The Legal Intelligencer Blog

Can Landlords Discriminate Against Criminal Tenants?

By James W. Cushing
Special to the Legal

Most people recoil at the idea of discriminating against people and probably just as many presume that existing laws prohibit discrimination. What many do not realize is that the laws against discrimination, for the most part, only cover those in so-called “protected classes.” The typical protected classes are, as one may expect, based on race, gender, national origin, religion, age (over 40), and disability. Needless to say, it is unlawful for a landlord to discriminate against prospective tenants on the basis of any of these. Aside from these protected classes, can a landlord discriminate in choosing his or her tenants on the basis of other reasons?

Obviously, a landlord generally wants to create a safe environment for his or her tenants and the others who live in the vicinity of the landlord’s property. Although seemingly responsible, may a landlord attempt to achieve the goal of safety by discriminating against potential tenants on the basis of their criminal records? As criminals or former criminals are not among those within the protected classes described above, discrimination against people with criminal records is legal.

Of course, if a landlord elects to establish checking potential tenants’ criminal backgrounds as part of his or her vetting process, he or she must do so for all applicants. In other words, the landlord cannot check the criminal backgrounds of black applicants while opting not to check the criminal backgrounds of white applicants.

Finally, it should be noted that the Department of Housing and Urban Development has established a new rule regarding policies that have disparate discriminatory effect on a protected class. A landlord will be in violation of the Fair Housing Act if he or she enacts a policy that has a disparate discriminatory impact on a protected class, even if that policy is seemingly lawful on its face. For example, if a landlord enacted a policy that prohibited all tenants from covering their faces when entering the building, it might be considered a violation of the Fair Housing Act because it had a disparate discriminatory effect on Muslims.

In sum, landlords, at this point, may legally use criminal backgrounds to exclude applicants as part of their vetting process when choosing from potential tenants as long as they apply the same standards to all of their applicants, as discrimination against former criminals is not yet an unlawful form of discrimination.

James W. Cushing is an associate at the Law Office of Faye Riva Cohen P.C., research attorney for Legal Research Inc. and sits on the board of directors of the Christian Legal Clinics of Philadelphia. 

Does a Child-Support Obligation Terminate at Death?

By James W. Cushing
Special to the Legal

Lawyers and laypeople alike know at least the basics regarding child support. Most people know that someone who has his or her child most of the time is entitled to child support from the other parent and someone who has his or her child partially needs to pay child support to the other parent. There are two strains of law regarding child support. The first, as established by the Pennsylvania Legislature, makes it clear that every parent has an essentially absolute duty to support his or her child regardless of whether there is a formal child-support order entered by the court. The second is what most people think of when it comes to the law: One parent formally files for child support in court, a hearing or conference is held and an enforceable court order of support is entered. While this makes sense with living parents, what happens when the parent ordered to pay support, the “obligor,” dies?

It seems pretty clear that child support terminates at the time of the obligor’s death, but what happens when the obligor disinherits his or her minor children, so not only is the child-support obligation terminated, but the obligor’s estate cuts out the child as well? The court has looked into this sort of matter.

Surviving obligees (the parents who receive support) have argued that just because the obligor dies, their own responsibilities do not, and neither do the needs of their children in need of support. Indeed, they have argued that there is, as a result, an inherent injustice and inequity if the support is potentially available in the obligor’s estate but not directed to his or her minor children or, even worse, to some minor children but not others. Pennsylvania courts have expressed sympathy for these arguments raised by obligees; in fact, the court has described these arguments as alluring. Obligees have tried to take advantage of the court’s apparent sympathy for them by presenting other states’ laws that have allowed post-mortem child support.

Unfortunately for obligees, the sympathy of Pennsylvania courts only went so far. The courts have pointed out that while some states allow after-death support, the vast majority have not. In addition, and perhaps most importantly, the courts have thus far been unwilling to extend a child-support obligation from the living to the dead, mainly because they believe doing so encroaches upon the province of the legislature. Indeed, the courts have noted that these arguments have been around for nearly 20 years at this point and the legislature has yet to take action on them. Therefore, the courts have, so far, believed that stretching existing child-support law to the point of obligating the dead moves beyond the province of developing case law and into the realm of altering statutory law as a legislature. The only exception the courts seem to have allowed in this area is when a property settlement agreement or divorce decree specifically allows for child support after death.

For more information on the issues described above, the following cases and statutes may be of interest: Benson v. Patterson, 574 Pa. 346 (2003); Garney v. Estate of Hain, 439 Pa.Super. 42 (1995); Blue v. Blue, 532 Pa. 521 (1992); Gross v. Oeler, 527 Pa. 532 (1991); Sutliff v. Sutliff, 339 Pa.Super. 523 (1985); 23 Pa.C.S. Section 4321.

James W. Cushing is an associate at the Law Office of Faye Riva Cohen P.C., research attorney for Legal Research Inc. and sits on the board of directors of the Christian Legal Clinics of Philadelphia. 

Can a Parent Bargain Away Child Support?

By James W. Cushing
Special to the Legal

When litigating a family matter, which generally involves the intersection of divorce, support and custody matters, practitioners and parties often try to find creative solutions to very sticky problems, many of which can have a significant impact on a person’s life. One way to attempt to bring a family matter to a resolution that some attorneys and parties consider, or even try, is to negotiate the payment of child support in consideration of gaining bargaining rights or negotiation room on some other issue, such as child custody or property distribution.

Agreements regarding the elimination of child support are generally found in matters where one parent is willing to give up all or almost all of his or her right to custody in exchange for being released from any obligation to pay support. For example, a common contract is for the custodial parent (most often the mother) to agree to not seek child support from the noncustodial parent in exchange for the noncustodial parent (most often the father) not seeking custody of the child.

Pennsylvania courts have, for the most part, deemed any agreement to bargain away a child’s right to support as against public policy and unenforceable; however there are a couple of exceptions. Pennsylvania courts have found, time and again, that a child has a right to receive child support and that a parent does not have a right to enter into a contract to avoid ensuring the support of that child. It should be noted, also, that the court has found (arguably through dicta) that, generally speaking, one cannot bargain away child support for a child resulting from a sexual relationship of any kind, including those involving so-called “one-night stands,” adultery or accidents (including when the woman deceives the man regarding her contraception use).

Despite the above, however, the courts have been consistent in ruling that men who donate sperm to allow for conceptions which are the result of anonymous and artificial insemination are, by definition, free from the obligation to pay child support. Similarly, and rather interestingly, the court recently ruled that men donating sperm for artificial insemination do not have to remain anonymous to the recipient of that sperm in order to be free from the obligation to pay support to the resulting child(ren). As long as the insemination process follows standard clinical procedures, the sperm donor will be free from the obligation to pay child support regardless of whether his identity is known to the mother.

Aside from artificial insemination, the only exception to the general ban on contracts that bargain away child support is an analysis into whether the child(ren) at issue are actually being supported without the potentially requested child support. The court has implied that the rule is not that one cannot bargain away child support but whether one can bargain away “adequate” child support. Of course, precisely what makes support adequate is decided on a case-by-case basis and depends on the economic realities for all of the parties involved. Therefore, a noncustodial parent can be released from the obligation to pay child support so long as the contract to do so was fair and reasonable, without fraud and coercion, and, most importantly, does not prejudice the welfare of the child(ren) at issue.

For example, say a woman has a child by one man out of wedlock but ultimately marries another man. Her husband is financially able to, and actually does, support his wife’s child from the other man. The woman and father in this scenario can enter into an agreement to release the father from the payment of child support so long as the child is adequately supported; therefore, the agreement will be enforceable against the establishment of a child-support order as long as this is the case. However, as soon as the husband discontinues the support of the child (say because of the divorce of the husband and mother) the agreement to release the father from a child-support obligation becomes unenforceable. The central issue of analysis is this: Is the child adequately supported by the custodial parent or some other source, absent the potential child-support order? If yes, then an agreement to bargain away child support is enforceable.

Cases to consider regarding the issues addressed in this article include: Miesen v. Frank, 361 Pa.Super. 204 (1987); Roberts v. Furst, 385 Pa.Super. 530 (1989); Kesler v. Weniger, 744 A.2d 794 (Pa.Super. 1999); and Ferguson v. McKiernan, 596 Pa. 78 (2007).

James W. Cushing is an associate at the Law Office of Faye Riva Cohen P.C., research attorney for Legal Research Inc. and sits on the board of directors of the Christian Legal Clinics of Philadelphia.

I Now Pronounce You Never Married

By James W. Cushing
Special to the Legal

Over the last few months, Montgomery County’s register of wills, D. Bruce Hanes, has made quite a name for himself in the local and national media by issuing marriage licenses to same-sex couples because he personally believes that Pennsylvania’s definition of marriage as between one man and one woman, which is still the law in most of the United States, is “arbitrary and suspect.” Hanes’ actions do not take into account what these licenses will mean for any divorces that result from the same-sex marriage licenses he has issued.

Many will presume that these same-sex divorces will simply proceed like any other divorce would; however, there may be an alternate means to achieve the dissolution of these “marriages,” especially if you are, or represent, the person with the greatest amount of assets and/or income. First of all, as Pennsylvania law does not recognize same-sex marriage, courts have, thus far, been unwilling to grant same-sex divorces because to do so would be to tacitly recognize the underlying marriage. So, what does one do with this Montgomery County marriage license, especially if one, or both, of the parties in a same-sex marriage moves to a jurisdiction that does recognize their marriage?

No matter how one feels personally, emotionally, legally or any other way on the subject of same-sex marriage, the undeniable fact is that, as it stands now, Pennsylvania law defines marriage as “a civil contract by which one man and one woman take each other for husband and wife.” Therefore, by the clear operation of the plain and black-letter law, two people of the same sex may not enter a relationship defined as marriage under Pennsylvania law, regardless of what Hanes does or thinks. So, the obvious legal question is this: Can a court legally divorce what is not legally a marriage?

The matter of the same-sex marriages described above is not the first time the courts have had to entertain the basic question of whether a marriage was legal to start with, let alone subject to divorce. In 2007, the York County Court of Common Pleas heard the matter of Heyer v. Hollerbush, Pennsylvania No.: 2007-SU-2132-Y08 (September 7, 2007). In Heyer, the couple at issue (a man and a woman) was married with a Universal Life Church minister as the officiant. Under longstanding Pennsylvania law, only “the following are authorized to solemnize marriage between persons that produce a marriage license issued in this part: A minister, priest or rabbi of any regularly established church or congregation.” Armed with this statute, the plaintiff in Heyer, instead of filing for divorce, rather shrewdly and astutely, filed a motion for declaratory judgment instead, arguing that the couple had never actually been married because their Universal Life Church officiant had no authority to solemnize their marriage. The Heyer court agreed and ruled that since, in its estimation, a Universal Life Church minister does not fit the criterion laid out under 23 Pa.C.S.A. §1503(a)(6), the parties were never married. It is worth noting that in 2008, test cases with similar fact patterns as Heyer were filed in Philadelphia, Bucks and Montgomery counties and all resulted in rulings opposite to that of Heyer; however, as none of these matters reached the appellate level, there remains a split among the common pleas courts on this matter.

The impact of Heyer is enormous in the context of divorce, especially if one is, or represents, a defendant. The property held by one party, in the context of a divorce, is considered “marital” and therefore divisible if the parties were married. Furthermore, the dependent spouse may be entitled to spousal support, alimony pendente lite and/or alimony. If the parties were never married, property held in one name only is not divisible if the parties elect to dissolve their relationship and there is no right to any of the above-listed support. The “married” couple in Heyer turned out to be nothing more than a glorified dating, cohabitating or roommate relationship, with only basic contractual rights applying.

How is the Heyer case relevant to same-sex marriage and Hanes taking the law into his own hands? Similar to the parties in Heyer, the same-sex couples, despite the marriage licenses issued to them, are not actually married because of the basic application of Pennsylvania law. Therefore, if and when a party to a same-sex marriage wants to dissolve the relationship, one legal procedural route that is available is to file a motion for declaratory judgment instead of filing for divorce. As stated above, this avenue would be especially attractive to the party holding most of the assets and/or income. As there is already precedent for this tactic’s success, it would not be at all surprising to see it become more common as more same-sex couples are married contrary to the black letter of Pennsylvania law. Indeed, as Pennsylvania law does not recognize same-sex marriage, it does not, by definition, recognize same-sex divorce; therefore, a motion for declaratory judgment may be the only way to secure the striking and/or withdrawal of a same-sex marriage license.

In light of the above, there may be at least two ways to avoid a motion for declaratory judgment. First, if the Pennsylvania Legislature is able to change the historic definition of marriage, it could also, simultaneously, declare Montgomery County’s same-sex marriage licenses (and others like them) to be valid. Second, and more practically, same-sex couples who receive a marriage license such as those distributed by Hanes could simply enter into a nuptial agreement, laying out the terms and conditions of their relationship and their respective rights if their relationship dissolves; such an agreement is enforceable just as any other contract is enforceable. In the meantime, any same-sex couple that gets married using one of Hanes’ marriage licenses should do so with trepidation and with their eyes wide open to acknowledge that their marriage may be anything but a marriage if it does not work out in the future.

James W. Cushing is an associate at the Law Office of Faye Riva Cohen P.C., research attorney for Legal Research Inc. and sits on the board of directors of the Christian Legal Clinics of Philadelphia. 

Is Working on the Sidelines Out of Bounds for UC?

By James W. Cushing
Special to the Legal

As the economy remains precarious, unemployment compensation benefits remain vital to keeping many Pennsylvanians afloat. Of course, many applicants for unemployment compensation benefits attempt to make ends meet by doing some sort of job on the side, such as flea marketing or landscaping on the weekends for a few dollars here and there. The issue the courts have struggled with is attempting to determine whether that flea marketer or landscaper is an independent contractor or merely engaged in a sideline activity.

Under Pennsylvania unemployment compensation law, an independent contractor is considered to be self-employed and, therefore, ineligible for unemployment compensation benefits. An independent contractor is generally someone who is free from the control or direction of an employer but, rather, works for himself or herself. As the independent contractor is not an employee, he or she is ineligible for benefits if no further work is available under his or her contracts. The issue, of course, is that someone who works at a sideline activity is also similarly free from the control or direction of an employer. Would that person be similarly ineligible for benefits? The courts have generally indicated that engaging in a sideline activity does not render one ineligible for benefits, but the precise definition of what constitutes a sideline activity is still being developed.

The primary lines of distinction between independent contracting and a sideline activity include when the activity was first undertaken and whether someone is “customarily engaged” in the activity per the language of 43 P.S. Section 753(l)(2)(B) defining “employment.” The courts have ruled that earning money or engaging in a money-making enterprise for a few hours per week or month does not necessarily equate to independent contracting. The question is, after findings of fact, whether someone could be considered “customarily engaged” in the sideline activity. In fact, it is significant to note that a potential claimant engaged in a sideline activity may even consider himself or herself an independent contractor; however, this claimant’s self-identification is irrelevant, as the analysis is exclusively based on the factual underpinnings of each case.

For example, if someone, say a truck driver, loses his job and elects to work a few hours landscaping thereafter in order to earn some money to tide him over, does that make him a contractor or engaged in a sideline activity? It all depends on whether this former truck driver is now pursuing a new business venture as a landscaper or just trying to earn a little money to scrape by before he can engage actual employment. Obviously, the analysis to determine the difference between a new business venture and sideline activity is extremely fact-intensive and focuses on the number of hours spent at the work done and the amount of investment the person makes into the work. For instance, does this former truck driver help mow his neighbor’s lawns for $20 a cut every other week, or has he established “Ryan’s Lawncare” and purchased materials and advertising toward it? It likely goes without saying that the former is a sideline activity, which would not render him ineligible for unemployment compensation benefits, while the latter would be considered establishing a business (i.e., becoming an independent contractor), rendering him ineligible for benefits.

The other relevant issue in determining whether something is independent contracting or a sideline activity is when and how the work was established. If it began while one already had an established full-time job, it is more likely to be considered a sideline activity. For example, after a few years of practice, a full-time accountant may discover he enjoys doing Web design in the evenings or on the weekends for a few hours here or there for limited compensation. Would he be considered as customarily engaged as a Web designer? The likely answer would be no, as the Web designing a few hours per week arose while he was otherwise employed as a full-time accountant as opposed to after he became unemployed from his position as an accountant. Further, the accountant’s income and time is overwhelmingly because of being an accountant and, more than likely, when asked what he does for a living, he identifies as an accountant.

Finally, it should be noted that the precise number of hours or rate of compensation is not necessarily relevant to the analysis as neither is specified by the law. Take our accountant above as an example: If his five or six hours per week of Web design expanded to 10 or 15 after he lost his job as an accountant, the Web designing would likely remain a “sideline activity” and not render him ineligible for benefits. As far as compensation is concerned, someone who works on commission and, therefore, has compensation delayed for months, perhaps weeks, could be considered employed despite having no compensation for a long period of time, as compensation is contemplated in the future for the present work.

As the cases continue to be decided on the issue, the definition of “customarily engaged” will become more refined and clear. The fact pattern of each subsequent case will further refine and crystallize what a sideline activity is and help guide potential claimants in deciding whether to undertake such an activity. Of course, before embarking on an activity that could potentially risk one’s eligibility for unemployment compensation, it is always recommended that a claimant consult with an attorney first.

Some cases on this issue that the reader may find helpful include the following: Crocker v. Unemployment Board of Review, 63 A.3d 496 (Pa.Cmwlth. 2013), Minelli v. Unemployment Compensation Board of Review, 39 A.3d 593 (Pa.Cmwlth. 2012), and Kelly v. Unemployment Compensation Board of Review, 840 A.2d 469 (Pa.Cmwlth. 2004).

James W. Cushing is an associate at the Law Office of Faye Riva Cohen P.C., research attorney for Legal Research Inc. and sits on the board of directors of the Christian Legal Clinics of Philadelphia.

Emancipation's Impact on Child Support

By James W. Cushing
Special to the Legal 

Pennsylvania Rule of Civil Procedure 1910.17(a) establishes that a child support order will be modified as of the date the request for the modification is filed. This rule is consistent with the terms of 23 Pa.C.S.A. §4352 regarding retroactive modification of arrearages. Now, generally speaking, the modification of a child support order is requested because of a change in employment, a fluctuation of income, a change in the custodial arrangement of the children and the like. For the most part, the obligation to pay child support for a child terminates when the child reaches the age of 18, but is this termination automatic and, if not, can arrearages accrue after a child reaches the age of 18 if a petition to modify is not filed?

On its face, it would appear that if an obligor does not file to modify the child support – for the purpose of this article in order to terminate it because of emancipation – the order continues and arrearages can accrue after the age of 18.

Very few cases have been reported on the issues described above, and it would seem the Pennsylvania Superior Court case of Holcomb v. Holcomb, 448 Pa.Super.154 (1995), is the leading case on the matter. In Holcomb, the child-at-issue graduated high school in June 1993, thereby becoming emancipated under the law. The father of the child did not file to modify the support order for the child, in order to terminate the order, until June 1994. The relevant question, for the purpose of this article, is whether the child support order should have continued to accrue between June 1993 and June 1994 despite the fact that the child for whom the support was ordered was emancipated the entire time.

The hearing officer’s reasoning was to give the father a retroactive accounting of his support back to June 1993, as if he filed his petition to modify in June 1993, effectively deciding that emancipation automatically takes effect regardless of filing to modify.

The court ruled that, first, it has no power or authority to require the obligee, the mother in this case, to repay any money received after the child-at-issue emancipates. It logically follows, then, that if it cannot order repayment, its power regarding reducing or eliminating arrearages is similarly absent.

Next, the court specifically ruled that it simply has no statutory or procedural warrant or authority to modify support arrearages before the date the father filed a petition to modify regardless of whether the child-at-issue for whom the support has been ordered is emancipated in the interim. Indeed, the court admonished the father, saying “nothing prevented [him] from filing a petition for modification on the date his daughter became emancipated … [therefore] like all successful petitioners who seek modification of a support order, the modification is granted effective as of the date the petition was filed.”

So, for obligors and practitioners alike, it is vitally important to be vigilant in filing petitions to modify support as soon as a child is emancipated; otherwise, a child support order, along with its arrearages, will potentially continue to accrue unabated until some action is taken to stop it.

James W. Cushing is an associate at the Law Office of Faye Riva Cohen P.C., research attorney for Legal Research Inc. and sits on the board of directors of the Christian Legal Clinics of Philadelphia.

Aggrieved Parties and Their Right to Appeal

By James W. Cushing
Special to the Legal

The Rules of Civil Procedure are designed to facilitate litigation so it can be performed smoothly and predictably. Unfortunately, one simply cannot predict and write a rule for every possible contingency that could happen in the life of a case. There will always be circumstances that seem to fall into the cracks between the rules.

Pa.R.C.P. 1028(a)(1) requires a complaint be dismissed when the court lacks jurisdiction over the subject matter and/or the parties to a claim. Pa.R.C.P. 1028(5) requires a complaint be dismissed when a plaintiff lacks standing to file one on the issues contained therein. What if a plaintiff sues two defendants in municipal court, wins a judgment for jurisdictional limits against only one defendant but files an appeal to the court of common pleas against both parties despite having won as much as legally permitted against one of the defendants?

Although, pursuant to 42 Pa.C.S.A. §5105, a party may file an appeal from a final order, it could be argued that only an aggrieved party may file an appeal, as in Pierro v. Pierro, 434 Pa. 131 (1969). Pennsylvania case law has something to say on this subject: “Standing [to file an appeal] requires an aggrieved party, and one ‘who is not adversely affected in any way by the matter which he seeks to challenge is not ‘aggrieved’ thereby and has no standing to obtain a judicial resolution of his challenge,’” as the court held in Lisa H v. State Board of Education 67 Pa.Cmwlth. 350 (1982), quoting William Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168 (1975).

If our hypothetical plaintiff above won a judgment against one of the defendants for full jurisdictional limits in municipal court, it could be argued, per the above case law, that the plaintiff is not an aggrieved party, as he won his case against the defendant as completely as possible according to his own complaint and the municipal court rules. As he is not aggrieved, it could be argued, he has no standing to file an appeal of that judgment to the court of common pleas against that defendant. If the plaintiff had no standing and, therefore, could not file an appeal of the judgment, the court of common pleas, theoretically, has no jurisdiction over the person or subject matter at issue as it pertains to that one defendant.

The statute and cases seem to point in the direction that only a truly aggrieved party can file an appeal. Unfortunately, there seems to be a conspicuous absence among the relevant cases and statutes as to precisely whether a party that completely wins its case against a party, particularly in municipal court, is actually an aggrieved party with the right to appeal. It would seem that this issue is ripe for testing in the courts as soon as the opportunity arises.

James W. Cushing is an associate at the Law Office of Faye Riva Cohen P.C., research attorney for Legal Research Inc. and sits on the board of directors of the Christian Legal Clinics of Philadelphia.

Superior Court Offers Refresher Course on Appeals Procedures

By James W. Cushing
Special to the Legal

The recent Pennsylvania Superior Court matter of J.J. DeLuca v. Toll Naval Associates, 2012 Pa.Super. 222, involved a large construction contract, alleged breaches of that contract and allegations of fraud over the life of the relationship of the parties in this case. Although the underlying case is interesting, the focus of this article is what amounted to the primer the court gave in its opinion regarding appellate practice.

After a verdict and an appeal and remand of the same, the trial court again calculated damages that were appealed again by both parties. On appeal, DeLuca raised a whopping 16 issues while Toll raised nine. When faced with potentially 25 issues raised on appeal, the court recalled U.S. Court of Appeals for the Third Circuit Senior Judge Ruggero J. Aldisert’s statement in his opinion prepared in the case of Kenis v. Perini, 452 Pa.Super. 634 (1996), when he said, “When I read an appellant’s brief that contains 10 or 12 points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebuttable presumption, but it is a presumption that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness.” When reviewing DeLuca’s issues raised on appeal, the court further observed that they often overlapped with one another and were inconsistently numbered and lettered.

Some of DeLuca’s arguments regarded the sums of money paid by Toll at one point during the matter. Despite DeLuca’s taking the time to make the arguments, they had virtually no references to places in the record to support their claims. The court noted that Pa.R.A.P. 2119(c) requires references made to pleadings and evidence and such to be specifically cited to in the record. Indeed, the court, citing Commonwealth v. Imes, 603 Pa. 680 (2009), specifically said it would not “scour the record to find the evidence to support an argument.” As a result, the insufficiently cited claims were deemed waived by the court.

The subsequent argument raised by DeLuca presented a conclusory statement without any supporting authority and was therefore deemed waived by the court. DeLuca’s next argument was quickly deemed “demonstrably incorrect” by the court when compared to the clear testimony of the record. DeLuca’s argument after that was also deemed waived because “DeLuca has failed to develop an argument in support of its … claim, and offers no authority at all to support it.” DeLuca also proposed an argument based on the statute of limitations. The court ruled this argument, too, was waived, as “DeLuca [did] not present any citation to the record to support its claim, or to show where Toll’s evidence was deficient.”

Indeed, another of its arguments was dismissed because DeLuca offered “no other substantiation or explanation” aside from a bald assertion offering “no other support of its claim,” not to mention that it “fail[ed] to present or develop an independent argument in support of its claim.” Furthermore, the court noted that DeLuca’s arguments did “nothing to refute the trial court’s findings.” When reviewing DeLuca’s arguments regarding punitive damages, the court indicated that they were “incomplete” and ignored certain issues and/or merely “incorrectly assumed it would prevail on its assertion[s].” The court also believed that DeLuca “misapprehend[ed the court’s] standard of review” and misapplied (or misunderstood) certain constitutional requirements.

As stated above, the Superior Court’s decision is useful as guidance on what to do (or not do) when filing an appeal. First, when filing an appeal, make the issues on appeal concise, specific and clear, as opposed to sprawling, numerous and repetitive. Second, be sure to cite to the record at all times whenever possible, as the court will not do your work for you in this regard. Third, and this seems quite obvious, one’s arguments must be fully developed, based on the facts and evidence available, supported by authority and the record, consistent with the law and clearly explained and articulated to the court.

James W. Cushing is an associate at the Law Office of Faye Riva Cohen and research attorney for Legal Research Inc. He is licensed to practice law in both Pennsylvania and New Jersey.

USPS Listens to Deaf Employees’ Claims

By James W. Cushing
Special to the Legal

The matter of Hubbard v. Donahoe, Civil Case No. 03-1062, U.S. District Court for the District of Columbia, is a class action lawsuit that pits the United States Postal Service against its deaf and hard-of-hearing employees.

The Equal Employment Opportunity Commission brought a class action suit on behalf of various deaf employees USPS alleging that the USPS denied them communication accommodations (e.g., American sign-language interpreters), especially during meetings, refused to provide them a TTY for telephone communication, failed to give them emergency evacuation notification systems, did not promote them or provide assistance in their effort to get promoted, and subjected them to a hostile work environment as a direct result of their disabilities.

After about 10 years of litigation, the parties have finally submitted a class action settlement agreement to the District Court for $4.55 million.

Over the course of my life, I have been involved in the deaf culture in one way or another and I have learned that although most people think of not being able to hear as the disability of a deaf person, the challenges the deaf have in the simplest act of communication with a hearing person are perhaps the disability that most impacts their lives each day. The inability to effectively communicate serves to isolate the deaf person – likely the only one at a given employment location – and therefore completely separate him from the rest of his co-workers. Therefore, failing to provide an interpreter or basic emergency systems or even a telephone (i.e., TTY) compounds a deaf person’s disability and enhances his or her isolation. I can think of few things that would make a work environment more hostile than near complete isolation.

Regardless of the merits of the case, it reminds us that those with disabilities are equal members of our society and our workforce and all have value. A case like this serves as an important reminder that employers all have the obligation to ensure that they honor their responsibility to take reasonable measures to accommodate the disabilities of their employees and to ensure that the workplace is one in which the employees feel comfortable.

James W. Cushing is an associate at the Law Office of Faye Riva Cohen and research attorney for Legal Research Inc. He is licensed to practice law in both Pennsylvania and New Jersey.

A Reminder to File Post-Trial Motions

By James W. Cushing
Special to the Legal

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 argue on appeal after a trial, post-trial motions must be filed within 10 days of the trial verdict/decision one wishes to appeal.

James W. Cushing is an associate at the Law Office of Faye Riva Cohen and research attorney for Legal Research Inc. He is licensed to practice law in both Pennsylvania and New Jersey.