60 http://uponfurtherreview.philadelphiabar.org/wa/default Upon Further Review en-us Upon Further Review Philadelphia Bar Association Opposes Legislation Reducing Time for Eviction to Eleven Days Charles J. Klitsch, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=9a6d14a3-1f04-4982-990b-151639f7779d Wed, 28 Sep 2016 17:04:47 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/letter_sept16.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10" alt="Article Image"/> <p> Few matters are more essential to one's well-being than having a stable place to call home. It is the mooring post that secures us against life's storms and the sheltered nest where we can take comfort in a place that is safe and warm. Preserving families, maintaining neighborhood stability and having a reliable place to call home are intertwined. </p> <p> Consequently, it has long been the position of the Philadelphia Bar Association that when tenants face the loss of their homes, they should be afforded a reasonable period of time to seek legal advice, appeal or find another place to live. </p> <p> <a href="https://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1/HB_1715_PN_2582.pdf">House Bill 1715, Printer's No. 2582</a>, introduced this session in the Pennsylvania General Assembly, takes a different approach. This legislation would shorten the period for eviction after entry of a judgment of possession to only eleven days. </p> <p> The Philadelphia Bar Association vigorously opposes House Bill 1715. On September 20, 2016, Chancellor Gaetan J. Alfano, Chancellor-Elect Deborah R. Gross and Vice Chancellor Mary F. Platt sent a strongly worded letter to House Urban Affairs Committee Chairs Scott A. Petri and Thomas R. Caltagirone voicing this Association's opposition to House Bill 1715. Read the letter <a href="https://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1/PhiladelphiaBarLetterOpposingHB1715.pdf">here</a>. </p> The Month in Workers' Compensation: July-August 2016 At-a-Glance Mitchell I. Golding, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=6353c087-fd8d-48a2-a5ef-7682095b83d2 Wed, 28 Sep 2016 16:19:43 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/workerscomp_sept16.jpg" width="200" height="100" border="0" vspace="10" hspace="10"alt="Article Image"/> <p> <strong><u>ATTORNEY FEES/APPEAL/ LITIGATION COSTS/COLLATERAL ESTOPPEL</u></strong> </p> <ul> <li> <p> An award of attorney's fees and litigation costs to a prevailing claimant is not automatic. Therefore, even if the absence of an award of attorney's fees was inadvertent, the mistake goes to the merits of the case rather than to the satisfaction of the award, and it cannot be corrected by way of a Petition to Review under Section 413 of the Act. </p> <p> The claimant would need to remedy the failure to receive attorney's fees and litigation costs by filing an appeal, even if the claimant prevailed on the merits of the case. </p> </li> <li> <p> Generally, a party who prevailed in a proceeding below is not an aggrieved party and, consequently, has no standing to appeal. However, courts allow a party to appeal where the remedy awarded is claimed to be insufficient. </p> <p> In this matter, although Claimant prevailed before the WCAB in his appeal of the suspension order, he only prevailed in part, because the Board did not address his request for costs and attorney's fees. As a result, and because an award of attorney's fees is not automatic, Claimant was adversely affected by the WCAB's decision, and thus, he was aggrieved. </p> <p> Claimant's proper remedy was to request reconsideration by the Board or file an appeal to the Commonwealth Court. Claimant failed to do either. Since the WCAB's order that failed to award litigation costs and attorney fees was final the claimant was not permitted to collaterally attack the WCAB's final order by filing a Petition to Review that sought reimbursement of attorney's fees and litigation costs. </p> </li> </ul> <p> <em>Byfield v. WCAB (Philadelphia Housing Authority)</em>, No. 2002 C.D. 2015(Decision by Judge Wojcik, July 26, 2016). </p> <p> <strong><u>OCCUPATIONAL DISEASE/MEDICAL TESTIMONY</u></strong> </p> <ul> <li> <p> To establish that a firefighter's cancer is an occupational disease, pursuant to Section 108(r) of the Act, the firefighter must show that he has been diagnosed with a type of cancer <em><strong>"caused by</strong></em> exposure to a known carcinogen which is recognized as a Group 1 carcinogen." By using the words "<em><strong>caused by</strong></em>" it is incumbent upon Claimant to prove that his cancer is a type of cancer caused by the Group 1 carcinogens to which he was exposed in the workplace to establish an occupational disease. Only then do the presumptions in Section 301(e) and (f) of the Act come into play. </p> <p> Section 301 (e) provides: </p> <blockquote> <em>If it be shown that the employe, at or immediately before the date of disability, was employed in any occupation or industry in which the occupational disease is a hazard, it shall be presumed that the employe's occupational disease arose out of and in the course of his employment, but this presumption shall not be conclusive.</em> </blockquote> <p> Section 301 (f) provides in pertinent part: </p> <blockquote> <em>Compensation pursuant to cancer suffered by a firefighter shall only be to those firefighters who have served four or more years in continuous firefighting duties, who can establish direct exposure to a carcinogen referred to in section 108(r) relating to cancer by a firefighter and have successfully passed a physical examination prior to asserting a claim under this subsection or prior to engaging in firefighting duties and the examination failed to reveal any evidence of the condition of cancer. The presumption of this subsection may be rebutted by substantial competent evidence that shows that the firefighter's cancer was not caused by the occupation of firefighting.</em> </blockquote> <p> This presumption relieves the firefighter of the need to prove that his cancer was <em><strong>caused by</strong></em> his workplace exposure and not another cause. So long as the firefighter can show four years of continuous service and the absence of cancer prior to that service, he is entitled to compensation under Section 301(f) of the Act, </p> </li> <li> <p> The WCAB's affirmation of the WCJ's granting of Claimant's Claim Petition was vacated and this matter was remanded because the WCAB erred in concluding that if Claimant had cancer generally and was exposed to any Group 1 carcinogens, he had met his initial burden. The WCAB failed to give effect to the words "<em><strong>caused by</strong></em>" between "cancer suffered by a firefighter" and "exposure to a known [Group 1] carcinogen" as used in Section 108(r) of the Act. </p> <p> Upon remand, the claimant had to establish that melanoma is caused by a Group 1 carcinogen, thus rendering it an occupational disease under Section 108(r). Only at that point would the presumption in Section 301(e) come into play and assist Claimant, who is relieved of having to rule out other causes for his melanoma, such as his outdoor lifestyle. </p> <p> The WCJ must then determine whether Claimant had "four or more years in continuous firefighting duties, can establish direct exposure to a carcinogen referred to in Section 108(r) and successfully passed a physical examination prior to engaging in firefighting duties and the examination failed to reveal any evidence of the condition of cancer. </p> </li> <li> <p> Upon remanding this matter, the Commonwealth Court directed the WCAB to determine whether the Act requires a medical expert to satisfy Pennsylvania Rule of Evidence 702, i.e., the Frye standard. This Rule provides: </p> <blockquote> <p><em>A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:</em> </p> <ol type="a"> <li><em>the expert's scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;</em></li> <li><em>the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and</em></li> <li><em>the expert's methodology is generally accepted in the relevant field.</em></li> </ol> </blockquote> </li> </ul> <p> <em>City of Philadelphia Fire Department v. WCAB (Sladek)</em>, No. 579 C.D. 2015 (Decision by Judge Leavitt, August 12, 2016). </p> <p> <strong><u>LONGSHORE ACT</u></strong> </p> <ul> <li> <p> The WCJ did not err by holding that the Longshore Act had exclusive jurisdiction over the Claimant's injury where the ship on which Claimant was injured was located "on the water." The Longshore Act provides employees who are injured over navigable waters while performing traditionally maritime functions remain exclusively in the jurisdiction of the Longshore Act. </p> </li> <li> <p> An employee is entitled to benefits under the Workers' Compensation Act when he establishes that he suffered a work-related injury in Pennsylvania that occurred in the course of an employment relationship. See Sections 101 and 301(c) (1) of the Workers' Compensation Act. Alternatively, an employee is entitled to benefits under the Longshore Act if he establishes that his disability is the result of "an injury occurring upon the navigable waters of the United States." </p> <p> Maritime employees who are injured over navigable waters while performing traditionally maritime functions remain exclusively in the jurisdiction of the Longshore Act. </p> </li> </ul> <p> <em>Savoy v. WCAB (Global Associates)</em>, No. 2613 C.D. 2015 (Decision by Judge Leavitt, August 25, 2016). </p> First Judicial District's 2015 Annual Report Provides Detailed Statistics and Information on Court Initiatives Upon Further Review Staff http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=6da9c9ae-04b1-43c8-bc29-34b973685165 Wed, 28 Sep 2016 16:18:36 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/annualreport_sept16.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10"alt="Article Image"/> <p> Highlights of the First Judicial District's 2015 Annual Report include: </p> <ul> <li>A successful application was made for a $3.5 million MacArthur Foundation grant to fund criminal justice reform.</li> <li>In April 2015 the Family Court Help Center was opened as a resource for pro se litigants to obtain forms and information related to domestic relations matters, staffed by volunteer attorneys.</li> <li>The diversionary programs in the Municipal Court Criminal Division continue to succeed. In 2015, in excess of 6,709 cases were diverted from the Court's standard calendars, saving costs associated with formal trials, court related police overtime and lengthy prison stays for nonviolent offenders.</li> <li>The number of arbitration cases filed in the Court of Common Pleas Civil Division continues a long decline, with 11,775 cases filed in 2015, down from 17,993 cases filed in 2009.</li> <li>Implementation of the Summary Trial Appeal Program in the Municipal Court, Traffic Division.</li> </ul> <p> Read the full report on the First Judicial District website <a href="http://courts.phila.gov/pdf/report/2015-First-Judicial-District-Annual-Report.pdf">here</a>. </p> The Gist of a Legal Malpractice Action James W. Cushing, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=c50e665e-7b2c-4698-8673-dc87148f7717 Wed, 28 Sep 2016 16:23:57 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/gist_sept16.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10"alt="Article Image"/> <p> There are times when a disgruntled client believes his case was mishandled by his attorney to such an extent that he needs to bring suit against the attorney to make him whole. When bringing such a suit, a client can bring an action against his attorney sounding in tort for legal malpractice and/or an action sounding in breach of contract. </p> <p> A malpractice claim addresses whether an attorney performed his duties according to the accepted standards of practice and is subject to a two year statute of limitations. A breach of contract claim addresses whether the attorney fulfilled his duties according to the contract that an attorney has with his client and is subject to a four year statute of limitations. According to the so-called "gist-of-the-action" rule, a litigant may not bring a tort claim (e.g.: legal malpractice) against someone if the legal duty that is claimed to have been breached by the opposing party is created by the terms of a contract. </p> <p> It is not uncommon for both legal malpractice and breach of contract claims to be raised simultaneously by disgruntled clients against their attorneys, and the recent matter of <em>New York Central Mutual Insurance Company and St. Paul Mercury Insurance Company v. Margolis Edelstein and Michael T. Savitsky</em>, United States Court of Appeals for the Third Circuit, Case No. 15-1541 helps provide guidance regarding which is the more appropriate claim. </p> <p> The <em>New York Central </em>matter centered on an attorney’s representation of an automobile insurance company with regard to the coverage it elected to provide (or lack thereof) for an automobile accident. At the conclusion of the case, the insurance company believed it received poor, indeed substandard, legal advice from its attorney which, as a result, led to its suing its attorney for breach of contract. The defendant attorney filed a motion to dismiss (which was granted, leading the insurance company to appeal to the Third Circuit) based on the "gist-of-the-action" rule. The successful argument proffered by the attorney was that, regardless of the labeling provided by the insurance company, its claim was actually a malpractice claim. The impact of a breach of contract claim being construed as a malpractice claim is that it shortens the applicable statute of limitations from four years (for contracts) to two years (for torts), which would lead to the dismissal of the insurance company’s claims as they were filed more than two years after the incident giving rise to its case against its attorney. </p> <p> The Court indicated that a claim for breach of contract must arise from the duties created by a contract and not duties created through a "broader social duty." The duty at issue under a contract claim must be one which a party would not otherwise have been obliged to do but for the terms of the contract. </p> <p> According to the Court, the obligation for an attorney to perform his duties competently is one which looks to "broader social duties" and not simply the specific terms of a contract. According to the contract at issue, the attorney in this case was tasked with researching, drafting, and communicating a legal opinion to the insurance company regarding exposure to civil liability flowing from a specific automobile accident. To that end, the Court observed that the attorney did research, draft, and communicate the aforesaid legal opinion to the insurance company. Consequently, the attorney did not breach the contract. The insurance company’s claim is, more-or-less, that the attorney did a poor job in researching, drafting, and communicating the legal opinion, which is distinct from claiming the attorney did not perform the tasks he was contracted to do. In other words, as the Court pointed out, the insurance company’s claim "arises from [the attorney’s] negligent performance of his contractual duty obligations and, therefore, sounds in tort." </p> <p> Due to the above, the Court construed the breach of contract claim against the attorney as a malpractice claim, and, therefore, applied the two year statute of limitations for a malpractice claim to the insurance company’s claims, which resulted in the dismissal of those claims due to being time barred. </p> <p> The decision above is beginning to be adopted generally as it has already been applied in the matter of <em>Rinker v. Amori</em>, Case No.: 3:15-1293, 2016 US Dist. Lexis 36712 at 19-20 (M.D. Pa. Mar. 22, 2016) and is consistent with the Pennsylvania Supreme Court case <em>Bruno v. Erie Insurance</em>, 106 A.3d 48 (Pa. 2014). </p> <p> So, practitioners should be aware and vigilant to ensure they are compliant with the "gist-of-the-action" rule, and remember that, regardless of how a case is labeled, a court will look to the substance of the claims made to determine whether it sounds in contract or in tort. </p> Third Circuit: Defective Indictment Not Structural Error Requiring Automatic Reversal Burton A. Rose, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=6e82ce6e-4d79-45b4-8912-31d43ce2188b Wed, 17 Aug 2016 15:00:25 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/id_aug16.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10"alt="Article Image"/> <p> In <em>United States v. Terrell Stevenson</em>, 2016 WL 4191134 (August 9, 2016), a panel of the United States Court of Appeals for the Third Circuit was presented with a direct appeal from a criminal conviction in the United States District Court for the Middle District of Pennsylvania. </p> <p> Among the issues raised in that direct appeal was a contention that the indictment did not adequately state the essential elements of one of the offenses: fraud in relation to identification documents prohibited by 18 U.S.C. &sect;1028. The appellant alleged that the indictment did not include a specific averment regarding the interstate commerce element of the law. </p> <p> The panel was composed of Judges Smith, Hardiman and Schwartz; Judge Hardiman wrote the opinion for the panel. There was no dissent. </p> <p> The panel ruled that an indictment which fails to include all the central elements of the charged offense is subject to harmless error review when the issue was raised in the trial court and that a defective indictment does not constitute a structural error that would require automatic reversal. </p> <p> The Panel acknowledged that the United States Court of Appeals for the Ninth Circuit has taken the view that a defective indictment does require automatic reversal, and cited <em>United States v. Omer</em>, 395 F3d 1087 (2005); however, Judge Hardiman noted that the ninth circuit is the lone circuit that takes that position. Six other courts of appeal have taken the view that harmless error review applies when an indictment’s omission of an essential element is challenged in District Court. The Third Circuit now joins that group and thereby overruled its prior decision in <em>United States v. Spinner</em>, 180 F3d 514 (1999) (holding that a similar omission was a fundamental defect depriving the court of jurisdiction and was not susceptible to harmless error review). </p> <p> In this case, since the trial jury found the appellant guilty after receiving explicit instructions as to the facts necessary to convict him on the interstate commerce element beyond a reasonable doubt, a rational grand jury would certainly have had adequate probable cause to charge him with each and every element of the fraudulent identification offense. Therefore this error was harmless. </p> <p> Consequently, appellant’s conviction and 360 month sentence were affirmed. </p> Chief Judge McKee: Presiding Judge or Magistrate Has Sole Discretion in Requests for Interim Payment of Counsel Upon Further Review Staff http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=2dd1aa91-eace-428e-a02b-3d55640bc830 Wed, 17 Aug 2016 16:20:17 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/numbers_aug16.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10"alt="Article Image"/> <p> In a bid to streamline the payment process, Third Circuit Court of Appeals Chief Judge McKee has ordered that in extended or complex cases where counsel has been appointed under the Criminal Justice Act, 18 U.S.C. &sect;3006A, responsibility for review of requests to submit interim vouchers for compensation for pending matters rests solely with the presiding judge or magistrate. See Chief Judge McKee's <a href="https://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1/StandingOrderonRequestsforLeavetoSubmitInterimVouchers.pdf">August 9 Order</a>. </p> The Month in Workers' Compensation: June 2016 At-a-Glance Mitchell I. Golding, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=6f7be589-70ed-4be6-a362-9be5f917508f Wed, 17 Aug 2016 14:59:06 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/medical_aug16.jpg" width="200" height="100" border="0" vspace="10" hspace="10" alt="Article Image"/> <p> <strong><u>APPEAL/ INTERLOCUTORY ORDER</u></strong> </p> <ul> <li> <p> An order by a Workers' Compensation Judge ("WCJ") denying a Joinder Petition is a final order and not interlocutory, because the order disposes entirely of the issues set forth in the Joinder Petition. Therefore, it is subject to an immediate appeal. </p> <p> However, a party may take an appeal <em>nunc pro tunc</em> where there has been a breakdown in the administrative process. A breakdown in the administrative process occurs when the party seeking to appeal an order in an untimely manner establishes that its delay in taking action was caused by extraordinary circumstances involving fraud, a breakdown in the administrative process, or non-negligent circumstances related to the claimant, his counsel, or a third party. </p> <p> When an adjudicator erroneously labels an order as "interlocutory" and the order not only fails to advise a litigant of the right to appeal, which is the custom in Workers' Compensation matters, but rather affirmatively directs the litigant that he or she may not appeal an order, there may be grounds to seek <em>nunc pro tunc</em> review. </p> <p> In this matter the Court directed that the Uninsured Employers Guaranty Fund be given an opportunity to establish that a breakdown in the administrative process occurred such that the Board should have considered its appeal <em>nunc pro tunc</em> where the WCJ dismissed the Joinder of a carrier and erroneously labeled its order an interlocutory and not subject to appeal rather than a final order. </p> </li> </ul> <p> <em>Uninsured Employers Guaranty Fund v. WCAB (Gerretz, Reliable Wagon and Auto Body, Inc., and Somerset Casualty Insurance Company)</em>, No. 445 C.D. (Decision by Judge Brobson, June 14, 2016) 6/16 </p> <p> <strong><u>MEDICAL BENEFITS /ATTORNEY FEES</u></strong> </p> <ul> <li> <p> The WCJ did not err in denying Claimant's counsel a 20 percent attorney fee chargeable to the Claimant's medical bills where the WCJ concluded that the Claimant failed to establish that any particular work performed specifically advanced the payment of medical bills to warrant a 20 percent attorney fee of the medical bill payments and where the WCJ found that testimony did not establish that the fee agreement provided counsel with 20 percent of the medical bills paid. </p> <p> Consequently, counsel did not demonstrate to the WCJ why such a fee was justified in light of the time and effort expended on obtaining medical benefits for Claimant. The WCJ was also correct in finding that counsel's requested fee was unreasonable in light of the work performed. </p> </li> <li> <p> Upon determining whether medical bill payments should be included in a contingent fee agreement, the WCJ must assess: (1) whether the claimant and counsel intended for counsel to receive a percentage of the medical bill payments; and (2) whether the fee is reasonable. </p> <p> In addition, a reasonableness inquiry in this context should address the amount and degree of difficulty of the work performed by the attorney upon obtaining payment of medical benefits. This requires a <em>quantum meruit</em> analysis. </p> <p> Thus, counsel seeking a contingent fee on medical bill payments in addition to the <em>per se</em> reasonable 20 percent contingent fee on indemnity benefits must demonstrate to the WCJ why such a fee is justified in light of the time and effort expended on obtaining medical benefits for the claimant. </p> </li> <li> <p> Although the provider would be prohibited from going after the claimant for the difference between the amount billed and the Medicare-based reimbursement rates, the Act would not prohibit the provider from seeking reimbursement from the claimant for the balance resulting payment of an amount less than the Medicare-based reimbursement rates resulting from counsels 20% attorney fee chargeable to the medical bill. </p> <p> The court voiced its concern that a claimant may not be aware that her counsel's interest in receiving attorney's fees based on medical benefit payments can be in conflict with the claimant's own financial interests. As expressed by Judge Pellegrini in a prior decision, "at the minimum," a claimant should be informed "of the potential conflict and informed that he may wish to employ an attorney to advise him of the reasonableness of the fees sought by his counsel." </p> </li> </ul> <p> <em>Righter v. WCAB (Righter Parking</em>), No. 1356 C.D. 2015 No. 1356 C.D. 2015 (Judge Cohn Jubelirer, June 14, 2016) 6/16 </p> Third Circuit Voids Residual Clause of Sentencing Guidelines Section 4B1.2 Burton A. Rose, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=0aee244a-3a7d-47e8-9801-db80f09ed925 Wed, 17 Aug 2016 14:58:29 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/jail_aug16.jpg" width="200" height="100" vspace="10" hspace="10" align="left" alt="Article Image"/> <p> There is nothing more important in federal criminal practice than what happens at sentencing. With the United States Department of Justice reporting a 93 percent conviction rate, almost all federal prosecutions seem to end up in a sentencing hearing. Under the United States Sentencing Guidelines, if someone is determined to be a career offender, then the length of their sentence can be enormous. Therefore it becomes crucial to find out if your client has a criminal history that will warrant him or her being adjudicated as a career offender. </p> <p> In <em>United States v. Michael Calabretta</em>, 2016 WL 3997215, July 26, 2016, docket number 14-3969, a panel of the United States Court of Appeals for the Third Circuit ruled that Sentencing Guideline Section 4B1.2, concerning career offender status, cannot survive the recent decision of <em>Johnson v. United States</em>, 135 S. Ct. 2551 (2015). In that case, the United States Supreme Court ruled that the residual clause of the Armed Career Criminal Act was too vague as it did not define with specificity what constitutes a violent crime. </p> <p> In <em>Calabretta</em>, the appellant had a prior conviction for eluding the police. The United States District Court for the District of New Jersey held that this was a crime of violence under the residual clause of the applicable sentencing guideline. The defendant was determined to be a career offender and sentenced accordingly. There was no objection at the time of sentencing to the crime of eluding being considered as part of his career offender history. </p> <p> The Third Circuit panel, in an opinion written by Judge Chagares and joined by Judge Jordan, ruled that under the <em>Johnson</em> decision, it was plain error for the District Court to consider that conviction as a crime of violence. The residual clause of Section 4B1.2 suffered from vagueness the same way that the residual violent felony definition in the Armed Career Criminal Act was condemned by the <em>Johnson</em> Court. </p> <p> Judge Fisher dissented on the basis that this error was not plain since the District Court had carefully considered all of the appropriate sentencing factors in this case and the defendant's lawyer had not lodged an objection to the application of the residual clause. Judge Fisher was concerned that this ruling would improperly expand the scope of the doctrine of plain error which allows an appellate court to decide on the merits an issue that had not been properly advanced and preserved in the trial court. </p> Closing the Statute of Limitations Loop in Uninsured Motorist Arbitrations Charles F. Forer, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=12221bc0-372d-492a-9536-de9559811dd7 Wed, 17 Aug 2016 14:57:42 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/crash_aug16.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10"alt="Article Image"/> <p> <em>Author's note: This article describes a hypothetical situation.</em> </p> <p> When it comes to protecting clients, Bob does not let his guard down. He knows the value of being prompt. For instance, he takes lots of steps to avoid the running of the statute of limitations. </p> <p> So when it came time to represent long-time and now seriously injured client Karen in an uninsured motorist ("UM") arbitration, Bob did it all by the book. </p> <p> On April 5, 2011, Karen was injured in a hit and run accident. She had excellent coverage – her insurance policy included an endorsement for UM coverage of $1,000,000 per incident. An endorsement had an arbitration clause requiring Karen and the insurer to arbitrate any disputes over liability and damages. </p> <p> Bob knew a four-year statute of limitations, 42 PA. CONS. STAT. ANN. &sect; 5525(a)(8), applies to claims for uninsured motorist benefits. He knew he had to file the arbitration demand within four years of the April 5, 2011 accident date. Even a first grader could figure that out. </p> <p> Bob moved quickly after meeting with Karen. By letter dated June 2, 2011, he notified Karen's insurer of her UM claim; the notification included a lengthy summary of Karen's medical records and a detailed analysis of her lost earnings. The letter sought the entire policy limits of $1 million. After all, Karen had suffered through three major operations. She faced a recovery of more than one year. She probably would never work again. Two months post-accident, she was in constant pain. </p> <p> The insurer's counsel on August 1, 2011 sent a reservation-of-rights letter to Bob. On November 5, 2011, the insurer took a statement under oath from Karen. On December 8, 2011, Bob – upset with the several-month delay – informed the insurer's lawyer he was going to appoint an arbitrator. Two weeks later, Bob designated Karen's arbitrator. In January 2012, the insurer designated its arbitrator. </p> <p> Then things sat, seemingly for good reason. The insurer made a settlement offer that was close to Bob's bottom range of settlement. Bob naturally believed he would be able to settle the UM claim without going through the costs and delays of an arbitration. In fact, the additional time since his initial June 2, 2011 letter allowed Bob to buttress his settlement position due to Karen's additional operations and her continued absence from work with no return date in sight. </p> <p> Bob was not the only one moving forward. The two party-arbitrators exchanged e-mails regarding the appointment of the neutral arbitrator. They were close to agreement. </p> <p> However, this "progress" led nowhere. Bob reduced his settlement demand, but the insurer refused to raise its offer. The two party-arbitrators continued to exchange e-mails, but they could not agree on the neutral arbitrator. </p> <p> Days led to weeks. Weeks led to months. And months led to years. Still no movement. More letters, more e-mails, more medical records. </p> <p> Then, on August 13, 2015, more than four years after the accident, the insurer filed a declaratory judgment action. The complaint sought a determination that the statute of limitations time barred Karen's UM claim. How could the claim be time barred when Bob put the insurer on notice a mere two months post-accident, when Bob formally sought arbitration eight months post-accident, and when the insurer did not claim it was prejudiced by any delay? </p> <p> A few months later, the insurer sought summary judgment. Bob restrained himself. He did not seek sanctions in response to the motion. Instead, he laid out the undisputed facts of record that unquestionably illustrated how he had expeditiously acted. Bob's brief pointed out the "obvious problems" (Bob's language) with the insurer's approach – that it would require insureds to bring premature lawsuits to protect their rights even when there is not a present controversy. This approach would burden insureds, tortfeasors, insurers, and courts. Talk about "hurry up and wait." </p> <p> The one catch with Bob's response to the insurer's summary judgment motion: the trial court granted the motion and determined the statute of limitations barred Karen's UM claim. Where did Bob go wrong? </p> <p> First the basics: </p> <ol type="1"> <li> <p>A UM claim is subject to the same four-year statute of limitations that applies to contract actions. 42 PA. CONS. STAT. ANN. &sect; 5525(a)(8); <em>Hopkins v. Erie Ins. Co</em>.¸ 65 A.3d 452, 456 (Pa. Super. 2013).</p> </li> <li> <p>The statute of limitations on a UM claim begins to run when "(1) the insured was in a motor vehicle accident, and (2) the insured sustained bodily injury as a result of that accident, and (3) the insured knows of the uninsured status of the owner or operator." <em>Boyle v. State Farm Automobile Ins. Co</em>., 456 A.2d 156, 162 (Pa. Super. 1983).</p> </li> <li> <p>When a hit-and-run driver whom the insured cannot identify injures the insured, the insured "presumptively" knows, as of the accident date, the hit-and-run vehicle was uninsured. <em>Seay v. Prudential Property&amp;Casualty Ins. Co.</em>, 543 A.2d 1166, 1169 (Pa. Super. 1988) ("Using the objective standard, a reasonable person would have known as of the day of the accident that the vehicles were unidentified and therefore presumptively uninsured.").</p> </li> </ol> <p> However, these principles do not complete the picture, because an insured seeking UM benefits tolls the running of the statute of limitations only by filing a petition to appoint arbitrators or to compel arbitration. Sending letters and e-mails as part of an attempt to settle the UM claim, providing medical records and authorizations to obtain other medical records, seeking arbitration, appointing the insured's arbitrator, discussing the ground rules of the arbitration proceeding – none of these actions tolls the statute of limitations. </p> <p> What should Bob have done? Here is what the Superior Court recently said: </p> <blockquote> <p> [I]n accordance with Hopkins, the statute of limitations &hellip; was not tolled merely because the parties were engaged in correspondence, in an attempt to resolve the uninsured motorist benefits claim. Rather, pursuant to Hopkins, [plaintiff] was at all times required to commence his "action" within the required time-period, by filing a<em> praecipe</em> for a writ of summons, a complaint, a petition to appoint arbitrator, or a petition to compel arbitration, with the prothonotary. </p> </blockquote> <p> <em>Erie Ins. Exchange v. Bristol</em>, 2016 Pa. Super. Unpub. LEXIS 1886, at *15 (Pa. Super. May 27, 2016). </p> <p> Hurry up, Bob – file your papers in court even if you then have to wait. Otherwise, you let your guard down and your client's UM case goes "kaput." A first grader knows what that means. </p> <p> Charles F. Forer is a member in the Philadelphia office of Eckert Seamans Cherin &amp; Mellott, LLC, where he practices all types of Alternative Dispute Resolution, both as a neutral and as counsel to parties engaged in ADR. He is a former co-chair of both the Philadelphia Bar Association’s Alternative Dispute Resolution Committee and the Fee Disputes Committee. He is a frequent lecturer and writer on the use of ADR in a variety of settings. You can reach him at (215) 851-8406 and <a href="mailto:cforer@eckertseamans.com">cforer@eckertseamans.com</a>. </p> Will Greater Cooperation in Harrisburg Lead to Faster Passage of a Budget? Charles J. Klitsch, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=fa782e3d-b6df-499c-b1a9-3af01692b8c1 Fri, 24 Jun 2016 13:11:25 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/cooperate_june16.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10"alt="Article Image"/> <p> Last year at this time, legislative leaders and Governor Wolf were not speaking with each other. What a difference a year makes - or at least the realization that this is an election year. While the 2016-17 state budget is not yet set in stone, significant progress is being made in plans to raise revenue needed to close the gap between money generated under the current tax structure and the amount needed to fund anticipated expenditures. Look for increased gambling options and loosening restrictions on alcohol sales, both of which are expected to generate increased tax revenue. Also expect to see additional taxes on tobacco products. There has not been any discussion of expanding the sales tax to include legal services - yet. Courtesy of Crisci Associates, we present the latest <a href="https://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1/Pbar_tracking-2015-16-June23.pdf">Pennsylvania House and Senate Legislative Tracking Report</a>. </p> The Month in Workers' Compensation: May 2016 At-A-Glance Mitchell I. Golding, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=dccab13c-b240-46fd-aaeb-86b584141425 Fri, 24 Jun 2016 11:39:40 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/workerscomp_june16.jpg" width="200" height="100" border="0" vspace="10" hspace="10"alt="Article Image"/> <p> <u><strong>STATUTORY EMPLOYER</strong></u> </p> <ul> <li><p> Pennsylvania Supreme Court grants employer's Petition for Allowance of Appeal to address the issue of whether a franchisor may be subject to liability as a statutory employer under Section 302(a) of the Workers' Compensation Act. </p><p> Commonwealth Court, in the underlying decision written by Judge McGinley dated October 6, 2015, held that the franchisor, Saladworks, LLC, was not the statutory employer of the injured claimant pursuant to Section 302(a) where it's uninsured franchisee, G21 LLC d/b/a Saladworks (G21), did not perform a regular or recurrent part of the business, occupation, profession, or trade of Saladworks. </p><p> The Commonwealth Court reasoned that Section 302(a) of the Act provides that an entity must subcontract to have work performed that is a regular or recurrent part of its business in order to be considered a statutory employer. The Court also noted that a portion of 302(a) provides: </p> <blockquote> <p><em>For purposes of this subsection, a person who contracts with another . . . <strong>(2) to have work performed of a kind which is a regular or recurrent part of the business, occupation, profession or trade of such person shall be deemed a contractor, and such other person a subcontractor.</strong> (Emphasis added.)</em></p> </blockquote> <p> Based upon its reading of 302(a) the Commonwealth Court concluded that although Saladworks and G21 were connected through its Franchise Agreement, Saladworks, LLC was not in the restaurant business or the business of selling salads. Saladworks' business was the sale of franchises to franchisees that desire to use its name and "System" and marketing expertise. Therefore the franchisee did not perform a regular or recurrent part of the business, occupation, profession, or trade of Saladworks, meaning Saladworks could not be held to be the statutory employer. </p> </li> </ul> <p> <em>Saladworks, LLC v. WCAB (Gaudioso and Uninsured Employers Guaranty Fund)</em>, No. 971 MAL 2015 (PER CURIAM, May 3, 2016) 5/16 </p> <p> <u><strong>UNINSURED EMPLOYERS GUARANTY FUND/MEDICAL BENEFITS</strong></u> </p> <ul> <li><p> The term "compensation" used under Article XVI of the Act is defined by Section 1601 of the Act as including both disability and medical benefits. Therefore, pursuant to 1603(b) of the Act, a claimant who fails to give notice of a claim to the UEGF within 45 days of the date it learned the employer is uninsured is not entitled to compensation and medical until the date if gives notice. </p><p> Notwithstanding the fact of claimant's failure to give notice to the UEGF within 45 days, the clamant was not responsible to his providers for past due medicals. This is because employees injured while working for uninsured employers do not assume the costs of medical treatment provided to them prior to notice being given to the UEGF. Medical providers are prohibited from requiring injured employees to pay for work-related treatment by Section 306(f.1)(7) of the Act, which states "A provider shall not hold an employe liable for costs related to care or service rendered in connection with a compensable injury under this act." </p><p> Medical providers, however, maintain their right to pursue a remedy outside the workers' compensation system against uninsured employers to cover the expenses incurred in the treatment of injured employees. </p> </li> </ul> <p> <em>Commonwealth of Pennsylvania, Department of Labor and Industry, Uninsured Employers Guaranty Fund v. WCAB (Kendrick and Timberline Tree &amp; Landscaping LLC)</em> No. 1849 C.D. 2014 (Decision by Judge Cohn Jubelirer FILED, May 9, 2016) 5/16 </p> <p> <u><strong>IRE/WCJ</strong></u> </p> <ul> <li><p> The Pennsylvania Supreme Court reverses the Commonwealth Court and holds that a WCJ may validly reject the uncontradicted opinion of an IRE expert chosen by the Bureau regarding the degree of impairment and the WCJ is not required to identify substantial contrary evidence in the record to support such rejection.</p> </li> <li><p> A physician's impairment rating opinions pertaining to IREs conducted under Section 306(a.2) (6) are subject to vetting through the "traditional administrative process." Therefore, it was not improper for the WCJ to reject the opinion of the physician who performed the IRE that was "an underdeveloped, out-of-specialty opinion." </p></li> <li><p> The Commonwealth Court, upon reversing the WCJ, erred in its conclusions that a workers' compensation judge lacks the authority to reject uncontradicted testimony by an IRE physician and that, in the present case, the WCJ was required to identify substantial contrary evidence in the record to support such rejection. </p><p> The Supreme Court stated that it disapproved of the Commonwealth Court decision, to the degree that the Commonwealth Court had fashioned, essentially, an uncontradicted medical evidence rule for IREs. </p></li> <li><p> The employer bears the burden to establish grounds for modification based upon an IRE requested in excess of 60 days from the 104th week of total disability. Even when the medical testimony is of an IRE physician chosen by the Bureau, the WCJ is free to accept or reject employer's evidence. The fact that the Bureau (and not employers) selects IRE physicians, is insufficient to justify a judicial policymaking decision to implement a specialized approach to IREs conducted under Section 306(a.2)(6). </p></li> <li><p> In the context of assessing an IRE opinion it is improper for the WCJ to harken back to the full range of claimant's initial work-related injuries since an IRE assesses the examinee's present condition. In this regard, medical improvements occurring between the time of the initial injury and the examination may resolve impairments. </p><p> It is also improper to "lump" medical conditions since the AMA Guides themselves establish broad categories of impairments tied to functional sub-units of a whole person, such as the nervous system.</p> </li> </ul> <p> <em>IA Construction Corporation v, WCAB (RHODES)</em> No. 18 WAP 2015 (Decision by Chief Justice Saylor) 5/16 </p> Formerly Admitted Attorney May Not Engage in Law-Related Activities, with Limited Exceptions Under PA R.D.E. 217(j) Paul Kazaras, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=b29329a6-ac2f-4e4c-9934-10879fe2e1c0 Fri, 24 Jun 2016 11:38:58 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/former_june16.jpg" width="200" height="100" border="0" vspace="10" hspace="10"alt="Article Image"/> <p> <strong>THE PHILADELPHIA BAR ASSOCIATION<br> PROFESSIONAL GUIDANCE COMMITTEE</strong><br> Opinion 2016-4<br> (June 2016)<br> </p> <p> The Inquirer is a disbarred attorney. The Inquirer has presented the Committee with a job description to review in order to determine whether it comports with Pennsylvania Rule of Disciplinary Enforcement 217(j) concerning the types of law-related activities that a "formerly admitted attorney" may engage in during the period that the formerly admitted attorney is disbarred or suspended from the practice of law in Pennsylvania. </p> <p> The job description submitted by the Inquirer is entitled "Director of Risk Management (Legal and Governmental Affairs)." The proposed Director of Risk Management would report directly to the General Counsel of the Company. The Inquirer raised concerns with certain components of the proposed job including "assisting with the preparation of contracts, leases and other documents" and serving as the "liaison between the Company and the outside attorneys in litigation matters." Notably, as part of serving as the liaison between the Company and outside counsel, the Director of Risk Management would be "the principal point of contact for assigned counsel, assist counsel in assembling materials to respond to discovery requests, and communicate the status of pending litigation" to senior staff. </p> <p> There is no question that the Inquirer, as a disbarred attorney, is considered a formerly admitted attorney under the Pennsylvania Rules of Disciplinary Enforcement and that this job – in its entirety – constitutes a law-related activity. </p> <p> For several reasons, the Committee concludes that, while the Inquirer may engage in certain activities contained in the proposed job description, the Inquirer cannot assume this position in its current form without potentially violating Pennsylvania Rule of Disciplinary Enforcement ("PA RDE") 217(j) given that certain activities could constitute providing legal advice or opinion and certain communications with outside counsel go beyond mere ministerial activities. </p> <p> PA RDE 217(j) states as follows: </p> <p> (j) A formerly admitted attorney may not engage in any form of law-related activities in this Commonwealth except in accordance with the following requirements: </p> <ol type="1"> <li><p> All law-related activities of the formerly admitted attorney shall be conducted under the supervision of a member in good standing of the Bar of this Commonwealth who shall be responsible for ensuring that the formerly admitted attorney complies with the requirements of this subdivision (j). If the formerly admitted attorney is engaged by a law firm or other organization providing legal services, whether by employment or other relationship, an attorney of the firm or organization shall be designated by the firm or organization as the supervising attorney for purposes of this subdivision. </p></li> <li><p> For purposes of this subdivision (j), the only law-related activities that may be conducted by a formerly admitted attorney are the following: </p> <ol type="i"> <li>legal work of a preparatory nature, such as legal research, assembly of data and other necessary information, and drafting of transactional documents, pleadings, briefs, and other similar documents;</li> <li>direct communication with the client or third parties to the extent permitted by paragraph (3); and</li> <li>accompanying a member in good standing of the Bar of this Commonwealth to a deposition or other discovery matter or to a meeting regarding a matter that is not currently in litigation, for the limited purpose of providing clerical assistance to the member in good standing who appears as the representative of the client.</li> </ol> </li> <li><p> A formerly admitted attorney may have direct communication with a client or third party regarding a matter being handled by the attorney, organization or firm for which the formerly admitted attorney works only if the communication is limited to ministerial matters such as scheduling, billing, updates, confirmation of receipt or sending of correspondence and messages. The formerly admitted attorney shall clearly indicate in any such communication that he or she is a legal assistant and identify the supervising attorney. </p></li> <li><p> Without limiting the other restrictions in this subdivision (j), a formerly admitted attorney is specifically prohibited from engaging in any of the following activities: </p> <ol type="i"> <li>performing any law-related activity for a law firm, organization or lawyer if the formerly admitted attorney was associated with that law firm, organization or lawyer on or after the date on which the acts which resulted in the disbarment or suspension occurred through and including the effective date of disbarment or suspension;</li> <li>performing any law-related services from an office that is not staffed by a supervising attorney on a full time basis;</li> <li>performing any law-related services for any client who in the past was represented by the formerly admitted attorney;</li> <li>representing himself or herself as a lawyer or person of similar status;</li> <li>having any contact with clients either in person, by telephone, or in writing, except as provided in paragraph (3);</li> <li>rendering legal consultation or advice to a client;</li> <li>appearing on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, hearing officer or any other adjudicative person or body;</li> <li>appearing as a representative of the client at a deposition or other discovery matter;</li> <li>negotiating or transacting any matter for or on behalf of a client with third parties or having any contact with third parties regarding such a negotiation or transaction;</li> <li>receiving, disbursing or otherwise handling client funds.</li> </ol> </li> <li><p> The supervising attorney and the formerly admitted attorney shall file with the Disciplinary Board a notice of engagement, identifying the supervising attorney and certifying that the formerly admitted attorney’s activities will be monitored for compliance with this subdivision (j). the supervising attorney and the formerly admitted attorney shall file a notice with the Disciplinary Board immediately upon the termination of the engagement between the formerly admitted attorney and the supervising attorney. </p></li> <li><p> The supervising attorney shall be subject to disciplinary action for any failure by either the formerly admitted attorney or the supervising attorney to comply with the provisions of this subdivision (j). </p></li> </ol> <p> Clearly, the activities described in the Inquiry and the accompanying job descriptions for the Director of Risk Management are law-related. While certain job functions associated with the position of the Director of Risk Management, including the preparation of draft contracts, leases and other related documents and legal research, and monitoring proceedings and carrying out compliance and risk management assessments, may be permissible under the supervision of either the General Counsel or another supervising attorney, other job functions clearly implicate the prohibited activities contained in Rules 217(j)(3) and (4). </p> <p> Among the potentially problematic job functions include the following: (1) "Assist General Counsel in developing advice on broad range of topics, including litigation management, compliance and regulatory issues and leasing support"; (2) "Manage relationships with outside counsel in connection with litigation matters"; (3) "Report and manage claims"; (4) "Ensure risk management policies and strategies are in compliance with applicable regulations, funding requirements, and strategic imperatives of the corporation"; (5) "Identify, evaluate and analyze risks inherent to the operations and strategic direction of the corporation"; (6) "Formulate, implement, administer and evaluate risk management strategies to effectively and cost-effectively manage risk"; (7) "Provide information to relevant official bodies and stakeholders as necessary and appropriate"; and (8) "Assist in the development of policies and procedures to ensure compliance." </p> <p> While some of the aforementioned functions may be fine insofar as they are done exclusively with and at the discretion of the General Counsel, there is no question that the General Counsel and those working under him serve as counsel to the organization. </p> <p> In essence, internal communications by the Inquirer with other representatives of the Company – where the General Counsel is not present or is not participating – would appear to violate Rule 217(j)(4)(vi) in that the Inquirer may be providing legal consultation or advice to a client. </p> <p> Similarly, the job description raises concerns about the level of communications between the Director of Risk Management, outside counsel and other third parties. </p> <p> There is no question that, based upon the job description, those discussions would go well beyond mere ministerial matters and could potentially include evaluations and recommendations for settlement, the analysis of claims, analysis of legal issues and positions of the Company, etc. Those kinds of discussions would go beyond the limitations proscribed by Rule 217(j)(3) and are prohibited. </p> <p> As a result, the Committee is concerned that the job description for the Director of Risk Management as it is presently formulated could create a potential problem for the Inquirer in trying to comply with Rule 217 of the Pennsylvania Rules of Disciplinary Enforcement. </p> <p> <em>Caveat: The foregoing opinion is advisory only and is based upon the facts set forth above. The opinion is not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. It carries only such weight as an appropriate reviewing authority may choose to give to it.</em> </p> Doggone It! Court Cannot Condone Canine Custody James W. Cushing, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=ca911183-e036-4f4d-95af-dd448255381b Fri, 24 Jun 2016 11:38:44 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/puppy_june16.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10"alt="Article Image"/> <p> Many Americans have pets, and regardless of whether these pets are dogs, cats, lizards or fish, many pet owners think of their pets as members of the family. What happens when a pet is owned by a married couple who decide to divorce? The landmark Pennsylvania Superior Court case of <em>Desanctis v. Pritchard</em>, 803 A.2d 230 (2002) has answered this question rather definitively. </p> <p> In Desanctis, the parties were married for about nine years. While they were married, they purchased their family dog, Barney, from the SPCA. As part of their divorce agreement, the parties, using terms typically reserved for child custody matters, awarded wife "full custody" of Barney while husband received what is tantamount to "visitation." </p> <p> Not long after their divorce, wife moved a fair distance away from husband and discontinued making Barney available to the husband for visits. Due to wife's actions, husband filed a complaint against wife in equity. Husband sought injunctive relief to,<em> inter alia</em>, force wife to provide Barney to him, and modify the "custody" arrangement for Barney to ensure he had more time with his pooch. Wife filed preliminary objections to husband's complaint that were granted by the Court of Common Pleas, which resulted in the dismissal of husband's complaint, leading him to file an appeal to Pennsylvania Superior Court. </p> <p> In its review of husband's complaint and the preliminary objections, and the applicable law, the Pennsylvania Superior Court first pointed out that pets, regardless of our emotional attachment to them, are simply personal property. The court ruled that the agreement explicitly awarded the dog to wife. The court further ruled that any terms in an agreement which award a type of custody of the dog are void on their face. </p> <p> Although it may be tough for animal lovers to hear, the court, rather bluntly, stated that a visitation schedule for a dog is analogous, in law, "to a visitation schedule for a table or a lamp." As a result, pursuant to 23 Pa.C.S.A. Section 3503, property rights dependant upon a marital relationship are terminated upon divorce and, therefore, pursuant to 23 Pa.C.S.A. 3504, the parties to a divorce are to have "complete freedom" as to their property upon divorce. An agreement to somehow share property is not, by definition, complete freedom. </p> <p> So, a divorce, in addition to dissolving the relationship between a husband and wife, also serves to potentially dissolve the relationship with a person and his pet. This is important to remember when separating as one may want to claim the pet as soon as possible in order to try and do as much as possible to retain the pet post-divorce. </p> First Judicial District Prepares for Democratic National Convention Upon Further Review Staff http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=6c566a60-fa39-41a1-a64c-7540a34e7c8e Fri, 24 Jun 2016 11:39:24 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/dnc_june16.jpg" width="200" height="100" border="0" vspace="10" hspace="10" alt="Article Image"/> <div style="text-align: center;"><strong>FIRST JUDICIAL DISTRICT OF PENNSYLVANIA </strong><br><strong> ADMINISTRATIVE GOVERNING BOARD OF THE FIRST JUDICIAL DISTRICT OF PENNSYLVANIA </strong><br><strong> No 02 of 2016<br><br></strong></div><div style="text-align: center;"> In re: Democratic National Convention – July 25, 2016 – July 28, 2016<br><br></div><div style="text-align: center;"> <strong>ORDER </strong></div> <p> AND now, this 14th day of June, 2016, in order to address questions posed regarding the operations of the First Judicial District of Pennsylvania ("District") and all Courts and Departments of the Philadelphia Courts ("Philadelphia Courts") during the Democratic National Convention, which will be held in Philadelphia from Monday July 25, 2016 to Thursday July 28, 2016, IT IS HEREBY ORDERED and DECREED as follows: </p> <ol type="1"> <li><p> The First Judicial District of Pennsylvania ("District") and all Courts and Departments of the Philadelphia Courts ("Philadelphia Courts") will be open for business as usual. The filing offices of the Philadelphia Courts will also remain open pursuant to their established schedules. </p></li> <li><p> All Municipal Court and Court of Common Pleas cases (civil, criminal, juvenile, dependency, domestic relations, and Orphans’ Court cases) will be heard as scheduled unless continued on or before their scheduled date. </p></li> <li><p> Continuance requests in dependency and delinquency proceedings are governed by Pa.Rs.J.C.P. 122 and 1122. Continuance requests in criminal cases are governed by Pa.R.Crim.P. 106. In the event a continuance is granted, the judge shall indicate to which party the period of delay caused by the continuance shall be attributed and whether the time will be included in or excluded from the computation of time within which trial must commence in accordance with Rule 600. </p></li> <li><p> The District has been informed that in light of the anticipated attendance at the various Democratic National Convention sponsored events, the Police Department will re-deploy most if not all of the police witnesses scheduled to testify in connection with scheduled juvenile, dependency, criminal and other matters to the Democratic National Convention detail. Given the importance of ensuring that victims and others are not subjected to the inconvenience of being called for cases that cannot be heard, the Court requests the prosecution and defense bar to actively collaborate to identify cases, as far in advance of July 25, 2016 as possible, that could be continued until after July 28, 2016 without prejudicing the rights of the involved parties. </p></li> <li><p> To the extent the prosecution, defense counsel and unrepresented defendants cannot agree to the continuance of impacted cases, continuance requests must be made by the District Attorney’s Office, the defendant’s attorney of record, or the defendant (if not represented) on a case by case basis and will be determined by the appropriate judge on a case by case basis. </p></li> </ol> <p> This Order shall be filed with the Office of Judicial Records in a Docket maintained for orders issued by the Administrative Governing Board of the First Judicial District of Pennsylvania, and shall be submitted to the Pennsylvania Bulletin for publication. Copies of the order shall be submitted to the Administrative Office of Pennsylvania Courts, American Lawyer Media, The Legal Intelligencer, Jenkins Memorial Law Library, and the Law Library for the First Judicial District of Pennsylvania, and shall be posted on the website of the First Judicial District of Pennsylvania: <a href="http://www.courts.phila.gov/regs">www.courts.phila.gov/regs</a>. </p> <p> <strong>BY THE COURT:</strong> <br> /s/ Sheila Woods-Skipper </p> <hr/> <p> Honorable Sheila Woods-Skipper<br> Chair, Administrative Governing Board, FJD <br>President Judge, Court of Common Pleas, Philadelphia County </p> Attacking the Arbitrator for Bias Charles F. Forer, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=18b61c90-7dcf-4680-9aae-63dba4bbdc0b Fri, 24 Jun 2016 11:46:47 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/abc_june16.jpg" width="200" height="100" vspace="10" hspace="10" align="left" alt="Article Image"/> <p> Bob has lost his share of arbitration proceedings. However, he never had experienced such a vindictive arbitrator who at every stage of the proceeding went out of his way to harm Bob's client. Two illustrations: </p> <ol type="1"> <li>The arbitration award identified Bob's client as "a perjurer" even though the other side - ABC, LLC - did not make any such contention and there was nothing in the record to support this charge.</li> <li>The arbitration award said Bob's client "customarily" sued anyone and everyone "in order to get his way, no matter how specious the claim." Again, a groundless assertion.</li> </ol> <p> Bob feared everyone in cyberspace would learn about this damaging and unfair award. Bob's client would be doomed. All because of a biased arbitrator who got the facts and law wrong and then chose to broadcast his animosity. </p> <p> Bob was so dissatisfied that he concluded that the arbitrator's antics demanded a "big picture approach." Bob wanted to make an example of this arbitrator so no one else ever suffered the way Bob's client suffered. </p> <p> To achieve this grand strategy, Bob took the obvious step (to him anyway) - he sued the arbitrator. The complaint alleged that the arbitrator's misconduct tainted and made a mockery of the process. The requested relief: a declaratory judgment directing the arbitrator to modify, take down or redact the final award to conform to what really took place at the arbitration hearing. </p> <p> Bob believed he would discover facts that would explain the arbitrator's (mis)conduct. Bob figured the arbitrator had issued other awards in favor of ABC or its lawyer's other clients. Bob suspected ABC or its lawyer had paid lots of money to the arbitrator. Bob's eyes danced with delight as he considered his deposition questions: </p> <ul> <li>Have you been an arbitrator in other matters when ABC was a party?</li> <li>How much has ABC (or its lawyers) paid you for your past arbitration services?</li> <li>Do you anticipate getting more arbitration work from ABC or its lawyers?</li> <li>How many times have you ruled in favor of ABC or its lawyers' other clients? Against ABC or its lawyers' other clients?</li> <li>Before this arbitration began, did you disclose all of your relationships with ABC and its lawyers?</li> <li>Why do you hate my client so much? (Whoops - Bob quickly deleted this question from his outline.)</li> </ul> <p> Bob never got a chance to try out his deposition questions. Nor did he ever have the opportunity to serve the document requests he had so much fun preparing. Why not? Because the court granted the arbitrator's motion to dismiss the complaint based on the doctrine of "arbitral immunity" - disregarding Bob's argument that "the arbitrator cannot hide behind the doctrine of `arbitral immunity' to shield his biased, corrupt conduct that was pervasive and undermined the integrity of the arbitration." </p> <p> What is wrong with this argument? Should Bob have counseled his client to ignore the unfair arbitration award? If so, what would prevent the arbitrator from pulling these same stunts in the future? </p> <p> Before filing the complaint against the arbitrator, Bob should have considered the well-settled doctrine of arbitral immunity, which "protects arbitrators from civil liability for acts within their jurisdiction arising out of their arbitral functions in contractually agreed upon arbitration hearings." <em>Sathianathan v. Pacific Exchange, Inc.</em>, 248 Fed. Appx. 345, 347 (3d Cir. 2007) (per curiam). </p> <p> The doctrine safeguards the arbitration process. If a party could willy nilly sue an arbitrator, the arbitrator then would run scared; his or her independence and unfettered judgment would go down the drain. Put simply, the doctrine aims "to protect the decision-maker from undue influence and protect the decision-making process from reprisals by dissatisfied litigants." <em>Sacks v. Dietrich</em>, 663 F.3d 1065, 1069 (9th Cir. 2011) (citations omitted). </p> <p> Applying the arbitral immunity doctrine, courts have dismissed claims against arbitrators and arbitration organizations in response to all kinds of claims. A brief sampling: </p> <ul> <li>Alleged conspiracy between arbitrator and a party in exchange for payment. <em>Garland v. US Airways</em>, Inc., 270 Fed. Appx. 99 (3d Cir. 2008).</li> <li>Allegedly failing to send notice of the arbitration hearing to the claimant and failing to select the arbitration panel in accordance with the arbitral organization's rules - leading to an ex parte hearing before arguably biased arbitrators. <em>Austern v. Chicago Bd. Options Exchange, Inc.</em>, 898 F.2d 882 (7th Cir. 1990).</li> <li>Arbitral organization's alleged failure to provide a neutral arbitrator. <em>Hopper v. American Arbitration Ass'n</em>, 2016 U.S. Dist. LEXIS 37217 (C.D. Cal. March 22, 2016).</li> <li>Allegedly failing to provide proper notice of the arbitration claim. <em>Gill v. Financial Industry Regulatory Authority, Inc.</em>, 2013 U.S. Dist. LEXIS 44088 (S.D.N.Y. March 6, 2013).</li> <li>Alleged corruption and bias. <em>Pham v. Financial Industry Regulatory Authority, Inc.</em>, 2013 U.S. Dist. LEXIS 23446 (N.D. Cal. Feb. 20, 2013).</li> </ul> <p> So do arbitrators get a green light to be biased? </p> <p> Back to basics. The heart of Bob's gripe: the arbitrator made biased and even corrupt decisions. There is a remedy for this claim - a petition to vacate the arbitration award, at the conclusion of the proceeding, in accordance with the Federal Arbitration Act, which identifies "evident partiality or corruption in the arbitrators, or either of them" as a basis to vacate an arbitration award, 9 U.S.C. § 10(a)(2); or in accordance with the Pennsylvania Uniform Arbitration Act, 42 PA. CONS. STAT. ANN. § 7341 ("fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award"). </p> <p> Nevertheless, Bob is still out of luck. He had three months to file his petition to vacate if he were proceeding under the Federal Arbitration Act. 9 U.S.C. § 12 ("Notice of a motion to vacate, modify, or correct an award must be served upon the adverse party or his attorney within three months after the award is filed or delivered."); <em>Hunsinger v. Carr</em>, 2016 U.S. Dist. LEXIS 68437, at *21 (E.D. Pa. May 24, 2016). And he had only thirty days if were proceeding under the Pennsylvania Uniform Arbitration Act. 42 PA. CONS. STAT. ANN. § 7342(b); <em>Dipietro v. Glidewell Laboratories</em>, 2015 Pa. Super. Unpub. LEXIS 3051, at *10-*11 n.8 (Pa. Super. Aug. 21, 2015) ("any challenge to the arbitration award [must] be made in an appeal to the Court of Common Pleas by the filing of a petition to vacate or modify the arbitration award within 30 days of the date of the award"). </p> <p> The moral of the story? If you cry foul, do so to the proper ref at the proper time. At least if you want a shot at relief. </p> Amendments to Philadelphia's "Ban the Box" Law Are Now in Effect Tim McCarthy http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=0e4011a8-2a82-4c84-9b17-3bb8f8106d43 Wed, 25 May 2016 16:36:46 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/box_may16.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10"alt="Article Image"/> <p> On March 14, 2016, amendments to Philadelphia Fair Chance Hiring Law went into effect. Colloquially known as "Ban-the-Box," the amendments to Philadelphia's ordinance place significant restrictions on the ability of employers to conduct and consider criminal background checks in the hiring process. While the ordinance has been in effect for some time and is codified at &sect; 9-3501 <em>et seq.</em>, the recent amendments include a number of provisions that cannot be ignored by employers. </p> <p> For decades, Pennsylvania employers have been subject to the Criminal History Record Information Act (CHRIA), which allows employers to consider a job applicant's felony and misdemeanor convictions "only to the extent to which they relate to the applicant's suitability for employment." The recent amendments to Philadelphia's ban-the-box ordinance incorporate these protections, but extend much further. First, the law now applies to all private employers with at least one employee in the City, whereas the pre-amendment ordinance applied only to employers with ten or more employees. </p> <p> Moreover, whereas criminal background inquiries could previously be made after the first interview, any such questions must now be delayed until after a "conditional offer of employment" has been extended to the prospective employee. A conditional offer of employment is defined in the statute as an offer of employment "which may be withdrawn only if the employer subsequently determines that the applicant (i) has a conviction record which, based on an individualized assessment as required by [the ordinance], would reasonably lead an employer to conclude that the applicant would pose an unacceptable risk in the position applied for; or (ii) does not meet other legal or physical requirements of the job." </p> <p> Any non-pending criminal arrests not resulting in a conviction may not be considered. Similarly, the ordinance makes any policy of automatically excluding applicants with a conviction <em>per se</em> unlawful. Instead, when a background reveals a conviction, employers may not reject the applicant unless the record "includes conviction for an offense that bears such relationship to the employment sought that the employer may reasonably conclude that the applicant would <em>present an unacceptable risk to the operation of the business or to co-workers or customers, and that exclusion of the applicant is compelled by business necessity</em>." The ordinance enumerates six factors to be considered in determining whether the conviction record presents an unacceptable risk. Moreover, only convictions occurring fewer than seven years from the date of the inquiry may be considered (excluding any intervening periods of incarceration). </p> <p> If ultimately an employer determines that an applicant's rejection is compelled by business necessity, the employer must notify the applicant in writing and attach a copy of the criminal history report. The applicant must then be afforded ten business days to provide an explanation or to dispute the record's accuracy. </p> <p> A number of relatively small caveats in favor of employers have been included in the law. First, if an applicant voluntarily discloses information pertaining to his or her conviction history, the employer may discuss what has been disclosed at that time. Second, employers can give notice to applicants that a criminal background check will be conducted in the event a conditional offer of employment is ultimately made. Any such notice must be "concise, accurate, made in good faith and shall state" that the background check "will be tailored to the requirements of the job." Similarly, the ordinance expressly states that it does not apply where criminal background inquiries or adverse actions taken based on criminal history "are specifically authorized or mandated by any other applicable law or regulation." </p> <p> The amendments further provide for a private right of action, the creation of a "Fair Criminal Record Screening Advisory Committee" and a posting requirement. Moving forward, private Philadelphia employers should be aware of the increased restrictions now imposed in the use of criminal background checks in hiring. Background check policies should also be reevaluated for compliance with the ordinance. A full-text PDF of the ordinance is available <a href="https://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1/BanTheBoxOrdinance.pdf">here</a>. </p> Has the Time Finally Arrived for Merit Selection? Charles J. Klitsch, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=63608482-0980-4ad4-838d-9ee245b76e2f Wed, 25 May 2016 16:43:27 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/merit_may16.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10"alt="Article Image"/> <p> May marks the beginning of budget season in Harrisburg. While the governor traditionally gives a budget address in February and department heads spend March and April testifying before House and Senate committees in March and April, it is in May that legislators roll up their sleeves and begin the difficult task of trying to make the numbers work. </p> <p> In February, Governor Wolf proposed a $33.3 billion spending plan that includes an 11% increase in the state's current 3.07% income tax rate and an expansion of the sales tax to include movie tickets, music downloads and other items. </p> <p> Republican legislators are suggesting a state budget that will come in closer to $30.8 billion, with limited increases in specialized taxes. </p> <p> So far, there has been no proposal brought forward to expand the sales tax to include legal services. </p> <p> Meanwhile, HB 1339, the bill that would introduce the merit selection of statewide appellate court judges in Pennsylvania, may come up for a vote in the House of Representatives within the next few weeks. The Philadelphia Bar Association has long supported merit selection of statewide appellate court judges. Chancellor Gaetan Alfano, Chancellor-Elect Deborah Gross and Vice Chancellor Mary Platt have sent letters to all legislators in the Philadelphia area expressing the Association's strong support for merit selection. </p> <p> In addition, the Association's Legislative Action Center has been activated so that our members can send their own letters to state legislators supporting this important bill. </p> <p> Courtesy of Crisci Associates, <a href="https://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1/Pbartracking2015-16May15.pdf">here</a> is the latest Legislative Report from Harrisburg. </p> Not Every Violent Crime is Terrorism: Why Edward Archer Should Not Be Prosecuted Under PA’s Criminal Terrorism Statute Susan Lin, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=eaf142f3-b8df-4843-bd96-59619d712066 Wed, 25 May 2016 16:36:14 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/Philly-terrorist_lg_april16.jpg" width="500" height="250" border="0" vspace="10" alt="Article Image"/> <p> In her April 26 article, "Calling a Terrorist a Terrorist: Why Philadelphia's Cop-Shooting Jihadist Should Be Prosecuted Under PA's Criminal Terrorism Statute," Amara Chaudhry Kravitz suggests that the Philadelphia District Attorney should bring terrorism charges against Edward Archer. Archer, an apparently mentally ill man who shot a Philadelphia police officer, already faces an extensive array of charges which, if convicted, could keep him imprisoned for the rest of his life. Chaudhry Kravitz's suggestion flies in the face of decades of evidence that longer sentences do little or nothing to promote public safety, and that our system of mass incarceration has had devastating consequences for poor communities of color. Her proposal also has considerable First Amendment implications. </p> <p> Importantly, Chaudhry Kravitz failed to mention that Archer may suffer from a serious mental illness. Archer's family reported that he sustained traumatic brain injuries as a child and was hearing voices in his head prior to this incident. At his March 10 preliminary hearing, his attorney suggested that Archer may not have been able to differentiate between right and wrong at the time of the crime. <em>See</em> Greg Adomaitis, <em>Mental health issues, not Islam, is why man shot Philly cop, lawyer says</em>, NJ.com (Mar. 10, 2016). No matter what further investigation reveals about his mental health, Archer may well be convicted anyway. Across the country, jails and prisons are bursting at the seams with people suffering from serious mental illness. There is a general consensus that prisons have been unable to provide meaningful mental health care, and piling on additional charges hardly seems like an appropriate replacement for mental health treatment. </p> <p> Furthermore, Archer has already been charged and bound over for trial on extremely serious charges, including attempted murder, assault of a law enforcement officer, unlawful possession of a firearm by a prohibited person, receiving stolen property, and other related offenses. Although Chaudhry Kravitz expressed concern that the maximum possible sentence that Archer could face for attempted murder is not long enough, assault against a law enforcement officer under 18 Pa. C.S. &sect; 2702.1 is punishable by up to 40 years' incarceration, the same as the Pennsylvania terrorism statute. Indeed, all told, Archer could already face 97 years in prison if convicted of all of the charges he is currently facing. </p> <p> At a time when mass incarceration has reached crisis levels and leaders from across the political spectrum are busily devising policies to reduce prison populations, Chaudhry Kravitz's demand to pile on tenuous criminal charges in order to extract an even longer prison sentence simply misses the mark. Long criminal sentences are part of the reason that the United States has 5% of the world's population, yet 25% of its prisoners. Pennsylvania has the highest incarceration rate in the northeast, spending about $2 billion per year on corrections. Philadelphia has the highest incarceration rate of any large American city. And it's not clear what we get in return. Research shows that to the extent that prison sentences reduce crime, it is the certainty of conviction and not the length of sentence that matters. </p> <p> Finally, charging Archer under the terrorism statute, as advocated by Chaudhry Kravitz, would constitute prosecutorial over-reach and could potentially vastly redefine the general understanding of a "terrorist." From what has been reported in the press, this simply is not a case that is appropriate for a terrorism charge under 18 Pa.C.S. &sect; 2717. Despite Archer's apparent rantings, Philadelphia prosecutors have found no evidence that Archer has any links to terrorist organizations. </p> <p> Chaudhry Kravitz seems to advocate a terrorism charge because Archer reportedly stated in a police interrogation that he acted in the name of Islam and that police enforce laws contrary to his faith. According to Chaudhry Kravitz, these statements "suggest" a desire to either "[i]nfluence the policy of a government by intimidation or coercion" or otherwise "[a]ffect the conduct of a government." </p> <p> To charge individuals with terrorism regardless of ties to terrorist cells or intent to sow fear in the general population would greatly expand the general understanding of what terrorism means. Many crimes could be labeled a terrorist offense if so little is required. Chaudhry Kravitz's proposed use of the terrorism statute could have particularly harsh consequences for protestors. Civil disobedience, by definition, is illegal conduct designed to influence government policy. Getting into a physical scuffle with an officer during a political protest could now be interpreted as a crime of violence committed with the intent to "affect the conduct of a government." Are we willing to label as terrorists protestors in Ferguson, Baltimore, and Chicago (some of whom were charged with assault against officers)? </p> <p> A terrorism charge should be reserved for those who truly intend by their violent actions or threats to terrorize the community at large. It should not be a means of lodging further punishment against people with mental illness, and it should be used sparingly, in recognition of the incontrovertible fact that piling on charges and sentences will add to our already overburdened corrections system. And it certainly shouldn't be used routinely to punish people's political ideologies and, potentially, their free speech rights. </p> <p> Susan Lin is a criminal defense and civil rights attorney at Kairys, Rudovsky, Messing&amp;Feinberg. Prior to joining KRMF, Ms. Lin was an assistant federal defender in the trial and appellate units and a local public defender in Philadelphia. Ms. Lin is a 2004 graduate of Yale Law School and a 2000 graduate of Swarthmore College. Ms. Lin has co-counseled civil rights cases with the ACLU of Pennsylvania and serves on the Legal Committee of the Greater Philadelphia chapter of the ACLU. </p> <p> <em><strong>Editor's note:</strong> The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Philadelphia Bar Association.</em> </p> Philadelphia Bar Association Files Amicus Brief in Civil Asset Forfeiture Case Upon Further Review Staff http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=0228a353-3748-40d2-8f3b-82443b1e6967 Wed, 25 May 2016 16:29:30 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/civil_may16.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10"alt="Article Image"/> <p> It is the position of the Philadelphia Bar Association that civil asset forfeiture should be abolished, and that forfeiture occur under state law only after the property owner is convicted of a crime, as part of the underlying criminal proceeding. This would guarantee that no property is forfeited by default, that in every case the government proves the connection between the property and the crime for which the property owner was convicted, that property owners receive adequate notice of the government's intent to seek forfeiture in the criminal charging document, that property owners have a right to appointed counsel when contesting forfeiture and that people convicted of crimes can challenge forfeiture of their property without sacrificing their constitutional rights in their criminal case. </p> <p> Consistent with this position, the Philadelphia Bar Association filed an <a href="https://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1/Commonwealthv1997Chevroletamicusbrief.pdf">amicus brief</a> in the Pennsylvania Supreme Court case of Commonwealth v. Real Property and Improvements known as 416 S. 62nd Street, Philadelphia, Pa and 1997 Chevrolet and Contents Seized From James Young. The Barristers' Association of Philadelphia and the Hispanic Bar Association joined the Philadelphia Bar Association in the amicus brief. </p> <p> The brief was authored pro bono by Matthew Lee, partner at Blank Rome LLP. </p> The Month in Workers' Compensation: April, 2016 At-A-Glance Mitchell I. Golding, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=70f34d89-b5ef-4322-acaa-6f63595fa19f Thu, 26 May 2016 09:37:36 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/parking_may16.jpg" width="200" height="100" border="0" vspace="10" hspace="10"alt="Article Image"/><br/> <p> <strong><u>COURSE AND SCOPE</u></strong> </p> <ul> <li><p>The Claimant, who fell and injured his knee in Employer's parking lot while running to his car to attend to a personal emergency involving his family, did not suffer an injury in the course and scope of his employment because he was not furthering the business or affairs of his Employer at the time of his injury and his injury was not caused by the condition of the premises.</p> </li> <li><p>Generally, an injury suffered while traveling to or from work is not considered to have occurred in the course and scope of employment. However, if the injury is suffered on the employer's 'premises' at a reasonable time before or after the work period, the claimant is entitled to benefits. </p> <p> An employee who is not furthering the business or affairs of his employer must prove he or she is within the course of his or her employment by satisfying the following three conditions: (1) the injury must have occurred on the employer's premises; (2) the employee's presence thereon was required by the nature of his employment; and (3) the injury was caused by the condition of the premises or by the operation of the employer's business thereon. </p> <p> In this matter, although the Claimant satisfied the first two prongs of the test, he did not satisfy the third prong because his injury was not caused by a condition of the Employer's parking lot. The Claimant fractured his kneecap while running across Employer's parking lot to his car at which time the Claimant heard a popping noise and felt excruciating pain. Claimant's foot then made contact with the parking lot and he collapsed, unable to bear any weight on his leg. The parking lot did not cause or contribute to the causative chain to Claimant's injury. </p> </li> </ul> <p> <em>Quality Bicycle Products, Inc., v. WCAB(Shaw)</em>, No. 1570 C.D. 2015 (Decision by Senior Judge Friedman, April 25, 2016) 4/16 </p> Professional Guidance Committee Weighs In on Impact of Notice of Suspension on Co-Counsel Agreement Paul Kazaras, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=059e303b-bb42-4002-906f-a5b1b77adc0c Thu, 28 Apr 2016 09:50:03 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/opinion_april16.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10"alt="Article Image"/> <p> There are certain duties incumbent upon an attorney who has been suspended or disbarred. There is often a question as to whether such an attorney may refer out a case and receive a referral fee. As this Professional Guidance Opinion demonstrates, timing is everything as is a very close reading of the appropriate rules that govern such a situation. <a href="https://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1/Opinion2016-1.pdf">Click here</a> to read Philadelphia Bar Association Professional Guidance Opinion 2016-1. </p> Calling a Terrorist a Terrorist: Why Philadelphia’s Cop-Shooting Jihadist Should Be Prosecuted Under PA’s Criminal “Terrorism” Statute (Instead of Waiting on the Feds) Amara Chaudhry, Esq http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=23c974f8-840d-4fff-9a44-8525f067d2ab Thu, 28 Apr 2016 10:41:40 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/Philly-terrorist_lg_april16.jpg" width="350" height="175" border="0" vspace="10" alt="Article Image"/> <p> On January 7, 2016, Edward Archer shot Philadelphia police officer Jesse Hartnett at point-blank range while proclaiming that his actions were motivated by his Islamic faith. </p> <p> On March 26, Archer was formally charged by Bill of Information and now faces criminal charges for attempted murder, and other lesser offenses, but one Pennsylvania criminal statute was noticeably absent from his charging documents: Title 18, Section 2717 of the Pennsylvania Consolidated Statutes, i.e., Pennsylvania's criminal "Terrorism" statute (hereinafter, "&sect;2717"). </p> <p> The omission of &sect;2717 on Archer's charging documents is noteworthy for several reasons. First, Archer's actions fall squarely within the conduct prohibited by &sect;2717. Second, the Pennsylvania statute is more directly applicable to Archer's case than federal counterterrorism statutes. Third, a conviction pursuant to &sect;2717 would permit a Pennsylvania court to impose a substantially higher sentence (<em>twice</em> as high) than that ordinarily allowable under law for an "attempted murder" conviction. Fourth, charging Archer under the state statute, based upon facts known to the prosecution at this time, would not preclude a subsequent federal counterterrorism charge should further investigations warrant a federal terrorism charge. Finally, a decision to prosecute Archer under a state terrorism law would not be unprecedented. </p> <p> <span style="text-decoration: underline;"><strong>Understanding the Legal Framework</strong></span> </p> <p> Before one can truly examine the omission of &sect;2717 from Edward Archer's charging documents, it is important to understand both &sect;2717 and the federal criminal statutes which apply to crimes of terrorism committed in Pennsylvania. </p> <p> <strong>Pennsylvania's Criminal "Terrorism" Statute </strong> </p> <p> Section 2717 was enacted on July 7, 2006, and became effective on September 5, 2006. The statute consists of two parts: the first part defines "terrorism," and the second part explains the legal effect of meeting that definition of "terrorism." </p> <p> In the definitional section, &sect; 2717(a) specifies that "A person is guilty of terrorism if he commits a violent offense intending to do any of the following: (1) Intimidate or coerce a civilian population[,] (2) Influence the policy of a government by intimidation or coercion[, or] (3) Affect the conduct of a government." </p> <p> Pursuant to this language, there are two elements necessary to meet the statute's legal definition of "terrorism:" (1) a specific <em>actus reas</em> (criminal act) - the commission of a "violent offense," and (2) a specific <em>mens rea</em>, (mental state) - a specific criminal intent, as specified in the statute. </p> <p> In addition to defining the criminal offense of "terrorism," &sect;2717(b) outlines the legal effect of falling within that definition. In effect, &sect;2717 serves as a sentencing enhancement. The statute works by increasing the eligible sentence for a particular criminal act (for example, shooting someone at point-blank range). As explained below, if applied to Edward Archer, &sect;2717(b) would dramatically increase the eligible sentence which he could receive. </p> <p> <strong>Federal Criminal Terrorism Statutes</strong> </p> <p> Unlike Pennsylvania's &sect;2717, the federal criminal code does not have a single section devoted to the crime of terrorism. The federal laws which apply to crimes of terrorism are numerous and, in all candor, somewhat convoluted. When taken as a whole, it becomes apparent that the federal laws only prescribe a small subset of criminal acts (<em>actus reas</em>) as sufficient to establish a substantive federal "terrorism" crime. </p> <p> Most relevant to Edward Archer's case are the numerous federal criminal terrorism statutes codified at 18 U.S.C. &sect;2332a et seq., which outline various substantive "terrorism" crimes. This narrow enumeration of specific criminal acts is the principal distinction between &sect;2717 and the comparable federal law. Within these federal statutes, the specific criminal acts prohibited can be roughly divided into two categories: (1) specific methods of inflicting violence, and (2) specific interactions with other terrorists and/or terrorist organizations. Examples of the specific methods of violence prohibited by these statutes includes the "use of weapons of mass destruction," "bombings," and "acts of nuclear warfare." Examples of specific interactions with terrorists and/or terrorist organizations which fall within these statutes include specified "financial transactions," "financing of terrorism," and "receiving military-type training from a foreign terrorist organization," among other similar examples. </p> <p> Other federal laws which ostensibly relate to "terrorism" confer no real legal effect. </p> <p> For example, the federal statutes' definitional section, 18 U.S.C. &sect;2331, defines "domestic terrorism" as broadly as &sect;2771 - it requires a virtually identical mental state (<em>mens rea</em>) and even specifically refers to "assassination" as a possible act of terrorism. Despite this broad definition of "terrorism," however - and this is admittedly a difficult reality to accept - the language18 U.S.C. &sect;2331 creates no specific legal effect for falling within its broad definition of terrorism. In other words, as an excellent article on <em>Lawfare</em> correctly pointed out: "Domestic terrorism does not exist as a substantive offense under federal law." ("The Good Reasons to Not Charge All Terrorists with Terrorism," December 5, 2015). </p> <p> In another example, the United States Sentencing Guidelines Section 3A1.4 ("USSG &sect;3A1.4") provides for a "terrorism" sentencing enhancement, but like all provisions of the sentencing guidelines, USSG &sect;3A1.4 only applies <em>after</em> there is already a lawfully obtained federal criminal conviction before the sentencing court. Simply falling within the definition of "terrorism," as defined by 18 U.S.C. &sect;2331 does not automatically trigger the "terrorism" sentencing enhancement. </p> <p> <strong><span style="text-decoration: underline;">Applying &sect;2717 to Edward Archer's Case</span></strong> </p> <p> Now that the legal framework for considering Edward Archer's case has been established, it can be demonstrated how Pennsylvania's &sect;2717 is more applicable to his case than the federal criminal terrorism statutes and, therefore, would be more effective in obtaining a sentencing enhancement on the basis of Archer's stated criminal intent. </p> <p> <strong>Archer's Conduct Falls Squarely Within &sect;2717</strong> </p> <p> Archer's words and conduct fall squarely within the definitional section of &sect;2717. His actions (and subsequent prosecution for attempted murder) satisfy &sect;2717's <em>actus reas</em> requirement for "a violent offense," and his words clearly satisfy &sect;2717's <em>mens rea</em> requirement. </p> <p> Although neither Archer's criminal complaint nor bill of information have been widely disseminated, public reports indicate that Archer fired between 11 and 13 shots at Officer Hartnett, at point-blank range, and Archer's publicly-available criminal docket reports that he is being charged with attempted murder. These facts, along with this charge, clearly constitute "a violent offense" as required in order to satisfy the <em>actus reas</em> component of &sect;2717's definitional section. </p> <p> Furthermore, Police Commissioner Richard Ross has also indicated that Archer told police that he targeted a police officer specifically because he believed that the police department defends laws that are contrary to Islam. These remarks suggest a desire to live in a Philadelphia which is governed, and policed, in accordance with Archer's own Islamic beliefs and, therefore, indicate a desire to either "[i]nfluence the policy of a government by intimidation or coercion" or otherwise "[a]ffect the conduct of a government." Therefore, such remarks clearly indicate that Archer possessed the mens rea required by the definitional section of &sect;2717. </p> <p> Because Archer's actions fall squarely within &sect;2717(a)'s definitional section, both in terms of actus reas and mens rea, his actions are also sufficient to trigger the legal effect created by &sect;2717(b), i.e., the statutory sentencing enhancement. </p> <p> Archer's Conduct Not Within Federal Criminal Terrorism Statutes </p> <p> Not only does Archer's conduct fall squarely within the language of &sect;2717, the Pennsylvania counterterrorism statute also more directly applies to his conduct than the federal counterterrorism statutes. </p> <p> As was discussed in further detail above, the federal criminal terrorism statutes only pertain to a narrow set of specific criminal conduct described in 18 U.S.C. &sect;2332a et seq. To fall within the various crimes codified at 18 U.S.C. &sect;2332a et seq., a crime must either employ specified methods of inflicting violence or there must be some evidence that the accused has some sort of ties to another terrorist and/or terrorist organization. </p> <p> Archer's specific criminal conduct - the shooting of an individual uniformed police officer at point-blank range - does not fit neatly within any of the categories of conduct prescribed by the substantive federal criminal statutes. As an initial matter, evidence which has been made known to the public at this time suggests that Archer likely had no ties to other terrorists, and/or terrorist organizations, sufficient to establish a case in which he engaged in "financial transactions" precluded by 18 U.S.C. &sect;2332d, harbored or concealed terrorists in violation of 18 U.S.C. &sect;2339, received in "military-type training" in violation of 18 U.S.C. &sect;2339d, or engaged in other similar conduct with other terrorists and/or terrorist organizations. Furthermore, unlike other prior "lone wolf" domestic terrorists (i.e., those who do not have clear ties to a terrorist organization but, instead, have been motivated by the ideology embraced by such organizations), Archer did not use any of the methods of inflicting violence which are specifically covered by the federal terrorism statutes because he did not attempt to bomb "a place of public use," as prohibited by 18 U.S.C. &sect;2332f; to employ a "weapon of mass destruction" or "destructive device" as prohibited by 18 U.S.C. &sect;2332a and 18 U.S.C. &sect;921(a)(4); or to engage in other conduct specifically prohibited by 18 U.S.C. &sect;2332a et seq. </p> <p> Not only does Archer's criminal conduct not fall within the substantive provisions of the federal criminal terrorism statutes, his conduct also does not trigger the "terrorism" sentencing enhancement created by USSG &sect;3A1.4. There has yet to be any publicly-articulated suggestion that Archer has committed acts which could reasonably justify prosecution for <em>any</em> federal crime. Therefore, the federal "terrorism" sentencing enhancement created by USSG &sect;3A1.4 - which requires a lawful conviction for a federal crime, whether or not terrorism-related - cannot be applied to Archer <em>unless</em> he can be lawfully prosecuted and convicted for a federal crime. </p> <p> <strong>&sect;2717 Provides for Greater Sentence Than Attempted Murder Alone</strong> </p> <p> Under Archer's current criminal charges, his most serious offense is "attempted murder," charged under18 Pa.C.S. &sect;901, which is graded as a first degree felony pursuant to 10 Pa.C.S. &sect;15.66(a)(2). Pursuant to the relevant Pennsylvania sentencing statute, 101 Pa.S.C. &sect;15.66(b)(3), the statutory maximum penalty for a first degree felony is 20 years. Therefore, the maximum penalty Archer can get for his "lead charge" (i.e., the most serious offense for which he is charged) is currently 20 years. </p> <p> In comparison, if Archer is/had been charged under &sect;2717, the maximum penalty he could get would be 40 years - twice his current exposure - pursuant to &sect;2717(b)(2). </p> <p> Furthermore, the <em>only</em> way Archer can lawfully receive this sentencing enhancement provided by &sect;2717 is if he is initially <em>charged</em> under &sect;2717 pursuant to the rationale articulated by the U.S. Supreme Court in <em>Apprendi v. New Jersey</em> in 2000. </p> <p> <strong>&sect;2717 Conviction Would Not Preclude Federal Prosecution</strong> </p> <p> Though the evidence which has been made public thus far does not fall within the definitions of "terrorism" outlined by the federal criminal statutes, charging Archer under the state statute at this time would not preclude a later federal charge should new evidence develop sufficient to justify a federal terrorism prosecution. </p> <p> Public reports indicate that federal authorities are continuing to investigate Archer's so-called "ties" to terrorist organizations. If such ties do exist, then federal authorities may have sufficient evidence to prosecute Archer under several federal statutes which relate to an individual's so-called "ties" to a terrorist organization, including those articulated above. </p> <p> Federal authorities can prosecute Archer under any of these substantive provisions of federal criminal terrorism law even if Archer has already been convicted under &sect;2717. Any subsequent federal prosecution would be permitted by a concept known as the "dual sovereignty" doctrine and is particularly permissible where federal laws address different factual elements than those prescribed by the applicable state laws. </p> <p> In a 1920 case known as <em>United States v. Lanza</em>, the U.S. Supreme Court applied the "dual sovereignty" doctrine to a case in which a single defendant was prosecuted under state law, and subsequently under federal law, for essentially the same criminal conduct. The court concluded that the subsequent federal prosecution was valid because the state and federal governments were separate sovereigns and, as such, each had an independent right to prosecute Mr. Lanza for a crime against its own sovereignty. The court further explained that the Double Jeopardy Clause of the U.S. constitution does not preclude separate prosecutions by separate sovereigns but, instead, only precludes repeated prosecutions by the same sovereign. </p> <p> Moreover, as described above, the specific federal statutes under which Archer's case is being investigated address facts not encompassed by the state statute because they investigate whether, and to what extent, Archer had ties to other terrorists and/or terrorist organizations. When federal criminal laws address facts not addressed by state laws, such circumstances are known to generate a subsequent federal prosecution for an incident previously prosecuted under state law. Perhaps the most memorable example of this phenomenon occurred in the Rodney King case in which the police officers were initially acquitted on state assault charges for their beating of King but subsequently prosecuted, and convicted, of violating King's civil rights by participating in that beating. </p> <p> <strong>"Terrorism" Conviction Under State Law Would Not Be Unprecedented</strong> </p> <p> If the Commonwealth were to prosecute Edward Archer under &sect;2717, the Philadelphia District Attorney's Office would not be the first local prosecutor's office to prosecute a terrorist on the basis of state terrorism laws. From October 20 through November 17, 2003, the "D.C. sniper" John Allen Muhammad was tried before a jury in the Circuit Court of the City of Virginia Beach, Virginia, and ultimately convicted pursuant to both Virginia's capital murder statute and the Virginia terrorism statute. The Manhattan District Attorney's Office has twice secured the convictions pursuant to New York State's terrorism statute in New York state courts: Ahmed Ferhani in 2012 and Jose Pimentel in 2014. </p> <p> <span style="text-decoration: underline;"><strong>Conclusion</strong></span> </p> <p> The Philadelphia District Attorney's Office has not publicly identified the reasons why it chose not to charge Edward Archer under the state "Terrorism" statute, &sect;2717, or made any public reference to the existence or relevance of a state terrorism statute. Certainly, the Philadelphia District Attorney's Office has sole discretion to decide the formal criminal charges it will pursue against Edward Archer. However, it is not unreasonable for the public to critique the decisions of its public officials, and decisions not to prosecute for certain offenses are frequently and increasingly being examined by the media, scholars, and ordinary citizens. </p> <p> Within this context of public debate, it is not unreasonable to suggest that Edward Archer&nbsp; Archer's actions fall squarely within the conduct prohibited by the statute; the Pennsylvania statute is more directly applicable to Archer's case than comparable federal statutes; a &sect;2717 conviction would permit a Pennsylvania court to impose a higher sentence than a mere "attempted murder" conviction; and charging Archer under the state statute, based upon facts known to the prosecution at this time, would not preclude a subsequent federal counterterrorism charge should further investigations warrant a federal terrorism charge. Finally, if either the Philadelphia District Attorney's Office, or the Pennsylvania Attorney General, were to formally charge and prosecute Edward Archer pursuant to &sect;2717, such a prosecution on state terrorism statute would not be unprecedented. </p> <p> <strong>Amara Chaudhry Kravitz </strong>is a criminal defense and civil rights attorney in Bala Cynwyd. She is the former Legal Director of the Council on American-Islamic Relations Philadelphia Office where her legal cases, publications, and speaking engagements addressed issues at the intersection of criminal law, civil rights, and national security, particularly as applied to the American Muslim community. With a broad background in both criminal defense and civil rights, she also has a history of service to the American Civil Liberties Union and currently serves on the ACLU of Pennsylvania's board of directors. </p> <p> <em><strong>Editor's note:</strong> The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Philadelphia Bar Association.</em> </p> Court Considers New Spouse’s Income to Determine Child Support Obligation James W. Cushing, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=52842733-8fee-446c-93e1-15743a8fd0af Thu, 28 Apr 2016 09:50:38 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/income_april16.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10"alt="Article Image"/> <p> Nearly all child support orders are based on the respective incomes of the parents involved as measured by statutory guidelines. Sometimes, however, courts believe it is appropriate to deviate from those guidelines due to an unusual or extraordinary circumstance. In the matter of <em>J.P.D. v. W.E.D.</em>, 114 A.3d 887 (Pa.Super.2015), the Court, notably and unusually, deviated from the guidelines by taking into consideration a step-parent's income. </p> <p> In May 2013 the obligor father ("father") in <em>J.P.D.</em> filed a petition to modify his support order in order to account for the termination of his alimony order to his ex-wife, the obligee mother ("mother"). </p> <p> Pursuant to the above-mentioned petition to modify, the parties fully litigated the support matter, including proceeding through a support conference, two custody masters' hearings and an exceptions hearing (they each filed exceptions to the second custody master's decision). The trial court, which heard the exceptions, took into account the father's new wife's income as part of his household income which warranted, in the court's estimation, an upward deviation from the support guidelines resulting in father's guidelines support obligation, about $700 a month, being doubled to nearly $1,400 a month. </p> <p> Father filed an appeal from the trial court's ruling to Superior Court claiming that a deviation of nearly 100% more than the guidelines amount was unlawfully punitive and/or confiscatory. </p> <p> When reviewing the trial court's decision, the Superior Court first noted that there is a rebuttable presumption that the guidelines support amount is the correct amount for a given case. See Pa.R.C.P. 1910.16-1. The presumption can be rebutted if it can be shown that a deviation from the guidelines is warranted per Pa.R.C.P. 1910.16-5. Father argued that a significant deviation, like the one in his case, is not a legitimate deviation, but is punitive and/or confiscatory. </p> <p> The underling facts of the <em>J.P.D.</em> matter are fairly atypical. Father testified that his new wife has an annual income of approximately $1,000,000. He further testified that he does not pay for any of his own expenses, including mortgages, car payments, utilities, or even entertainment. He, instead, relies upon his wife's substantial income for those expenses. Indeed, father could not provide virtually any details into his household expenses as his new wife has full control over them and provides for all of father's needs. When pressed on his monthly expenses, father conceded that he does not even bother opening his mail, leaving that task for his wife. Furthermore, father and his new wife own the house in which they live, a weekend getaway house, and another property to be developed, while he also leases a Cadillac for $940 a month and travels and vacations frequently. The Court found that since father's new wife provides for all of father's needs, all of his income is available for child support purposes. </p> <p> Father argued that, regardless of whether his new wife pays for his expenses, his own income is comparable to that of mother's, so a deviation is not warranted. He further argued that a deviation which serves to double his support obligation is an abuse of the Court's discretion. </p> <p> In making its ruling, the Court pointed out, as a preliminary matter, that per Pa.R.C.P. 1910.16-5(b)(3), a deviation may be granted based on other household income. By taking into consideration father's new wife's income (the so-called "other household income"), the Court ruled that the trial court did not abuse its discretion in doubling the guidelines amount. The Court noted that even with the doubled support obligation, father's support obligation still was less than 50% of his net income and is only 37% of his assessed earning capacity. Furthermore, even with the increased support amount, father's household income would still enable him to satisfy all of his reasonable expenses - not to mention the luxuries described above - without having to contribute any money from his own income toward them. </p> <p> In sum, the fact that father's new wife's income is so great, combined with the fact that his income was entirely unnecessary to pay for his living expenses, the Court ruled that it was not an abuse of discretion to account for his household income which would raise his support obligation to only 37% of his earning capacity. </p> <p> Therefore, when litigating child support, it is key to inquire into, and perhaps consider, the other household incomes of the parties. </p> Third Circuit Implements eVoucher System for Criminal Justice Act Counsel Upon Further Review Staff http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=816eb1eb-6c0b-4dda-bedd-bc0ed2b2d9e8 Thu, 28 Apr 2016 09:49:26 -0400 <div style="text-align: center;"><strong>NOTICE TO ALL CJA COUNSEL</strong><br><strong> IMPLEMENTATION OF eVOUCHER PROGRAM</strong><br></div> <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/coupon_april16.jpg" width="200" height="100" border="0" align="left" vspace="10" hspace="10"alt="Article Image"/> <p> The Third Circuit Court of Appeals will be converting to eVoucher, an electronic voucher processing and payment program, on Monday, June 6, 2016. Training materials and general information regarding eVoucher will be made available on the Court’s website on the Criminal Justice Act page as the Court prepares to go live on June 6th. </p> <p> In order to avoid delays in payment, all CJA appointed attorneys with outstanding vouchers in appeals that are final or with vouchers eligible for interim payment must be received in the Clerk’s Office in paper format on or before Wednesday, May 18, 2016. </p> <p> Counsel is advised that all required motions and supporting documentation must be filed with the vouchers or processing will be delayed. All vouchers received on or before May 18, 2016 will be processed by Friday, June 3, 2016 absent unforeseen circumstances. </p> <p> Once the Court transitions to eVoucher on June 6, 2016, the Court will no longer be able to process any vouchers submitted in paper format. All paper vouchers submitted after May 18, 2016 will be returned to counsel without processing. Counsel will then have to wait to resubmit the voucher until the Clerk’s Office can create the appointment in eVoucher. Vouchers cannot be submitted electronically until after the Court goes live on June 6th. </p> <p> Beginning June 6, 2016, all appointments in pending and new appeals will be entered in eVoucher. As appointments are entered in the program, appointed counsel will receive an email with a link to eVoucher with the attorney’s username and password, along with instructions for logging in to complete the attorney’s profile. Counsel should note that each district court and appellate court maintains its own eVoucher database and attorneys will have a separate username and password for each court. Although counsel may later change the username and password, counsel must initially log in to the Third Circuit eVoucher system using the link and credentials provided by the Court. Once the Court has completed the transition for all pending cases, CJA panel members without an active case may obtain a username and password by filing a form with the Court. </p> <p> All counsel should note that there may be delays in processing and paying existing vouchers during the transition to eVoucher. We will make every effort to minimize disruptions and provide for a smooth transition and ask for your cooperation in this effort. </p> <p> All CJA panel attorneys should check the Court’s website often for updated information and training materials. </p> <p> Any questions regarding this transition to eVoucher should be directed to <a href="mailto:evoucher_helpdesk@ca3.uscourts.gov">evoucher_helpdesk@ca3.uscourts.gov</a> or 215-299-4966. </p> The Month in Workers' Compensation: March 2016 At-a-Glance Mitchell I. Golding, Esq. http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=d97f25c7-264c-4f6e-98bf-a7cbcfcc018a Thu, 28 Apr 2016 09:48:37 -0400 <img src="http://uponfurtherreview.philadelphiabar.org/WebObjects/Rosebud.woa/Contents/WebServerResources/CMSResources/1000005/workerscompc_april16.jpg" width="200" height="100" border="0" vspace="10" hspace="10"alt="Article Image"/> <p> <strong><u>COURSE AND SCOPE</u></strong> </p> <ul> <li> <p> In <em>Pipeline Systems, Inc. V. WCAB (Pounds)</em>, No. 384 WAL 2015 (PER CURIAM, March 8, 2016), the Supreme Court granted Petition for Allowance of Appeal limited to addressing the following issue: </p> <blockquote> <p><em>Did the Commonwealth Court err because &sect; 601(a)(10),unambiguously provides that the employee must be within the course and scope of his employment at the time he provides aid and is injured, not merely be in the course and scope of his employment at the time the emergency arose as the Commonwealth Court held?</em> </p> </blockquote> </li> <li> <p> The Commonwealth Court held under subsection 601(a)(10), that an employee who "goes to" the aid of another by performing specifically identified acts enumerated in this section, including "ii) Rendering emergency care, first aid or rescue at the scene of an emergency," cannot be said to have abandoned the course of employment or to have engaged in something wholly foreign thereto. </p> <p> In <em>Pipeline Systems</em>, the Claimant was hired by the employer to install pipeline. Claimant was on duty when an employee of another company, working just thirty feet away, fell into a concrete hole. Commonwealth Court found that Claimant suffered a compensable injury in the course and scope of employment where he injured himself trying to rescue the other worker. </p> <p> The Commonwealth Court had reasoned that Subsection 601(a) (10) is focused on specific acts performed by an employee at a specific time. The Commonwealth Court stated that Subsection 601(a) (10) does not bring injuries incurred by an individual who aids another within the ambit of the Act simply because the individual is an employee. Rather, they held that subsection 601(a)(10), by its plain language, requires that the individual is functioning as an employee at the time the emergency arises and the employee goes to the aid of another. </p> <p> Put another way, the Commonwealth Court held that employees are not covered under subsection 601(a) (10) because they went to the aid of another person, but because they did so while otherwise within the course and scope of their employment. This specific reasoning that requires the worker offering the aid be within course and scope is what will be reviewed by the Supreme Court. </p> </li> </ul> <p> <em>Pipeline Systems, Inc. V. WCAB (Pounds)</em>, No. 384 WAL 2015 (PER CURIAM, March 8, 2016) 3/16 </p> <p> <strong><u>INDEPENDENT CONTRACTOR/ CAPRICIOUS DISREGARD</u></strong> </p> <ul> <li> <p> A claimant's employment status is a critical threshold determination for liability, as independent contractors cannot recover benefits under the Act. The existence of an employer-employee relationship is a question of law based on the facts presented in each case. </p> <p> While no hard and fast rule exists to determine whether a particular relationship is that of employer-employee or owner-independent contractor, certain guidelines have been established and certain factors are required to be taken into consideration. The court will consider many factors including: </p> <ol type="1"> <li>control of manner the work is done;</li> <li>responsibility for result only;</li> <li>terms of agreement between the parties;</li> <li>nature of the work/occupation;</li> <li>skill required for performance;</li> <li>whether one is engaged in a distinct occupation or business;</li> <li>which party supplies the tools/equipment;</li> <li>whether payment is by time or by the job;</li> <li>whether work is part of the regular business of employer; and,</li> <li>the right to terminate employment.</li> </ol> <p> Although no one factor is dispositive, control over the work to be completed and the manner in which it is to be performed are the primary factors in determining employee status. </p> <p> Control 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." </p> <p> Moreover, payment of wages and payroll deductions are significant factors, as is provision of workers' compensation coverage. However, payment is not determinative. </p> <p> In addition, a tax filing denoting self-employment, while a relevant factor, is not dispositive on the issue. </p> <p> Similarly, the existence of an employment or independent contractor agreement is another factor to consider, but it is not, by itself, dispositive. </p> <p> In <em>Edwards v. WCAB (Epicure Home Care, Inc.)</em>, No. 1106 C.D. 2015 (Decision by Judge Simpson, March 10, 2016), the Commonwealth Court affirmed the WCAB's reversal of the WCJ by finding Claimant, who worked as a personal caretaker assigned to defendant's clients, was an independent contractor where: a) the defendant's clients paid Claimant directly and determined the rate of pay; b) Claimant also signed a document titled "Independent Contractor Agreement"; c) Claimant deducted her own taxes from the payments; d) Claimant identified herself as self-employed on her tax returns; e) defendant did not provide its caretakers with any sick time, vacation or holiday pay; f) Claimant signed an employment agreement, which provided: (i) caretakers are not employees of Defendant; (ii) caretakers are paid directly by the client; and (iii) caretakers are responsible for deducting their own taxes; g) Claimant was free to work for other agencies; h) client and not the defendant prescribed actual tasks to be completed or the manner in which work was to be performed; i) Claimant did not check in with Defendant on a daily basis and claimant could take time off at her discretion; j) Defendant did not supply the uniform or other implements of work; and k) although Defendant matched clients to caretakers, the clients possessed the ultimate power to maintain or discharge the caretakers, and set the final rate of pay. </p> <p> This determination was made despite the fact that defendant maintained instructions on personal services to be provided, and required the Claimant to wear scrubs, record arrival and departure times, not leave client unattended, maintain confidentiality and refrain from using cell phones. The court was unmoved that defendant established Claimant's hours and wages and had the ability to terminate her employment. </p> <p> A review for capricious disregard of material, competent evidence is an appropriate component of appellate review in any case in which the question is properly raised before a court. A capricious disregard of evidence occurs where the WCJ's findings reflect a deliberate disregard of competent evidence that logically could not have been avoided in reaching the decision. Where substantial evidence supports the findings, and those findings in turn support the conclusions, it should remain a rare instance where an appellate court disturbs an adjudication based on capricious disregard. </p> </li> </ul> <p> <em>Edwards v. WCAB (Epicure Home Care, Inc.)</em>, No. 1106 C.D. 2015 (Decision by Judge Simpson, March 10, 2016) 3/16 </p> <p> <strong><u>ITEMPORARY NOTICE OF COMPENSATION PAYABLE/ NOTICE OF DENIAL/ LITIGATION COSTS</u></strong> </p> <ul> <li> <p> The Employer did not violate the Act when it unilaterally issued a "corrected" NTCP on August 10, 2004, that paid the claimant a lower compensation rate based upon a lower pre-injury average weekly wage than what was paid pursuant to a prior NTCP. In contrast to the amendment of a NCP, which cannot be unilaterally "corrected" to reflect a lower rate, a TNCP may be unilaterally amended to reflect the lower rate during the 90 day period and the last TNCP in effect at the expiration of the 90 days will be the document converted to become the NCP. </p> </li> <li> <p> The modification of a TNCP is provided by Bureau Regulation 121.7a(c) and directs the employer who modifies the NTCP to file an amended NTCP form, to be clearly identified as "amended." This amended form need only contain the insurer's signature and does not require the signature of the employee. </p> <p> When an amended NTCP is filed, the employer must also file a new Statement of Wages pursuant to 34 Pa. Code 121.7a(c) (1). </p> <p> In this matter, the first NTCP was properly amended and there was no conversion of NTCP to NCP. Accordingly, Claimant's contention that the first NTCP converted to a NCP and therefore Employer was obligated to pay benefits at the higher rate for all periods of time where Claimant was not working was held to be without merit. </p> <p> Significantly, subsection 121.7a(c) (2) makes clear that the subsection dealing with modification does not apply upon the conversion of a NTCP to a NCP. </p> </li> <li> <p> Nothing in the Act or the Bureau Regulations can be interpreted to have required Employer to file a NSTC or NCD at the time it properly amended the 1st NTCP and contrary to Claimant's argument, the court found there is no conflict between Section 406.1 of the Act, and Bureau Regulation Section 121.7a. </p> </li> <li> <p> Bureau Regulation Section 121.17 addresses changes in compensation, and with respect to the stopping of temporary compensation under a NTCP, directs that an employer who ceases such temporary payments must file either: (i) a NSTC, together with a Notice of Workers' Compensation Denial (NCD), within a prescribed time frame; or (ii) a NCP; or (iii) an Agreement for Compensation for Disability or Permanent Injury. 34 Pa. Code &sect;121.17. </p> <p> In this matter, the Employer did not violate the Act by issuing the amended TNCP because, up until the time Claimant returned to work, Employer did not cease making temporary compensation payments, but rather made a correction to the 1st NTCP and filed the 2nd NTCP, together with filing a replacement Wage Statement, pursuant to the requirements set forth in Sections 121.7a(c) and 121.7a(c) (1), 34 Pa. Code &sect;&sect;121.7a(c) and 121.7a(c) (1). </p> <p> Employer did not cease making temporary compensation payments until October 11, 2004 when, in accordance with Subsection 406.1(d) (5) (i) of the Act, it duly notified Claimant that payments were being stopped by filing a NSTC and a NCD as prescribed by the Department. </p> </li> <li> <p> By contrast, an amended NCP cannot be issued to reflect a lower compensation rate based upon a lower pre-injury average weekly wage pursuant to Bureau Regulation Section 121.7 that provides when such amendment results in a decrease in the employee's wage or compensation, the employer is required to file a Supplemental Agreement. </p> <p> Similarly, Bureau Regulation Section 121.12 specifically addresses the correction of errors in computing wages in a compensation agreement or NCP, and also directs that in instances where changes result in a decrease in the employee's wage or compensation, the employer shall file the Supplemental Agreement. </p> </li> <li> <p> The WCJ, with the WCAB's affirmation, did not improperly find that the Box 4 Notice of Denial was akin to a Medical Only Notice of Compensation Payable and therefore the claimant was not time barred for failure to file a Claim Petition within 3 years of the date of injury and the for a Petition for Reinstatement filed more than 3 years after the injury was not time barred. </p> </li> <li> <p> Where a claimant is only partially successful, before litigation costs are awarded, a determination must be made as to whether the costs were incurred on the winning issue or the losing issue, because a claimant must prevail on the contested issue in order to be awarded litigation costs </p> </li> </ul> <p> <em>Church v. WCAB (Landscaping and Fleming Termite and Pest Control)</em>, No. 1068 C.D. 2015 (Decision by Judge Colins, March 18, 2016) 3/16 </p> <p> <strong><u>IMPAIRMENT RATING EVALUATION</u></strong> </p> <ul> <li> <p> In <em>Protz v. WCAB(Derry Area School District)</em>, No. 412 WAL 2015 (Per Curiam March 22, 2016), the Pennsylvania Supreme Court granted the Petition for Allowance of Appeal filed by the Claimant and the Employer. </p> <p> The Employer's granted Petition for Allowance of Appeal will address the following issue: </p> <blockquote> <p> <em>Does Section 306(a.2) of the Pennsylvania Workers' Compensation Act unconstitutionally delegate the State Legislature's lawmaking authority in violation of Article II, Section 1 of the Pennsylvania Constitution by incorporating the most recent edition of the AMA Guides to the Evaluation of Permanent Impairment?</em> </p> </blockquote> <p> The Claimant's granted Petition for Allowance of Appeal will address the following issue: </p> <blockquote> <p> <em>Whether the Commonwealth Court - after properly determining that Section 306(a.2) of the Workers' Compensation Act was unconstitutional - erred in remanding the case to the Workers' Compensation Judge with instructions to apply the Fourth Edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment when neither Section 306(a.2) nor any other section of the Act ever references the Fourth Edition and its usage was not sanctioned by the Pennsylvania Legislature?</em> </p> </blockquote> </li> <li> <p> It will be recalled that in <em>Protz</em> the Commonwealth Court had held that Section 306(a.2) of the Act was an unconstitutional delegation of legislative authority insofar as it proactively approved versions of the AMA Guides beyond the Fourth Edition, which was the edition of the AMA Guides in existence at the time the Pa. Legislature enacted Section 306(a.2) regarding IREs. </p> <p> The Commonwealth Court proceeded to vacate the WCJ's granting of Employer's Petition for Modification premised upon the IRE, based upon the Sixth of the AMA Guides and remanded this matter to the WCJ with instructions to apply the Fourth Edition of the AMA Guides in adjudicating the same. </p> </li> </ul> <p> <em>Protz v. WCAB(Derry Area School District)</em>, No. 412 WAL 2015 (Per Curiam March 22, 2016) 3/16 </p> <p> <strong><u>COMPROMISE AND RELEASE AGREEMENT/PENALTY</u></strong> </p> <ul> <li> <p> The WCJ did not err by dismissing the Penalty Petition filed by the Medical Provider for non-payment of his bills where the provider treated the claimant for an alleged work injury that was resolved by no admission of liability C&amp;R that provided for no payment of medical bills. </p> <p> Pursuant to Section 449(b) of the Act, the proposed C&amp;R must be explicit with regard to the payment, if any, of reasonable, necessary and related medical expenses. In this case, Employer and Claimant entered into a C&amp;R agreement that was approved by the WCJ. The C&amp;R agreement stated that it was not an admission of liability by Employer and did not require the Employer to pay past or future medical. </p> <p> The Employer denied that Claimant suffered a work injury and never admitted liability by issuing a document such as a NCP. Further, there was no finding or adjudication that Claimant's injury was work-related. Thus, Employer was not obligated at any time to pay Claimant's medical bills. </p> </li> </ul> <p> <em>Schatzberg, DC and Philadelphia Pain Management v. WCAB</em>, No. 1914 C.D. 2015 (Decision by Judge Friedman, March 30, 2016) 3/16 </p> <p> <strong><u>PENALTY/NOTICE OF SUSPENSION</u></strong> </p> <ul> <li> <p> Claimant filed a Challenge Petition in response to Employer's Notice of Suspension. However, Employer did not reinstate Claimant's compensation within 21 days of the filing of the Challenge Petition. The WCJ did not schedule a hearing within 21 days, although one was scheduled outside of the 21 day period. Under these circumstances, Employer was found to have violated the Act, resulting in the assessment of penalties. </p> <p> This is consistent with Section 413(c)(1) of the Act that provides in pertinent part: </p> <blockquote> <p><em> The special supersedeas hearing shall be held within twenty-one days of the employe's filing of the notification of challenge.</em> </p> </blockquote> <p> The assessment of penalties was also consistent with Section 131.50a of the WC Regulations that provides in relevant part: </p> <blockquote> <em> <ol type="a"> <li>This section governs the disposition of an employee's request for a special supersedeas hearing made in connection with a challenge to the suspension or modification of WC benefits under Sections 413(c) and 413(d) of the ACT</li> <li>A special supersedeas hearing will be held within 21 days of the employee's filing of the notice of challenge.</li> <li value="6">If the WCJ fails to hold a hearing within 21 days or fails to issue a written order approving the suspension or modification of benefits within 14 days of the hearing, the insurer shall reinstate the employee's WC benefits at the weekly rate the employee received prior to the insurer's suspension or modification of benefits under Sections 413(c) or 413(d) of the Act</li> </ol> </em> </blockquote> <p> In this matter, because the WCJ failed to hold a hearing within 21 days, the Employer was required to reinstate Claimant's benefits. Accordingly, Employer violated the Act when it did not reinstate Claimant's benefits when a hearing was not held within 21 days of the date Claimant filed his Challenge Petition. </p> </li> <li> <p> The WCJ did not err by failing to grant Claimant's Penalty Petition because Employer failed to begin to pay awarded disfigurement benefits after Claimant's temporary total disability benefits had been suspended July 25, 2011, through August 2, 2011, where by WCJ order dated September 7, 2011, total disability benefits were reinstated beginning August 3, 2011 </p> <p> Section 306(d) of the Act, which provides that when a claimant has a specific loss but is receiving total disability other injuries in addition to the specific loss the benefits for the specific loss will not begin until the period of temporary total disability has ended, is a timing provision established to make sure claimants do not receive both temporary total disability and disfigurement benefits simultaneously. </p> <p> In this matter the original suspension was only a temporary suspension of Claimant's WC benefits on account of Claimant returning to work, and did not mandate Employer to begin Claimant's disfigurement benefits. Claimant's temporary total disability benefits were not terminated until the WCJ's January 9, 2013, order granting Employer's Suspension Petition as of July 25, 2011. Therefore, Employer was not required to begin Claimant's disfigurement benefits until that date. </p> </li> </ul> <p> <em>Dixon v. WCAB( Medrad, Inc.)</em>, No. 1700 C.D. 2014 (Decision by Judge Covey, March 30, 2016) 3/16 </p>