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Archive for the tag “evidence”

Unemployment Compensation Over Payment Cases – Fault or No Fault?

People who are out of work often have the option to file for, and collect, unemployment compensation benefits to help fill the gap, financially speaking, until they can secure new employment.  As one may expect, however, not everyone who applies for benefits are eligible to collect them.  Ineligibility for benefits can be caused by a variety of factors including, but not limited to, issues regarding self-employment (see here and here), conflicts with other benefits (see here and here), conflicts with retirement (see here and here), issues surrounding termination due to willful misconduct (see here and here and here), issues surrounding whether one voluntarily quit (see here), and/or issues regarding whether one is available for work (see here).

Now, there is a delay between one’s application for benefits and a ruling that one is ineligible and, very often, during that interval a claimant will receive benefits.  If, after receipt of benefits, it is determined that the claimant was ineligible, then the benefits he received would be considered, retroactively, an over payment to him as he ought not have received them in the first place due to being declared ineligible.

The obvious question here is this: what is the consequence to receiving benefits to which one is not entitled?  There are two possible results based on a finding of the claimant’s intentions when his application for benefits were made.  Were the claimant’s intentions “innocent” (in that he acted honestly with Unemployment Compensation at all times) when he applied for benefits which, as a result of the same, he was granted benefits inadvertently?  Or, were did the claimant act with deception or fraud when applying for benefits which resulted in him being dishonest with Unemployment Compensation?

For example, the Claimant honestly may not have fully understood the legal distinctions between “employee” and “contractor” (see here) when he applied for benefits or he honestly may not view the conduct which led to his termination as willful misconduct (see here and here and here) or he honestly may not have fully understood the interplay between Unemployment Compensation benefits and other benefits (see here and here) or he honestly may not view his termination from employment as voluntary (see here).  If this is the case, then his over payment would be considered to have been caused by no fault of the Claimant’s own

By contrast, the Claimant, when applying for benefits, may have intentionally lied about the cause of his termination, or lied about the status of his side job, or intentionally obscured his other sources of income (e.g.: workers’ compensation benefits).  If this is the case, then his over payment would be considered to have been the result of the Claimant’s act of deception and, therefore, brought about by a fault of his own.

If the Claimant’s over payment is due to no fault of Claimant’s own (as described above), the consequence is that if he were to collect unemployment compensation at any time over the following three years, his benefits will be deduced by the amount of the over payment as paid through monthly installments.  If the Claimants over payment is due to Claimant’s fault (as described above), the consequence is that the Claimant must immediately repay all of the benefits at pain of penalties, interest, and other sanctions.

Now, like nearly all things in in the American legal system, determining whether the Claimant was overpaid, and whether that over payment was due to the fault of the claimant (as described above), is determined at a hearing after the presentation of evidence and testimony.  Sometimes this can be done at a single hearing but, more often than not, two hearings will be held: the first to determine eligibility and the second (if the claimant is found ineligible) to determine whether any payments he received were due to his fault (as defined above).  Most of the time, Claimants do their best to fill out the application for benefits and simply do not know how certain terms are used and/or have a different view of the facts surrounding their termination from employment, and, as a result, they will not be required to repay their over payments.  Occasionally, however, a Claimant actively tries to deceive Unemployment Compensation and, for that, immediate repayment will be due.

Sole Legal Custody Means Solo Decision-Making

In the matter of M.P. v. M.P., 54 A.3d 950 the Superior Court of Pennsylvania clarified the extent of authority of a parent who enjoys sole legal custody s/he has over a child.

In M.P., the mother of the child at issue in the case is from Ecuador.  Most of mother’s family, including her own parents, still reside in Ecuador.  Mother was granted primary custody of the child in July 2009 and Father was awarded supervised visits for two hours per week.  Despite receiving such minimal custody, Father did not take advantage of it to spend time with his child.  In or about November 2011, after a hearing, Mother was awarded sole legal custody of the child.  Mother filed a petition to permit her to take the child to Ecuador for three weeks, a trip which Father opposed.  The lower court entered an order prohibiting Mother from taking the trip to Ecuador which led to Mother filing an appeal to Superior Court and it is the Superior Court’s decision that is the focus of this article.

Mother wanted to take the child to Ecuador as it is her own ancestral home and most of her family lives there.  It was not feasible for Mother’s family to come to the United States as there was testimony that Mother’s parents would have difficulty in securing visas to come to the United States and Mother’s mother has health issues which makes flying difficult for her.

Father opposed Mother’s proposed trip to Ecuador as he views Ecuador as a third-world nation filled with potentially dangerous diseases and crime.  He also had concerns about the compatibility of the child’s health insurance coverage with Ecuadorian hospitals and the difficulty retrieving the child if something unfortunate happened to the Mother.

The lower court, by its own volition, investigated international law and the terms of the Hague Convention regarding international custody arrangements and had concerns regarding Father’s options to retrieve the child if Mother failed to return her to the United States.

When reviewing this matter, the Superior Court reversed the lower court’s decision and permitted Mother to go to Ecuador with the child for her proposed three week trip.

The Superior Court first looked at what it means for a parent to have sole legal custody.  Legal custody is the right and ability to make major decisions for the child.  Sole legal custody is the granting of one parent exclusive and final right to make major decisions; indeed, specifically exclusive from the other parent.  The Superior Court ruled that the lower court, by allowing Father to block Mother’s trip to Ecuador, enabled him to undermine Mother’s sole legal custody, and, essentially, render it meaningless.  As a result, the Superior Court ruled that if a party has sole legal custody, the other parent cannot move to prevent it from being exercised but for a formal petition to modify the custodial arrangement.

In terms of the lower court’s reliance upon international treaties and the Hague Convention, it is notable that Father did not raise them at the hearing but the lower court took judicial notice of them.  Regardless, the Superior Court noted that it is not unusual for a court to take judicial notice of such things, so the lower court’s reliance upon them was not objectionable, at least in principle.  Instead, the Superior Court took issue with the fact that the lower court relied on that information after the hearing had concluded and without notice to the parties.  The Superior Court ruled that a party has the right to be heard as to the propriety of a court taking judicial notice of an issue, especially one as critical as international law.

Based on the above, the Superior Court reversed the lower court’s decision, ruling that sole legal custody cannot be undermined or otherwise disturbed without an order altering the custodial arrangement and a court taking judicial notice of an issue must indicate doing so on the record and allow the parties involved to address it.

Originally published in The Legal Intelligencer on March 16, 2015 and can be found here and reprinted in Volume 37, Issue No. 3, September 2015 edition of the “Pennsylvania Family Lawyer” (see here).

Pa. Justices Clarify Evidentiary Standard for Child Abuse Registry

The Pennsylvania Supreme Court weighed in on the burden of proof required to place someone onto the statewide ChildLine Registry (“Registry”) in the matter of G.V. v. Department of Public Welfare, et al., 91 A.3d 667 (2014).

In September 2009 the Lancaster County Children and Youth Services (“CYS”) received a referral alleging that Plaintiff sexually abused his sixteen (16) year old niece, of who he had custody. After an investigation, CYS filed an “indicated” report against Plaintiff upon finding substantial evidence that Plaintiff had abused his niece.

Upon the finding that Plaintiff abused his niece, he was listed on the statewide Registry pursuant to 23 Pa.C.S.A. § 6301-6386. Subsequently, Plaintiff sought the expungement of his name from the Registry through DPW. DPW denied his request to expunge his name from the Registry and he appealed to an administrative law judge (“ALJ”). After a hearing before the ALJ at which several witnesses testified against Plaintiff, the ALJ concluded that the “indicated” report was supported by substantial evidence and, therefore, denied Plaintiff’s appeal. Ultimately Plaintiff appealed to the Pennsylvania Commonwealth Court which vacated the ALJ’s decision on the basis of using an improper evidentiary standard, and remanded the matter back to the ALJ.

The Commonwealth Court agreed that there was substantial evidence but further noted that there was no statutory direction as to what standard of proof is required to be placed onto the Registry and ultimately ruled that clear and convincing evidence is required to be placed onto the Registry. The Commonwealth Court’s decision was appealed to the Pennsylvania Supreme Court and it is that appeal which is the subject of the case described herein.

The Supreme Court noted that an indicated report is warranted if there is substantial evidence, which is defined as “evidence that outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion.” This is in contrast to the clear and convincing standard urged to be applied by the Commonwealth Court and the Plaintiff, which is defined as “evidence that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” Customarily, the clear and convincing standard is applied when a person’s “individual interests at stake in a state proceeding are both particularly important and more substantial than mere money” and especially when there is a potential for “significant deprivation of liberty or stigma.”

After an indicated report, and a placement of a person onto the Registry, that person must report his placement onto the Registry whenever he accepts some sort of position (whether through employment or volunteer work and the like) where he would have contact with children. In its review of the applicable case law the Supreme Court established that the substantial evidence standard is what has been historically used in cases such as the instant case despite an absence of a statutory directive to use that standard.

In its review of the Commonwealth Court’s decision, the Supreme Court acknowledged that the Commonwealth Court did not err in determining that the preservation of one’s reputation is protected under Pennsylvania’s Constitution. Nevertheless, it ruled that it did err by overestimating the significance of the Registry as something covered by the above-mentioned reputation protections as to warrant the application of the clear and convincing standard instead of the substantial evidence standard.

The Supreme Court pointed out that only a limited number of people in a limited number of circumstances could access the names on the Registry. Consequently, the Supreme Court suggested that the Commonwealth Court overstated both the potential and probability for disclosure of the information on the Registry as well as overstated the potential risk of the deprivation of a fundamental interest of someone on the Registry. As a result, the stigma that the clear and convincing standard is supposed to address is simply not present. In addition to the above, the Supreme Court found that the Commonwealth Court did not take appropriate consideration of the fact that the government has a legitimate interest in ensuring the safety of children.

Ultimately, in sum, the Supreme Court ruled that even though being placed on the Registry is significant, there is no legal justification to apply the clear and convincing evidence standard as opposed to the substantial evidence standard when deciding whether to place someone on it.

Originally published in The Legal Intelligencer on January 20, 2015 and can be viewed here.

Court’s Determination of Church’s Voting Membership Upheld

This is from religionclause.blogspot.com which you can find here:

“In Fairfield Pentecostal Church v. Johnson, (LA App., June 3, 2015), a Louisiana state appeals court upheld a trial court’s decision determining a church’s voting membership for purposes of a special vote on whether to dismiss the pastor, saying in part:

The trial court determined at the hearing that none of the members on the original roll had been disfellowshipped; and it allowed another list of members gathered in November 2013 by Reverend Franks, who had kept no roll since his installment in 2010, to be counted toward the membership roll. In order to prevent the solicitation of new members for purposes of litigation, the trial court limited the membership to these two lists. We can think of no more equitable solution.”

You can learn more about this issue here.

7th Circuit Keeps RLUIPA Suit Against Chicago Alive

This is from religionclause.blogspot.com which you can find here:

“In World Outreach Conference v. City of Chicago, (7th Cir., June 1, 2015), the U.S. 7th Circuit Court of Appeals breathed new life into a RLUIPA case that has been in litigation for 9 years. The court reversed the district court’s grant of summary judgment to the city of Chicago as to claims against the city for damages because of delays in granting licenses to World Outreach so it could operate a former YMCA building for its religious purposes. World Outreach argued it lost some $591,000 that it could have made by housing Hurricane Katrina evacuees in the building. The court’s opinion by Judge Posner included comments about the power of aldermen in Chicago politics.  Judge Cudahy concurred with one of the shortest and most cryptic opinions ever:

Unfortunately; and I think the opinion must be stamped with a large “MAYBE.”

(See prior related posting.) RLUIPA Defense blog reports on the decision”

You can learn more about this issue here.

Connecticut Legislature Makes Religious Exemption From Vaccination Requirements Marginally More Difficult

This is from religionclause.blogspot.com which you can find here:

“On Tuesday, the Connecticut General Assembly gave final passage to HB 6949 (full text) and sent it to the governor for his signature.  The bill places additional procedural requirements on parents seeking to exempt their children on religious grounds from vaccination requirements.  As reported by WNPR:

Currently, [parents or guardians] must simply present a statement that the immunization would be contrary to the child’s religious beliefs. But under the bill which cleared the Senate Tuesday, such statements must be submitted annually and officially “acknowledged” by a notary public, attorney, judge, family support magistrate, court clerk, deputy clerk or justice of the peace.

However another bill pending in the legislature would, if enacted, require the notarized statements be submitted only when the child enters kindergarten and when he or she enters 7th grade.”

You can learn more about this issue here.

Oregon Tax Court Says Rectory Not Tax-Exempt

This is from religionclause.blogspot.com which you can find here:

“In St. Mary Star of the Sea Catholic Church, Astoria v. Clatsop County Assessor, (OR Tax Ct., May 6, 2015), an Oregon Tax Court magistrate held that a residential structure located 1.5 miles from the church used as a church rectory did not qualify for a property tax exemption “because the evidence shows the rectory is not reasonably necessary to carry out the religious aims of the church…”  The court said in part:

Although [the parish priest] does write sermons and homilies at the rectory, those duties do not require close physical proximity to the church…. The other uses of the rectory have no direct connection to the church; they certainly do not require a rectory in close proximity to the church. There was generalized testimony about the availability of guest bedrooms for visiting priests, deacons, and seminarians, but no specific testimony or other evidence that such officials have stayed at the subject property and, if so, how many and how often they were there….

Forbes reports on the decision.”

You can learn more about this issue here.

Superior Court Makes Child Abuse Evidentiary Standard Clearer

Child abuse is a terrible scourge on our society and being labeled as a child abuser can be a terrible burden on one’s life if the label is incorrect. In the recent case of In Re Matter of L. Z. Appeal of: L. R., Mother, The Pennsylvania Superior Court made it clear as to what is required for one to be deemed a child abuser in the context of a dependency action.


In December 2011 a child (hereinafter “Child”) was taken to Abington Memorial Hospital for injuries, and staff alerted Child Protective Services (hereinafter “CPS”) and the Department of Human Services (hereinafter “DHS”). The injuries included a deep cut to the base of his penis, a bruise on each cheek, severe diaper rash, a yeast infection, and general dirtiness.


An adjudicatory hearing was subsequently held where testimony and evidence were heard. The evidence revealed that the Child’s mother (hereinafter “Mother”) was residing with her paramour for the two days prior to the incident which led to the Child’s examination in the hospital. Mother provided various explanations for the bruises and rash (of questionable credibility) but had no explanation for the penile cut. Investigation into the matter revealed that CPS indicated the Child’s aunt was the perpetrator of the abuse to the Child.


The hearing also included testimony from a pediatrician certified as an expert witness. She testified that the penile cut was extremely uncommon, non-accidental in nature, very painful, and caused by another person (i.e.: not Child). The doctor believed the cheek bruises to be the result of an adult grabbing the Child’s face very tightly. The doctor also testified that the diaper rash was the result of the Child being left in a diaper wet with urine for extended periods of time. None of the above, per the doctor, appeared to be accidental.


Based on the adjudicatory hearing, DHS filed with Juvenile Court to have the Child declared dependant as a result of child abuse. The Juvenile Court found that the Child was the victim of child abuse, and therefore dependant, and that Mother perpetrated the abuse. Mother appealed and the decision of the appellate court is the subject of this article.


After Mother decided to voluntarily relinquish her rights to the Child, the only remaining issue was whether Mother was the perpetrator of the Child’s abuse. The Court first has to determine whether this issue was moot due to the voluntary relinquishment of rights. The Court determined that being labeled a child abuser has long lasting and wide ranging effects beyond the effect it has within the discrete confines of the litigation; including but not limited to being placed into a statewide registry, being prohibited from working at certain jobs, and possibly having to report it to employers or other parties. As a result, therefore the issue on appeal was not moot. As noted by the Court, it may consider collateral legal ramifications of its orders, which is to say the effects an order may have on things outside of its direct scope and purpose.


The Court indicated that, in order to be determined a child abuser, the evidence for the abuse must be clear and convincing. The Court reviewed the law (specifically 23 Pa.C.S.A. § 6303) and noted that a finding of child abuse requires an (in)action upon a minor child that is non-accidental in nature and causes the child serious physical injury (and/or imminent risk for the same) and/or serious physical neglect. The Court further observed that the law defines serious physical injury as something which causes a child severe pain and/or significantly impairs physical functioning.


In its review of the evidence on appeal, the Court made separate findings for each alleged instance of abuse. The Court found that the penile cut was non-accidental and the cause of severe pain and was, therefore, the result of abuse. By contrast the cheek bruises, though non-accidental, did not cause severe pain. The record did not reflect that the yeast infection resulted in any injury to the Child. As far as the claim that the Child had diaper rash or was dirty or unkempt, the Court found that these conditions did not cause the Child any physical injury or impair his development or functioning. Consequently, based on the above, the Court found that the only instance of child abuse supported by the evidence was the penile cut.


Upon a finding of child abuse, pursuant to 23 Pa.C.S.A. § 6381, a finding that a parent or caretaker committed the child abuse requires only prima facie evidence to support it. The prima facie standard is not substantive law but merely an evidentiary presumption which may be rebutted if the evidentiary record fails to establish that the child was in the parent/caretakers’ care at the time of injury. Indeed, the Court noted that the presumption mentioned above does not apply where the possible perpetrators could be one of several adults. The evidence in this case, as mentioned above, revealed that the Child was not with Mother when he was abused but was with his aunt instead.


The Court conceded that the Mother did not provide the Child with proper care, indeed Mother concedes as much as well, but the Court further noted that simply failing to provide proper care is not the same as perpetrating child abuse. Instead, the Court held that it must be clear that the caretaker suspected of abuse must have been responsible for the supervision and control of the child at the time of the abuse. The Court found that the evidence in the record in this case revealed that the Child was not with Mother at the time he was abused, therefore Mother cannot be found to have committed child abuse and receive the label of child abuser. The Court rejected the argument that Mother should be held responsible for allowing the Child to be cared for by an abuser as there was no evidence in the record demonstrating that she knew the aunt was an abuse risk.


A dissent was entered arguing that the Court should have focused on the entirety of the Child’s circumstances, and all of the various forms of discomfort the Child suffered as described above, which were committed and/or allowed by Mother. The dissent believed the cumulative effect of Mother’s (in)action led to all of the various abuses and discomforts suffered by the Child, and is the reason why the evidentiary presumption was merely, by statute, prima facie. Clearly, the majority opinion did not find this argument persuasive.

Originally published on September 23, 2014 and can be found here.

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