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Posted by on Feb 13, 2018 in Workers Compensation | 0 comments

County of Allegheny v. WCAB: Attorneys’ Fees Awarded cannot be refunded after successful appeal

In a unanimous decision, the Supreme Court of Pennsylvania ruled in County of Allegheny v. Workers Compensation Appeal Board that an award of attorneys’ fees against an employer for an “unreasonable contest” cannot be disgorged, even after a successful appeal by the employer.

The Workers Compensation statute provides for attorneys’ fees to be awarded to an employee unless the employer can show that the contest of liability had “a reasonable basis.” In this case, the Workers Compensation Appeal Board assessed $14,750 in attorneys’ fees against Allegheny County for unreasonably contesting an award. Allegheny County asked for a supersedeas of this amount pending appeal, which was denied. The County paid the amount, and appealed the case, ultimately winning before the Commonwealth Court. But the County’s request to be repaid its attorneys’ fees was denied.

Baer: Workers Comp statute provides no repayment for attorneys’ fees

Writing for a unanimous Court, Justice Baer explains that the courts are without authority from the legislature to order the repayment of attorneys’ fees in Workers Compensation cases after the payments have been made. While the Workers Compensation statute explicitly allows employers to seek repayment from a state-created fund for amounts paid out to a worker which are later overturned on appeal, there is no such fund or provision for the repayment of attorneys fees.

A supersedeas should have been granted by the courts below for this very reason, as government units are supposed to be granted supersedeas on appeal pursuant to Pa.R.A.P. 1781. Having been denied this right, however, Allegheny County was left without a remedy. This conclusion was bolstered by the plain language of the statute, and also by the underlying policy considerations the legislature embraced. Liability contests by employers are meant to be discouraged, and if a few employers end up losing out on some attorneys’ fees, this is better for the Commonwealth’s workers in the long run.

“It is not the function of this Court to add missing language to a statute in order to provide relief,” the Court concluded.

Conclusion: “Unreasonable” is in the eyes of the beholder

The Court properly concludes that the statute does not contemplate the disgorgement of attorneys’ fees paid out before the appeal. This case reveals what appears to be a hole in the statute. An employer can make a challenge to liability that is so reasonable that it’s actually the winning argument on appeal, but can still end up paying out the attorneys’ fees attendant on an “unreasonable challenge.”

This case will hit self-insured private employers hardest. Because private employers are not entitled to the supersedeas of Pa.R.A.P. 1781, those who self-insure will be left in a tight spot if their contest to liability is deemed “unreasonable.” An appeal will leave them without remedy, and may ultimately force them to settle sooner.

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Posted by on Feb 13, 2018 in Attorney Discipline | 0 comments

ODC v. Pozonsky: Judge Who Stole Drugs for Recreational Is Disbarred

It will qualify as the least surprising holding of the year: in Office of Disciplinary Counsel v. Pozonsky, the Supreme Court of Pennsylvania ruled 7-0 that a former Court of Common Pleas judge who routinely stole drugs from an evidence room in the courthouse must be disbarred from the practice of law.

Paul Pozonsky was an MDJ and Judge of the Court of Common Pleas in Washington County (home of the Pennsylvania Trolley Museum) for 27 years. During his time as a CCP judge, he presided over a number of drug trials and implemented the Treatment Court of Washington County. As judge of the Treatment Court program, Pozonsky set up a centralized “evidence locker” where confiscated drugs were to be locked up. Over the course of at least two years, Pozonsky would spirit away cocaine out of the courthouse to use at home. He was discovered when he issued a suspicious order calling for the destruction of the drugs kept in the evidence locker.

Pozonsky resigned as a judge, spent a month in prison, moved to Alaska, and rehabilitated from his drug problem. In the underlying proceeding, he was disbarred, and he appealed, arguing that his rehabilitation, his remorse, and the testimonials of past clients and attorneys should weigh against his complete disbarment.

Todd: The Integrity of the System Justifies Disbarment

Justice Todd, writing for 5 members of the unanimous Court, dismissed Pozonsky’s defenses, arguing that the weight of his hypocrisy had left a stain on the courts and on the legal profession. The Court also ruled that Pozonsky had not established sufficient evidence for a Braun defense, which allows lenience in the disciplinary process when an attorney has established a “causal connection between his addiction and his actions.” Pozonsky put on only lay evidence of the connection between his drug problem and his criminal activity, and no expert was called. Accordingly, the Court was not willing to consider this a mitigating factor. Outraged at the violation of the public trust, the Court unanimously ruled for total disbarment.

Concurrence by Baer: Braun defense lacked evidence, but was substantial

Justice Baer, joined by Justice Donohue, agrees with the outcome, but finds the case “much more challenging to resolve.” Baer agrees that Pozonsky did not put on sufficient evidence to sustain the Braun defense, but felt there was circumstantial evidence to support the defense. Had Pozonsky put on an expert, Baer likely would have ruled differently.

Conclusion: No Surprise Here

This case highlights the worst in human nature: a judge, casting judgment on others in the daylight for the very crimes he commits in the night. The case will be held up for many as an example of what privilege and money can get you. A respected judge commits horrendous crimes, siphoning off the drugs of the defendants who come before him for his own use, and he spends a month in jail for it.

SCOPA does its best to restore trust in the profession, issuing the ultimate penalty. One can only hope that Mr. Pozonsky has truly found sobriety and will be able to turn his own life around.

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Posted by on Jan 31, 2018 in Uncategorized | 0 comments

Com v. Wholaver: PCRA death penalty appeal yields nothing of interest

The unanimous Court rejected the arguments of a PCRA petitioner in Com v. Wholaver. As regular followers of the Court are aware, all death penalty cases result in a direct appeal to the Supreme Court of Pennsylvania, even on collateral review. These cases often yield little of interest to the practitioner, and this case is such an example.

Wholaver challenged his conviction for murder on eleven different grounds, including inadequate assistance of counsel, a Brady violation, prosecutorial misconduct, striking a juror for cause, hearsay, and “corrupt and polluted source” instructions. Justice Baer does the yeoman’s work of laying out the exhaustive(ing?) arguments of the petitioner in this case, and reviews the law in each of these areas.

The “corrupt and polluted source” claim is the most interesting: where a conspirator to a crime is called at trial, the defendant may request an instruction to the jury explaining the unreliability of the testimony of a conspirator to the crime. Here the Court notes that the trial judge’s instructions on how to weigh credibility included discussion of plea deals of a witness discussed in evidence, and finds no error.

As always, this case is important as it reflects the Commonwealth’s dedication to ensuring that no one is wrongly convicted of murder; unfortunately, the opinion offers little beyond that in this case.

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Posted by on Jan 22, 2018 in Constitutional Provisions | 0 comments

League of Women Voters v. Com: Congressional Map Violates PA Constitution

The Supreme Court of Pennsylvania decided today in a 4-3 per curiam decision that the congressional map drawn by the General Assembly is too partisan, and must be stricken because it violates the Pennsylvania Constitution. “[T]he Court finds as a matter of law that the Congressional Redistricting Act of 2011 clearly, plainly and palpably violates the Constitution of the Commonwealth of Pennsylvania, and, on that sole basis, we hereby strike it as unconstitutional.” The Court then enjoined the map’s use for the upcoming primaries.

The Court will draw a new map “on the evidentiary record developed int he Commonwealth Court” unless the General Assembly and Governor agree to another map on or before February 15, 2018. The Court will allow all parties “the opportunity to be heard” on the new map, and assures everyone that the primaries will go forward as scheduled. In complying with SCOPA’s order, “any congressional districting plan shall consist of: congressional districts composed of compact and contiguous territory; as nearly equal in population as practicable; and which do not divide any county, city, incorporated town, borough, township, or ward, except where necessary to ensure equality of population.”

Analysis: “sole basis”

The Court goes out of its way in the per curiam opinion to state that the Pennsylvania Constitution is the sole basis for its ruling. This makes the ruling unappealable, and makes it unlikely that SCOTUS’s ruling in Gill v. Whitford will have any impact on the map in Pennsylvania. If the ruling had merely been that the map was unconstitutional, the ruling could have been appealed unless it could be shown the Court’s ruling was on separate and independent state law grounds. SCOPA was apparently eager to avoid any delay in the implementation of this order, and made clear this ruling is a state law issue, only.

The Court does not elaborate on which provision(s) of the Constitution was violated, and in an unusual step, does not specify that a future opinion is forthcoming. The scant, three-page opinion may be all we ever have to go by in this case.

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Posted by on Jan 18, 2018 in Uncategorized | 0 comments

Gerrymandering Oral Argument Roundup 1-18-18

Our roundup is all about Gerrymandering today.

The Allentown Morning Call covers the oral argument and provides quotes from political operatives on both sides. The Philly Inquirer gives a balanced look at the lawsuits possible outcomes. Reuters tacitly predicts a win for the League of Women Voters challenging the map, and HuffPost agrees. PennLive notes that it doesn’t matter whether the onlooker likes the congressional map or not; the suit turns on whether the constitution is implicated. As far away as Bryan, Texas (home of “The Good Life, Texas Style”), The Eagle picks up an AP story on the potential impact of our State Supreme Court’s ruling on the SCOTUS case still pending.

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