Ambulance Companies Can Compete

Ambulance Companies Can Compete

Pennsylvania law permits municipalities to chose a preferred ambulance company and to appropriate public funds for ambulance and emergency medical services. Emergency Care v. Millcreek Township, 68 A.3d 1 (Pa. Cmmwlth. 2013).

But when a Pennsylvania township effectively banned all competing ambulance companies from doing business in the township, it exceeded its powers under the law.

The township passed an ordinance designating the township’s ambulance service as the preferred provider. But the ordinance also directed all 911 calls to the township’s ambulance, required all emergency providers to redirect emergency calls to the 911 system and banned any other ambulance service from doing business or advertising in the township. An established commercial ambulance service with numerous subscribers and a 25 year history of doing business in the township sued and won.

The court held that municipalities may designate preferred emergency services providers and may devote public funds to such preferred providers. But the power to designate cannot be exercised so broadly as to “effectively exclude all other providers.” Finding that the township’s ordinance was an “attempt to isolate a revenue stream and eliminate competition,” the court struck the ordinance down as unconstitutional.

Gun Court Rules Illegal in Warrantless Search

Gun Court Rules Illegal in Warrantless Search

A Philadelphia man sentenced to probation in Philadelphia’s “Gun Court,” persuaded the Pennsylvania Supreme Court that the Gun Court rules were illegal.

Philadelphia’s Gun Court is not actually a court, instead it simply is a program designed to fast track trial and sentencing in gun possession crimes. The program was designed to decrease the number of illegal guns in active circulation, and to speed up supervision of possessors of illegal guns.

The man who challenged the program focused on the Gun Court rules of probation. Arrested for pointing a gun at an occupant of a car, the man was found guilty of possessing a hand gun without a license, and of possessing a hand gun with an altered serial number. Only twenty years old, the man already had an extensive criminal history. Largely because of that past criminal history, the judge sentenced the man to several years in jail, to be followed by a strict probation period of three years. Additionally, the judge ordered that the man’s probation officer could search his home at any time, for any reason, or for no reason at all, to find guns or contraband. The broad search power in the probation conditions was a routine provision used in Gun Court for probationers.

The man appealed, focusing on the probation provision that permitted a probation officer to search his home without warrant and without any particular reason or suspicion. Pennsylvania law regulating probation officers permits them to conduct warrantless searches of probationers’ homes and property if there is “reasonable suspicion” that the probationer has violated probation rules or possesses contraband or other illegal property. The Pennsylvania Supreme Court relied on the probation statute and decided that Gun Court judges may not expand the powers of probation officers by permitting “suspicionless, warrantless searches” of probationers’ homes and property.

Gun Court may continue to expedite and focus on gun crimes; but the firm measure of subjecting probationers to property searches without reasonable suspicion is no longer a weapon in the Gun Court’s arsenal.

Driver’s License Suspension for Failure to Pay Ticket

Driver’s License Suspension for Failure to Pay Ticket

A Pennsylvania man unexpectedly lost his driver’s license when he failed to respond promptly to a traffic ticket. Burgess v. PennDOT, 991 A.2d 1014 (Pa. Cmwlth. 2010).

The man’s problems started when he was cited for speeding and driving an unregistered car. The law enforcement agency didn’t arrest the man, but mailed him a citation after the incident. When he failed to respond to the citation, PennDOT sent the man a letter advising that he would lose his driver’s license in 20 days if he did not respond to the citation immediately. The man did not respond to the citation within the 20 days. Instead, two months after receiving the notice about losing his license, he pled guilty to the citation and paid the fine.

PennDOT then suspended his license for an additional 15 days, because he was convicted of a moving violation while his license was under suspension. The moving violation was the original speeding and driving an unregistered vehicle citation. His guilty plea amounted to a conviction.

The man appealed the additional 15 day suspension of his license, claiming that by pleading guilty to the citation for speeding and driving an unregistered vehicle he was effectively responding to the citation and his doing so should have ended the first suspension. He argued that PennDOT should not be permitted to treat his “conviction” as having occurred during a period of license suspension.

The man lost his appeal. License suspensions do not end in automatic restoration of drivers’ privileges. When Pennsylvania drivers lose their driving privileges due to traffic tickets, DUI charges, failure to pay past fines or for any other reason, they must complete a “restoration” process before their privileges are restored. Drivers who simply assume that they can drive legally at the end of their suspension period are mistaken. To start the restoration process, a driver can request a free restoration letter from PennDOT by calling (800) 932-4600. The letter is also available at no charge through an online request to PennDOT at www.dot.state.pa.us. Follow the menu on the first page headed “On-line Driver and Vehicle Services.” A restoration letter advises the suspended driver of everything he or she must do to become a legal driver again. Those conditions may include resolving previous open citations, paying fines and going through driver education and testing again.

All Gambling is Not Legal

All Gambling is Not Legal

A Pennsylvania State couple arrested and convicted of illegal gambling for operating a Texas Hold ‘Em poker business in their garage appealed their case claiming that poker is not gambling, even when betting is involved. The couple claimed that poker is a game of skill, not of chance. Commonwealth v. Dent, et al., 992 A.2d 190 (Pa. Super. 2010), appeal denied, 20 A.2d 484, 487 (PA 2011).

Pennsylvania law defines gambling as an enterprise based on payment, chance and reward. All three elements must exist to make a game or event gambling. Gambling is illegal in Pennsylvania, except where specifically permitted by law. Pennsylvania law limits legal gambling to licensed casinos and racetracks, and to licensed charitable small games of chance. The Pennsylvania state lotteries and regional power-ball lotteries are also legal.

The Pennsylvania appellate court rejected the couple’s appeal, finding that while poker involves some skill, “the element of chance predominates.” Noting that throwing dice is purely a game of chance, while playing chess is purely a game of skill, the court observed that poker falls somewhere in between dice throwing and chess. But the court concluded that players’ use of skill in poker does not change the fact that it is largely a game of chance. “No amount of skill can change a deuce into an ace,” the court stated. The court found that a skilled player can win more often but “is always subject to defeat at the turn of a card, an instrumentality beyond his control.”

With the growth of licensed casinos in Pennsylvania and the expansion of legal casino gambling to include table games and poker, Pennsylvania residents and visitors can play and bet on poker games legally, but only in casinos.

 

School Vaccinations

Get Ready for Fall School Vaccinations

Late in 2011, Pennsylvania passed changes to the laws on mandatory immunizations required for public school children and increased the obligations of school districts to report to state health officials on immunization records for their students. Pennsylvania pediatricians and family doctors are already following the refined state requirements, and information on the mandated immunization schedule can be found on school district websites as well as at the Pennsylvania Department of Health

While enforcement of the State’s immunization requirements has been stepped up, children are still exempt if the parent, guardian, or emancipated child objects in writing to the immunization on a religious ground or on the basis of a strong moral or ethical conviction similar to a religious belief. Exemption is also granted to any child whose medical providers certify in writing that immunization would be detrimental to the child’s health.

Vaccines protect us from a host of diseases that once regularly brought suffering and death to the global population. Polio, diphtheria, pertussis, tetanus, measles, meningitis, and hepatitis are just a few of the many potentially deadly diseases prevented relatively easily by timely vaccination. But for some people, vaccination may bring injury in the form of autoimmune, neurological, gastrointestinal, or developmental disorders. A lively debate now exists on whether permanent, long‑term disabilities may be caused or triggered by vaccines or vaccine additives. Vaccines contain suspending fluids, preservatives, and stabilizers to help the vaccine remain unchanged, and they may include enhancers that help the vaccine improve its work. Common substances found in vaccines include aluminum gels, salts of aluminum, antibiotics, egg protein, formaldehyde, and Thimersol, which contains mercury.

The National Vaccine Injury Compensation Act of 1986 is a federal law enacted to streamline vaccine litigation and to create opportunities for the prompt settlement of vaccine injury claims. Before bringing a civil suit against a vaccine manufacturer, a victim of vaccine injuries must first file a claim in a specially created federal court that judges have come to call “the Vaccine Court.”

The Act provides for “a less‑adversarial, expeditious, and informal” process of resolving vaccine injury claims by creating informal standards of admissibility of evidence; giving parties the opportunity to submit arguments and evidence on the record without requiring routine use of oral testimony, cross‑examinations, or hearings; and establishing limits on pretrial proceedings.

Vaccine claimants who can prove that they suffered some injury from a vaccine are entitled to “no‑fault” compensation in Vaccine Court. A claimant suffering from a “vaccine‑related injury” may recover actual medical and rehabilitative expenses, damages for reduced earning capacity or lost wages, up to $250,000 in damages for pain and suffering or emotional distress, and reasonable attorney’s fees and costs. No punitive damages are permitted, and no jury trials are held. The decisions in Vaccine Court are made by hearing officers called “special masters,” who are federally appointed.

If a claimant accepts compensation awarded by the Vaccine Court, he or she can’t later sue the manufacturer. But the Vaccine Act also gives a claimant the option to reject the Vaccine Court’s award and to take his or her case to state or federal court. Strict and sometimes conflicting statutes of limitations apply in vaccine claims, and it is important for vaccine claimants to meet the filing deadlines in Vaccine Court and also, if they later choose to sue, in state or federal court.

Pennsylvania parents have not been successful in their attempts to litigate vaccine claims in state court without first going to Vaccine Court. One couple’s seven‑year‑old son was diagnosed with disintegrative autism resulting from his ingestion of mercury. The child’s developmental history included his having started to lose his language and motor skills at 18 months of age.

The couple claimed that when the boy was an infant, he was poisoned by mercury contained in Thimersol, a biocide used as a preservative in many vaccines for many years until the late 1990s. Arguing that their suit did not raise vaccine issues but instead focused on a contaminant or adulterant intentionally added to a vaccine, the couple argued that they should be permitted to bring a products liability action without going to Vaccine Court. The Pennsylvania Superior Court disagreed, holding that injuries from Thimersol are vaccine‑related under the meaning of the Act and must be litigated in Vaccine Court.

To find out what chemical additives are in specific vaccines, you can ask your health‑care provider or pharmacist for a copy of the vaccine package insert, which lists all ingredients in the vaccine and discusses any known adverse reactions. To report a health problem that followed vaccination, you or your provider should go to the federal Vaccine Adverse Event Reporting System site.

School District Residence Disputes in Pennsylvania

School District Residence Disputes

As parents gear up for back to school shopping and organizing, it is worthwhile to brush up on Pennsylvania laws that control where children are entitled to attend school.

The Pennsylvania School Code provides that school age children are entitled to attend the public school where their parents or physical guardians “reside.” Pennsylvania judges have interpreted the Code to require actual physical residence. Just owning a home in a school district doesn’t mean your children can go to school there; you have to actually live in the home to have to right to send your children to school in the district. Likewise, if you rent a home and consistently use it as your primary residence, your children are automatically entitled to attend school in that district.

Cases

When school districts challenge a child’s entitlement to attend, the courts review the facts closely. In one case, in order to meet the needs of their disabled child, a Pennsylvania family rented an apartment near a private school the disabled child attended. The mother and remaining children lived in the apartment regularly; they moved their possessions there and received their mail there. On alternate weekends, they returned to the family home in another county where the father continued to live to be close to his job. The family expected to continue in that living arrangement for 7 years while the disabled child was enrolled in the private school. The Pennsylvania appellate court found that the apartment was a legitimate and actual residence and that the children were entitled to public education in the district.

In a similar case, another well-meaning mother did not fare as well. After remarrying following the death of the father of her children, the mother moved into her new husband’s home. The children did not do well in the school district and the mother found the school at fault. She returned to the apartment where she had lived with the deceased father, staying there with the children several nights each week. Some mornings she left the apartment with the children, returned to the family home for breakfast and showers, and drove them back to school in the apartment’s school district. When the school challenged her entitlement to enroll the children, the court found that she was not actually residing in the apartment’s school district because she and the children did not regularly sleep there.

What Causes School District Residence Disputes?

Schools district residence disputes usually start when district administrators become concerned about a child’s residence status. Increasingly, the cases involve children living with grandparents or other relatives. The School Code says that when an adult is raising a child and “supporting the child gratis as if it were his own,” the child is entitled to attend school where that adult lives. No proof of written guardianship or adoption is necessary. But the adult can be required to sign a sworn statement that he is a resident of the district, that he is supporting the child gratis, that he will assume all personal obligations for the child relative to school requirements, and that he intends to so keep and support the child continuously and not merely through the school term.

Cites

See 24 P.S. §13-1302.

See also Peak v. Pen Argyl Area School Dist., 923 A.2d 563 (Pa. Cmwlth. 2007); Thane v. Cumberland Valley School Dist., 724 A.2d 978 (Pa. Cmwlth.1999), appeal granted 740 A.2d 235, affirmed 744 A.2d 1272.

 

 

Licensing Engineers in Pennsylvania

Licensing Engineers – Right to Take Exam Denied

Pennsylvania law includes numerous restrictions on people who work in “professional” occupations. The jobs included in the regulatory laws include barbers, realtors, funeral directors, engineers, architects, psychologists and almost every health care provider from nurses to veterinarians. The Pennsylvania Bureau of Professional and Occupational Affairs (the Bureau) has broad authority to license, supervise and suspend individuals working in the regulated occupations.

Engineering Graduate Denied Opportunity to Take Exam

A Pennsylvania college graduate recently succeeded in challenging the Bureau’s order barring him from sitting for the state examination for licensing as an engineer. See Whymeyer v. Commonwealth, Bureau of Professional and Occupational Affairs, et al., 997 A.2d 1254 (Pa. Cmwlth. 2010). The graduate attended the University of Scranton, a well-respected private university in Pennsylvania. He completed the university’s four year engineering program, earning a bachelor of science degree in electrical engineering and graduating with the highest honors, magna cum laude.

But when he applied to take the Pennsylvania state test for his engineering license, he was denied the opportunity even to take the test. The Bureau rejected the graduate’s application because the university’s engineering program was not approved by the state. The Bureau noted that state regulations require that candidates for the state engineering license test must first attend an approved four year engineering curriculum. The University of Scranton did not appear on the approved list.

Several deans from the university testified at the hearing on the graduate’s appeal to force the Bureau to permit him to sit for the test. They described the university’s rigorous engineering curriculum and noted that the university’s students performed well in intercollegiate engineering competitions. They also described the obstacles to securing state approval. The Bureau did not conduct its own approval process, instead it deferred the approval authority to the Accreditation Board in Engineering and Technology (ABET), a national, private entity. The university deans described an onerous process it had twice followed, over a period of 10 years, to secure the ABET approval. Despite their successful engineering program and course content, the ABET had denied the university approval on the ground that it did not have sufficient full-time faculty in the program. Noting that another application to the ABET would require the full time attention of one of the program’s eight professors for an entire year, the deans advised that they could not afford to apply again.

After the hearing, the Bureau’s hearing board denied the graduate the right to take the test, finding that its regulations must be met by all candidates. But the graduate promptly appealed the decision to the Pennsylvania Commonwealth Court, and the graduate prevailed. The Commonwealth Court found that the Bureau was not entitled solely to rely on the ABET for the approval of engineering programs. Emphasizing the fact that Pennsylvania and other state high school graduates chose engineering programs from accredited universities without thinking to review the Bureau’s approved programs, the Court found that the Bureau has both broad authority and a broad obligation to approve schools whose quality of education is satisfactory. Concluding that the Bureau is obliged to exercise its independent judgment and to evaluate responsible engineering programs itself, the Court ordered that the Bureau permit the graduate to sit for the exam.

Before embarking on a course of study for any occupation or profession, it is wise to fully examine the licensure process as well as the educational requirements. Had the graduate failed in his effort to gain access to the test, he may have had an actionable claim against the university for its failure to advise him clearly of its status with the Bureau. But succeeding in such a lawsuit would only result in a damages award; it would not result in his winning an engineering license. To learn more about the Bureaus’ authority over licensed businesses and professions, go to www.licensepa.state.pa.us.

 

Tire Hauler Fined

Tire Hauler Fined For Costs of Illegal Dump

A Pennsylvania tire hauler was held responsible for part of the costs of cleanup of an illegal dump as a result of Pennsylvania environmental regulations.

The hauler paid a rural family business to accept his dumping of waste tires. Over a period of three years, the hauler dumped 55 truckloads of tires on the family’s dump site, totaling over 330 tons of tires. The site became the largest illegal tire dump site in Pennsylvania, containing over 4 million waste tires before it was shut down by the Department of Environmental Protection (DEP). The family did not have permits for the site.

After extensive litigation and negotiations with the family to advance the removal of the millions of tires, and after some were removed, DEP began its own clean up of the site. DEP requested the haulers who dumped the tires to remove the amount of tires they had dumped on the site, and many did. Some of the haulers simply paid DEP’s costs of removal. Several haulers resisted taking any responsibility and one went to trial.

The hauler who went to trial maintained that he never knew the dump was illegal and that the family told him they processed tires into paving material. He admitted that he never asked to see a permit and never inquired about the tire processing the family claimed they did. He admitted he never inspected their business operations at any time. He was found responsible for over $23,000 in costs incurred by the DEP to remove his 330 tons of waste tires from the site because the Pennsylvania Solid Waste Management Act (SWMA) makes individuals or companies who dump solid waste responsible if the site does not have a permit. Whether solid waste is transported to a dump or a processing facility does not matter; haulers must be sure that the site where they dump waste has a legal permit to accept that waste.

Cancer Patient Sues Twice Due to Asbestos

Cancer Patient Sues Twice Due to Asbestosis

Exposure to asbestos can cause a myriad of illnesses, often manifesting many years after the exposure. Pulmonary asbestosis is a non-malignant asbestos-related lung disease; those who suffer from it are considered to be at a heightened risk for lung cancers. Certain lung cancers are recognized as related to asbestos exposure. Mesothelioma is a rare disease caused by asbestos exposure and characterized by tumors in the membranes that line the lungs, abdomen and heart. By 1989, the federal government banned most commercial use of asbestos in the United States. But considerable use and manufacturing of asbestos through the twentieth century, and its use in ships, buildings and the automotive industry led to high rates of asbestos diseases particularly among people who worked in industries like building, repairs and manufacturing where asbestos was widely used. Asbestos injury litigation cases make up a large docket that occupies a considerable amount of time for Pennsylvania courts.

Asbestos Liability

As asbestos liability law developed over the past forty years, Pennsylvania law recognized that one person can bring separate lawsuits if he or she suffers from more than one disease as a result of asbestos exposure. Called the “two disease rule,” and “the separate disease rule,” the rule recognizes that people exposed to asbestos can develop a myriad of diseases, sometimes over a long period of time. The rule initially provided that plaintiffs could bring a claim for a non-malignant asbestos related disease like pulmonary asbestosis, and later bring a subsequent action for a separately diagnosed malignant disease. Recently, the rule was expanded by the Pennsylvania Supreme Court.

The Cancer Patient’s Case

In the case before the Court, a man who suffered from pulmonary asbestosis and an asbestos related lung cancer sued a group of asbestos manufacturers in 1990 and settled his claims against them. Fifteen years later, the man was diagnosed with the rare, but clearly asbestos-related condition called mesothelioma. He sued again, and lost his second claims, on the ground that initially he had recovered for both a non-malignant and a malignant condition in his first lawsuit.

The Supreme Court of Pennsylvania reversed the dismissal and permitted the man’s claims to go forward, finding that the lower court had unduly restrictively analyzed the two disease rule. Noting that plaintiffs must bring their initial asbestos lawsuits within two years of the first signs of asbestos related conditions, the Court observed that asbestos plaintiffs struggle to manage claims because “exposure to asbestos may result in a variety of benign and malignant conditions, each of which may occur at widely divergent times.” The Court clarified that the “two disease” or “second disease” rule does permit a plaintiff to sue again for a later diagnosis of a “distinct malignant disease caused by the same asbestos exposure,” even if the settlement or verdict in a previous suit included compensation for an earlier diagnosed malignant disease.

Child Support Not Linked to Custody in Pennsylvania

Child Support Not Linked to Custody

A father who lost all rights to regular periods of physical custody with his teenage daughter lost his petition to dismiss the child support order, because state law recognizes an overriding obligation on the part of all parents to support their children.

The father’s custody order gave the mother “sole physical and legal custody,” limiting the father’s contact with the child to times and occasions the mother decided were appropriate. In response, the father filed a petition to terminate his support obligations, arguing that the custody order was effectively a termination of his parental rights.

The Pennsylvania Superior Court noted that the case had a long and complex history. The parents had had a tumultuous relationship and separated when the daughter was 10 years old. The father did not see the daughter for more than a year; when he filed for custody rights, the court ordered “reunification counseling,” a process in which a child and parent are reintroduced in a counseling setting after a period of estrangement.

The daughter resisted the counseling, coming to the sessions with a blanket over her head. After five sessions, the counseling was terminated. For the next several years, various attempts were made to advance the father’s custody claims through psychological evaluation and intervention. None of the efforts was successful, and when the daughter was nearly 18 years old, all counseling stopped.

The Superior Court required that the father continue to pay his support obligation, finding that his parental rights had not been terminated and that the daughter had financial needs that both parents were obligated to meet. The court distinguished termination of parental rights from awards of sole custody, noting that when a parent’s rights are terminated, it is as unequivocal as “the death of the child,” and no parental relationship exists following the termination. Sole custody awards, while rare, don’t terminate a parent’s rights. Holding that the duty of child support is “absolute” and is the “equal responsibility of both mother and father,” the court dismissed the father’s appeal and upheld the support order.

Parents whose custodial time is limited often find the unwavering position of the courts on child support to be frustrating. Pennsylvania law is clear in its firm requirement that both parents are responsible to support a child.

Parents who are dissatisfied with limitations on their custody rights must advance their custody claims as best they can in custody proceedings. Parents cannot secure relief from the support court based on the status of their custody case.