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Archive for the month “August, 2014”

Guardians of the Galaxy: a Movie Review

As many of you know, I have been a comic book fan and reader since I was five years old, so as a result I have really enjoyed the trend of comic book based movies over the last several years.  One of the most recent ones I have seen is the new Marvel Comics movie Guardians of the GalaxyGuardians is the tenth movie in a sequence of movies known as the Marvel Cinematic Universe.

Guardians is probably the most obscure Marvel Comics offering yet as the comic book series of the same name is not among their most popular titles.  The Guardians are a team of characters who are space adventurers and, well, guard our galaxy.  The Guardians had their start back in 1969 and have existed with a cult following for many years in various incarnations and titles.  It was not until a reimagining of the team in 2008 that it started to take off and creep its way into mainstream fandom.

The Guardians are a team of rag tag characters from diverse backgrounds, motivations, and abilities.  The team in the movie consists of Peter “Star-Lord” Quill (a half human swashbuckler), Drax the Destroyer (a person whose was killed along with his family by Thanos who was eventually resurrected and enhanced specifically to hunt down and kill Thanos), Gamora (Thanos’ assassin protégé), Groot (a living and sentient tree), and Rocket (a genetically created being that just happens to look like a raccoon).  Note that the character descriptions I provide above are based on their comic book iterations and not the movie’s version of the characters.

Thanos is the overarching villain of the entire Marvel Cinematic Universe set of movies (he had a very brief appearance in The Avengers) and he makes his presence known in this film as well.  Guardians also allows the Marvel Cinematic Universe to introduce and engage with all manner of space, sci-fi, and cosmic characters, themes, and concepts which allows the normally Earth bound characters and stories of the Marvel movies to expand to nearly limitless possibilities.  Indeed, what comic book reader, even five years ago, would have ever thought seeing such obscured characters like Ronan the Accuser, Nebula, Yondu, and the Collector on the silver screen in a major motion picture?  It’s good to be a comic book fan right now.

While the Marvel Cinematic Universe has been pretty consistent with the traditional Marvel Universe, Guardians included, some changes in the characters were made, most apparently to Ronan and Yondu but to others as well.  Perhaps most notably, Star-Lord’s father is not revealed but is obviously not the alien ruler J’Son of Spartax but is hinted to be someone else much more powerful and significant, so it is interesting to see how that plot point will play out.  On the bright side, if you look closely in the background in some scenes with the Collector, you will see the cocoon of Adam Warlock, which is exciting news for me as Warlock is probably in my top five favorite comic book characters, which includes Spider-Man, the Silver Surfer, and Jim Hammond.  So, as the cocoon is visible, let’s hope Warlock will make an appearance in the Marvel Cinematic Universe soon!

The movie was very well done, fun, entertaining, and fits well into the Marvel Cinematic Universe.  I think the film is appropriate for viewers at least twelve years old, but some scenes and words in the movie may be inappropriate for younger viewers.  The film balances well between serious action sequences and rather funny and light hearted parts and lines.  The characters were developed reasonably well in order to prepare then for future films.  This was obviously an origin story for the Guardians.  Like most rag tag groups in movies, they come together somewhat unwillingly for a common cause and, during their struggle, they develop affinity and loyalty to one another.  The central MacGuffin is the pursuit of the Power Stone, one of the Infinity Gems, as further development of the overarching story of the Marvel Cinematic Universe, which is the story of the Infinity Gauntlet.  The movie is really carried by the charismatic Chris Pratt as Star- Lord who retains his dopey-every-man-comedic-persona but seems to successfully merge it into a swashbuckling, plucky, and resourceful space adventurer.  I do not want to over state it, but Star-Lord could be viewed as a modern, 21rst Century, Han Solo-type character.  Over all, the movie had decent acting, fun plot (though predictable from both a movie and comic book view), an absence of noticeable plot holes, and a sense of grandeur due to  its deep space focus.  What makes the predictable plot tolerable are the facts that, first, it fits into the Marvel Cinematic Universe in a crucial way, and second, is presented in such a fun way that does not take itself too seriously (but also successfully avoids camp!).

Although I think comic book fans will really enjoy this film (but for its deviations from canon described above), I also think the fun tone of the film will make this movie appealing to non-comic-book fans as well.

I am really looking forward to seeing how this movie ties in with the rest of the Marvel Cinematic Universe and its second installment due out in 2017.  This movie is highly recommended.

 

 

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Proving Willful Misconduct in UC Cases: Specificity Required!

In the recent matter of Lewis v. Unemployment Compensation Board of Review, 42 A.3d 375, the Commonwealth Court of Pennsylvania has reinforced the standard of proof necessary to render an unemployment compensation claimant ineligible for benefits.

 

The claimant in Lewis (hereinafter “Claimant”), allegedly got into an argument with a co-worker which became loud and each made claims of superior toughness to the other. Claimant was suspended for his behavior and later terminated. It is notable that despite the apparent loud nature of the argument described above, there were no customers present and the employer was closed for the night. Additionally, Claimant never made any threats or used profanity or offensive language, and testified to getting “loud” in retaliation to his co-worker’s raised voice.

 

The Unemployment Compensation Service Center, Referee, and Board of Review all found Claimant to have willfully violated the employer’s work rules to cause his own termination and, therefore, was found to be ineligible for benefits; the Commonwealth Court disagreed.

 

At the Referee’s Hearing, the employer brought only one witness who testified that the employer has rules and regulations and a harassment policy which Claimant allegedly violated which led to his termination. Claimant also provided testimony at the hearing to supplement the two written statements he made to his employer beforehand.

 

In reviewing the case, the Court noted that an employee’s willful misconduct is behavior which is a wanton and willful disregard for the employer’s interests, a deliberate violation of the employer’s rules and/or behavior the employer can reasonably expect, or behavior so negligent it manifests a certain culpability on the part of the employee. The burden to prove the above is on the employer, as well as the burden to prove that a claimant knew (or should have known) of the work rule at issue. If the employer can prove the above, a claimant must then prove a justifiable reason to have broken the rules in order to be eligible for benefits.

 

When comparing the evidence present at the Referee’s hearing (i.e.: the one employer witness and Claimant’s testimony and statements described above), the Court found that the employer never once identified any rule or policy actually broken by Claimant, or provided documentary evidence of the existence of the policy. Furthermore, there was no evidence, or even finding from the Board of Review, that Claimant even knew of the applicable (if any) rules of the employer.

 

Therefore, due to the complete absence of any evidence or proof that Claimant knew of a work rule, and subsequently willfully broke it, the employer simply did not meet its burden of proof, rendering Claimant eligible for benefits.

 

May this case serve as a reminder to employers: no matter how simple a case appears, or “informal” an unemployment compensation referee’s hearing seems, the burden of proving a claimant’s ineligibility lies on the employer, and it is a burden the Court takes seriously.

Originally published in Upon Further Review on February 28, 2013 which you can see here.

A Reminder to File Post-Trial Motions

The matter of DeLage Landen Financial Services v. Rovner Allen, 85 Bucks Co. L. Rep. 983 (2012), reminds practitioners to be vigilant in protecting their clients’ appeal rights at the conclusion of trials.

In DeLage, the defendant, Rovner Allen, lost at trial and immediately appealed directly to the Pennsylvania Superior Court without filing any post-trial motions. The court ruled that a party that wishes to appeal an adverse decision must file post-trial motions in order to preserve the issues the party wishes to raise on appeal, otherwise the issues are waived. Indeed, the court indicated that failing to file a post-trial motion is fatal to an appeal and a mandatory prerequisite to filing an appeal.

The DeLage court’s decision was based on the Pennsylvania Supreme Court decision in Chalkey v. Roush, 569 Pa. 462 (2002). The fact pattern in Chalkey is remarkably similar to DeLage in terms of the issues addressed in this article. In Chalkey, the court ruled that after a verdict is reached by either a judge or jury in either a matter of equity or law, Pa.R.C.P. 227.1 requires all issues to be potentially raised on appeal to be preserved in post-trial motions or they are otherwise waived. Indeed, Pa.R.C.P. 227.1 is consistent with the also applicable Pa.R.A.P. Rule 302(a), which lays out the general rule that “issues not raised in the lower court are waived and cannot be raised for the first time on appeal.” One way to raise an issue in the lower court is through the filing of a post-trial motion.

An interesting tidbit in the Chalkey matter is that the trial court judge, sitting in equity, did not enter a decree nisi pursuant to Pa.R.C.P.. 1517(a) (which was rescinded in 2003), which gave the appellant the impression that a post-trial motion was not required. Further, before the matter reached the Supreme Court, the Pennsylvania Superior Court relied upon Pa.R.C.P. 1517 and 1518, both of which deal directly with appealing matters of equity. Unfortunately, while both of the aforementioned rules were rescinded (Rule 1517 in 2004 and 1518 in 1984) and replaced by Pa.R.C.P. 227.1, the Supreme Court noted that confusion had arisen as there was little to no guidance from the court as to whether the cases decided under the aforesaid rescinded rules had been abrogated. Therefore, the Chalkey court made it abundantly clear and definitively ruled that there is “no excuse for a party’s failure to file post-trial motions,” period, regardless of whether the trial was heard by a judge or jury in either a matter of equity or law; they must be filed in order to have any issues preserved for appeal.

So, let the above cases serve as a valuable reminder to practitioners that in order to preserve any and all issues one wishes to

Originally published in The Legal Intelligencer Blog on February 22, 2013 and you can find it here.

Shaken not Smoked

The issue of whether marijuana should be legalized is a hot topic spreading across the United States.  I have seen the arguments in favor of it and against it, but I am not sure how I fall on the issue yet.

Recently my former parish priest, Fr. Hastings from my old church St. Anne’s in Abington, PA, sent me an article by Stephen H. Webb from First Things, a Christian publication, on this issue.  It is worth reading and considering as it provides an interesting view of this issue.

You can find the article here on the First Things website.  It begins as follows:  “Marijuana is becoming more socially acceptable and legally available. It would seem that a majority of Americans are in favor of decriminalizing the recreational use of pot, and the Department of Justice has advised federal prosecutors that possession of a small amount of it is not an “enforcement priority.” Those of us not opposed to a stiff drink will have to ask ourselves some hard questions. Why condemn joints when we’re okay with single malt scotch? Should the Church step in where parents and politicians are pulling out?

Once limited to the black market, cannabis now has the seal of medical approval in many states. It’s come over the pharmaceutical counter and is poised to take a leap onto the supermarket shelves. At that point, consumerism will kick in and drive morality out. After all, in an age of taurine supplements, memory enhancers, wheatgrass juice, personal cappuccino machines, and colonic irrigations, most Americans find it hard to pass judgment on how others use their purchasing power to manage their stress. When peace of mind becomes a pleasure cheaply bought, the moral high ground is hard to find.”

You can find the rest of the article here: Shaken Not Smoked

 

 

 

 

 

The Effect of Retiring on Workers’ Compensation Benefits

The matter of Krushauskas v. Workers’ Compensation Appeal Board, 56 A.3d 64 (Pa.Cmwlth. 2012), involved a claimant who suffered a work-related injury while working as a stock picker for General Motors. Claimant Thomas Krushauskas filed a penalty petition against GM alleging it unilaterally suspended his benefits without any additional agreement or order. Simultaneously, Krushauskas voluntarily entered GM’s attrition plan and accepted early retirement. The court noted that no one was forced into the attrition plan and, in fact, Krushauskas had 45 days to revoke the decision to enter it. Krushauskas argued that he did not intend to retire and was simply taking advantage of the plan offered.

The court ruled that GM violated the Workers’ Compensation Act when it unilaterally – without agreement or court order as a result of Krushauskas’s retirement – suspended Krushauskas’ benefits because of him retiring per his entrance into the attrition plan. Generally, an employer is supposed to file a petition specifically requesting the relief sought. Despite this, the court noted that it has never required unreasonable strictness in workers’ compensation pleadings. Unfortunately for Krushauskas, because the court also ruled that he did, indeed, retire, the unilateral suspension did not cause any loss in workers’ compensation benefits owed to him.

The court’s ruling that Krushauskas did retire, contrary to his argument that he did not actually intend to do so, was based on a credibility determination of Krushauskas’ testimony. As stated above, Krushauskas’ representations in the documentation for the attrition plan indicated retirement and the court found those representations likely to be true.

Perhaps the most significant aspect of the court’s ruling is that it clarified and consolidated previous rulings that a workers’ compensation judge has the authority to suspend/terminate a claimant’s benefits without a formal petition from the employer as long as doing so would not be prejudicial to the claimant. A claimant having an opportunity to defend him or herself, and/or having adequate notice, would tend toward the matter lacking prejudice against the claimant even if the workers’ compensation procedures were not followed with precision.

The court noted, based on the facts presented, that Krushauskas certainly had sufficient notice and knew a suspension of benefits was possible. Indeed, the court drew significance from the fact that when GM argued that Krushauskas voluntarily retired, he objected on the basis of relevance, and not surprise, which would have been the objection if he did not have sufficient notice. Furthermore, Krushauskas never attempted to submit additional evidence to oppose the argument that he voluntarily retired.

The court further indicated that where someone accepts a retirement pension, as Krushauskas did here, then the employer is entitled to a suspension of benefits. Benefits will be suspended unless the claimant can show that he is seeking employment or he was forced into retirement because of a work-related injury. In the instant case, Krushauskas clearly accepted a retirement pension and never testified to seeking new or continued employment.

When collecting workers’ compensation, be sure to consider all implications before accepting a retirement plan or pension, as the workers’ compensation benefits may be terminated long before expected.

Originally published on February 1, 2013 in The Legal Intelligencer Blog and can be found here.

Appointed as Secretary to the Executive Board

As many of you may know, I have been serving as a volunteer and board member of the Christian Legal Clinics of Philadelphia for several years.  You can read more about the Clinic here.

I am proud to announce that I have been appointed secretary to the Clinic’s executive board!  I am honored by the appointment and I hope and pray I can serve effectively in order to advance the cause and ministry of the Clinic.

Please pray for me as I embark in this new position within the Clinic!  I hope we can continue to reach more and more people in the months and years to come with the love and justice of God in Jesus Christ!

A Little Respect Please….

Check out Faye Riva Cohen’s blog post “A Little Respect Please….” on her blog Toughlawyerlady here.

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