Upon Further Review

The Month in Pennsylvania Workers' Compensation: March 2012 At-A-Glance

Mitchell I. Golding, Esq. — Wed, 18 Apr 2012 16:40:17 -0400

REINSTATEMENT/ STATUTE OF LIMITATIONS/ CLAIM PETITION/EQUITABLE ESTOPPEL

Although WCJ's can amend NCP's during proceedings involving any pending petition, this fact does not preclude the conclusion that the limitation provision of paragraph one of section 413 applies to that entire section of the Act.

When a party is seeking either to obtain relief through the correction of an NCP under paragraph one of Section 413 of the Act, or is seeking to add additional consequential injuries to a claimant's compensable, work-related injuries under paragraph two of Section 413 of the Act, the party must file the petition within three years of the date of the most recent payment of compensation.

The Claimant's Petition to Review the NCP to add Post Traumatic Stress Disorder was untimely where she filed her review petition seeking to expand the description of her original injury on March 22, 2007, which was more then three years after the parties executed a Supplemental Agreement suspending Claimant's benefits in February 2004.
A clamant cannot rely upon a timely filed Petition for Reinstatement to Review and NCP if filed in excess of three years of the most recent payment of compensation.
The fact that the employer referred the claimant for treatment for her PTSD did not lull Claimant into falsely believing that Employer considered her PTSD to be work-related under the doctrine of equitable estoppel. Equitable estoppel arises in the workers' compensation arena when an employer, "by its acts, representations, or admissions, or by its silence when it ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts." The doctrine of equitable estoppel cannot toll the statute of limitations unless the Claimant can establish fraud, concealment or misrepresentation on the part of the employer.
A claimant with a pre-existing injury, whether mental or physical, is entitled to benefits as long as she shows that her injury has been aggravated by a working condition to the point of disability. Whether or not the pre-existing condition is related to the work injury is irrelevant. The employer takes the employee as she comes. Therefore, the WCJ erred upon dismissing claimant's Claim Petition as moot by failing to make findings whether Claimant might have been entitled to benefits based on an aggravation of her PTSD.

Dillinger v. WCAB (Port Authority of Allegheny County), No. 770 C.D. 2011 (Decision by Judge Friedman, March 1, 2012) 4/12

UTILIZATION REVIEW

The WCJ did not commit an error of law by finding the chiropractic treatment under review was not reasonable and necessary although the WCJ found credible employer's medical expert who did not review the actual chiropractic reports post the date of the review where the medical treatment at issue was repetitive and ongoing in nature and where the Employer's medical experts addressed the specific chiropractic treatment currently under review, and both physicians credibly and persuasively opined that, having reviewed numerous records related to the ongoing chiropractic treatment, further treatment could not be justified based on the lack of evidence that such care was resulting in increased function or decreased pain.

Moreover, section 306(f.1) (6) of the Act specifically contemplates prospective utilization review of health care treatment.
A physician on the WCJ level may offer an opinion on the reasonableness and necessity of chiropractic treatment because although section 306(f.1)(6)(i) requires a peer review the treatment under review, this section only applies only to the initial utilization review by an authorized utilization review organization. There is no corresponding requirement in section 306(f.1) (6) (iv) of the Act, which governs a challenge to the utilization review determination. In the absence of such a requirement, the court follows the general rule that a physician is competent to testify in specialized areas of medicine, even though the physician is neither a specialist, nor certified in those fields.

Leca v. (Philadelphia School District), No. 679 C.D. 2011 (Decision by Judge McCullough FILED: March 7, 2012) 4/12

MEDICAL/SUSPENSION/FORFEITURE PETITION

The Pennsylvania Supreme Court affirms the Commonwealth Court and holds that it is within the sound discretion of the WCJ to decide whether to suspend both indemnity and medical benefits where a claimant failed to attend a defense medical examination ordered by the WCJ pursuant to Section 314(a) of the Act.

The Court reasons that the General Assembly did not intend that "compensation" under Section 314(a) must always be restricted to wage loss benefits, because Article III does not restrict "compensation" to wage loss benefits in all cases.
In the proper circumstances, "compensation" under Section314(a) may include medical benefits as well as wage loss benefits determined that "compensation" as used in Article III more frequently denotes wage loss benefits, but it may also, in proper context, denote medical benefits.
The Act does not define "compensation" and the Act uses the term variously. Thus, one section of the Act will clearly evidence that the term only pertains to wage loss benefits, but another section of the Act will imply that the term encompasses medical benefits as well as wage loss benefits. For this reason, the definition of "compensation" as used in the Act must be decided on a section-by-section basis.

Giant Eagle, Inc. v. WCAB (Givner), No. A08-1066 (Decision by Justice McCaffery, March 13, 2012). 3/12

The End of Privacy?

Dan Giancaterino — Thu, 19 Apr 2012 10:05:05 -0400

On March 1, 2012 Google consolidated 60 different product-specific privacy policies into one general privacy policy that is shorter, easier to read, and contains simpler language. [1] That was a good thing, right? Not according to the media and privacy advocates -- they skewered Google and claimed the changes amounted to online Big Brotherism. [2]

Has Google destroyed your Internet privacy? How do companies follow you across the Web with targeted advertisements? Can you do anything to regain some of your online privacy? These questions will be addressed in this article. [3]

Note: Privacy issues concerning sharing on social media and with mobile devices and apps are outside the scope of this article and will not be discussed.

Google's New Privacy Policy

Here's the phrase that got many people up in arms:

"We may combine personal information from one service with information, including personal information, from other Google services -- for example to make it easier to share things with people you know." [4]

Or, put another way:

"In short, we can treat you as a single user across all our products." [5]

Why is this change such a big deal? Prior to March 1, 2012, Google kept your Web search history separate from, say, your YouTube viewing data. Now these two data sources will be combined, along with all of your activity on other Google services. [6] Now that all of this personal search data is combined, it will paint a clearer picture of each user's age, sex, race, sexual orientation, interests, and much more.

Coping with Google's Changes

Can you do anything about this? Yes -- here are four steps you can follow:

Log out - If you have a Google account, you can simply log out of Web search, YouTube, etc. There are two advantages to this. Your search data will no longer be linked directly to your account (even though it will still be linked to the cookie Google has written onto your computer and to your IP address). Also, your searches at home and in the office will no longer be associated together since you'll probably be using two different computers, with different cookies and IP addresses, at those locations. One disadvantage is that your search results will no longer be customized.
Note: Your Google cookie and IP address are enough to identify you should law enforcement ask Google to provide them with your search data.
Use separate Google accounts - If you don't want to log out of Google, you could create a "home" account and a "work" account. These accounts will not be cross-referenced by Google. If you want to access them at the same time, you'll need to open the accounts in different browser sessions to keep them separate from each other. For example, you could log into your "work" account in a regular session and "home" in Incognito or Private Browsing mode (see "Browse stealthily" below). Or you could log into "work" in Firefox and "home" in Chrome.
Pause, remove, or edit your Web History - You really should have done this prior to March 1, 2012. However, it's still not too late to do some pruning here. Visit http://www.google.com/history/ and log in. You have the choice of either pausing your Web history so that it is no longer being preserved, removing it entirely (which also automatically pauses it for the future), or removing selected days or individual searches.
Review your Google Dashboard - For a real eye-opener, go to http://www.google.com/dashboard/ and log in. In my case I saw data in 24 different categories aggregated in one place, including the International Mobile Equipment Identity (IMEI) number for my Android mobile phone and its date of activation, all of my installed Android apps, all of my contacts (including the ones I reach out and touch the most), the Google Books I've viewed, the locations I've searched in Maps, my Picasa photos, my Google Reader subscriptions, my alerts, all my emails and Google Docs, my Web History -- the list goes on and on. If you want to edit this information, links for managing the data are provided for many, but not all, of the categories.

Web Tracking

Google is not the only company that tracks your online activities -- it's just the biggest and most visible one. There are hundreds of advertisers and marketers who do so as well.

Has this ever happened to you? You've finished reading a story about how gas prices are expected to rise on The New York Times Website. As you surf over to other sites, you start seeing banner ads for the Toyota Prius or the Honda Civic Hybrid. Coincidence? Nope. You're being tracked. Here are some of the methods employed by advertisers and marketers:

Third-party cookie - This small file is installed on your computer by an advertising network or research firm, not by the Website you're visiting. The third-party firm can then track your subsequent online activities by way of its cookie.
Flash cookie - Adobe Flash allows a Website to store a string of code, similar to a cookie, on your computer. A Flash cookie -- more properly known as a local shared object or LSO -- is not stored in the same folder that your browser uses for its cookies. Thus it is hidden from your browser. If you clear your browser's cookies, the Flash cookie is unaffected. In fact, it can even be used to automatically reinstall deleted cookies!
Web bug - A Website owner can embed an HTML invisible object -- a 1x1 pixel transparent image, an iframe, etc. -- in its pages that can be used to track your initial visit to the site, plus your subsequent visits to other sites across the Web. (Web bugs are also called Web beacons and tracking bugs, among other names.)

It's ironic that many of the same publishers who are calling Google out for privacy concerns also place multiple tracking bugs on your computer.

Dealing With Trackers

Can you take steps to stop advertisers from tracking your online activities? Four methods for combating Web tracking follow, in ascending order from simple to advanced:

Browse stealthily - This is the simplest method because you don't have to change any browser settings. All you need to do is open up a new Incognito window in Chrome or enter Private Browsing mode in Firefox. [7] Cached Webpages, cookies, download list entries, browsing history, and words that you type into the Omnibox or Awesome Bar are not saved when you exit Incognito/Private Browsing mode.

Note: Be aware that when you are in Incognito/Private Browsing mode, any bookmarks you save or files you download to your computer are preserved upon exit.
Turn off third-party cookies - This is a basic change to your browser's settings, though it takes several steps.
- Chrome:
  Click on the wrench, then click "Options". Select "Under the Hood", then click on the "Content Settings" button in the "Privacy" section. Finally click the "Block third-party cookies and site data" checkbox. [8]
- Firefox:
  Click on "Options", then select "Privacy". In the "History" section, click on the "Firefox will" pull-down list and select "Use custom settings for history". Finally uncheck the "Accept third-party cookies" checkbox. [9]
Opt Into "Do Not Track" - This is a bit more involved than turning off third-party cookies, because you first have to understand what "Do Not Track" (DNT) is. DNT is a voluntary program that most advertisers, including Google, have agreed to honor. However, there are many questions about how effective the existing agreement will prove in the future. [10] In short, it's not a magic privacy bullet. That said, it doesn't hurt to select the DNT option in your browser.
- Chrome:
  As of early March, DNT is not available, but should be later this year.
- Firefox:
  Click on "Options", then select "Privacy". In the "Tracking" section, click on the "Tell websites I do not want to be tracked" checkbox. [11]
Add browser extensions - This is advanced because you are installing software that will extend your browser's capabilities. The following extensions are available for both Chrome and Firefox unless noted. All are free. [12] I've installed all of them; browser performance has not been noticeably impacted.
- Adblock Plus removes banner ads. It's the first browser extension I add whenever I install a new version of Chrome or Firefox on a computer. I use it primarily for nuking those annoying ads in Yahoo mail -- See Single Women in Your Area! -- but a side benefit is that it reduces visual clutter on the Webpages I visit.
- BetterPrivacy (Firefox only) deletes Flash cookies. What I love about this app is that it's unobtrusive. When you exit Firefox, you'll see a popup window when BetterPrivacy finds Flash cookies. Before clicking OK to delete them, click on the "always delete LSO cookies automatically" checkbox and you'll never need to see another BetterPrivacy popup window again.
- Collusion (Firefox only) shows the web of connections among third-party trackers. It opens a new browser tab that graphically displays the relationship between the pages you visit and the trackers linked to them. It automatically refreshes the interconnected links as you continue to surf. Please note that Collusion doesn't actually block the trackers; it simply identifies them for you.
- Do Not Track Plus blocks "Like" buttons, banner ads and third-party trackers. It's set to block them by default -- there's no need to configure it unless you want to whitelist a particular advertising company. DNTP uses a Green-Yellow-Red alerting system: if the toolbar icon is green, all Web bugs are blocked; yellow means that the site you're visiting is probably tracking you even though there are no Web bugs present (Facebook and Google both come up yellow); red means that at least one tracker isn't blocked, for whatever reason. (I've seen this on The New York Times, for example.)
- Flashblock blocks Flash content from automatically loading. Although this is not necessarily for anti-tracking purposes, it works great for auto-play Flash items such as annoying video ads on Philly.com. If I want to view the video, I simply click on it, then click again to start the video. Having to click twice is worth it to eliminate audio/visual clutter on a page.
- Ghostery identifies third-party cookies and beacons, as well as Flash cookies. As of early March, it claims to be able to block more than 1,250 trackers. It also seems to identify more of them per page than Do Not Track Plus. However, it doesn't come pre-configured to block trackers and delete Flash cookies. You have to go into the Options and make the appropriate changes.

It's not a good idea to install and run two different, competing anti-virus programs. The same is true for browser extensions. I've chosen to go with Adblock Plus and Flashblock to remove annoying ads. I'm using BetterPrivacy (rather than Ghostery) to delete Flash cookies. For managing trackers I've chosen Do Not Track Plus over Collusion and Ghostery primarily because of DNTP's unobtrusiveness and simpler interface. I've disabled Collusion and Ghostery.

Check out the video to see a comparison of Do Not Track Plus and Ghostery in action.

Conclusion

You're going to have to actively manage your online privacy. There will always be an arms race between you and the online trackers. You need to keep on top of new advertising methods and the browser tips and add-ons that can help defeat them.

One way to do this is through the blogs run by the Chrome and Firefox development teams. Consider subscribing to the Chrome Blog's RSS feed. [13] You can also sign up for the monthly Firefox email newsletter. [14]

Notes and References

[1] See "Google Policies & Principles" (http://www.google.com/policies/).

[2] See, for example, "Google Announces Privacy Changes Across Products; Users Can't Opt Out" (http://www.washingtonpost.com/business/technology/google-tracks-consumers-across-products-users-cant-opt-out/2012/01/24/gIQArgJHOQ_story.html).

[3] Website addresses and browser extension features discussed in this article were current as of mid-March 2012.

[4] Extracted from the "How we use information we collect" section of Google's new privacy policy (http://www.google.com/policies/privacy/).

[5] Extracted from the "What's different about the new Privacy Policy?" section of Google's Policies & Principles page (http://www.google.com/policies/faq/).

[6] See "What Actually Changed in Google's Privacy Policy" (https://www.eff.org/deeplinks/2012/02/what-actually-changed-google%27s-privacy-policy).

[7] For more information, visit the Google Chrome Incognito Mode page at http://support.google.com/chrome/bin/answer.py?hl=en&answer=95464 and/or the Firefox Private Browsing help page at http://support.mozilla.org/en-US/kb/Private-Browsing.

[8] For more information, visit Google Chrome's "Manage Cookies" help page at http://support.google.com/chrome/bin/answer.py?hl=en&answer=95647.

[9] For more information, visit Firefox's "Disabling Third Party Cookies" help page at http://support.mozilla.org/en-US/kb/Disabling%20third%20party%20cookies.

[10] See, for example, "Web Firms to Adopt ‘No Track' Button" (http://online.wsj.com/article/SB10001424052970203960804577239774264364692.html).

[11] For more information, visit Firefox's "How Do I Turn On the Do-Not-Track Feature?" help page at http://support.mozilla.org/en-US/kb/how-do-i-turn-do-not-track-feature?redirectlocale=en-US&redirectslug=how-do-i-stop-websites-tracking-me.

[12] To download extensions, visit the Chrome Web Store at https://chrome.google.com/webstore/category/extensions and/or the Add-Ons for Firefox page at https://addons.mozilla.org/en-US/firefox/.

[13] Available at http://chrome.blogspot.com/.

[14] Available at https://www.mozilla.org/en-US/newsletter/.

SCOTUS Rules on Ineffective Assistance of Counsel on Guilty Plea Offers

Burton A. Rose, Esq. — Wed, 18 Apr 2012 16:36:37 -0400

The Supreme Court of United States has decided two cases involving the issue of ineffective assistance of counsel and guilty plea offers. The cases are Missouri versus Frye, 2012 WL 932020, and Lafler versus Cooper, 2012 WL 932019, both decided on March 21, 2012. Both cases were decided by a vote of 5 to 4 with Justice Kennedy casting the deciding vote and writing both opinions. In the Frye case, the defendant claimed that ineffective assistance of counsel caused him to reject a guilty plea offer and that further proceedings led to a less favorable outcome. In that case, defense counsel did not inform the client of the guilty plea offer, which lapsed. The defendant pleaded guilty on more severe terms than were in the plea offer. In the Lafler case, a favorable plea offer was reported to the client but, on advice of counsel, was rejected. Thereafter, there was “a full and fair trial” before a jury. At sentencing , the defendant received a sentence harsher than that offered in the rejected plea bargain. Both sides agreed in this appeal as to the fact of deficient performance by counsel. There was a reasonable probability that the defendant and the trial court would have accepted the guilty plea. As a result of not accepting the offer, the defendant received a sentence 3 1/2 times greater than he would have received under the plea offer. The remedy for this instance of ineffective assistance of counsel is to order the prosecution to reoffer the plea agreement. However even if the defendant accepts that offer the trial judge reserves the discretion to reject it. As Justice Kennedy stated in the Frye case, where a plea-bargain has been offered, the defendant has a right to effective assistance of counsel in considering whether to accept or reject it. If the resulting trial winds up with the defendant receiving a more severe sentence than that which was available under the plea-bargain, the defendant has shown prejudice under the Strickland test. Justice Scalia is not happy.

The Month in Pennsylvania Workers' Compensation: February 2012 At-A-Glance

Mitchell I. Golding, Esq. — Thu, 15 Mar 2012 10:49:56 -0400

REASONED DECISION/ UNPUBLISHED DECISION CAPRICIOUS DISREGARD

Section 422(a) of the Act requires a WCJ to issue a decision that permits an appellate court to exercise adequate appellate review. In order to satisfy this standard, a WCJ does not need to discuss every detail of the evidence in the record. Rather, Section 422(a) of the Act requires WCJs to issue reasoned decisions so that the Court does not have to "imagine" the reasons why a WCJ finds that the conflicting testimony of one witness was more credible than the testimony of another witness.

A WCJ need not explain credibility determinations relating to a witness who testifies before the WCJ, Section 422(a) of the Act requires some explanation of credibility determinations by a WCJ with regard to conflicting deposition testimony in order to enable this Court to review a WCJ's decision. Under Section 422(a) of the Act, a WCJ must articulate the objective rationale underlying his credibility determinations where the testimony of such witnesses is conflicting. A WCJ may satisfy the reasoned decision requirement if he summarizes the witnesses testimony "and adequately explains his credibility determinations."

Thus, while summaries of testimony alone would be insufficient to satisfy the reasoned decision requirement, where a WCJ summarizes testimony and also objectively explains his credibility determinations, the decision will satisfy the requirement. Further, other evidence in the record may provide the objective support necessary under Section 422(a) of the Act for adequate credibility determinations.
A WCJ's observation of a witness's demeanor alone is sufficient to satisfy the reasoned decision requirement. Therefore, although the claimant testified both live and by deposition, since there was contextual overlap in the claimant live and deposition testimony the WCJ's credibility finding based upon demeanor was sufficient to satisfy the requirements of 422(a) of the Act.

A WCJ may render a reasoned decision on the basis of summarized testimony if the reason given in addition to the cited testimony constitutes an objective basis explaining why a WCJ did not find a witness credible.
Pursuant to Section 414 of the Commonwealth Court's Internal Operating Procedures, parties may cite an unreported panel decision of the Commonwealth Court, issued after January 15, 2008, for its persuasive value, but not as binding precedent.

Amandeo v. WCAB (Conagra Foods) No. 889 C.D. 2011 (Decision by Judge Brobson, February 17, 2012) 3/12

INDEPENDENT CONTRACTOR/ JOINT LIABILITY

Independent contractors cannot recover benefits under the Act, making employment status critical. Employment status is a critical threshold determination for liability. Claimant bears the burden to demonstrate an employer-employee relationship. The existence of an employer-employee relationship is a question of law based on the facts presented in each case.

Neither the compensation authorities nor the courts should be solicitous to find contractorship rather than employment, and that inferences favoring the claim need make only stronger appeal to reason than those opposed.
With regard to whether a claimant is an independent contractor, courts consider many factors: (1) control of manner the work is done; (2) responsibility for result only; (3) terms of agreement between the parties; (4) nature of the work/occupation; (5) skill required for performance; (6) whether one is engaged in a distinct occupation or business; (7) which party supplies the tools/equipment; (8) whether payment is by time or by the job; (9) whether work is part of the regular business of employer; and (10) the right to terminate employment. But none of these factors is dispositive.

The key factor is whether the alleged employer had the right to control the work to be done, and the manner in which work is performed. Control in an employment relationship exists where the alleged employer: possesses the right to select the employee; the right and power to discharge the employee; the power to direct the manner of performance; and the power to control the employee. Payment of wages and payroll deductions are significant, as is provision of workers' compensation coverage. However, payment is not determinative.

Truck drivers, who direct their own routes, come and go as they see fit, and control their transport as owner-operators are often deemed independent contractors.

A company whose controls could solely be traced to the carrier's compliance with government regulations will not, in and of itself, create an employment relationship.
An employee's signing of an agreement stating he was an independent contractor to obtain occupational insurance, is but one factor, and not determinative of the employer-employee relationship.
The display of a logo on a truck does not create an "irrebuttable presumption" of an employment relationship.

The decedent was not an independent contractor where decedent did not engage in an independent trade or profession and could not control his time or manner of work.
While rare, the concept of joint liability is not foreign to the workers' compensation scheme. One crucial factor in determining joint liability in trucking cases is the existence of an agency relationship between the carrier and the owner-operator. Payment of a driver by a lessor based on number and value of deliveries is a significant factor to show the lessor was the employer.

There was no joint liability in this matter where the indicia of control suggest the carrier, American, was Decedent's employer.

Here the lessee was the employer because it selected and trained drivers, and ensured their compliance with its policies. The lessee's policies exceeded the government criteria for drivers, and it disqualified, or essentially terminated, drivers who do not meet its standards. The lessor had none of its own policies to enforce, and received no paperwork from Decedent showing the work he performed and how he performed it. The lessee received and maintained all employment paperwork, and ultimately determined Decedent's day-to-day schedule through its agent, the lessor.

Additionally, the record reflected that Decedent did not perform work to further the interests of the lessor, except to the extent that lessor interests coincided with those of the lessee due to its agent status.

American Road Lines and Lexington Insurance Company v. WCAB (Royal) No. 2428 C.D. 2010 (Decision by Judge Simpson, February 23, 2012) 3/12

FEE REVIEW/ MEDICAL BENEFIT

The regulations with respect to downcoding require an insurer to notify a provider in writing of the proposed changes and the reasons supporting the changes. Insurers also must give a provider 10 days to respond to the notice of proposed changes as well as the opportunity to discuss the proposed changes and offer support for the original coding decisions. The regulations further provide that an insurer's failure to strictly comply with these requirements will result in the Bureau's resolution of an application for fee review in favor of a provider.

The carrier was not entitled to the downcoded value of TMR treatments where it did not even attempt to downcode providers' bills until approximately two years after it issued explanations of benefits denying payment on the basis that the TMR treatment was research, experimental, or investigative services and after Providers filed Applications for Fee Review, the Bureau issued administrative decisions, Providers requested fee review hearings, and hearing notices were issued.
Section 306(f.1)(3)(i) of the Act states that a medical provider shall "not require, request or accept payment for the treatment, accommodations, products or services in excess of one hundred thirteen per centum of the…applicable fee schedule…or…any other Medicare reimbursement mechanism."

Additionally, this section states that if the prevailing charge, fee schedule or any other reimbursement has not been calculated under the Medicare program for a particular treatment, accommodation, product or service, the amount of the payment may not exceed eighty per centum of the charge most often made by providers of similar training, experience and licensure for a specific treatment, accommodation, product or service in the geographic area where the treatment, accommodation, product or service is provided.

The regulations similarly state that if a Medicare payment mechanism does not exist for a particular treatment, accommodation, product or service, the amount of the payment made to a health care provider shall be either 80% of the usual and customary charge for that treatment, accommodation, product or service in the geographic area where rendered, or the actual charge, whichever is lower.

The insurer bears the burden before the Hearing Officer to establish by a preponderance of the evidence that it properly reimbursed the Provider.

The insurer did not fulfill its burden where before the Hearing Officer where it offered no evidence as to the usual and customary charge by failing to cite or rely upon the Medicare regulations in its explanations of benefits reducing Providers' bills for the TMR. Instead, insurer downcoded Providers' bills without strictly complying with the procedures for such downcoding.
Failure to pay medical bill within 30 days of receipt of the required bills and medical reports results in the accrual of interest on the unpaid balance at the rate of 10% per annum.
Penalties are payable to the same person to whom compensation is payable, i.e., the claimant.

Liberty Mutual Insurance Company v. WCAB (Kepko, D.O., Lindenbaum, D.O. c/o East Coast TMR) No. 1182 C.D. 2011 (Decision by Judge McCullough, February 23, 2012) 3/12

Superior Court Rules on Post-Polygraph Right to Counsel

Burton A. Rose, Esq. — Thu, 15 Mar 2012 10:52:03 -0400

The Superior Court of Pennsylvania has decided the case of COMMONWEALTH of Pennsylvania v. Elton Eugene HILL, Appellant, 2012 WL 666147, 646 MDA 2011, filed March 1, 2012, an appeal from a PCRA Order of Judge Lawrence Clark of the Court of Common Pleas, Dauphin County, Criminal Division CP–22–CR–0001407–1998. The case was before Judges PANELLA, DONOHUE and ALLEN. Judge Donohue wrote the Opinion for the 2-1 majority.

Hill appealed an order denying his petition for relief pursuant to the Post Conviction Relief Act, contending that he was deprived of the effective assistance of counsel when his trial attorney failed to file a motion to suppress his post-polygraph statements, which he claimed the police obtained in violation of his state and federal constitutional rights to counsel. The Court had to determine whether Hill waived his Sixth Amendment right to counsel in connection with a post-polygraph interrogation.

After his arrest and charges were filed, Hill was transported from county prison back to the police station. His attorney met with Hill and advised him that he was about to be taken downstairs for a polygraph examination and that he should tell the truth. The attorney, a representative of the district attorney’s office, and Detective Steenson, the polygraph examiner, met to determine and agree on the questions to be asked during the polygraph examination. At the outset of the polygraph examination, Detective Steenson read Hill a form that contained a recitation of his Miranda rights, which Hill then initialed and signed. The polygraph examination proceeded to conclusion. The attorney sat outside the examination room for some period of time, but went back to his office prior to the completion of the polygraph examination and did not return. At the conclusion of the polygraph examination, Detective Steenson asked and received a short written statement from Hill. After a break, another officer, Detective Kelly, entered and proceeded to interrogate Hill. Detective Kelly did not ask questions from those approved by the attorney prior to the polygraph test. At trial, Detective Kelly testified that Hill began to cry uncontrollably and made incriminating statements.

Hill’s Sixth Amendment right to counsel attached the day before the polygraph examination in question when the Commonwealth filed its initial criminal complaint against him. When Hill waived his Mirandarights at the initiation of the polygraph examination, he also waived his Sixth Amendment right to counsel for purposes of the polygraph examination. The issue presented here, however, was the scope of that waiver—did Hill waive his right to counsel only for purposes of the polygraph examination, or with respect to any interrogation on that day, including Detective Kelly’s post-polygraph interrogation? No Pennsylvania appellate court had addressed the issue of waiver of the Sixth Amendment right to counsel in connection with post-polygraph interrogations.

The Panel could not agree with the PCRA court’s finding that Hill waived his Sixth Amendment right to counsel for purposes of the post-polygraph interrogation. Hill was a juvenile with no prior criminal record, and no evidence showed that Hill had been advised that post-polygraph questioning would occur, or that his waiver of his Miranda rights extended in scope beyond the polygraph examination itself. Hill received a standard recitation of Miranda warnings, with no reference to post-polygraph questioning.

The scope of Hill’s Miranda waiver prior to the polygraph examination must be based upon what Hill understood at the time he signed the written waiver of rights form. The record on appeal contained no evidence that Hill was waiving his right to counsel during a post-polygraph interrogation. As a result, the Commonwealth failed to satisfy its burden of proof that Hill knowingly and intelligently waived his Sixth Amendment right to counsel.

Hill’s claim that his attorney was ineffective for failing to file a motion to suppress Hill’s post-polygraph statement had merit as the attorney had no reasonable basis for his actions and the failure to suppress Hill’s statement was highly prejudicial. The scope of Hill’s waiver of his constitutional right to counsel was the only genuine issue for the PCRA court’s resolution, since without Hill’s post-polygraph incriminating statement to Lieutenant Kelly, the DA had no case. Therefore, the PCRA court had erred in dismissing Hill’s PCRA petition.

Judge PANELLA filed a Dissenting Opinion.

The attorney for the Appellant was Jonathan W. Crisp of Harrisburg.

“Proceeding” to Relocate Under the New Custody Law

James W. Cushing, Esq. — Thu, 15 Mar 2012 11:14:57 -0400

The recent Pennsylvania Superior Court matter of E.D. v. M.P., 33 A.3d 73 (Pa. Super. 2011) stands as the first reported case in Pennsylvania interpreting the relocation provision under the new Pennsylvania custody statute. In E.D., the party known as E.D., who was the child’s primary custodian, requested to relocate with the child to another state while M.P. argued against such a move.

In the E.D. case, E.D. attempted to relocate the child to another state simply by filing a Petition for Special Relief (“Petition”) requesting the same. Such a tactic would not be out of place under the old custody statute, and the previously controlling case of Gruber v. Gruber, 400 Pa. Super. 174 (1990). In response, M.P. filed an answer to the Petition and a Counterclaim seeking a modification of custody, and also made claims regarding the interaction between her older son and the child-at-issue.

Under the new custody statute (23 Pa.C.S.A. Section 5337), if one seeks to relocate a child under a custody order, certain notice procedures must be followed, including ensuring specific service requirements are fulfilled and providing specific documents to the other party(ies). E.D. failed to follow the requirements of Section 5337. Despite this failure, the trial court granted the Petition and allowed the relocation. M.P. filed an appeal of the trial court’s ruling that was heard by the Superior Court which entered the E.D. v. M. P. Opinion.

Perhaps the single most important aspect of E.D. is its ruling on the applicability of the above-mentioned relocation portion of the new custody statute. The new statute requires that any custody “proceeding” commenced before the effective date of the new statute would be governed by the prior custody statute. It appears that E.D. conducted his affairs as if the prior custody statute was still in effect while M.P. argued that the requirements of the new custody statute ought to apply. The underlying matter had been initiated and litigated under the prior custody statute; however, when E.D. attempted to secure relocation of the child, the new custody statute was then in effect. After hearing arguments, the Pennsylvania Superior Court rejected the interpretation that the new custody statute ought only to apply to custody actions initiated after its passage. It ruled that the new custody statute applies to any motion or petition filed in any custody action of any age provided it was filed after the passage of the new custody statute. Otherwise there could be the absurd result of the old custody statute still applying, perhaps nearly eighteen (18) years from now, while concurrent matters are controlled by the new custody statute.

Unfortunately for M.P., despite the procedural blunder of E.D. in failing to adhere to the requirements of the new custody statute, M.P., in turn, failed to raise E.D.’s procedural non-compliance with Section 5337 as an issue when she opposed the Petition. As a result, the Superior Court ruled that she waived her right to raise the argument that E.D. violated Section 5337 in his bid for relocation.

Regardless of the above setback, the Court did positively respond to M.P.’s additional arguments regarding other provisions of the new custody statute. When reviewing the trial court’s decision, the Superior Court found that the trial court dispensed with the matter with a single sentence despite that Section 5337 requires the strict analysis of ten (10) different factors for relocation by the trial court before rendering a decision and Section 5823 requires the trial court to provide a delineation of all of the reasons for its decision on the record in open court or in a written decision with regard to the aforesaid ten (10) factors. Therefore, in the face of Section 5823 of the new custody statute, it was clear to the Superior Court that the trial court’s single sentence did not fulfill Section 5823’s requirements for a detailed decision. As a result, the Superior Court was unable to adequately review the trial court’s decision.

Similar to Section 5337’s requirements for a relocation matter, Section 5328 of the new custody statute requires a trial court to analyze sixteen (16) different factors when rendering a decision regarding a complaint/petition for, and/or to modify, custody. Also as above, Section 5323 requires the trial court to provide a delineation of all of the reasons for its decision on the record in open court or in a written decision with regard to the aforesaid sixteen (16) factors. Needless to say, if the ten (10) factors for relocation were not considered in the trial court’s single-sentence-order, neither were sixteen (16) factors dealt with for M.P’s counterclaim for custody modification. Clearly then, when ruling upon M.P.’s counterclaim for custody modification, the trial court again fell far short of Section 5823’s requirements for a detailed decision. Indeed, the trial court’s decision made no mention of M.P.’s claims regarding the interaction between her son and the child-at-issue.

Ultimately, the Superior Court remanded the case back to the trial court, directing it to comply with the requirements of the new custody statute and issue an opinion with considered analysis of the twenty-six (26) different factors mentioned above. Furthermore, the Superior Court specifically directed the trial court to address the relationship between M.P.’s child and the child-at-issue. Finally, the Superior Court, noting additional non-compliance with the new custody statute by the trial court in the first hearing, also directed the trial court to comply with all of the provisions of the new custody statute, requiring the trial court to address all members of the parents’ households, review all criminal and substance abuse histories for each, as well as their health records.

In sum, the Superior Court has made it clear that there must be full compliance with the requirements of the new custody statute, that the new custody statute applies to all motions and petitions filed after its passage regardless of the age of the underlying case, and that the Gruber case is no longer in effect for Pennsylvania’s custody relocation cases.

Silence or No Silence in an Arbitration Award

Charles F. Forer, Esq. — Thu, 15 Mar 2012 10:52:55 -0400

There was good news and bad news with the arbitration award that Bob received a couple months ago. First the bad news: after a hard fought four-day arbitration hearing in which Bob represented the respondent, the sole arbitrator awarded the claimant everything claimant had sought. A devastating loss for Bob.

What could be the good news? According to Bob, the arbitrator did not explain the reasoning for her award. Just one line: “I find in favor of claimant and against respondent, in the amount of $1.2 million.” Nothing else.

“That can’t be right,” Bob told his client. “The parties and their lawyers are entitled to understand the basis for the award. How do we know if the arbitrator got it right? How do we know if the arbitrator analyzed each issue that we presented?”

Bob is a masterful tactician when it comes to designing arbitration strategies. He developed a two-step strategy that, if successful, he could present at a continuing legal education seminar.

The strategy: first Bob would ask the trial court only to require the arbitrator to set forth the reasons for the award. After he received the “reasoned” award, he would ask the trial court to vacate the award because “the arbitrator exceeded her powers in making the award.”

Bob concluded that this strategy was most respectful of the arbitration process. He would attack only after he knew exactly what to attack, which is why he could not – at least right now – explain how the arbitrator had exceeded her powers in making the award.

Bob’s “respectful” motion seeking only the reasoning underlying the award started with a bang:

After a four-day arbitration hearing that raised complex issues of contract interpretation, the arbitrator rendered a mere one-line award in favor of the claimant. The award did not tell the parties how the arbitrator reached her decision. And the award did not identify the issues that the arbitrator considered. How can the parties know if the arbitrator’s award is fair? They cannot. The arbitrator disregarded the law by failing to discuss the grounds for her award. This Court should tell the arbitrator to do what she should have done in the first place – give the reasons for her award.

Bob’s brief argued that a no-explanation award is at odds with the arbitration process. On the other hand, Bob asserted, “providing the basis for the award will enable the parties to better understand the award, and lead to increased faith and trust in the arbitration process.”

Several weeks later, Bob received the e-mail that attached the Court’s order in response to his motion to vacate. Stage one of Bob’s strategy was ending. It was a rude close; the Order merely said, “Respondent’s motion to vacate the arbitration award is DENIED.” No explanation, no reasoning. The Court did exactly what the arbitrator did; it made a decision without providing any rationale. Talk about pouring salt into a wound.

Bob is peeved. Justifiably? No. Bob’s client is peeved. Justifiably? Yes.

As Chief Judge Easterbrook said in Affymax v. Ortho-McNeil-Janssen Pharmaceuticals, Inc., 660 F.3d 281, 285 (7th Cir. 2011), “[n]o rule of law requires arbitrators to render opinions – or, having chosen to write an opinion, to discuss every issue that the parties contested.” In language that sadly resonates with Bob and his client, Chief Judge Easterbrook also noted that, “[m]any an arbitration ends with an award saying who won but omitting reasons.” Id. As the Court further stated, all of this makes it hard, not impossible, to attack an arbitration award because “[s]ilence is just silence.” Id.

Chief Judge Easterbrook said one more thing that should be a wakeup call to Bob: “arbitrators are free to act summarily, unless the parties’ contract requires an opinion.” Id.

So we should not blame the arbitrator for failing to explain the basis for her award in favor of Bob’s adversary. We should blame Bob. The arbitration agreement, which Bob primarily drafted, did not call for the arbitrator to discuss any issue in making the award. In fact, the pithy agreement said nothing about the nature of the award.

Bob could have prevented this predicament by drafting an arbitration agreement that matched the parties’ expectations, assuming the parties expected a “reasoned” award. The agreement could have required the arbitrator to render an opinion and discuss every issue that the parties contested. However, the agreement was silent. The arbitrator had the right to remain silent in drafting the award. In fact, the arbitrator did exactly what the parties wanted her to do – keep quiet about the basis for the award.

Will this result lead to or even encourage flawed arbitration awards? Will it promote a process in which improper awards are immune from attack? (All arguments that Bob will make in his appeal papers.)

Parties choose arbitration for several reasons. One primary reason: to reduce the formality, costs and time of litigation. A reasoned opinion can undermine these goals. A reasoned opinion will increase the fees of the arbitrator since he or she has to spend additional time in drafting the opinion and may need a transcript of the proceeding. (“Big deal,” says Bob, “these incremental costs pale in comparison to the amount of the unfair award.”)

Plus a reasoned opinion will give the losing side a chance to attack the reasoning underlying the award. This attack will lead to court proceedings that will delay the final determination of the dispute.

Is this what Bob’s client really wanted? What if his client had won? Would he now be singing the same tune? Didn’t Bob draft the arbitration agreement intending to keep the proceeding informal, the costs low and the hearing short?

Bob cannot have his cake and eat it, too. He cannot insist on a short, informal and inexpensive arbitration proceeding and then import additional processes – a reasoned opinion – that will make the proceeding long, formal and expensive. What Bob can and should do is think about these competing considerations before he drafts his next arbitration agreement. And after he thinks about them, he must – quoting Rule 1.4(a)(2) of the Pennsylvania Rules of Professional Conduct – “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”

Bob cannot foresee the future. But he can anticipate problems that could arise as a result of an arbitration award. Armed with this knowledge at the time of drafting the arbitration agreement, he must follow Rule 1.4(a)(5) of the Pennsylvania Rules of Professional Conduct, and explain matters “to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

Bob’s fundamental mistake was not that he sought unsuccessfully to compel the arbitrator to provide reasons for her award. Nor was it that he drafted an arbitration agreement that did not call for the arbitrator to discuss the issues in a “reasoned” opinion. His real blunder: he failed to sit down with his client, during contract drafting, and explain how the arbitration agreement potentially would affect the parties’ dispute-resolution process. If Bob had “consulted,” as he was supposed to do, Bob’s client would have been able to decide how to construct a dispute resolution process that best served the client’s needs and pocketbook.

The arbitration loss may have surprised Bob’s client. However, Bob’s communication failure caused the bombshell that undermined Bob’s relationship with his now-peeved former client.

Health Care Reform: Final Rules Issued on the Summary of Benefits and Coverage and the Uniform Glossary

Brian McLaughlin — Thu, 16 Feb 2012 14:27:25 -0500

The Departments of Labor, Treasury and Health and Human Services (the Departments) have issued final guidance on the requirements to furnish a Summary of Benefits and Coverage (SBC) and Uniform Glossary, and have established a new set of effective dates beginning September 23rd of this year.

Under the Patient Protection and Affordable Care Act (PPACA), all group health plans, including grandfathered plans and self-insured plans, are required to provide participants and beneficiaries with a simple, standardized summary of coverages (commonly referred to as the "4 page summary"). These requirements were originally effective this coming March 23, but the Departments provided a delay in order to develop much needed additional guidance.

Briefly, the guidance:

Excludes excepted benefits (e.g., stand-alone dental and vision coverage, health FSAs) from the SBC requirement;
Describes how the SBC will coordinate with HRAs and other account-based programs;
Identifies the various requirements for providing the SBC, the parties responsible for providing the SBC, and the timing of the disclosure;
Clarifies that participants and beneficiaries must receive the SBC, but allows for a single disclosure when a family resides at the same address;
Summarizes the content requirement for the SBC and provides model templates;
Eliminates premium and contribution information proposed in the earlier guidance;
Addresses the 60-day prior notice requirement for changes made to the SBC outside of renewal; and provides guidance on the uniform glossary and on the examples of coverage required to be included in the SBC.

These new requirements are effective as follows:

For open enrollment periods that begin on or after September 23, 2012, the SBC must be provided to participants and beneficiaries who enroll or re-enroll during this period.
With respect to participants and beneficiaries who enroll in group health plan coverage outside of open enrollment (e.g., newly eligible individuals and special enrollees), the SBC must be provided beginning on the first day of the first plan year that begins on or after September 23, 2012.

OVERVIEW AND TERMINOLOGY

Under PPACA, all group health plans, including grandfathered plans and self-insured plans, are required to provide participants and beneficiaries with an SBC. At the core of this requirement is the use of standardized formatting and terminology, as detailed in the final guidance.

A participant is defined as any employee or former employee of an employer who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer, or whose beneficiaries may be eligible to receive any such benefit. This includes active employees and COBRA qualified beneficiaries.

A beneficiary is a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit. This may include spouses, domestic partners, children, and COBRA qualified beneficiaries.

The SBC is a summary of health plan information that is provided in a uniform format to help consumers better understand their coverage and compare coverage options.

The Uniform Glossary is a document that identifies and defines common health care and medical terminology.

COVERAGES REQUIRING AN SBC

Most group health plans are subject to this requirement, except:

Excepted benefits which include certain stand-alone dental and/or vision plans and many, if not most, Health Flexible Spending Accounts (FSAs); and
Retiree-only plans( No current employees as participants)

Health Reimbursement Arrangements (HRAs) generally do not meet the definition of an excepted benefit. Thus, the plan administrator of an HRA (generally the employer) will need to provide an SBC with respect to that coverage. If integrated with the major medical coverage, the HRA can be included in the SBC for the major medical plan. The effect of the employer contributions to the HRA can be denoted in the appropriate spaces in the SBC. A stand-alone HRA will need to provide its own SBC.

Health Savings Accounts (HSAs) are generally not group health plans and are not subject to the SBC requirements. Nevertheless, an SBC prepared for a qualified high-deductible health plan associated with the HSA can mention the effect of employer contributions to the HSA in the appropriate spaces.

PROVIDING THE SBC

Obligations and Timing

Responsibility for Furnishing the SBC

For insured plans, the carrier and the group health plan (plan sponsor) are both responsible to provide the SBC to participants and beneficiaries. However, if one entity provides a timely and complete SBC to individuals, it will satisfy the obligation for the other party. For example, an insured plan will satisfy the requirement to provide an SBC if the carrier timely provides a complete SBC to individuals. The Departments expect plans and carriers to make contractual arrangements for sending the SBC.

For self-insured plans, the burden is on the plan administrator (generally the employer) to develop and provide the SBC. Self-insured plans will want to coordinate with their third-party administrators (TPAs) to assist with this disclosure requirement.

From the Insurance Carrier to the Group Health Plan (or Plan Sponsor/Employer)

In a fully insured arrangement, the carrier must provide the SBC to the plan sponsor of a group health plan at the following times:

Application. Within 7 days following receipt of an application for group health plan coverage.4
Renewal. If the insurance carrier renews or reissues the policy, certificate or contract of insurance (for example, for a succeeding plan year), the carrier must provide the SBC as follows:
- If a written application is required, the SBC must be provided no later than the date the written application materials are due.
- If renewal is automatic, the SBC must be provided no later than 30 days prior the first day of the new plan year.
By Request. If the plan sponsor requests an SBC or summary information about a health insurance product, the SBC must be provided within 7 business days.

From the Insurance Carrier and/or the Plan Administrator (generally the employer) to Participants and Beneficiaries

An SBC must be furnished to participants and beneficiaries with respect to each benefit package offered by the plan or carrier for which the individual is eligible at the following times:

Initial Application/Enrollment. As part of any written application materials that are distributed for enrollment (written or electronic). If no written application materials are distributed for enrollment, the SBC must be provided by the first date on which the participant is eligible to enroll in the coverage.
Renewal. If participants or beneficiaries are required to renew coverage in order to maintain it (for example, in a succeeding plan year), the SBC must be issued as follows:
- If written application is required for renewal (either paper or in electronic form), the SBC must be provided no later than the date on which the written application materials are distributed.
- If renewal is automatic, the SBC must be provided no later than 30 days prior to the first day of the new plan year.
Special Enrollment. The SBC must be provided to HIPAA special enrollees no later than 90 days from enrollment (following the SPD requirements). This is a change from the proposed rule, which required the SBC to be provided within 7 days of receipt of the special enrollment request.
By Request. The SBC must be provided upon request to a participant or beneficiary who requests this document or any summary of health coverage within 7 business days.

The SBC must be provided to participants and beneficiaries. A single SBC can be provided to a participant and any beneficiary residing at the participant's last known address to satisfy the requirement. However, if the beneficiary's last know address is different from the participant, then a separate SBC must be furnished to the beneficiary at his or her last know address.

If a group health plan offers multiple benefit packages, an SBC is required to be furnished upon renewal only with respect to the benefits package in which the participant and beneficiary is enrolled. An SBC is not required to be furnished automatically at renewal with respect to benefit packages in which the participant and beneficiary are not enrolled. However, if a participant or beneficiary requests an SBC with respect to another benefits package, then that SBC must be provided within 7 business days of the request.

The content requirements for the SBC include:

A uniform definition of standard insurance terms and medical terms so that consumers may compare health coverage and understand the terms of (and exceptions to) their coverage;
A description of the coverage, including cost-sharing, for specific benefits;
The exceptions, reductions and limitations of coverage;
The cost-sharing provisions of coverage (including deductibles, copays and coinsurance);
Renewability and continuation of coverage provisions;
Coverage examples as prescribed by the regulations (guidance has been provided on how to construct the examples - see the link at the end of this Bulletin);
A statement that the SBC is only a summary and the terms of the plan document, policy, certificate or contract of insurance should be consulted to determine the governing contractual provisions;
Contact information for questions and obtaining a copy of the plan document or the insurance policy, certificate, or contract of insurance (such as a telephone number for customer service and an Internet address for obtaining a copy of the plan document or the insurance policy, certificate, or contract of insurance);
An Internet address (or similar contact information) for obtaining a list of network providers;
If the plan has a formulary in providing prescription drug coverage, an Internet address (or similar contact information) for obtaining information on prescription drug coverage; and
An Internet address for obtaining the uniform glossary, as well as a contact phone number to obtain a paper copy of the uniform glossary, and a disclosure that paper copies are available.

The final regulations do not require the SBC to include premium or cost of coverage information. This is a change from the proposed rule. The content requirements will change effective for the first plan year that begins on or after January 1, 2014. At that time, the SBC will need to contain a statement about whether the plan or coverage provides minimum essential coverage and whether the plan's or coverage's share of total allowed costs of benefits meets applicable minimum value requirements. Additional guidance will be issued to address the minimum essential coverage and minimum value statements.

Appearance

The SBC must meet strict guidelines in its appearance and form. It must be presented in a uniform format, use terminology understandable by the average plan enrollee, not exceed four double-sided pages in length, and not include print smaller than 12-point font.

There are model documents available on the DOL website, http://www.dol.gov/ebsa/. The SBC can be provided in color or in grayscale.

Delivery Requirements

From the Insurance Carrier to the Group Health Plan (Plan Sponsor)

An SBC provided by a carrier offering group health insurance coverage to a plan (and its sponsor), may be provided in paper form.

Alternatively, the SBC may be provided electronically (such as by email or an Internet posting) if the following three conditions are satisfied:

The format is readily accessible by the plan (or its sponsor);
The SBC is provided in paper form free of charge upon request; and
If the electronic form is an Internet posting, the issuer timely advises the plan (or its sponsor) in paper form or email that the documents are available on the Internet and provides the Internet address.

From the Insurance Carrier and/or the Plan Administrator (generally the employer) to Participants and Beneficiaries

The SBC can be provided as a stand-alone document. It may also be provided in combination with other summary materials (e.g., SPD), only if the SBC information is intact and prominently displayed at the beginning of the materials (such as immediately after the Table of Contents in the SPD), assuming the timing requirement of the SBC can be satisfied. However, there are potential issues with satisfying the SBC requirement through the SPD, as the SBC must be provided more frequently than the SPD and the SBC must be delivered to participants and beneficiaries, while the SPD is provided to just participants. Thus, attempting to satisfy the SBC requirements through the SPD could be challenging. An SBC provided by a group health plan or carrier to a participant or beneficiary may be provided in paper form. Alternatively, the SBC may be provided electronically (such as by email or an Internet posting) if the following requirements are met:

With respect to participants and beneficiaries covered under the plan, the SBC may be provided electronically in accordance with the DOL electronic delivery rules. Note however, there is a significant burden on employers attempting to provide documents under the DOL electronic delivery rules to individuals who do not have work-site access to the employer's electronic system (e.g., participants who don't use a computer as a daily part of their work activities, COBRA qualified beneficiaries, spouses and dependents).
With respect to participants and beneficiaries who are eligible but not enrolled for coverage, the SBC may be provided electronically if:
- The format is readily accessible;
- The SBC is provided in paper form free of charge upon request; and
- In a case in which the electronic form is an Internet posting, the plan or issuer timely notifies the individual in paper form (such as a postcard) or email that the documents are available on the Internet, provides the Internet address, and notifies the individual that the documents are available in paper form upon request.

Language Requirements

The SBC must be provided in a culturally and linguistically appropriate manner. Pursuant to the regulations, plans and carriers must issue notices in a culturally and linguistically appropriate manner when 10 percent or more of the population residing in the claimant's county are literate only in the same non-English language. There are 255 counties in the U.S. that meet this threshold, with Spanish being the most prevalent language.

Health&Human Services (HHS) will make available written translations of the SBC template, sample language, and uniform glossary in Spanish, Tagalog, Chinese, and Navajo.

Modifications to the SBC Outside of Renewal - 60-Day Prior Notice Rule

If the group health plan or health insurance carrier makes a material modification to the SBC outside of renewal or reissuance (e.g., a mid-year plan design change) that would require a change in the SBC, the plan or carrier must provide notice of the modification to enrollees no later than 60 days prior to the date the modification will take effect. Notice must be provided in a form consistent with the requirements outlined above. This is a departure from current practice and will need to be addressed by employers as they respond to changing demands.

UNIFORM GLOSSARY OF HEALTH COVERAGE AND MEDICAL TERMS

A group health plan and insurance carrier offering group health insurance coverage must make a uniform glossary of health coverage and medical terms available to participants and beneficiaries, in either paper or electronic form. The glossary must be provided within 7 days of a request made by a participant or beneficiary.

PENALTIES

A group health plan or insurance carrier who willfully fails to provide the SBC to a participant or beneficiary is subject to a fine of up to $1,000 for each failure. A failure with respect to a participant or beneficiary constitutes a separate offense for purposes of assessing the fine.

The Department of Labor will issue separate regulations in the future describing the procedures for assessment of this fine.

Also, the Department of Treasury (IRS) may impose an excise tax of $100 per day per individual for each day that the plan fails to comply with the requirement. The amount can be reduced for failures due to reasonable cause and not willful neglect. These failures are reported on IRS Form 8928.

CONCLUSION

Employers will want to review this guidance and discuss the impact to their plans with carriers and TPAs. Compliance is required beginning on and after September 23, 2012, so employers will want to be mindful of when they hold open enrollment and when the plan year begins in order to satisfy the new disclosure requirement. Special attention may be needed for October and November renewals, where the plan year begins after the new effective date, but the open enrollment period may begin before that date.

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The Month in Pennsylvania Workers' Compensation: January 2012 At-A-Glance

Mitchell I. Golding, Esq. — Thu, 16 Feb 2012 13:48:12 -0500

REINSTATEMENT/ STATUTE OF LIMITATIONS/ STATUTE OF REPOSE/ EQUITABLE ESTOPPEL/PENALTY

Notwithstanding the fact the employer reinstated the claimant's compensation for periods following the expiration of 500 weeks of suspension by Supplemental Agreement the claimant was not entitled to a reinstatement of benefits because Claimant's benefits were suspended on September 20, 1989, when Claimant returned to his pre-injury position without a loss of earnings. Pursuant to Section 413(a) of the Act, therefore, Claimant had until approximately April 1999 to file a reinstatement petition before his right to benefits was completely extinguished. The claimant did not file a reinstatement petition until September 26, 2008; over nine years after the 500-week period had expired.

Section 413 of the Act imposes a statute of repose whereby a Petition for Reinstatement must be filed within 500 weeks from a suspension of a claimant's benefits in order to be considered timely filed. The 500-week statute of repose not only limits a remedy, but completely and totally extinguishes a claimant's rights to benefits in the first instance. The expiration of the statute of repose deprives the Board of the jurisdiction to consider a claimant's petition and can never be waived by an employer. The purpose of the statute of repose is to encourage the prompt resolution of legal rights and to protect an employer from having to defend against stale claims. For this reason, the only exception to the statute of repose is if the claimant can establish estoppel against his or her employer.

Accordingly, under Section 413(a) of the Act, where a claimant's benefits are suspended because of no current loss of earnings, said benefits may be resumed only if the claimant files a reinstatement petition within 500 weeks from the effective date of the suspension. Absent circumstances justifying application of the doctrine of equitable estoppel, a reinstatement petition filed outside of the 500-week period will be considered time-barred by the statute of repose.
The claimant's compensation was deemed suspended even though the Employer failed to suspend his benefits pursuant to a Supplemental Agreement during the statutory period because it was undisputed that Claimant returned to his pre-injury position without a loss of earnings on September 20, 1989, and that Claimant did not receive compensation benefits after that date. Therefore, the Employer was entitled to a suspension of Claimant's benefits as of September 20, 1989, notwithstanding the lack of a supplemental agreement or WCJ's order.
The doctrine of equitable estoppel applies in situations where a party, through its acts, negligently misrepresents material facts while knowing or having reason to know that the party will justifiably rely on the misrepresentation to its detriment and indeed the other party does so rely. The two essential elements of equitable estoppel which a claimant must prove by clear and convincing evidence, is, first, inducement and, second, the justifiable reliance on the inducement.

The relevant inquiry in determining whether equitable estoppel prevents an employer from raising a statute of repose defense under the Act is whether the employer's words or conduct convinced the claimant to not pursue his claim within the statutory period. In other words, the claimant not pursuing his claim within the statutory period is the detriment that must be caused by the employer's inducement. Under the statute of repose set forth in Section 413(a) of the Act, therefore, equitable estoppel applies only where the employer's words or conduct induce the claimant to not seek reinstatement of his benefits within the 500-week period.

Here, because Employer voluntarily reinstated Claimant's benefits and pursued a Modification Petition after the 500-week statute of repose had already expired, Employer's actions could not have induced Claimant to not seek reinstatement of his benefits within the statutory period.
Although the claimant filed his Petition for Reinstatement within three years of the most recent payment of compensation, the claimant's petition was barred by the statute of repose because Claimant's benefits were suspended due to Claimant's return to his pre-injury position without a loss of earnings.

Section 413(a) of the Act's 500-week statute of repose, not its three year statute of limitations, governed the outcome of this case because the claimant's compensation had previously been suspended for 500 weeks.

Section 413(a) of the Act encompasses a three year statute of limitations. Section 413(a) of the Act provides, in pertinent part: "no notice of compensation payable, agreement or award shall be reviewed, or modified, or reinstated, unless a petition is filed with the department within three years after the date of the most recent payment of compensation made prior to the filing of such petition." Here, it is undisputed that Claimant filed his reinstatement petition within three years of his last payment of compensation.

The court has distinguished the three year statute of limitations in Section 413 from the 500-week statute of repose. Section 413's three year limitation is totally inapplicable where there has been a suspension. The three year extension for filing of Modification/Reinstatement Petitions under Section 413 is inapplicable to reinstatements following suspensions and is applicable only to reinstatements following a termination of benefits.
A claimant entitled to penalties only where the claimant is awarded benefits. Thus, even if there is a violation of the Act, a Penalty Petition cannot be granted unless there is past compensation due the claimant upon which an award of penalties can be assessed.

Cozzone v. WCAB (PA Municipal/East Goshen Township), No. 664 C.D. 2011
(Decision by Judge Brobson, January 5, 2012) 2/12

VOLUNTARY REMOVAL FROM WORK FORCE/ RETIREMENT/ VOCATIONAL/ SOCIAL SECURITY

An employer need not prove the availability of suitable work when the employer proves by a totality of the circumstances that the claimant has voluntarily retired from the workforce.
Where the work injury limited Claimant to light-duty work, but all of Claimant's medical conditions limited Claimant to sedentary work, it would be pointless for us to require Employer to establish the availability of light-duty work.

The facts demonstrated that the claimant voluntarily removed herself from the workforce where she sought a disability pension that was based on her inability to engage in substantial gainful activity and where Claimant's work injury did not prevent Claimant from engaging in substantial gainful activity, though her non-worked related condition resulting in her receipt of Social Security disabled her.
The receipt of Social Security Disability benefits could be evidence that the claimant's work injury forced him or her out of the labor market.

If a WCJ finds that a claimant suffers from a work injury and no other non-work-related medical condition, then the receipt of Social Security Disability benefits can mean only that the claimant's work injury has forced him or her out of the labor market.

On the other hand, if the WCJ finds that the claimant suffers from a work injury and non-work-related medical conditions and that the work injury does not prevent the claimant from working, then the receipt of Social Security Disability benefits can mean only that the claimant is unattached to the workforce for reasons unrelated to the work injury.
A claimant who has no intention of seeking employment has voluntarily withdrawn from the workforce. A claimant can rebut the presumption that he or she has voluntarily withdrawn from the workforce by showing that he or she was forced to withdraw from the workforce due to the work injury.
The employer can prove that the claimant withdrew from the workforce by establishing that: (1) the claimant sought and received a retirement pension; (2) the claimant sought and received Social Security Disability benefits, which "precluded him from working"; and (3) the claimant failed to seek work for two years after receiving a Notice of Ability to Return to Work.

Burks v. WCAB (City of Pittsburgh), No. 980 C.D. 2011 (Decision by Judge Friedman, January 13, 2012) 2/12

NOTICE OF COMPENSATION DENIAL/ MEDICAL BENEFITS/ PENALTY/ CLAIM PETITION

In a proceeding on a claim petition, the claimant bears the burden of proving all the elements necessary to support an award of benefits. Thus, the claimant must establish that she sustained an injury during the course of her employment, and that she is disabled as a result of that injury. For purposes of workers' compensation benefits, the term disability is synonymous with loss of earning power. A claimant's burden to prove disability never shifts to the employer; rather, the burden remains with the claimant throughout the pendency of the claim petition proceeding.

Even where an employer issues an NCD that acknowledges an injury, but disputes disability, the claimant maintains the burden of proving she is entitled to benefits.
An employer may properly file an NCD when, although it acknowledges that a work-related injury has occurred, there is a dispute regarding the claimant's disability. On the NCD form the employer is given the option of acknowledging the occurrence of a work-related injury but declining to pay workers' compensation benefits because the employee is not disabled as a result of his injury within the meaning of the Act.

The NCD form for medical only is currently being distributed by the Board and is an acceptable means of accepting an injury for medical purposes only. Accordingly, an employer may properly issue an NCD to accept a claimed work injury for medical purposes only. Therefore, an employer may properly issue an NCD to accept a claimed work injury for medical purposes only.

Therefore, the employer's issuance of an NCD accepting liability for medical benefits, but disputing disability was proper where, as here, the employer asserted the cause of the disability is not the work incident, but rather a pre-existing condition.
An employer violates Section 406.1 of the Act if it fails to issue an NCP, an NCD, or a NTCP within twenty-one days of receiving notice of a work-related injury. Consequently, it can be liable for penalties for failure to comply with this provision. Moreover, when an employer fails to issue an NCP or an NCD within the appropriate timeframe, thereby forcing the claimant to litigate the compensability of an injury, the employer will be liable for the payment of the claimant's attorney's fees unless it can prove its contest was reasonable. Thus, an award of penalties and attorney's fees are the appropriate remedies for an employer's failure to issue bureau documents within twenty-one days of receiving notice of a work-place injury.

There is, however, no authority permitting an award of benefits to a claimant who would not otherwise be entitled to them based upon an employer's failure to comply with the Act. Therefore, the Employer's violation of the Act by failing to issue the appropriate document regarding an alleged injury does not render a claim compensable as a matter of law.
Where a claimant in good faith seeks medical treatment for a work injury and the medical treatment itself either aggravates the existing injury or causes new, additional injury, the law regards the latter being causally related to the original work injury.
Employer's voluntary payment for Claimant's surgery did not constitute an admission of liability.

Zuchelli v. WCAB (Indiana University of Pennsylvania), No. 817 C.D. 2011 (Decision by Judge Simpson, October 12, 2011) 2/12

Supreme Court Spotlight: Hosanna In the Highest...Court

James W. Cushing, Esq. — Thu, 16 Feb 2012 14:26:09 -0500

The First Amendment to the United States Constitution prevents Congress from making any law prohibiting the free exercise of religion. The question of how this freedom to exercise one´s religion intersects with one´s employment rights was considered for the first time by the United States Supreme Court in the recently decided case of Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission et al. Hosanna involved Cheryl Perich, a teacher ("Teacher") at a Lutheran (Missouri Synod) Church School ("Church School") who was terminated after it was revealed that she had narcolepsy. She, through the advocacy of the Equal Employment Opportunity Commission ("EEOC") which took her case, brought suit against the Church School claiming it acted in violation of the Americans with Disabilities Act ("ADA"). After an adverse decision in the Eastern District Court of Michigan, the EEOC appealed to the Sixth Circuit which remanded the matter to District Court. The Church School appealed to the United States Supreme Court which reversed the Sixth Circuit and is the decision discussed herein. Pursuant to Lutheran Church Missouri Synod canons there are two (2) types of teachers: "called" and "lay". A called teacher, in addition to the credentials typically required of a teacher, must also complete accredited theological training. Upon completion, a called teacher is granted the title of Minister of Religion, Commissioned. The Teacher for the Church School was a called teacher and, in addition to typical secular teaching duties, also taught a religion class, led daily prayer and devotionals in her class, took her students to a weekly chapel service, and occasionally led the chapel services herself. During her tenure with the Church School, the Teacher developed narcolepsy and requested a full school year´s (September through June) leave. The Church School granted the requested leave and replaced the Teacher with a lay teacher for the school year during which the Teacher would be on leave. Despite requesting a full year´s leave, by January 27 of her year of leave the Teacher requested to return to work. The Church School Board denied her request, indicating that it had contracted with a replacement teacher for the year in reliance upon her request for a full year of leave. Accordingly, the Church School requested that she resign and, in exchange, offered to pay a portion of her health insurance premiums. The Teacher refused to resign and on the first day she was medically cleared for work she appeared at the Church School. She was asked to leave but she refused until she received documentation that she did, in fact, appear. When the Church School principal indicated that her conduct (refusing to leave) may lead to her involuntary termination, the Teacher indicated that she had consulted with an attorney with regard to her "rights." After meetings of the School Board and congregation, the Church School ultimately decided to terminate the Teacher and rescind her status as a Minister of Religion, Commissioned. The Church School Board believed that the Teacher´s above-described conduct amounted to "insubordination and disruptive behavior" and her "threatening to take legal action" damaged her "working relationship" with the Church School and violated the Lutheran Church Missouri Synod doctrinal belief that Christians ought not pursue secular litigation against one another, but engage in intra-church dispute resolution options instead. Consequently, the Teacher brought suit against the Church School claiming it, when it terminated her, violated the ADA as she, suffering from narcolepsy, was covered by its protections. The Supreme Court´s decision centered around what has become known as the "ministerial exception." The ministerial exception had been established and employed for many years in the Circuit Courts but had never been addressed by the Supreme Court previous to Hosanna. In reaching its unanimous decision, the Court began its review of relevant precedent with the English Magna Carta of 1215. Under the Magna Carta, King John, the symbolic embodiment of the English government, agreed that the Church of England would have the "freedom of elections" for its clergy and prelates. Of course, as the Court noted, the relationship of the English Church and the government, and the religious control held by each, vacillated over a course of time, but ultimately those English Christians, seeking total religious freedom, migrated to the nascent United States. Moving forward, the Court then traced the concept of a religion being free from the state regarding the selection of its "ministers" in America through the coming of the Puritans from England to America in order to escape the religious control of the Church of England and to William Penn in Philadelphia seeking to declare the independence for the Quakers also from the Church of England. Moving forward to the Eighteenth Century, the Court noted the struggle in the American South between the Church of England attempting to exert control over the selection of clergy and prelates and the American Anglican Church. After this brief overview of the history of religion and law in America, the Court concluded that the preceding is the context in which the Religion Clauses of the First Amendment of the U.S. Constitution were written. Specifically, the Court observed that "the Religion Clauses ensured that the new Federal Government - unlike the English Crown - would have no role in filling ecclesiastical offices. The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own...Our decisions in that area confirm that it is impermissible for the government to contradict a church´s determination of who can act as its ministers." The Court then went on provide an overview of First Amendment cases over the course of American jurisprudence, ultimately concluding that "[r]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes on the Free Exercise Clause, which protects a religious group´s right to shape its own faith and mission through its appointments." Per the description of the Teacher´s role and position within the Church School, the Court determined that the Teacher was a minister and, therefore, within the ministerial exception. The Court concluded that by "[t]he [ministerial] exception ...ensures that the authority to select and control who will minister to the faithful - a matter `strictly ecclesiastical.´" The Court also ruled that the First Amendment right to assembly only serves to buttress the Free Exercise Clause´s protection of a religion to make its employment decisions vis-à-vis its ministers. In response to the argument that suggested the ADA ought to apply to the hiring and firing of a religion´s ministers because the ADA is a neutral and generally applicable law, the Court ruled that the selection of its ministers is an internal decision which affects the faith and mission of the religion itself. By contrast, the general principle of neutral and generally applicable laws is, per the Court, only applicable to the outward physical acts of a religion. The Teacher also argued that the Court´s ruling would suddenly create unfettered chaos with religious institutions´ hiring and firing. Of course, the Court observed that the ministerial exception had been in the Circuits for many years and no such consequence has yet to result. Finally, the Teacher asserted that the Church School´s argument that she was terminated, at least in part, due to a violation of the Lutheran Church Missouri Synod´s canonical policy that Christians seek intra-church dispute resolution as opposed to a resolution in secular court was pretextual. The Court refused to decide whether the Teacher´s assertion was accurate as such a decision would require a constitutionally impermissible inquiry into the interworking of a church, its doctrinal teaching, whether someone violated that doctrinal teaching, and whether that doctrinal teaching was properly applied. The Court ruled that such an inquiry was clearly a violation of the First Amendment right to the free exercise of religion. Justice Thomas wrote a concurring opinion simply to say that the ministerial exception also includes a religion´s right to determine for itself what a minister is. Justice Alito (with Justice Kagan joining) also prepared a concurring opinion to make it clear that not only does a religion have the right to determine for itself what a minister is, the Western and/or Judeo-Christian concept of a minister/clergy is also the province of the religion. Justice Alito pointed out that some Eastern faiths do not have "ministers" or "clergy" in the same way as a Western faith but that does not mean that the ministerial exception does not apply to them. Through the Hosanna decision, the Supreme Court of the United States has formally adopted the ministerial exception ensuring religious groups have complete and ultimate authority in the employment of its ministers.

Superior Court Rules on "Collusive Marriage" and Spousal Privilege Against Testifying

Burton A. Rose, Esq. — Thu, 16 Feb 2012 13:48:32 -0500

Com. v. Lewis, 800 MDA 2010, 2012 WL 259324, 2012 PA Super 17 (1/30/12). This was an appeal from a Judgment of Sentence in the Court of Common Pleas of Lebanon County, Criminal, No. CP-38-CR-0001113-2008. The panel was composed of Judges GANTMAN, LAZARUS, and MUNDY. Judge Gantman wrote the Opinion for the Panel. A jury convicted the Appellant of tampering with public records or information, 18 Pa.C.S.A. § 4911. The Lebanon County Office of Adult Probation and Parole employed Appellant as a probation officer. In August 2007, Appellant started supervising the probation of Jeffrey Gardner, who was on electronic monitoring. In December 2007, while Appellant was supervising Mr. Gardner´s probation, they began an intimate relationship. Appellant and Mr. Gardner made plans to travel together to Atlantic City during the weekend of February 17, 2008. On February 12, 2008, Appellant released Mr. Gardner from electronic monitoring, eleven days ahead of schedule of his six-month period of court-ordered electronic monitoring. When Mr. Gardner discovered that Probation Officer Megan Fertenbaugh planned to be in Atlantic City at the same time, he and Appellant changed their plans and rescheduled their trip for during the weekend of February 24, 2008. Part of Appellant´s duties required her to maintain case files on the probationers she was supervising and to make notations of their progress, plans, and whereabouts. Shortly before their planned trip to Atlantic City, Appellant wrote a note in Mr. Gardner´s file stating he was visiting Atlantic City with his family, as the Appellant did not want anyone to know that she and Mr. Gardner were actually traveling together. Appellant left her job with the Lebanon County Office of Adult Probation and Parole on February 25, 2008. Probation Officer Megan Fertenbaugh took over the supervision of Mr. Gardner. In March 2008, Ms. Fertenbaugh learned about the romantic relationship between Appellant and Mr. Gardner. Mr. Gardner came to the probation office where he admitted his relationship with Appellant. When asked, Appellant confirmed the truth of Mr. Garner´s statements. On March 28, 2008, the Commonwealth charged Appellant with tampering with public records or information and obstructing administration of law or other governmental function. Appellant and Mr. Gardner married on June 17, 2008. Appellant filed an omnibus pre-trial motion to preclude the Commonwealth from calling Mr. Gardner to testify at trial, based on the Section 5913 spousal testimony privilege. The Commonwealth argued the Section 5913 spousal testimony privilege should not apply in this case because Appellant and Mr. Gardner married so Mr. Gardner would not have to testify as a witness against Appellant. The trial court noted the lack of Pennsylvania precedent on the issue of a "collusive" marriage and the interplay of that concept with Section 5913. The trial court, Judge Charles Bradford, concluded that Section 5913 was unavailable to Mr. Gardner if he had married Appellant to avoid testifying against her. The trial court reasoned that a marriage timed even partly to prevent testimony was "collusive" under Pennsylvania law. Thus, the court barred Mr. Gardner from asserting the Section 5913 spousal testimony privilege at Appellant´s trial. The jury found the Appellant guilty of tampering with public records or information but not guilty of obstructing administration of law or other governmental function. On appeal, the Appellant argued that the trial court´s interpretation of Section 5913 ignored the unambiguous language of the statute and was inconsistent with the Pennsylvania rules of statutory construction. Judge Gantman agreed and concluded that the trial court had improperly compelled Mr. Gardner to testify at trial in violation of Section 5913. Under this Section, the witness spouse owns the privilege to refuse to give testimony against the defendant spouse in a criminal proceeding. The conventional purpose of this privilege is to preserve and protect marital harmony. The testifying spouse can waive a Section 5913 privilege. The issue in the present case was whether the spousal testimony privilege of Section 5913 was available to Mr. Gardner who allegedly married Appellant partly to avoid giving testimony against her in a criminal proceeding. Section 5913 defines the spousal testimony privilege as available to a lawful spouse in a criminal proceeding against the other spouse, and the statute lists four exceptions: (1) actions for desertion and maintenance; (2) criminal cases where one spouse is charged violence against the other spouse or against any minor child in their care or custody; (3) cases where the testimony is applicable to proof of marriage in support of a criminal charge of bigamy; or (4) criminal cases involving charges of murder, rape, or involuntary deviate sexual intercourse. Here, the Appellant and Mr. Gardner were lawfully married when he asserted his Section 5913 spousal testimony privilege. Notably, neither the statute nor the exceptions eliminate or limit the privilege for collusive marriages or pre-marriage events or actions. The statutory text of Section 5913 is clear in this instance, and any public policy concepts arguably implied in the statute are irrelevant. Thus, the Court refused to adopt the trial court´s rationale for creating an exception to the spousal testimony privilege for a "collusive" marriage on policy grounds and also rejected the trial court´s conclusions regarding the applicability of Section 5913 under the circumstances of this case. Therefore, Mr. Gardner owned the spousal testimony privilege when he invoked it, and the court erred in compelling Mr. Gardner to testify at Appellant´s trial. Nevertheless, the question still remained whether this error compelled a new trial because the Commonwealth´s evidence against Appellant was sufficient to prove Appellant´s guilt beyond a reasonable doubt as to the tampering with public records charge. In this respect, Mr. Gardner´s testimony was merely cumulative of other untainted evidence. Therefore, the court´s ruling compelling Mr. Gardner´s testimony at trial was harmless error. The attorney for the Appellant was Bryan Eugene DePowell, Jr. of the Mcshane Firm of Harrisburg, PA.

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.