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Introduction:
This article sets out some of the background some and examples of prosecutions and litigation against UK schools.
Whilst Scottish Law and its' Legal System differs from that in England and Wales the writ of the enforcing and regulating body the Health and Safety Executive(HSE) runs across the border and matters are decided in the Criminal Courts.
Litigation takes place in the Civil Courts and, in the case of Health and Safety usually revolves around aspects of the LEA. Owner, school and teachers' duty of care to children. Almost all of these cases are civil actions taken by parents on behalf
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A Summary Of Recent State & Federal Appellate & Trial Court Decisions
REPORTING DECISIONS THROUGH FEBRUARY 3, 2006
PENNSYLVANIA STATE COURT DECISIONS
1. CAUSES OF ACTION
1.1. Civil Remedies For Violations of State Constitutional Rights
► Commonwealth Court of Pennsylvania ♦ Jones v. City
of Philadelphia No. 795 C.D. 2004 (January 25, 2006)
Holding: A city or other local government is not liable for
monetary damages under Article I, Section 8 of the Pennsylvania
Constitution for a claim of excessive force. Of note is the en
banc Court's finding that the plaintiff failed to show that his
rights against governmental use of excessive force were not
sufficiently protected by the Fourth Amendment. Judge
Smith-Ribner filed a dissenting opinion, in which she was joined
by Judge Friedman.
1.2. Motor Vehicles Claims - Uninsured Motorist Actions
► Superior Court of Pennsylvania
♦ Pantelis v. Erie Insurance Exchange 2006 PA Super 1
(January 4, 2006)
Holding: An automobile insurer's acknowledgement of "reasonable
proof" that a party is entitled to first party benefits does not
preclude the insurer from later disputing whether the insured is
"legally entitled to recovery" of third party benefits in an
uninsured motorist claim pursuant to 75 Pa.C.S.A. § 1731(b). The
Court notes that the payment of medical bills under Section 1716
can be "triggered by something as simple as submission of a bill
from a medical provider," whereas the "legal entitlement to
recovery of uninsured motorist benefits ... is based on the
wrongful conduct of a third party."
2. CIVIL PROCEDURE
2.1. Pre-Trial Procedure
► Commonwealth Court of Pennsylvania
♦ Wheeler v. Red Rose Transit Authority No. 874 C.D. 2005
(January 27, 2006)
Holding: A petition to reinstate a case dismissed under Pa.
R.Civ.P. 230.2, filed more than 30 days after the termination
order, will be granted only if there is a "reasonable
explanation or a legitimate excuse" for the failure to file (1)
the statement of intention and (2) the petition to reinstate
within 30 days of its termination.
2.2. Professional Negligence Actions
► Superior Court of Pennsylvania
♦ Varner v. Classic Communities Corp. 2006 PA Super 2
(January 6, 2006)
Holding: A Certificate of Merit is required for professional
liability actions, including those against architects. Although
a Complaint may attempt to characterize a claim as sounding in
ordinary negligence or negligence per se, because the claim is
against a licensed professional, the plaintiff must file a
Certificate of Merit. When a plaintiff fails to file the
requisite Certificate of Merit, a judgment of non pros is
warranted under Pa. R.Civ.P. 1042.1-1042.8.
2.3. Trial Practice (Voir Dire)
► Superior Court of Pennsylvania
♦ Capoferri v. Children's Hospital of Philadelphia 2006 PA
Super 16 (January 31, 2006)
Holding: A trial court commits reversible error by denying
counsel's request to ask prospective jurors certain questions
during voir dire about their knowledge of or perspective about
the alleged medical malpractice crisis, and the alleged flight
of physicians from Philadelphia, in particular. The Court notes
that its Opinion does not endorse any of the questions proposed
by the plaintiffs and, instead, states that the trial court
should have asked prospective jurors appropriate preliminary
questions designed to detect whether any of the prospective
jurors had been exposed to tort reform and/or medical negligence
propaganda.
3. UNEMPLOYMENT COMPENSATION
3.1. Willful Misconduct
► Commonwealth Court of Pennsylvania
♦ ATM Corp. of America v. Unemployment Compensation Board
of Review No. 1560 C.D. 2005 (January 23, 2006) Holding: An
accounting department employee, who processes checks in and out
of an employer's multimillion dollar account and who refuses to
authorize a background check, is properly terminated for willful
misconduct and is not entitled to unemployment compensation
benefits.
4. WORKERS' COMPENSATION (ALL COMMONWEALTH COURT CASES)
4.1. Calculation of Self-Employment Income
♦ Acme Markets, Inc. v. Workers' Compensation Appeal Board
(Brown) No. 1174 C.D. 2005 (January 3, 2006)
Holding: In determining a claimant's earning power, a Workers'
Compensation Judge may consider a claimant's net income from
self-employment, and is not required to rely solely upon the
claimant's gross income. The ultimate determination must be
based upon all evidence, including claimant's testimony and
other sources.
4.2. Medical Expenses - Replacement of Orthopedic Appliances and
Similar Items
♦ Zuback v. Workers' Compensation Appeal Board (Paradise
Valley Enterprise Lumber Co.) No. 1173 C.D. 2005 (January 9,
2006)
Holding: Although the Workers' Compensation Act requires an
employer to provide home modifications at the employer's
expense, such modifications are limited to a one-time
expenditure. The replacement of an orthopedic device, including
a stair glide, is not an additional modification, however, and
an employer is obligated to pay for such costs, which are the
result of "wear and tear."
4.3. Retirement/Voluntary Withdrawal from the Workforce
♦ Hepler v. Workers' Compensation Appeal Board (Penn
Champ/Bissel, Inc.) No. 1727 C.D. 2005 (January 11, 2006)
Holding: Disability benefits should be suspended when a claimant
leaves the workforce. For disability compensation to continue
following retirement, a claimant must show that he or she is
seeking employment after retirement or that he or she was forced
into retirement because of the work-related injury. When a
claimant is forced into retirement because of a work-related
injury, the claimant must show that he or she was forced out of
not only the pre-injury job, but the entire labor market, or
that the claimant continues to actively seek employment.
♦ Blong v. Workers' Compensation Appeal Board (Fluid
Containment) No. 1569 C.D. 2005 (January 19, 2006)
Holding: A claimant who moves permanently to New Zealand has
removed himself from the workforce, and an employer is entitled
to a suspension of benefits.
4.4. Supersedeas Fund Reimbursement
♦ ConocoPhilips v. Workers' Compensation Appeal Board
(Logan) No. 515 C.D. 2005 (January 19, 2006)
Holding: An employer is not entitled to Supersedeas Fund
reimbursement for a "deemed denial" of a request for
supersedeas. Once a claimant receives an award of a lump sum
payment for retroactive compensation or specific loss benefits
and that award is later reversed or modified, the claimant is
not required to repay that money. Instead, an employer must
resort to repayment from the Fund, provided supersedeas was
denied prior to disbursement of the funds to the claimant.
FEDERAL COURT DECISIONS OF INTEREST
5. JURISDICTION
5.1. Diversity Jurisdiction - Banks
► U.S. Supreme Court
♦ Wachovia Bank v. Schmidt No. 04-1186 (January 17, 2006)
Holding: Although "All national banking associations shall ...
be deemed citizens of the States in which they are respectively
located," pursuant to 28 U.S.C. § 1348, for purposes of
determining citizenship for diversity purposes under 28 U. S. C.
1332, a national bank is a citizen of the state in which its
main office is located, as set forth in its articles of
association.
6. MOTOR VEHICLE INSURANCE
6.1. Bad Faith Claims
► U.S. District Court, Eastern District of Pennsylvania
♦ Harris v. Lumberman's Mutual Casualty Co. No. 05-CV-5228
(January 23, 2006)
Holding: Pennsylvania's bad faith statute, 42 Pa. C.S.A. § 8371,
conflicts with the Motor Vehicle Financial Responsibility Law as
to the remedies available under 75 Pa. C.S.A. §§ 1716 and 1797.
Because the MVFRL is the more specific statute, it preempts the
bad faith statute. In particular, the special provision, section
1797, preempts the bad faith statute, and a claim for statutory
bad faith arising from the denial of first party medical
benefits will be dismissed. Because section 1716 and the bad
faith statute impose different remedies for different degrees of
culpable conduct, i.e., unreasonable conduct under section 1716
and bad faith conduct under section 8371, the statutes are
reconcilable. Accordingly, section 1716 does not preempt the bad
faith statute and a claim for statutory bad faith arising from a
carrier's denial of a claim for lost wages benefits will not be
dismissed.
Remember, visit Pennsylvania Legal Research Links, and make www.palegallinks.com your
home page for Pennsylvania research.
About the author:
Daniel J. Siegel, an attorney in Havertown, Pennsylvania, has
authored this newsletter since 1988. To subscribe, or contact
Dan Siegel, go to Daniel
J. Siegel.com or send an email to Subscribe.
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Daniel Siegel
Dickson County Tennessee divorce records
A court order that seizes assets from the defendant to pay off a
debt is known as Garnishment. One form of garnishment is
automatic withholding of the debtor's wages. When a creditor
fails to satisfy the debt taken, the court can issue a
garnishment against him. When the creditor petitions the court
to send a portion of its pay to satisfy the debt then this step
is taken.
The garnishment law differs from state to state and varies in
details also. Generally, the TVA is required to take over 25% of
an employee's disposable earnings or assets, thereafter sending
that amount to court. The pay of an employee can
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Publishing Guidelines: This article may be freely publishedso long as the author's resource box, bylines, and copyrightare included.TITLE: Is Court in Session?AUTHOR: Jerry LopperCONTACT: jlopper@att.netCOPYRIGHT: ©2002 by Jerry Lopper. All rights reservedWORD COUNT: 533FORMAT: This article is formatted to 61 cpl.----------Is Court in Session?Is your courtroom in session? That is, are you acting asprosecutor, judge, and jury for your fellow humans? Do youevaluate the actions and behaviors of your loved ones,reminding them even silently that they're doing things the"wrong" way? I thought my courtroom was closed, but I wasfooled by my mind.I thought I had ceased judging behaviors of others
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