a spiritual injury is cognizable and, if so, what the remedy for that injury can be.

The Plaintiffs in Gupta were practicing Hindus, and were scrupulously and strictly vegetarian. For them, the consumption of meat, even if by accident, fraud, or deception, meant that their souls became impure, thereby adversely affecting their karma and dharma, and impairing their ability to meet the Divine after death. Their only spiritual remedy after the consumption of meat was to participate in a ritual cleansing bath in the Ganges River in India.

Plaintiffs patronized Defendants’ restaurant and ordered vegetarian samosas which were on the menu. Plaintiffs specifically informed Defendants that the samosas must be vegetarian. Employees of Defendants assured Plaintiffs that the samosas would be vegetarian because that was the only variety that they made. Indeed, the Director of Edison Division of Health Food Services later confirmed that Defendants maintained separate cooking facilities for vegetarian and non-vegetarian foods. After the samosas were prepared, Defendants provided them to Plaintiffs, reassuring them of their vegetarian nature, and labeled them accordingly on their tin-foil wrapping. Unfortunately for Plaintiffs, Defendants mixed up their order with a concurrently ordered meat samosas order. Plaintiffs consumed some of the meat samosas and returned them to Defendants, complaining that they were not what were ordered. Defendants immediately prepared a batch of vegetarian samosas for Plaintiffs, which they accepted and for which they were not charged. Due to Plaintiffs’ consumption of the meat samosas, they believed they experienced profound spiritual injuries.

Plaintiffs brought suit against Defendants raising the following claims: products liability, violation of the Consumer Fraud Act (“CFA”), negligence, breach of implied warranty, and deceptive/fraudulent advertising. I will relate how the Court addressed each of these claims below.

The Court measured Plaintiffs’ products liability claim against the requirements of New Jersey’s Products Liability Act (“PLA”) and the decisions thereunder. Per the terms of the PLA, any and all claims regarding a defective product are subsumed within it. Therefore, all of Plaintiffs’ claims for a defective product sounding in negligence, the CFA, or breach of implied warranty were all individually dismissed as being statutorily subsumed within the PLA. As a point of clarity, Plaintiffs brought claims sounding in negligence, the CFA, or breach of implied warranty that were not brought pursuant to an alleged defective product. These were not dismissed on based on the above, and are each addressed below.

The Court decided that the PLA is applicable to food cooked and sold by restaurants, such as Defendants’, but Plaintiffs’ claims were not cognizable under the PLA as the PLA requires the products sold – in this case samosas – to be defective. The Court pointed out that the meat samosas were not defective themselves, they were simply the wrong product. Accordingly, while the meat samosas were edible and fit for human consumption, they just were not what Plaintiffs ordered. Indeed, the Court noticed that Plaintiffs’ claims focused on the conduct of Defendants’ employees in supplying the order as opposed to any defect in the food itself.

The Court next addressed Plaintiffs’ claims that Defendants were in violation of the CFA because, they allege, Defendants fraudulently and/or deceptively advertised the sale of vegetarian food. The Court conducted an analysis of the CFA after which the Court concluded that a party could be liable under the CFA for misrepresentation in advertising even if the misrepresentation is inadvertent. As long as the statement is false – which in the case of food includes a false/misleading description of its contents – a party can be found liable under the CFA. As a result, as Defendants represented that the samosas were vegetarian when, in fact, they contained meat, the Court determined that Plaintiffs have a cognizable claim against the Defendants for fraudulent/deceptive advertising under the CFA.

Despite the Court’s finding that Defendants did, in fact, commit misrepresentation, the Court was unable to find any evidence of actual loss on Plaintiffs’ part. Under the literal language of the CFA, a plaintiff bringing a claim under it must provide evidence of ascertainable loss of money or property. Based on the language of the CFA, the Court ruled that Plaintiffs did not present any evidence of any “loss of money or property.” Indeed, the Court noted that as the Defendants provided Plaintiffs replacement samosas free of charge, any money or property loss Plaintiffs may have incurred was remedied by Defendants. The Court further ruled that, unfortunately for Plaintiffs, the damages for spiritual injuries being sought by Plaintiffs simply are not a loss of money or property. Due to the clear language of the CFA, and the cases thereunder, the Court was unwilling to expand the language of the CFA to include spiritual losses.

The Court then addressed Plaintiffs’ negligence claims. In its analysis of Plaintiffs’ negligence claims, the Court focused on the duty element of a negligence claim. When making a claim for negligence, a plaintiff must demonstrate that a defendant owes a duty to that plaintiff; the breach of the aforesaid duty constitutes the negligent act. When analyzing Plaintiffs’ claims, the Court had to discern whether Defendants had the ability to foresee that serving meat samosas would or could cause Plaintiffs substantial injury. The Court further noted that foreseeability of an injury is particularly important for the tort of negligent infliction of emotional distress. When reviewing the claim of negligent infliction of emotional distress, the Court pointed out that it is only recognized in limited circumstances: when there is reasonable fear of personal injury and there was substantial bodily injury or sickness as a result of the fear. Based on its above analysis, the Court ruled that Plaintiffs’ claims do not fit into the requirements detailed above because Plaintiffs did not experience substantial bodily injury or sickness as a result of Defendants’ actions.

Finally, the Court addressed Plaintiffs’ claims of breach of express warranty of fitness of the samosas. It reviewed the Uniform Commercial Code which states that the description of goods to be sold creates an express warranty that the goods conform to their description. As Defendants’ samosas were certainly not what they were described by Defendants to be, namely vegetation, the Court ruled that Plaintiffs’ claims of breach of express warranty of fitness was cognizable.

As the Court ruled that Plaintiffs’ claim of implied warranty of fitness was cognizable, the Court then had to determine whether Plaintiffs experienced any cognizable damages, specifically the spiritual damages claimed. The Court indicated that there has been at least one previous case where a religionist (Jewish in that case) successfully sued, and received recoverable damages, for emotional distress as a result of a violation of his religious needs. Though the Court acknowledged that precisely valuing Plaintiffs’ damages will be difficult, that was not a sufficient reason to dismiss Plaintiffs’ claims pursuant to a motion for summary judgment; however, the Court also acknowledged that Plaintiffs must establish that their damages were reasonably foreseeable by Defendants at the time the samosas were sold to Plaintiffs.

Among their damages, Plaintiffs requested recovery for the costs required to travel to purify their souls in India. It was Plaintiffs’ burden to prove that Defendants could reasonably foresee that, due to serving them meat-filled-samosas, Plaintiffs would sustain such spiritual damages as claimed. The Court did not believe that sufficient discovery was done to determine the total amount of damages and whether Defendants could have foreseen them.

As a side note, the Court, in a footnote, indicated that it did not think the litigation of Plaintiffs’ case caused, or could cause, inappropriate religious entanglement with the Court in violation of the First Amendment of the United States Constitution. The Court believed that simply neutral legal principles could be employed that would not involve ruling on religious concepts.

In the end, the Court ruled that almost all of Plaintiffs’ claims were not cognizable; however, the Court did ultimately rule that Plaintiffs do have at least a limited claim and that spiritual damages can, at least in theory, be demanded in a context of a civil suit. Perhaps the Court really can require Hell’s Kitchen to be washed with the waters of the Ganges River.

Taking “Aim” at the Second Amendment

Theodore Y. Choi, Esq. — Thu, 15 Sep 2011 14:16:52 -0400

The United States Constitution provides the very framework in which our nation is based, providing for the organization of the United States government and the establishment of the relationship between the federal government with the states, citizens, and all people within the United States.

The Second Amendment of the Constitution, which is part of the United States Bill of Rights, protects the right of the people to keep and bear arms. The extent to which this right applies remains the subject of dispute as courts attempt to balance an individual’s right under the Second Amendment against governmental interests in adopting regulations to restrict gun ownership and control. The Second Amendment was found to be fully applicable to both state and local governments through the Fourteenth Amendment in McDonald v. City of Chicago. Thus, there has been a constant battle between gun rights as safeguarded by our Constitution and the need for public protection and safety.

The right to gun ownership was established in Heller v. District of Columbia, where it was found that individuals have a right to own a gun in self-defense to protect their hearth and home. However, this right did not provide an unfettered right to gun ownership. In assessing a core Second Amendment right under the intermediate scrutiny standard, the court in Heller determined that gun registration requirements effectuated the important governmental interest in the public interest of promoting public safety. Similarly, Heller limited the types of guns that could be owned by individuals to only those that were in common use and typically possessed by law abiding citizens. Assault weapons and large capacity ammunition feeding devices were found to be “dangerous and unusual” and not to fall within the purview of rights provided under the Second Amendment.

The extent to which the right to carry guns in areas outside of the home remains the subject of dispute where two cert petitions are currently being argued before the Supreme Court. In Masciandaro v. United States of America, the petitioner was convicted for possessing a loaded gun in the trunk of his car while in a national park area. In applying the intermediate scrutiny standard, lower courts found that a regulation prohibiting the carrying or possessing of a loaded handgun in a motor vehicle did not violate an individual’s Second Amendment right as there was a substantial government interest in providing a safe environment for persons who visit and make use of the national parks. In his appeal before the Supreme Court, Petitioner Sean Masciandaro argues that the Second Amendment right to possess a gun within one’s home should be extended to allow the possession of guns while traveling on public highways.

Similarly, in Williams v. State of Maryland, another case currently before the Supreme Court, Petitioner Charles Williams, Jr. purports that the Second Amendment provides for the right of an individual to carry a gun in his backpack while traveling to his house. Williams was arrested after an officer observed him rifling through his backpack near a wooded area and then hiding his gun in the bushes. The Court of Appeals of Maryland upheld his conviction on the grounds that Williams lacked standing to challenge the statute and handgun regulations as a violation of the Second Amendment since he failed to file an application to obtain a permit to carry a firearm, even though he attempted to argue that restrictiveness of the state law to obtain a gun permit was the reason he was unable to obtain one. Nevertheless, it was found that Maryland’s statute prohibiting the wearing, carrying, or transporting of a handgun, without a permit and outside of one’s home fell outside the scope of the protections afforded under the Second Amendment.

The Constitution provides for the very framework in which our nation is founded. It provides the groundwork for the rights that we enjoy today and is the catalyst which has shaped our nation. Yet, the rights entailed in the Constitution have not been deemed to be an absolute right. Whether the Supreme Court will recognize and extend Second Amendment rights to protect the right to carry firearms outside of one’s home remains to be seen.

The Month in Pennsylvania Workers’ Compensation: July 2011 At-A-Glance

Mitchell I. Golding, Esq. — Mon, 15 Aug 2011 10:39:57 -0400

SUPERSEDEAS FUND REIMBURSEMENT

Pennsylvania Supreme Court affirms the Commonwealth Court and holds that the employer was entitled to Supersedeas Fund Reimbursement for payment made of a surgical bill where the bill was for a date of service prior to the date that the employer filed its Petition for Termination with a request for Supersedeas but the bill was not received and paid by the employer after its request for supersedeas was denied.

The fact that the bill was for treatment incurred prior to the request for supersedeas was not determinative because the bill was not received by the employer until after its request for supersedeas had been made and denied.

This holding is consistent with the elements set forth by the Section 443(a) of the Act. First, this was a case in which a supersedeas had been requested and denied. Second, the request was made under provisions of Section 413. Third, payments were made as a result of the WCJ's August 20, 2004 denial of the employer's request for supersedeas. Fourth, the bill for the June surgery did not arrive until six weeks after the denial of supersedeas, and the denial meant the insurer was not relieved of the obligation to pay the bill, payment was indeed the result of the denial. Fifth, there was a final determination that compensation is not in fact payable following the WCJ's granting of the employer's Petition for Termination.
To make reimbursement dependent on the date of the event giving rise to the bill, rather than the date the bill was received, would insert an additional element into the statute.

Had supersedeas has been granted, payment would not have been made, but supersedeas was not granted and payment necessarily followed. It is the bill, post denial, which caused money to leave the coffers of the insurer. Therefore, payment resulted from the denial. The date the bill arose is irrelevant under the plain language of the statute.

Departments of Labor&Industry, Bureau of Workers' Compensation v.WCAB (Crawford & Company), (No. 102 MAP 2009) (Decision by Justice Eakin, July 19, 2011).

STATUTORY EMPLOYER

Pennsylvania Supreme Court grants Petition for Allowance of Appeal filed by defendants, who were deemed statutory employers, by the Commonwealth Court who had held that pursuant to the second paragraph of Section 302(a) of the Act, an entity may be deemed a statutory employer, regardless of whether the entity was in control of the premises, where that entity contracted to have work performed by another of a kind which is a regular or recurrent part of the business, occupation, profession or trade of such person.

The Commonwealth Court had reasoned that the elements of the McDonald test were applicable to Section 302(b) of the Act but not to Section 302(a) of the Act. Although it is true that the defendant owned the fields where the tomatoes were picked and it has been held that the owner of the premises cannot be considered a statutory employer when it contracts with another for work on its premises, that proviso emanates out of the McDonald test and only applies to Section 302(b) of the Act but does not apply to Section 302(a).

The Supreme Court granting of the Petition for Allowance of Appeal was limited to address the following issues, as framed by the Petitioners:

Whether a claimant must meet the five part test articulated by the Supreme Court in the seminal case of McDonald v. Levinson Steel Co. 302 Pa. 287, 152 A. 424 (1930) to establish statutory employer status?

Whether an owner of property can be a “statutory employer” under the Pennsylvania Workers' Compensation Act and existing case law, in the face of 80 years of precedent finding the contrary?

Six L's Packing Company v. WCAB (Williamson) No. 453 EAL 2010 (Per Curium, July 14, 2011)

NOTICE

Pennsylvania Supreme Court reverses the Commonwealth Court and holds that the Commonwealth Court committed an error by finding that the claimant, upon giving notice of her injury, did not give a reasonably precise description of her injury as required by the notice provision of Section 312 of the Act.

What constitutes adequate notice pursuant to Section 312 is a fact-intensive inquiry, taking into consideration the totality of the circumstances. Although Section 312 requires a claimant to inform his or her employer that the claimant received a work-related injury at a specified time and place, the notice only need be conveyed in ordinary language, can take into consideration the context and setting of the injury, and may be provided over a period of time or a series of communications, if the exact nature of the injury and its work-relatedness is not immediately known by the claimant.

Section 312 does not require that notice be given in a single communication or that conversations between the employee and employer be considered in isolation. The exact diagnosis is not necessary in order for an employee to provide adequate notice of the work injury to the employer. Rather, only a reasonably precise description of the injury is required.
A short-term disability form that indicates the claimant did not believe her injuries were work related and listed additional ailments was not dispositive on the issue of notice where the claimant was not aware of her medical diagnosis or that her injury was work related until she subsequently saw her treating physician who made her aware of the work relatedness of her symptomatology.

Therefore, the claimant gave timely notice where, while still employed by the employee, she informed them, in ordinary language, that she suffered pain in her hand and left work as a result of the pain. The context of that communication provided the employer information concerning the time and place of claimant's injury, as it occurred while claimant was at work. Claimant's complaint to her supervisor provided the employer with a reasonable description of her work injury and indicated the time and place at which it occurred. Although, at the time she initially informed her employer of her hand injuries, the claimant was unaware those injuries were work related, when she learned from her doctor that her injuries were work related, she informed her employer via voice message that she had work related problems. Therefore, the employer was aware that the claimant suffered a work related problem and knew that she had not returned to work since January of 2005 when she left work complaining of her hand injuries.
Notice is a prerequisite to receiving workers' compensation benefits and the claimant bears the burden of demonstrating that proper notice was given. Sections 311 and 312 of the Act govern the timing and content of the notice. Section 311 provides that an employee has 120 days from the date of the injury, or from the date the employee learns that the injury is work related, to provide notice to the employer of the work related injury. Section 312 requires that notice inform the employer that a certain employee received an injury, described in ordinary language, in the course of his employment on or about a specified time, at or near a place specified.

Thus, the plain language of the statute sets forth, generally, what is required of an injured employee in informing the employer of a work related injury.
The Pennsylvania Supreme Court remarks in a footnote that pursuant to Section 406.1(a), once an employer has received sufficient notice of a work related injury, or knows of a work related injury, it must either promptly investigate the circumstances of the injury and determine if compensation is due, or risk sanctions for failing to conduct an investigation and promptly pay benefits. Section 406.1(a)'s prompt investigation requirement is triggered not only when a Claim Petition is filed, but when the injury is reported or known to the employer. The only responsibility of the employee is that he or she gives notice of the injury to the employer unless the employer already has knowledge of the occurrence.

Gentex Corporation and Gallagher Bassett Services v. WCAB (Morack), No. 33 MAP 2010 (Decision by Justice Todd, July 20, 2011). 8/11

HEART ATTACK / COURSE AND SCOPE OF EMPLOYMENT

The decedent did not suffer a fatal heart attack in the course and scope of his employment where his heart attack occurred 11 days after the last day he worked subsequent to his receipt of a letter from the employer informing him that he was being terminated as an employee.

The letter was sent by the employer to the claimant, after the claimant, following his involvement in a work injury and his return to regular duty work from light duty work, stopped working after the claimant's attorney wrote to the employer advising that the claimant was could not perform any type of manual labor.
The Act does not impose on employers a risk of compensation for injuries that result from a decision to terminate an employee.

Employers may have legitimate reasons for terminating an employee that are unrelated to a potential workers' compensation claim.
Regardless of the location where an employee sustains a fatal injury, a claimant must still prove the essential elements to recover under the Act: (1) that the employee's injury arose in the course and scope of employment, and (2) that the injury was related to the employment. The location of an injury should be merely a factor for the Judge to consider.
When a claimant asserts that he sustained a physical injury because of a psychic reaction to work conditions, the abnormal working condition test does not apply. Rather, a claimant's burden is simply to prove that (1) he is suffering from an objectively verifiable physical injury, and (2) the injury arose in the course of employment and was related thereto.
Although an injury that occurs in the workplace need not have a causal relationship to work activities, when an injury occurs off-premises, the relationship between an injury and employment activities must be clearer. Location should be merely a factor for the Workers' Compensation Judge in considering whether an employee has sustained an injury arising in the course of employment and related to employment. Where a work injury appears to bear no relationship to events associated with employment activities but rather relates to a final act that is only work-related insofar as the event alters the employment relationship (such as the termination in this case), an injury associated with that final act does not arise in the course of employment.

Janet Little, dependent of David Little, deceased v. WCAB (B&L Ford/Chevrolet), No. 1857 C.D. 2010, (Decision by Judge Brobson, January 28, 2011). 8/11

Erasing an Indelible Mark: Stopping Employment Discrimination Against People with Past Criminal Convictions

Matt Singer & Dave Hanyok — Mon, 15 Aug 2011 11:18:18 -0400

Today, more Pennsylvanians than ever before are struggling under the weight of past criminal convictions as they search for jobs and a place in society. This is especially true for minorities: the rate of incarceration for African Americans in Pennsylvania is 9.2 times higher than that for whites, and the incarceration rate for Latinos is 5.6 times higher. As the number of people with criminal convictions has steadily grown since the implementation of tough-on-crime legislation in the 1980s, employers have increasingly used criminal-background checks in deciding whom to hire, with as many as 80% of large employers using such measures in 2003. The use of criminal-background checks in the employment process leaves increasing numbers of Pennsylvanians struggling to find a place in society. As a result, the practice of using background checks further ingrains the existing racial inequalities reflected in Pennsylvania’s enormously unequal incarceration rates. The Public Interest Law Center of Philadelphia has recently made it a priority to work to end employment discrimination against people with prior criminal convictions in Pennsylvania, joining the excellent work already being done by Community Legal Services and others around the country. As an initial step in this effort, the Law Center and Berger&Montague, P.C. recently filed an employment discrimination charge with the Pennsylvania Human Relations Commission and the Equal Employment Opportunity Commission on behalf of Albert Dunn, a 56-year-old African-American man whose story makes plain how apparently well-meaning hiring practices can have hugely unjust effects. Thirty years ago, in 1981, Mr. Dunn, then in his early twenties, shot a man who had threatened him and his family. He accepted responsibility, pleaded guilty, and was sentenced to probation for aggravated assault. The victim died about two years later, and Mr. Dunn again pleaded guilty, this time to involuntary manslaughter, and served an additional term of probation. Due to the extenuating circumstances surrounding the crime and Mr. Dunn’s willingness to take responsibility and good behavior, Mr. Dunn ultimately spent only about two weeks in jail. In the three decades since his crime, Mr. Dunn has lived the life of a model citizen. Mr. Dunn’s warden during his brief time in jail described him as an exemplary inmate. While on probation, Mr. Dunn continued work for General Electric through a work-release program. His employment had required him to maintain two government security clearances, and although his felony temporarily cost him one of those clearances, the federal government reinstated his clearance, which meant everything to Mr. Dunn and took away the stigma of [his] felony in his mind. After his wife’s passing in 1991, Mr. Dunn raised his two children on his own. He frequently participates at community events counseling youths about the repercussions of violence and crime, and he was recently elected to the Board of Directors for the Fellowship Farm in Pottstown, a leadership development and conflict-negotiating organization. After 23 years at General Electric, Mr. Dunn lost his job in a round of layoffs, and he has struggled to find good-paying work ever since. Last December, he applied for employment as a packer at Amazon Fulfillment Centers in Allentown, Pennsylvania. Mr. Dunn responded truthfully on his initial application that he had not been convicted of a felony in the past seven years but that he had been convicted of involuntary manslaughter in the more distant past. After an initial interview, Mr. Dunn was given a conditional offer of employment, but when he arrived for work, he and a dozen or so others overwhelmingly minorities learned that they were not welcome to work because of their convictions. The employer told Mr. Dunn that you cant work for us at any time with that charge, that the conviction never goes away, no matter how old, and that the company would never hire him because of an integrity issue. The Law Centers charge on behalf of Mr. Dunn and similarly situated class members, Dunn v. Integrated Staffing Solutions (ISS) and Amazon.com, Inc., alleges that the ISS’s and Amazon’s policies exclude individuals such as Mr. Dunn from employment on the basis of prior criminal convictions despite a lack of business necessity for the exclusion, and that this constitutes unlawful discrimination on the basis of race, ethnicity, or national origin, in violation of Section 5(a) of the Pennsylvania Human Relation Act and Title VII of the Civil Rights Act of 1964. The legal theory is supported by a Policy Statement released by the Equal Employment Opportunity Commission explaining that it is unlawful under Title VII to exclude individuals from employment on the basis of prior convictions without a justifying business necessity because of the disproportionate effect such policies have on minority populations. Although Mr. Dunn’s case is in its fledgling state, equal-employment advocates are making progress elsewhere. On April 13th, 2011, Mayor Nutter signed Philadelphia’s Ban-the-Box ordinance, prohibiting employers from inquiring about applicants criminal convictions until after the initial interview process. Mr. Dunn’s case and others like it will begin to get the word out to employers that policies discriminating against people with criminal backgrounds are often illegal.

Ninth Circuit Reverses Conviction Due to Insufficient Evidence Concerning Internet Rant Threatening Candidate Obama

Burton A. Rose, Esq. — Mon, 15 Aug 2011 10:42:39 -0400

The UNITED STATES COURT OF APPEALS for the NINTH CIRCUIT has decided the case of UNITED STATES OF AMERICA v. WALTER EDWARD BAGDASARIAN, No. 09-50529 (7/19/11). The panel was composed of Judges Alex Kozinski, Chief Judge, Stephen Reinhardt and Kim McLane Wardlaw. Judge Reinhardt wrote the Opinion. The Court reviewed a district courts conviction under 18 U.S.C. § 879(a)(3), which makes it a felony to threaten to kill or do bodily harm to a major presidential candidate. The defendant Walter Bagdasarian (an especially unpleasant fellow) was found guilty on two counts of making statements on a Yahoo online financial message board two weeks before the presidential election: Obama fk the niggar, he will have a 50 cal in the head soon and shoot the nig. Two elements must be met for a statement to constitute an offense under § 879(a)(3). The first is that the statement would be understood by people hearing or reading it in context as a serious expression of an intent to kill or injure a major candidate for President. The second is that the defendant intended that the statement be understood as a threat. The threat statute, however, does not criminalize predictions or exhortations to others to injure or kill the President. In order to affirm a conviction under a threat statute that criminalizes pure speech, the court must find sufficient evidence that the speech at issue constitutes a true threat. The Court held that the element of intent is the determinative factor separating protected expression from unprotected criminal behavior. Section 879(a)(3) requires subjective intent as a matter of statutory construction, so the relevant constitutional inquiry is: did the speaker subjectively intend the speech as a threat? The panel concluded that the evidence was not sufficient for any reasonable finder of fact to have concluded beyond a reasonable doubt that Bagdasarian intended that his statements be taken as threats against a presidential candidate. Accordingly, his conviction was reversed. The dissent of Judge Wardlaw would not require that the speaker in a threats case explicitly threaten that he himself is going to injure or kill the intended victim; rather, the surrounding circumstances should be examined to determine whether a reasonable person in the speakers shoes would foresee that his statements would be perceived as threats.

Superior Court Rules on Ineffective Assistance of Counsel

Burton A. Rose, Esq. — Wed, 13 Jul 2011 09:26:15 -0400

THE SUPERIOR COURT OF PENNSYLVANIA has decided the case of COMMONWEALTH OF PENNSYLVANIA v. GEORGE HAROLD FINK, SR., Appellant, No. 1808 MDA 2010, J-S21012-11, 2011 PA Super 141 (7/7/11). This was a PCRA appeal from the Court of Common Pleas of Luzerne County Criminal Division at No. CP-40-CR-0001974-2006. The Panel was composed of Judges BENDER, FREEDBERG and COLVILLE. Judge Bender wrote the Opinion.

In the direct appeal of his case, the Superior Court affirmed after finding that Fink’s brief was insufficient to advocate his Miranda claim regarding his police statement. Commonwealth v. Fink, No. 451 MDA 2008, unpublished memorandum (Pa. Super. 2009). Fink then filed the PCRA petition underlying this appeal, requesting that the trial court reinstate his right to direct appeal so that new counsel might have an opportunity to develop his claim in a proper advocate’s brief. The petition was denied.

In this pro se appeal, Fink contended that the inadequacy of counsel’s brief to the Court on direct appeal rendered his representation ineffective per se, so that his appeal counsel should be presumed ineffective, his post-conviction claim of IAC should have been granted and his right to direct appeal must be reinstated nunc pro tunc.

Judge Bender agreed. Application of the Cronic per se default standard for briefing deficiencies on direct appeal depends on the extent to which the Superior Court had considered the merits of the claims. If no merits analysis was conducted, then there has been a waiver of the issue that was due to counsel’s failure to file a competent brief or other procedural default. Under such circumstances, the defendant would be eligible for post-conviction relief on resulting IAC claims without having to satisfy the usual three-pronged test imposed by the Strickland/Pierce line of cases.

The Panel concluded that Fink was entitled to the presumption that he was constitutionally prejudiced by counsel’s omissions on direct appeal and that he was thereby entitled to reinstatement of his direct appeal right.

Judge Colville filed a dissenting opinion.

Divorce, Dead Men, and ERISA

James W. Cushing, Esq. — Mon, 15 Aug 2011 11:20:53 -0400

Last month Upon Further Review published an article I submitted called “Till Death Does Your Stuff Part” (which can be found here) regarding the latest development in the law regarding the interaction between divorce litigation, estate litigation, and the death of a litigant. I am now following up that article with the instant one because within a few days of publication, I received some pretty interesting and clever responses to the aforesaid article, and I would like to address them here as I think the issues they raise are food for attorneys’ thought.

One of the responses inquired about the application of the Dead Man’s Act to a divorce matter where one party dies after divorce grounds have been established. The Dead Man’s Act (42 Pa.C.S.A. § 5930) deals with the admissibility of evidence against a decedent by the parties to a contract in which the decedent was also a party. The Act serves to restrict the surviving members of a contract from presenting testimonial evidence against the decedent, also a member of the same contract, of anything that occurred before his death. The precise interpretation of the Act by the Court is complex, storied, and beyond the scope of this article. Suffice it to say here, however, that the Act does pose an interesting question vis-à-vis divorce. Generally speaking, Pennsylvania views marriage as a contract and if marriage is a contract, and one of the spouses (i.e.: parties to the marriage contract) dies, can the other party to that contract (i.e.: the surviving spouse) present any evidence against the decedent spouse under the Act? The cases in Pennsylvania on the subject are rather unclear, generally very old, and largely irrelevant as they do not account for the change in Pennsylvania law (i.e.: 23 Pa.C.S.A. § 3323(d.1) and 20 Pa.C.S.A. § 2106(a)(2)) as described in my previous article mentioned above. The cases, for the most part, involve a spouse trying to provide testimony regarding the other spouse in an attempt to elect against the decedent spouse’s estate. The cases regarding a surviving spouse’s testimony provided to attempt to elect against a decedent’s estate are nearly universal in their opinions that the testimony is inadmissible under the Act (or something similar thereto). Despite this, the cases also seem to tend toward allowing a surviving spouse to provide testimony as the existence of the marriage relationship. Under 23 Pa.C.S.A. § 3323(d.1) and 20 Pa.C.S.A. 2106(a)(2), if divorce grounds are established, the only avenue for the surviving spouse for a decedent’s spouse’s property is through equitable distribution, therefore there is a question as to whether these cases still apply.

At present, the cases do not shed light as to what sort of testimony will be permitted to be provided at an equitable distribution hearing involving a decedent spouse. A strict reading of the Dead Man’s Act would seem to imply that testimony regarding the decedent spouse by the surviving spouse is inadmissible; however, logically speaking, this seems to be obviously contrary to what would appear to be the intent of the legislature in passing 23 Pa.C.S.A. § 3323(d.1) and 20 Pa.C.S.A. § 2106(a)(2). Further, pursuant to 42 Pa.C.S.A. § 5927, in actions brought by one spouse against another to recover separate property, the testimony of one spouse is deemed “fully competent.” As above, how this interplays with the Dead Man’s Act and equitable distribution is not clear, but it would seem to lean toward allowing the surviving spouse to provide testimony.

In my opinion, I do not think it makes much sense to specifically take a divorce matter involving a decedent spouse out of estate litigation (where testimony is specifically prohibited by case law) and place it into equitable distribution only to have the testimony of the surviving spouse deemed inadmissible under the Dead Man’s Act; indeed, cui bono? It seems logical to me to discern from the legislature’s decision regarding the placement of a case into equitable distribution that it also intended testimony regarding the decedent spouse and the marriage contract by the surviving spouse to be admissible and, perhaps, to expand 42 Pa.C.D.A. § 5927 to cover all property at issue in a divorce. Otherwise, 23 Pa.C.S.A. § 3323(d.1) and 20 Pa.C.S.A. § 2106(a)(2) are simply exercises in academic futility. Please note that what I have provided above is simply my opinion; I do not know exactly how this will all pan out. It will be interesting to see how the Court resolves this seeming conflict between the 23 Pa.C.S.A. § 3323(d.1) and 20 Pa.C.S.A. § 2106(a)(2) and the Dead Man’s Act.

Before I move to the next issue, I would note that despite the 23 Pa.C.S.A. § 3323(d.1) and 20 Pa.C.S.A. § 2106(a)(2), the Dead Man’s Act appears to remain applicable regarding testimony by a surviving spouse about a decedent spouse and a Pre and/or Post Nuptial Agreement.

The next issue presented to me by the readers of Upon Further Review is the application of ERISA to 23 Pa.C.S.A. § 3323(d.1) and 20 Pa.C.S.A. § 2106(a)(2). This matter seems much more straight forward than the Dead Man’s Act. ERISA, as a Federal law, preempts Pennsylvania divorce law; there is no dispute about that. Under ERISA, once a spouse dies the terms of the insurance policy and/or pension become “locked in” as it were. Therefore, even if a party is in the midst of a divorce and the decedent spouse intended to remove the surviving spouse as a beneficiary of his/her pension and/or insurance policy but does not due to his/her death, the surviving spouse remains as beneficiary regardless of the intent. At this point, of course, the surviving spouse can attempt to receive whatever survivor’s benefits s/he may be entitled to receive. Therefore, the appropriate response by the estate of the decedent spouse is to file for an injunction against the surviving spouse to prevent him/her from receiving the benefits. It should be remembered that the estate of the decedent spouse takes the place of the decedent spouse in the divorce litigation if divorce grounds are established (if no grounds are established, the divorce litigation may no longer proceed regardless). The estate, as a result, may proceed through equitable distribution as if the decedent spouse were so doing. Consequently, through equitable distribution it would seem that the estate of the decedent spouse may still secure a Qualified Domestic Relations Order regarding the insurance policy and/or pension covered by ERISA.

The final issue raised to me was the application of Pennsylvania’s hearsay rules to equitable distribution hearings regarding a decedent spouse. Under Pa.R.E. 804(a)(4), death, perhaps obviously, is considered one of the ways a witness can be “unavailable” for testimony. Under this Rule, if a witness is unavailable, hearsay testimony of the statements made by the unavailable witness may be admissible under certain circumstances. Under Pa.R.E. 804(b)(3), a statement made by a decedent against his/her own interest may be admissible as evidence. Further, under Pa.R.E. 804(b)(4), the testimony of a dead (i.e.: unavailable) witness is admissible with regard to various issues of his/her own family history. Of course, the weight and credibility of this testimony is still to be weighed by the fact finder, but it seems that the mere death of one of the divorcing spouses is insufficient on its face for an objection based on hearsay to be sustained. However, it does seem that eliciting such testimony may be problematic; it will be interesting to see how the Court elects to rule in these sorts of cases.

I hope the above sheds some additional light on the application of 23 Pa.C.S.A. § 3323(d.1) and 20 Pa.C.S.A. § 2106(a)(2). I greatly appreciate those readers who took the time to contact me regarding these issues and I hope, through our mutual efforts, we can make the practice of Pennsylvania law clearer and more effective.