Future of Print Journalism to be POSTPONED

Due to Howell Raines being ill, Philadelphia Talks: Future of Print Journalism scheduled for 2/28 at the National Constitution Center is cancelled. We will be! resche duling it for a later date.

Philadelphia magazine and the National Constitution Center apologize for any inconvenience and will keep you posted on a future rescheduling.

Free Press/Fair Trial - Last Few Cases

A few last cases to consider as an extension of today's discussion:

Landmark Communications v. Virginia, 435 U.S. 829 (1978)

Here, the Virginia Pilot newspaper publishes an accurate story about the confidential proceedings of the state's Judicial Inquiry and Review Board.

The reporter identified a judge who was under investigation.

State law authorized the board to hear complaints about a judge's misconduct or disability. It is a crime under state law to reveal information about these hearings, which are closed to the public and the media.

Confidentiality was necessary to protect the filing of complaints, testimony of witnesses, to protect a judge from injury that might result from publishing baseless charges, and to maintain public confidence in the judiciary.

The Supreme Court rules for the news organization. While the press has no right to gain access to this information, it can't be punished once it has the information, the Court rules.

The First Amendment does not permit criminal punishment of third persons (including reporters) who did not take part in the Board's proceedings.

Publication of this information, the Court ruled, "lies near the core of the First Amendment."

The state's interests were "insufficient to justify the actual and potential encroachment on the freedom of speech and of the press," Chief Justice Warren Burger wrote.

The Board could meet in secret and keep its reports confidential, but once the media had the information, they could report on it - it was fair game.


Belo Broadcasting v. Clark, 654 F. 2d 426 (1981)

Indictments were handed down against the speaker of the Texas House of Representatives, two attorneys, and a labor leader, for their roles in a bribery scheme.

The speaker and the attorneys were later acquitted. Broadcasters sought to air audio tapes made during an FBI sting operation that led to the indictments. The tapes included discussions between the defendants and undercover agents.

The district court refuses the request, ruling that release would make it hard for the remaining defendant to be tried by an impartial jury. The Fifth Circuit U.S. Court of Appeals affirms - there is a right to inspect and copy judicial documents and records, but that right is not absolute.

Lower courts have a lot of discretion in granting or refusing access to this material. The fear that the defendants' right to trial might be prejudiced if the tapes were broadcast was a legitimate one, the court held.

Appeals courts shouldn't second guess lower courts, the appeals panel rules.


Publicker Industries v. Cohen, 733 F. 2d 1059 (1984)

This case arises from a proxy fight to determine control of Publicker Industries, a publicly traded corporation. The Neuman family controlled almost 40 percent of Publicker's shares. David Cohen seeks to gain control of the Publicker board at a 1982 stockholders' meeting.

Cohen had entered into an agreement with members of the Neuman family granting him their irrevocable proxies to be voted at the meeting. Cohen agreed to buy a substantial chunk of the family's stock in Publicker if he succeeded in taking control.

But other members of the family weren't happy - they sued to block the sale, which was later set aside. Publicker sought a TRO to bar Cohen from soliciting proxies, an act which Cohen claimed violated federal securities law. A public hearing is scheduled.

A Philadelphia Inquirer reporter, Dick Cooper, arrives at the hearing after lunch. Publicker immediately moves to close the hearing.

A district court judge agrees with Publicker, ruling that the press would be usurping the judge's function of determining whether the information at the hearing should be revealed.

Cooper objects to the closing, and asks for the chance to be heard through counsel.

But the district court rejects the Inquirer's attempt to have the proceedings reopened. They then denied the paper's motion for access to the hearing transcript.

The paper's parent company, PNI, argued that the closure and the seal order violated common law and the First Amendment.

The Third Circuit U.S. Court of Appeals reverses the lower court, finding that civil proceedings are presumptively open to the public and the news media. This right of access to civil trials and records is as well established as our right of access to criminal proceedings.

And the press? The Supreme Court had previously ruled that the press and the public should have access to criminal trials, but it didn't rule on civil cases. But here, the Third Circuit panel finds that the public's right of access to civil trials is inherent in the nature of our democratic form of government.

Justice Holmes, writing in another case, said that access to civil proceedings was important because of "the security which publicity gives for the proper administration of justice.

Another vote for transparency; just try explaining that to our president.

Access "enhances the quality and safeguards the integrity of the fact finding process," the court ruled. We must be allowed to participate so that we can be a check on the judicial process.

CJR Article on Judge Richard Posner

We've seen how the temperament of a judge can affect how a case unfolds. Check out this article from the November/December 2005 issue of Columbia Journalism Review about U.S. Circuit Judge Richard Posner. He pisses off a lot of people, but is widely respected.

Should media have access to NJ youth trial?

http://www.courierpostonline.com/apps/pbcs.dll/article?AID=/20070223/NEWS01/70223027/-1/ARCHIVES

Milkovich and Beyond

A few thoughts about Milkovich v. Lorain Journal and cases since then:

The standard developed by the Supreme Court in Milkovich didn't thrill the lower courts; they believed that it was far too conservative to evaluate a statement of opinion on the basis of whether it was true or false.

This standard denies 1st Amendment protection to statements that an author or reporter intended as opinion, and that the reader assumed would be opinion.

With the line between fact and opinion so blurry these days, however, it seems fair to argue that the reader either can't tell the difference, or chooses not to.

The high court based its ruling in part on society's "pervasive and strong interest in preventing and redressing attacks upon reputation." There is no separate opinion privilege in the 1st Amendment.

We also don't need one, the court said, especially one that limits the use of state defamation laws.

The Constitution gives all the "breathing space" we need for freedom of expression, thank you very much.

For example, in Hepps, if you write something on a matter of public concern, a private figure must prove it was false before liability is assessed. That, the Court in Milkovich said, ensures protection for opinions that lack provably false factual connotations.

If you can't reasonably interpret a statement as stemming from actual facts, it's protected. We just don't need a special exemption for opinion.

Just adding, "in my opinion," doesn't dispel the factual implications. These statements can still cause as much damage to a reputation as a factual statement.

Can't escape liability for defamation simply by writing "I think..." if you imply that something happened, or someone did something.

William Brennan and Thurgood Marshall dissent - the Journal columnist was not trying to state actual facts. It's clear that he doesn't (or didn't) actually know whether the coach was lying.

His column was "patently conjecture."

So: how do columnists today navigate around the Milkovich ruling? Was the Court too broad - did it reach too far? Would this have a chilling effect on commentary?

A couple of last cases:

Dorsey v. National Enquirer, 973 F. 2d 1431 (1992)

Remember that qualified privilege does not typically extend to cover reporters when they report on parts of the judicial process that are closed to the public.

Here, Arnold Dorsey, better know to the world as Engelbert Humperdinck (ask your mother or father), sues the National Enquirer for defamation. In 1980, Kathy Jetter established that Dorsey was the father of her child. A court in NY orders him to pay child support. Eight years later, she seeks an increase in the payments.

Dorsey refuses. In an affidavit taken as part of the case, Jetter reveals that Dorsey had been treated for AIDS. The Enquirer runs an article based solely on the affidavit, but does include Dorsey's denial of the claim.

The lower court grants the Enquirer's motion for summary judgment, ruling that the article was a fair and true report of allegations made in a judicial proceeding.

Dorsey appeals, arguing that the privilege extends only to coverage of proceedings open to the public.

The Ninth Circuit rejects Dorsey's claim, noting that numerous courts have extended the privilege to a variety of proceedings usually not open to the public, including internal reports by state agencies and secret grand jury proceedings.

The court also said that journalists must make sure that the "gist" of a story is accurate. Dorsey challenged the truthfulness of the Enquirer story.


Wright v. Grove Sun Newspaper Co., 873 P. 2d 983 (1994)

Remember that privilege only protects journalists when they are reporting about official acts - acts of state.

The District Attorney for Delaware County, OK holds a press conference to talk about a drug investigation. He distributes a transcript of a conversation between two undercover law enforcement agents.

The local newspaper, owned by Grove Sun, publishes the statement verbatim. The statement includes information about Ace Wright, a local resident. He sues.

The OK Supreme Court rules that publication was privileged - DA's have historically used press conferences to disseminate information to the public about what they are up to. Thus, it was part of the DA's official duties.


Finally, remember the last two defenses - CONSENT and RIGHT OF REPLY?

A couple of thoughts:

Both of these are old; they're used with some success, but they're not universally accepted by the courts.

So: if you CONSENT to the publication of defamatory material, you can't turn around later and sue.

Let's say you hear a rumor that the local animal control officer has ties to organized crime. You dutifully visit the official - we'll call him Sandy "Out of His Tree" Becker, and tell her that you heard the rumor. You ask if she cares that you run it in the story.

If the person says yes - no problem. It's rare, of course, that it happens this way.

Courts require a reporter to show that the plaintiff knew or had good reason to know about the full extent of the defamatory statement BEFORE it was published in order to establish consent.

Then there's IMPLIED CONSENT...

A person gives it when he or she comments on a defamatory charge and allegation and then that response is published with the charge in a story. You can also give implied consent if the person has told others about the charge - let's say Becker visits an animal control chat room and vows to fight the allegations against her.

That's IMPLIED CONSENT.

Bottom line: you have to give someone a chance to reply to an allegation AND print it.

Finally, RIGHT OF REPLY:

Think of it as self-defense, or giving as good as you get.

If you have been defamed, you can answer with a libelous comment of your own and NOT lose your libel suit.

Your statement has to be similar in magnitude to the original libel - it can't exceed the original provocation.

Reynolds v. Pegler (1955)

Two reporters, Quentin Reynolds and Westbrook Pegler, went after each other. Reynolds wrote that Pegler wrote that Heywood Broun, another reporter from the mid 20th Century, was a liar.

Broun was so bothered by the statement that he couldn't sleep, according to Reynolds. Broun later fell ill, and died.

Pegler became angry - he believed that Reynolds was suggesting that he (Pegler) caused Broun's death. SO...he attacked Reynolds, calling him sloppy, a coward, a liar, and a four flusher.

He also accused him of being a war profiteer and of public nudism.

Reynolds sues. Pegler's defense? RIGHT OF REPLY.

But the court ruled that Pegler went too far in his attack on Reynolds. It really didn't resemble a reply. Reynolds ended up winning $175,000.

So you can't go over the top in responding to a libelous statement.

That's it from here - enjoy your weekend.

interesting story&helpful web site

http://www.superior.court.state.pa.us/ for recent court opinions

The link below is to an interesting story. And for the record, I don't love Fox news or anything like that, it just so happens that I watch Good Day Philadelphia in the morning to see what Bus Stop Buddy is wearing...:) Also for the record, I found it odd that this story was buried about 6 pages deep in the Web site...

http://www.myfoxphilly.com/myfox/pages/News/Detail?contentId=2454961&version=2&locale=EN-US&layoutCode=TSTY&pageId=3.2.1

Future of Print Journalism

Good Afternoon,

I just wanted to pass along some information about an upcoming talk at the National Constitution Center concerning the Future of Print Journalism. Check out the link here
Thanks,
Katie

Libel, Part 1 - Last Few Cases

A few more cases to finish out our discussion of libel:

Masson v. New Yorker, 111 S. Ct. 2419 (1991).

In this case, Jeffrey Masson, a projects director for the Sigmund Freud Archives, sues Janet Malcolm, a writer for the New Yorker magazine. He had been fired after his superiors began to dislike his criticism of Freud (if it's not one thing, it's my mother).

Malcolm conducts more than 40 hours of interviews with Masson for her article. Eventually, the article turns into a book, which paints an unflattering picture of Masson.

He claims he never said much of what Malcolm attributed to him. He also claimed that Masson fabricated quotes. Malcolm acknowledged making minor changes to the quotes.

Masson sues, arguing that when Malcolm changed and/or faked the quotes, she was guilty of actual malice. The lower court grants summary judgment sought by Malcolm. Masson appeals.

The key question: is changing a quote proof that a reporter "committed" falsity?

How would you rule?

The Supreme Court, 7-2, says that deliberately altering a quote does not equate with knowledge of falsity, unless the alteration causes a material change in the meaning of the statement. They send the case back to the appeals court, and instruct the judges there to determine whether the statements by Masson were defamatory, and whether Malcolm acted with actual malice.

Two trials were held - in the first, the jury couldn't agree on damages. In the second, the jury found that Malcolm did not act with actual malice. She believed that what she wrote was what Masspon told her.

The jury's verdict is later upheld by an appeals court panel.


Haynes v. Alfred A. Knopf, 8 F. 3d 1222 (1993)

A good test for truth is whether the libelous statement "would have a different effect on the mind of the reader from that which the pleaded truth would have produced."

This brings us to Luther Haynes.

In 1991, author Nicholas Lemann writes a book, "The Promised Land: The Great Black Migration and How it Changed America." In it, he described how more than five million African Americans moved to the north between 1940 and 1970.

Lemann told the story of Ruby Lee Daniels - she left Mississippi and moved to Chicago. There, she met Haynes. They lived together and had children. Haynes held down a job.

Later, though, things get rough. Haynes is fired for drinking on the job, and was arrested for assaulting a police officer. He refused to support Ruby, and then walks out on she and their children.

Haynes sues the publisher of the book, Knopf, for libel. He admitted that many of the statements were true, but argued that three were false.

The lower court grants Knopf's motion for summary judgment - Haynes appeals.

The Eighth Circuit U.S. Court of Appeals rules that even if some of the statements about Haynes were false, MOST were true. His reputation was damaged by the TRUTHFUL statements. The false statements did not hurt Haynes that much more.

No reasonable jury could find that Lemann's book was not SUBSTANTIALLY TRUE in its depiction of Haynes during the time he lived with Ruby.

Bottom line: if a statement or statements is/are substantially true, errors in detail are not actionable.

What are your thoughts about the court's ruling - does it seem fair, especially since the author got a few things wrong?


Lundell Manufacturing v. ABC, 98 F. 3d 351 (1996)

Remember that public figures must prove that an allegedly libelous statement was not truthful.

Private persons must prove falsity only when the subject of the statement is a matter of public concern based on the "content, form, and context" of the statement, says the Supreme Court.

Every word need not be false - only the part or parts that form the heart of the libel claim. Courts want SUBSTANTIAL TRUTH, as we saw in Haynes.

Here, Lundell Manufacturing, which manufactured garbage recycling machines, sued ABC after the network reported the dissatisfaction of residents in Berrien County, Georgia with the $3 million recycling machine that county officials had bought from Lundell.

On World News Tonight, a journalist noted that residents were angry that "they are stuck with a $3 million debt for this garbage recycling machine that they never approved and does not work."

ABC's attorneys argued that the reporter meant that the machine didn't work in the larger sense - it had not solved the county's garbage problem.

The jury thought otherwise - they believed that the report meant the machine didn't work and was defective. They award Lundell $1 million. The Eighth Circuit upholds the verdict. The Supreme Court refuses to hear ABC's challenge to the award.

ABC tried to argue that it had mistakenly treated Lundell as a public figure, not as a private figure/company.


Michaelis v. CBS, 119 F. 3d 697 (1997)

So what happens when someone is not acting in his/her official capacity? How does that change the path to a libel verdict?

Dr. Lazelle Michaelis was the coroner for Otter Tail County, Minnesota. She also had a private practice. She occasionally performed autopsies for the coroner in neighboring Becker County.

In one instance, Michaelis contended that the death of a young woman was a suicide. A local broadcast station, WCCO-TV, was critical of her in its report on the case. A reporter said, "we tried to talk with the doctor about her qualifications to handle a suspicious case like this one. She hung up on us. Twice."

Michaelis sues for libel, claiming that her reputation had been damaged.

The station argues that she was a public official, and had to prove actual malice.

Michaelis loses at the district court, but the Eighth Circuit reverses, ruling that she should be allowed to go to trial with her claims.

WCCO had not established that she was a public figure - here, she was not acting in her official capacity; she was acting in her "private practice" capacity at the Becker County Coroner's request. Her official position in Otter Tail County was not relevant.


Texas Beef Group v. Winfrey, 11 F. Supp. 2d 858 (1998)

Be very afraid: 13 states have "agricultural disparagement" laws, which prevent the publication of lies about the fruits and veggies grown in those states.

Farmers can sue if a statement made by a reporter is not based on "verifiable fact or scientific or other reliable evidence."

You probably know much of the story from here: Oprah was sued in 1998 by a group of Texas cattle ranchers for violating the state's False Disparagement of Perishable Food Products Act.

A guest on her show claimed that thousands of head of cattle were infected with bovine spongiform encephalopathy - "mad cow" disease.

Oprah announced firmly that she was giving up hamburgers. Lest you think her impact on the publishing industry is an illusion, cattle prices dropped significantly, which ticked the cattle ranchers off.

Folks wanted to test the constitutionality of the law, but it didn't get that far. The judge in the case, U.S. District Judge Mary Lou Robinson of Texas, held that the ranchers had not shown that cattle are "perishable food."

They also hadn't proven that Oprah had made "knowingly false" statements.

The Fifth Circuit agrees. Oprah had stoked the drama through editing and the omission of some facts, but the cattle ranchers simply had not shown that either she or her guests had made knowingly false statements.

They were "strongly worded" statements, but these were based on established fact.

She also made sure to balance the claims of her "mad cow" guest with the comments of an expert who talked about the safety of beef in the U.S.

You can't win a libel lawsuit for claims that simply put you in a bad light.

Would the ruling had been different if Oprah had not booked the other guest for "balance?"


Blumenthal v. Clinton, 992 F. Supp 44 (1998)

In an online column, Matt Drudge claimed that Sidney Blumenthal, an aide to President Clinton, abused his wife. Blumenthal sues Drudge and AOL, which, as an Internet Service Provider (ISP), made Drudge's column available to its subscribers.

Blumenthal sought $30 million in damages - a pretty large number for a one-person operation. Drudge printed a retraction two days after the original column appeared.

U.S. District Judge Paul Friedman reluctantly dismissed Blumenthal's claim against AOL. ISP's, he wrote, are not liable for materials created by others, but that they disseminate.

Do you agree with the judge here?

This holds true even when an ISP "has an active, even aggressive role" in making the content available - heavy promotion, for example.

Congress gave ISP's immunity as an incentive - so that they would police the internet for obscene and offensive material. Doesn't seem to have worked out too well.

Congress made no distinction between publishers and ISP's in providing immunity from liability under section 230 of the Communications Decency Act (CDA). If ISP's were subject to liability, they would face it every time they were made aware of any potentially defamatory statement.

They would not be able to keep their eyes out for offensive material, and would face "ceaseless choices of suppressing controversial speech or sustaining prohibitive liability."

As for Drudge, however, the court allowed Blumenthal's suit to continue. Drudge had argued that the court did not have jurisdiction. The judge, however, ruled that he did, citing DC's "long-arm" statute.

DC residents interacted with Drudge via his website; the site was distributed to DC residents via AOL, email, and the web; the site was available 24 hours a day; Drudge received contributions from DC residents, had done interviews with DC journalists, and had contact with sources in DC.


That's it for now - see you in class.

Smokers Lose at High Court

Just in: a Supreme Court ruling in which the Court struck down a sizable jury award to a smoker. Underscores the importance of clear jury instructions by a judge or appeals court panel.

Scenarios for Oral Arguments

Finally - they're here! The hypothetical scenarios for your final presentations.

Remember the rules: One of two teams will argue one side of the issue, and the other team will argue the other side of the issue. Please consult my previous post for team rosters. You should arrange to meet ASAP.

You will be expected to cite precedent and explore current cases as you craft your argument.

Each team will also hand a final paper in which their arguments are laid out.

Each team will have 15-20 minutes on our final day of class to state their case.

The remainder of the class will be the "judges," and will issue a formal ruling.

Here goes:

Hypothetical #1:

Colleen Urban, freshly graduated from Drexel's communication program after being named class valedictorian at Alan Alda High School, is working as a reporter at WNCB, a National Public Radio affiliate in Kenosha, Wisconsin. During her time at the station, she aggressively covered the administration of Richard Christopher, the city's popular three-term mayor.

In 2005, she wrote a series of articles in which she revealed that the mayor may have intervened on behalf of a company owned by his cousin, Dana Adair, to ensure that Adair's company receive the contact to repair all of the city's school buses. The allegations were later substantiated, but the residents outraged at Christopher's conduct could not muster enough votes in 2006 to have him recalled.

On January 2, 2007, after conferring with a few other reporters in Kenosha, Urban reached the conclusion that she had stopped receiving notification from the mayor's chief of staff, Megan Jefferies, about the mayor's regularly scheduled public press conferences.

When Urban called Jefferies to report what she at first thought was an oversight, Jefferies told Urban that her press credentials to cover the mayor had been revoked. Jefferies said Urban had committed "professional misconduct" in her coverage of Christopher. Jefferies said she had the right to deny access to the press conferences to anyone.

Colleen Urban filed suit on January 23, 2007 in the Eastern District of Wisconsin, seeking a temporary restraining order against Christopher which would force the mayor to grant her access to all public press conferences.

She also claimed that Christopher had violated her First Amendment rights by banning her from press conferences she had previously been allowed to attend.

The case has been assigned to U.S. District Court Judge Wayne Brady.

Team 1 - You'll represent Urban.
Team 2 - You represent the Mayor and his chief of staff.


Hypothetical #2

Three-time American archery champion and 2004 bronze medalist Ted "Bullseye" Smithson is killed when an arrow shot by a teammate hits him in the neck during a practice session, piercing his carotid artery. Smithson was acting giddy during the January 3, 2007 practice session, having just won his most recent U.S. title. He was feeling so happy that he volunteered to retrieve his teammates' arrows from their targets and return them. Unfortunately, teammate Stan Fredricks was not finished with his practice round.

The team routinely photographs and videotapes all of its practices, and did so on this day. An autopsy was performed on Smithson to ensure that it was the arrow that killed him.

Dana Adair, who shifted to a career in journalism after her career as a school bus mechanic did not pan out, works for the Union Leader, the flagship newspaper for a small chain of weekly papers in Union County, NJ. It turns out that her sister, Rachel, is a close friend of both the Smithson and Fredricks families. Via email, she receives copies of three of the photos - one showing Smithson before the arrow struck him, the second showing the arrow hitting him, and the third showing him lying on the ground - and a video file featuring a short excerpt of the tragic incident.

Rachel shares the photos and the clip with her sister. She wants to publish them, but decides to contact the families. Outraged, they contact the newspaper seeking to block publication of the images in any form. The Leader's editor, John Wargacki, politely declines. The families file suit in federal district court in Newark, claiming that publication of the photos and inclusion of the video on the paper's website would be a gross invasion of privacy.

Their case has been assigned to Judge Rachael "EVOO" Ray.

Team 3: You'll argue on behalf of the paper.
Team 4: You'll argue on behalf of the families.

PLEASE NOTE that oral arguments on these cases will be held on Thursday, March 16. We will discuss in class some, but not all, of the case law you'll need to form a solid argument. Make use of findlaw.com and the other sites we've discussed in class as you prepare your argument.

Good luck - email me or call if you have questions.

Teams for Final Project

Greetings:

I've randomly (well, pretty randomly anyway) divided you up into teams for the final case presentation project. Please arrange to meet outside of class ASAP to get things started; I will give you some class time to discuss your hypothetical cases (which I'll post next week) as we move forward.

Here goes:

Team 1: Sheila Berninger, Amy Breckin, Jennifer Kramer, Selina Poiesz

Team 2: Nicole Cuilis, Rebecca Goodman, Erica Lester, David Montenegro

Team 3: Katie Gibson, Maura Cullen, Anne Manning, Alex Schultheis, Noah Cohen

Team 4: Gina Peracchia, Nate Fochtman, Andrea Puksta, Marisa Veni, Jennifer Klotz

Remember the only enforceable rule we have for this project: each team member must participate in the argument. We'll run it like a courtroom: one side presents, then the other, then the judge (me) and the audience gets to ask questions. Not sure yet if I'll issue actual rulings - I might get a big head.

What Can I Say in Children's Books?

Even if you're a Newberry Medal winner, the answer sometimes is, "only what librarians think kids ought to hear you say." Check out this article from the February 18 New York Times.

PBS Series `News War' Available Online

If you didn't have the chance to check out part 1 of Frontline's excellent documentary, News War on February 13, you can view it online at Frontline's web site.

The Plamegate fiasco truly is, as the producers of the series suggest, the most important clash between journalists and the government since Watergate. What's sad, at least to me, is the willingness of journalists to cooperate with the government.

Please watch part 1 of News War as soon as your schedule permits. We'll be talking about U.S. v. Miller as early as Thursday.

News War - PBS Special

Hey guys,

I found this (News War)as I was searching for a story for my Critical Analysis. I think it may not only be relevant to the class, but also quite interesting. It began airing last night on PBS.

Take a look.

A#1 Charter Bus Co. vs. Fred&Sons REVISED

Wednesday afternoon the Philadelphia Municipal Court listened to the case brought by A#1 Charter Bus Co. vs. Fred&Sons at City Hall.

Judge Gary DiVito listened intently as to how the ordeal began.

An A#1 Charter Bus Co. bus broke down mid-December en route and needed repairs. The driver then enlisted the help of Fred&Sons repair shop. The defendant agreed to install a used engine provided by the plaintiff for $1800. The bus was to be fixed in eight days, as agreed upon by both parties.

The bus company, which rents out 40-or-more passenger motor coaches, felt the need to sue the repair shop, when it took 60 days. The repair shop also wanted to charge $5,000 for the maintenance, which they claimed increased due to labor costs. Fred&Sons refused to return the bus to A#1, until its demands were met.

The attorney for A#1 Charter Bus Co., Richard K. Teitell, of his own self-titled law office, explained the background of the case and said that Fred&Sons held the bus “hostage.” A#1’s President, Robert Wilson, who was also present at the trial, agreed with Teitell.

The suit, filed January 12, 2007, sought replevin, according to the docket report. This is the recovery of goods wrongfully taken or detained, according to dictionary.com. A#1 wanted the bus in question returned and the charge to fix it brought back down to $1800. Wilson’s attorney stated that his client’s company lost profits because it had one less bus to rent out.

At the time of the trial on January 31, the defendant failed to appear. Teitell, and his client, Wilson, were the only two people present.

Teitell, who had a ruddy complexion and was clad in a grey suit, noted at the trial that Fred&Sons was an unregistered business. The owner’s actual name could be anything. This violates the Fictitious Name Registration Act claimed Teitell.

The Act insures a public record of the identity of an individual who conducts business under any other name then their legal or registered corporate name. In other words, a fictitious name owner must have a public record of their real name, according to floridasmallbusiness.com. Fred&Sons did not have this information available.

Teitell stated that Fred&Sons shouldn’t have a basis for any claims against the plaintiff because of their violation of the Act.

He has much experience in this field since his law office specializes in general civil litigation cases as well as other types of cases. Teitell has over 100 cases under his belt. He was not available for further comment on the trial.

Judge DiVito ruled that the bus should be returned to A#1 Charter Bus Co. from Fred&Sons and the dropped the price charges. This is not a landmark decision, he said.

He has been known to carefully consider all angles of cases that deal with monetary amounts. In the summer of 2006 DiVito looked at the ruling on the Roberts vs. Grand King Buffet case.

The plaintiff, Anastasia Roberts sued Grand King Buffet after she chewed on a bloody, pus-covered bandage, according to the Philadelphia Report: Developments in the Philadelphia Court of Common Pleas. A jury awarded her $4 million for her mental and physical suffering. DiVito, after looking over the case lower the amount to $50,000, which he thought was more appropriate than the maximum amount sought when plaintiff filed her suit. He said that she suffered no physical injury and her mental suffering did not prevent her from continuing her life.

-Selina Poiesz

Slippery Rock Civil Case REVISED

Noah Cohen
COM365
Civil Case Article


The United States Third Circuit Court October 4, 2006, overturned the decision of a lower court, clearing the way for a lawsuit against Slippery Rock University brought by a female worker on October 4 2006.
The employee, Judy Scheidemantle, argued that she was passed over for a locksmith job because she was a woman. Scheidemantle alleged that although she holds a locksmith certification, the university filled the position with a less qualified male applicant.
Scheidemantle filled suit against Slippery Rock in 2003, for gender discrimination, violating Title VII of the Civil Rights Act of 1964.
Scheidemantle’s original case was thrown out by the trial court and brought to the Third Circuit on appeal.
The lower court had ruled that Scheidemantle was not qualified for the locksmith position on the grounds that Pennsylvania does not honor locksmith “certification”. Making Scheidemantle’s qualifications no better then the other male applicants.
The court examined the issue of objective qualifications as the focal point of the case.
“We must decide weather an employer that hires someone who lacks a job posting’s objective qualifications can point to the absence of those same qualifications in another applicant” wrote Circuit Judge Thomas L. Ambro.
In March 2003 Slippery Rock posted a job for a locksmith position that required two years of experience.
Scheidemantle, who had been employed at the university as a labor foreman and was a licensed locksmith, applied along with three male colleagues.
The university hired Calvin Rippey for the job. Rippey had no prior locksmith experience and was younger, according to the discrimination claim filed by Scheidemantle.
At issue were the criteria of Scheidemantle’s discrimination claim. The law requires that complainants meet three “prongs” of the Equal Employment Opportunity Commission law.
First, a person must be considered a “protected class” meaning a minority or female. Second, there must be evidence that the person is qualified for the job. Third, the plaintiff must demonstrate that a less qualified “unprotected” person was hired.
In Scheidemantle’s case the trial court disagreed with the measurement of her qualifications for the position.
Deputy Attorney General Craig E. Maravich argued that the locksmith license Scheidemantle held was a “red herring” because it has no value in Pennsylvania.
Scheidemantle obtained the license through a home study course that was not officially regulated by professional or governmental organization.
Scheidemantle argued that her qualifications were irrelevant because another unqualified male had been hired.
“We hold that the District Court erred in determining that Scheidemantle failed to establish a prima facie case of employment discrimination against Slippery Rock on the basis that she failed to meet the job posting’s requirements” wrote Judge Ambro.
“Because Slippery Rock placed similarly unqualified males in the locksmith position, it could no longer point to the job postings objective qualifications as a valid reason for refusing to promote Scheidemantle” The appeals panel concluded.
Scheidemantle is currently employed as a supervisor of the Slippery Rock Grounds Crew and is featured on a university website honoring senior employees.
Calls to both the Pennsylvania Attorney General, who represented the university and Scheidemantle were not returned.

Florida Prior Restraint Case

Remember our discussion about picking through the trash in order to find information for a story? Check out this article taken from the RCFP website concerning a Florida reporter who bought documents at a public auction.

Is the judge in this case right in refusing to rescind the order blocking the station from using these documents?

Would the judge have ruled differently if the political consultant had voluntarily disposed of the documents?

Let me know what you think.

Hip Hop Mogul Sues NYC Over Anti-Graffitti Law

January 29, 2007

Hip-hop Mogul Sues Over Anti-Graffitti Law
by Jennifer Kramer

Design mogul and hip-hop clothing entrepreneur Marc Ecko sued Queens Councilman Peter Vallone Jr. in federal appeals court claiming new ban violates the rights of all persons ages 18 to 21, protected by the First Amendment.

Suit was brought over an a new New York City law, written by Vallone, banning the possession of spray paint cans or broad-tipped markers to all persons between the ages of 18 and 21.

The three-judge Second U.S. Circuit Court of Appeals panel Thursday, unanimously upheld the decision by U.S. District Judge George B. Daniels, which says the city of New York is not allowed to ban young adults from being in possession of spray paint.

The three-judge panel, according to a published expert, said, the portions of the law under scrutiny which discuss the age range not allowed to purchase paint "appear to burden substantially more speech than is necessary to achieve the city's legitimate interest in preventing illegal graffiti."

Defendants, New York Mayor Michael Bloomberg and Vallone were represented by Scott Shorr, lawyer for New York City.

In a published export, Shorr was quoted as saying, "The city enacted the new anti-graffiti restrictions as a tool for reducing graffiti vandalism by young adults, not to limit lawful artistic expression."

Ecko's attorney, Daniel Perez, civil rights litigator of firm Kuby & Perez in Manhattan, relayed to a published expert that the ruling was not a surprise.

Vallone was quoted in an online article from bridgeandtunnelclub.com saying, "He's not defending free speech; he's trying to sell his games and clothing. It's a big scam."

Vallone and Ecko have been arguing over the issue since last August when a street party that Ecko organized, involved graffiti artists spray painting fake subway cars for fun.

Lizzie Vicenty, 20, a student at the School of Visual Arts in New York City as well one of the plaintiffs of the seven in total, told the NY Daily News, she uses spray paint on canvases and Plexiglas for her class work.

"There's a time and a place to paint, and on other people's property may not be the time or the place. I'm not doing anything wrong, and I shouldn't be treated like a criminal," Vicenty told the a NY published media.

Civil Case REVISED

Judge Affirms Lower Court Ruling,
Not Enough Evidence to Support Sexual Harassment Case

MILWAUKEE, WISCONSIN – Power in numbers was deemed irrelevant in a January 25 federal court ruling involving a corporate sexual harassment suit filed against the Child Support Division (CSD) of Racine County, Wisconsin.

After nearly one year, the United States Court of Appeals for the Seventh Circuit upheld a lower court’s decision granting Racine County’s motion for a summary judgment based on the failure of four female CSD employees to provide any admissible evidence that supported their claims.

Brenda Jackson, Sherri Lisiecki, Patricia Birchell-Sielaff, and Linda Schultz, who passed away before the suit was filed, claimed to be the victims of sexual harassment by former CSD Division Manager Robert Larsen, throughout the duration of his October 1, 2000 to June 26, 2001 employment with CSD under this position.

Larsen is accused by each woman to have “engaged in inappropriate conduct” toward them, and “on several occasions”, he stuck his wet finger in Jackson’s ear and blew on it and insinuated the possibility of a promotion for Lisiecki if he could “take liberties with her,” though no such promotion existed. He also made frequent comments of sexual nature and engaged in inappropriate touching on a daily basis.

Within the first month of Larsen’s appointment to the position, Birchell-Sielaff reported Larsen’s behavior to the County’s Human Resource Manager, Marta Kultgen, but never indicated a concern about sexual harassment.

In fact, according to Kultgen, it was not until a February 14, 2001 phone call from Birchell-Sielaff, at which time she also mentioned complaints made by Jackson and Lisiecki that Kultgen was first alerted to the possibility that sexual harassment had taken place.

Acting promptly on these claims, Kultgen contacted Jackson and Lisiecki, who both declined the option to file a formal complaint against Larsen. The county also responded on behalf of the Anti-Harassment Committee by personally counseling Larsen about sexually inappropriate behavior as well as holding a training session for the employees about the state’s sexual harassment policy.

Though no formal charges were filed, complaints against Larsen continued, compelling the Anti-Harassment Committee to conduct a full investigation of Larsen’s management of the CSD. After gathering statements from 21 employees throughout the course of the investigation, the committee concluded that Larsen should be fired based on his inappropriate conduct as a manager of the CSD. This decision was later appealed by County Executive Jean Jacobsen, who decided demotion was instead an adequate punishment.

Unhappy with the County’s conclusion, all four women - Jackson, Lisiecki, Birchell-Sielaff, and Schultz - filed lawsuits based on Title VII of the Civil Rights Act of 1964, a law created to protect workers from a discriminatory or abusive work environment based on such factors as sex, race, age, or nationality.

The parties later decided to consolidate their cases.

Based on the evidence, district court Judge Aaron E. Goodstein concluded that Larsen’s questionable conduct toward the plaintiffs was not serious or pervasive enough to create an actionable hostile work environment, and granted to the County its motion for summary judgment. As decided in the 2000 federal court ruling of Schneiker v. Fortis, “summary judgment is proper only if there is no disputed issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law,” which according to federal judges, was the scenario in this case.

After considering the sustainability of the ground on which the lower court relied – the absence of disputed facts on the question whether sexual harassment existed with respect to any of the plaintiffs, Circuit Judge Diane P. Wood, writing on behalf of the panel states the concern about the district court’s disposition of all four cases involving Larsen’s “inappropriate touching and sexual comments” as isolated incidents, where as the plaintiffs testified that he engaged in this type of behavior on a daily basis. The County supported this claim by citing the 2004 Seventh Circuit Court ruling of Lucas v. Chicago Transit Authority, but this same court deems this to be unhelpful. In this case, the plaintiff fails to provide any examples of the discrimination which he experiences in the workplace, whereas all four plaintiffs in the current case provided some form of evidence in their examples, Judge Wood wrote.


Justice Wood acknowledged the need for a basis of employer liability, citing the 1998 Supreme Court rulings of Burlington Industries Inc. v. Ellerth and Faragher v. City of Boca Raton. In those cases, the Court distinguished those situations in which a supervisor’s harassments resulted in a “tangible employment action, such as discharge, demotion, or undesirable reassignment,” from those in which it did not.

If, however, the harassment does not result in any tangible employee action, then, according to Ellerth, the employer will win if it shows not only that the employer exercised reasonable care to prevent or correct promptly any harassing behavior, but also that the employee reasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm.

Here, the only party bringing significant evidence was Lisiecki ,but even so, the courts concluded that the record does not create a genuine issue of fact about the alleged lost promotion.

The court agreed that neither the county, nor the Anti-Harassment Committee, nor Kultgen could be criticized for their attempts to resolve the existing condition between the employees and Larsen. They deemed the investigation thorough and despite the plaintiffs’ dismay, as stated in their reply brief, stated its belief that Larsen has received just punishment in the form of a demotion and all of its attendant disadvantages.

Despite several attempts, attorneys for neither party were able to comment in time for this edition.

REVISE: Court Ruling Favors the State in Decade-Long Dispute Over Little Juniata River

Sheila Berninger

Civil Case REVISE

Huntingdon County, Pennsylvania-Judge Stewart Kurtz of the Huntingdon County Court of Common Pleas Monday ended a property dispute that has lasted more than ten years between three Commonwealth of Pennsylvania agencies and several owners of land adjacent to the Little Juniata River.

In a 56- page opinion, the judge ruled in favor of the Commonwealth, stating that the river is state-owned property and accessible to the public.

“This decision confirms that the Little Juniata River is a water to which the public is entitled to access for use and enjoyment,” Meg Murphy, Assistant Counsel, Office of Chief Counsel, DEP, said of the judge’s ruling in favor of the state. However, Donny Beaver, Jr., operator of the Spring Ridge Club, who argued on behalf of the defendants, says that private ownership of the waters will be more likely to preserve them.

On January 21, 2006, Beaver was quoted in The New York Times as saying, “Our goal is to save these trout streams from being sprawled into another shopping mall, like the one that got built near the headwaters of the Little J (Little Juniata River). They’re better off in our hands.”

Beaver and the other defendants may not be quick to abandon their views in spite of Judge Kurtz’ decision.

“It is not clear at this point whether Mr. Beaver or the other defendants intend to file an appeal,” Murphy said.

Beaver’s attorney, Charles A. Bierbach, could not be reached for comment.

The state, Department of Environmental Protection (DEP), Department of Conservation and Natural Resources (DCNR), and Fish and Boat Commission (FBC) first filed suit in June 2003 against a group of Huntingdon County residents and a fishing club who claimed that they had ownership rights to the Little Juniata River. The complete list of defendants includes property owners Connie L. Espy, Camp Espy Farms, Donald L. Beaver, Jr., Hidden Hollow Enterprises, Inc., Paradise Outfitters, Legacy Conservation Group, LLC., Spring Ridge Club, Angling Fantasies, LLC, and Bellwood-Antis Enterprises, Inc.

The Little Juniata River, considered by residents to be a renowned Pennsylvania fishery, is approximately 32 miles long. It is situated on the north side of the city of Altoona and flows through Huntingdon County. Spruce Creek flows into the river.

In its initial complaint to the court, the state agencies claimed that the defendants verbally and physically harassed members of the public who fished or waded in the 1.3 mile section of the river adjacent to their properties. The defendants also hung cables with “No Trespassing” signs at the upstream and downstream ends of their property and on the riverbanks.

The state made several complaints about the landowners behavior before filing suit last year. Local law officials claim that they received complaints about the landowners trying to restrict the public use of the river since the 1990s. Several people who tried to access the river testified that the landowners filmed or photographed them, claiming that they would report them to the authorities for trespassing. Others claim that the landowners cursed at them and threw rocks.

Up to that point, the river had been known as a great fishing spot. In response to the public’s complaints, DEP sent two letters, one on March 27, 2002, and another on June 17, 2002 notifying the landowners that the river is state-owned and open for public use.

The state first filed complaint against the owners of the land adjacent to the river in June 2003. The landowners responded in January 2004 by presenting an argument declaring their right to ownership to the river in common pleas court. The state contended that the landowners had right to the land, but not the river itself. A nonjury trial was held in Huntingdon County Court of Common Pleas from June 12-16, 2006. A decision was not reached at trial and the court ordered on September 21, 2006 that both parties must submit written reports supporting their arguments to the court by November 20, 2006.

To back up its case, the state cited the Pennsylvania constitution which mandates that “Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come.” The state also argued that owners of land along navigable banks of bodies of water like the Little Juniata River do not have exclusive rights to use of the river. This law was enforced in an 1826, Shrunk v. Schuylkill Navigation Co., in which a navigable waterway was defined as any waterway that can transport goods or serve as a mode of travel.

According to state law, a navigable waterway cannot be privately owned. In addition, the state argued that navigability must be evaluated through the eyes of the 18^th and 19^th century America, prior to the invention of modern day modes of transportation, because that is when the river was used as a significant route of commerce.

The plaintiffs cited historical evidence about the Little Juniata River from Huntingdon Gazette newspaper articles dating back to the 1700s, which purportedly moved that the river was used to transport goods from grist mills, saw mills, distilleries, a nail factory, tan yards, and a forge.

Cathleen Curran Myers, Department of Environmental Protection Deputy Secretary for Water Management, testified that the Little Juniata River is in fact a navigable river. Myers also testified that the defendants and everyone supporting their actions violated of the Dam Safety Act because they strung cables across the river and hung signs. The Dam Safety Act prohibits people from crossing a stream with any material, such as cables or a sign. Dr. Judith A. Heberling, a professional historian for 30 years, testified that the Little Juniata River was transportation highway for commercial and agricultural products during the 18^th and 19^th century, thus making it a navigable waterway and public property.

The defendants’ historian, Nancy Shedd, investigated the historical use of the river as a highway of commerce for people and goods. She found that the river was only useful to transport people and goods when the waters were at flood level. In her testimony, however, she acknowledged her “somewhat unconventional training…in history”, according to the state’s report filed with the court. Other testimony delivered by the defendants supported conclusions about the current geological state of the river, not its history, according to the state’s report.

History played a huge role in the Judge Kurtz’ decision. Based on the state’s argument, Judge Kurtz found that the Little Juniata River meets the test for historic navigability. He also found that the landowner’s titles are limited to the shores of the river by virtue of the 1794 public highway declaration, which states that the river is for public use. The declaration went into effective nine years before the landowners’ predecessors acquired their properties. In light of the major focus on preserving nature in the present day U.S., this case could symbolize a crossroads between the freedom to natural resources that this country has enjoyed since its beginnings and the property ownership and privacy frenzy that has taken hold nationwide.

Opinion Made on Obesity vs. Social Security Administration - REVISED

Andrea Puksta
COM365
Civil Court Case

Opinion Made on Obesity vs. Social Security Administration

PHILADELPHIA, PA – The Third Circuit Court of Appeals on January 24 ruled that Arthur Poulus, 28, of New Jersey, is not entitled at this time to benefits from The Social Security Administration.

Given the evidence, the three judge panel made up of, D. Michael Fisher, Julio Fuentes and Monroe McKay, sent the case back to the New Jersey federal court for further proceedings.

In February 2000, Poulus, then 19 years old, applied for child’s insurance benefits and supplemental security income payments. Poulos filed based on an alleged disability from birth of morbid obesity with knee pain, back strain, shortness of breath, slowed movement and neurological impairment. Polous sought the benefits because he believed that due to his impairments, he was unable to hold a steady job. Upon receiving the application, the Social Security Administration (SSA) denied Poulos the benefits and income. Polous then requested the SSA reconsider its decision.

According to court documents, The SSA has a five-step process to determine whether an applicant is entitled to benefits. First, Polous would have to show that he was not engaged in any productive activity since he became disabled. Second, the SSA Commissioner would have to determine if Polous’ impairments were severe, which would then have to meet the criteria on the Administrations impairment list. The impairment list, according to the SSA “describes, for each major body system, impairments that are considered severe enough to prevent a person from doing any gainful activity.” Even if there is a severe impairment, the SSA Commissioner would have to decide if Polous has the capacity to work.

After an initial hearing, an Administrative Law Judge, concluded that Polous had never been disabled at any time and denied the request for any review of the SSA’s decision. The District Court of New Jersey ruled in favor with the SSA. Immediately after, Polous appealed the decision.

Court records show that Polous has been obese all his life. At the age of five, he weighed 140.5 pounds and steadily grew to weigh 500 pounds at the time he applied for the benefits. At 5’6” and 500 pounds, Polous is considered by the medical community as being extremely obese and at a high risk for developing weight-related problems.
During his initial hearing before an Administrative Law Judge (ALJ), Polous testified that his weight and other health problems caused him to move slower that other people and that he has difficulty walking and standing for long periods of times. When Polous stands for longer than 10 minutes, his knee “starts to really hurt and cramp with sharp pain.” After more than an hour standing, Polous says that his ankles become swollen and will stay that way for at least two days.

Polous is also afflicted with not being able to sleep because he has a hard time breathing and has to wake up often to catch his breath. Polous says that not being able to sleep causes him to feel tired during the day. Polous also testified during the initial hearing that he does not have any problem with sitting, although he sometimes gets small pains if he sits for an extended period of time and sometimes can become out of breath.

A state agency physician examined Polous in September 2000 and concluded that he was morbidly obese with high blood pressure and meniscal degeneration, or pain due to worn out cartilage in the knee. The examination was reviewed by a secondary physician who concluded, according to court documents, that Polous could lift between ten and twenty pounds occasionally, stand, walk or sit for six hours in an eight hour workday.

Polous testifies that he has a hard time keeping a job and has never been employed for longer than a few months, because he is too slow. Polous states that he also stopped working because his back and legs hurt and he was “physically unable to do the work required.”

Polous’ attorney, Thomas H. Klein did not return calls seeking comment.

Polous has appealed because he believes that during his initial hearing, the ALJ failed to take into consideration all of his impairments and made a mistake by not granting him the benefits he sought.

Court documents show that the panel of judges agreed that “the lack of supporting evidence highlights why we require the claimant [Polous] with an opportunity to see the evidence on which the ALJ relies and with an opportunity to challenge the ALJ’s decision.”

World Champion Boxer Off the Hook

By Katie Gibson

LOS ANGELES, Ca. – For many years, boxing has been plagued by illegal activity and scandal with regard to “fixing” fights and managers were accused of living off the earnings of professional boxers.

To protect professional boxers from such practices, California enacted a Boxing Act to define the term “boxing manager” as a person who enters into a written contract with a professional boxer in order to represent the interests of the athlete; further, the manager is required to be licensed with the State Athletic Commission in order to be recognized as a boxing manager in the state of California.

Superior Court Judge Paul Gutman ruled January 22 that professional boxer and two-time world champion Marco Antonio Barrera, known in the boxing world as “The Baby Face Assassin,” is not to be held liable for violating an oral agreement with alleged boxing manager Jose Castillo. Castillo filed three complaints against Barrera in October 2004 claiming breach of contract, fraudulent inducement to enter a contract, and employment with no prior agreement regarding compensation.

A trial court in 2004 granted summary judgment on behalf of Barrera on the basis that Castillo was not a licensed manager in California and there was no written contract between the two parties; therefore, Barrera did not commit a breach of contract. Castillo appealed the decision; the verdict delivered Monday by Judge Gutman affirmed the trial court ruling.

Castillo was first introduced to the featherweight boxer in 1994 at a professional boxing match. According to court documents, in December 2002 Barerra consulted Castillo regarding his existing manager, Richard Maldonado.

Records indicate that Barrera terminated his written contract with former boxing manager Maldonado in May 2003 after consulting with Castillo. Subsequently, Barrera contacted Castillo regarding the future management of the boxer’s professional career and business entities including Barrera Promotions, Inc. and Marco Antonio Boxing, Inc., as well as handling the personal affairs for the athlete.

The two entered into a verbal agreement that Castillo would serve as manager to Barrera and be paid in accord with the practice in the professional boxing industry. In September 2003, Castillo became the primary business and financial advisor for the athlete, as well as the chief contact for clients. He also served on behalf of Barrera in the settlement negotiations with ex-manager Maldonado.

During Castillo’s time as Barrera’s manager he negotiated an exclusive boxing promotion contract with Golden Boy Promotions, Inc., which is owned and operated by professional boxer Oscar De La Hoya. Castillo arranged for a professional boxing match against Manny Pacquaio, held in Texas in November 2003, and also assisted Barrera in settling three lawsuits against him and arranged for legal counsel to represent him to help extricate the athlete from tax problems, which could have supposedly ended his career.

In October 2004, Castillo and Barrera set-up a meeting to discuss the parameters of the May 2003 oral agreement and to modify how much Castillo was to be paid for his professional services in accord with the established customs and practices of the professional boxing industry.

During the meeting it was determined that Castillo had worked approximately 400 to 500 hours on Barrera’s behalf in 2003 and should be compensated $275,000 for his professional services. Barrera allegedly terminated the contract between the two business partners and refused to talk with Castillo immediately following the meeting.

According to the opinion written by Judge Sandy R. Kriegler, Castillo’s complaint alleged that he engaged in conduct falling within the lawful definition of a manager of a professional boxer. However, Kriegler noted because there was no established written contract and without a license, the summary judgment was properly granted and to rule that Barrera must compensate Castillo for the services rendered would be inconsistent with California law regarding the Boxing Act and supporting regulations.

According to Castillo’s lawyer, James E. Blancarte of the Los Angeles law firm Carlsmith Ball LLP, no further action will take place regarding this suit.

“The ruling reiterates the initial summary judgment and Mr. Barrera is thankful he will not have to face his friend in court,” said Barrera’s attorney, Eric R. Wiesel of Matheny Sears Linkert & Long, LLP, a civil law practice located in Sacramento, California.

Nicole Cuilis
Com 665
1/26/07



The city of Newark, N.J. does not have the right to transfer or assign the employees of its 108 fire companies based on race, according to a September 18 ruling by the Third Circuit Court of Appeals in the case Lomack v. City of Newark.
The case has created a buzz that it will set precedent for future cases involving race based assignments and transfers.
The court’s decision that the racial balancing of Newark’s firehouses was unlawful has narrowed the concept of “state compelling interests” as the legal basis for affirmative action plans. The court held that because the city did not purposefully cause or contribute to the racial imbalance that they were trying to remedy, they were not required to “fix” it.
The case began when 34 of Newark’s firefighters who, along with their union, sued the city when they were involuntarily transferred, or denied a transfer, based on their race. They sued for violations of the Equal Protection Clause of the Civil Rights of Act of 1964, and the New Jersey Civil Rights Act.
The suit originated with a mandate that all single-race fire companies in Newark would be eliminated. The mandate was announced by re-elected city mayor Sharpe James in his inaugural speech on July 1, 2002.
The mayor’s mandate stemmed from the city’s desire to break-up the single race fire units that had unintentionally developed when the city had allowed firefighters to choose the companies in which they would serve.
The city of Newark had been sued by the U.S. government in 1977 for racial discrimination. According to the court’s opinion, in 1980 the city entered into a consent agreement which required it “to undertake affirmative action to increase the proportion of black and Hispanic personnel on their respective fire departments.” The court opinion, written by Circuit Judge Barry Van Antwerpen, commented that by January 2004 “dozens of firefighters were involuntarily transferred to different companies solely on basis of their race.” Mayor James announced at this time that “We have created a rainbow at each firehouse.” The firefighters filed a suit right after this remark and lost.
During the trial, the city of Newark cited previous cases that involved the University of Michigan’s law school. In the Michigan cases, the Supreme Court ruled that when there are “compelling interests” at stake for the institution in question, there are legitimate grounds for de-segregation.
The city of Newark claimed that they had three intertwined “compelling interests”: de facto segregation in the Fire Department, “educational, sociological and job performance benefits of diverse fire companies,” and compliance with 1980 Consent Decree.
The District Court, having heard the city’s defense, dismissed the case and entered a judgment for the defendants. The decision was appealed, and has now been heard by the Third Circuit’s Court of Appeals. The Appeals Court was not persuaded by the arguments of the city and sent the case back to the District Court for further consideration.
This case has become an example of what can and can not be done in regards to affirmative action. David Tykulsker, of the firm Tykulsker and Associates located in Montclair, N.J., represented the firefighters and their union. “It was a welcomed victory, the point of this case was to show that this type of segregation is not acceptable,” Tykulsker said.
Paul J. Beard from the Pacific Legal Foundation also commented on the impact of the case. The Pacific Legal Foundation is a Sacramento, Cal. based law firm that also was granted the right to file suit along with the firefighters. The law firm has taken an active role in monitoring the influence of the government. In an interview, Beard remarked on the likelihood of the Lomack v. City of Newark case to influence the Supreme Court on future rulings regarding de-segregation. “A ruling to prohibit racial balancing would definitely impact other areas of social life,” he said. Beard mentioned the consequences that this case might have on schools, and their right to race-based student assignments.
Carolyn A. McIntosh, the counsel for the City of Newark, was not available to comment on the case.
According to Tykulsker, the District Court has now ordered that the case be sent to mediation.

Miller Dismissed Again (revised)

Miller Dismissed Again
The Third Circuit U.S. Court of Appeals upheld the district courts decision in the case of Paul Miller v. Fortis Benefits Insurance Company and Resorts International Hotel, reconfirming that Fortis Benefits Insurance Company was not liable to pay an upward adjustment to Miller’s benefit checks.
Circuit judges Fuentes, Fisher, and McKay concluded that the cause of action accrued in 1987 when appellant Miller received his first benefit check. Due to the fact Miller did not file his claim within the applicable statutory period of six years, the court upheld the decision of the District Court, according to Fuentes.
Miller became disabled on October 6, 1986 after undergoing heart surgery. Prior to his surgery Miller was employed by Resorts International as a casino floor worker making $690 a week. Immediately before becoming disabled Miller worked as an outside marketing salesman earning $768 a week.
Under Resort’s Long Term Disability (LTD) plan Miller was entitled to 60 percent of his current salary until he reached the age of 65. However, Resorts accidentally reported Miller’s old salary earnings of $690 a week to Mutual Benefit, according to Miller. Beginning in April 1987 Miller began receiving disability checks based on his former salary of $690 a week, according to Fuentes.
It was not until 2002, 15 years after Miller began receiving disability checks, that he noticed he was being paid incorrectly. After consulting with an accountant Miller sent a letter to Fortis Benefits Insurance, which took over Mutual Benefit, seeking an adjustment to reflect his salary prior to becoming disabled. After investigating the matter Fortis informed Miller that the pay records that they needed to prove Miller’s claim were no longer accessible. Fortis only keeps pay records for a period of seven years. Because they did not have Miller’s records they could not adjust his payments, according to Fuentes.
In August 2003 Miller filed a complaint against Fortis and Resorts in the New Jersey Superior Court which was later moved to the District Court of New Jersey. Miller accused Fortis and Resorts of unlawfully denying him disability benefits and claimed that they breached a fiduciary duty to him by misrepresenting his proper salary and failing to thoroughly investigate his claim for adjustment, according to Fuentes.
Randi F. Knepper and Joshua A Zielenski of McElroy, Deuthsch, Mulvancy and Carpenter represented Resorts and Fortis. They moved to dismiss Miller’s complaint on the grounds that Miller failed to state a claim within the six-year statue of limitations, according to Fuentes.
According to the “Proof of Loss” section in the LTD plan, Resorts begins making payments after the insured person is totally disabled for six months. Because Miller was disabled on October 6, 1986 Fortis would become liable for payments on March or April of 1987. The policy goes on to say that it is from this time, when Fortis becomes liable, that the proof of loss must be sent in within 90 days.
Therefore, if Fortis became liable in March or April of 1987 Miller needed to provide written proof of loss in June or July of 1987. It is from June or July of 1987 that Miller had six years to file a claim, according to Fuentes.
Miller agreed that the six-year limitations period did apply to his case; however, he disagreed about the start date. Fortis cited the six-year statue of limitations according to the LTD plan; on the other hand Miller referenced the six-year period set forth in the N.J.S.A. However, because there was no discrepancy of the length of the limitations period between parties the source did not need to be determined. As a result the lower court sided with Resorts and Fortis and dismissed Miller’s case, according to Fuentes.
Miller appealed the case to the Third Circuit. Here the federal “discovery rule” was used to try and pinpoint the accrual date for Miller’s federal claim. Under this rule, the statute of limitations begins to run when a plaintiff discovers, or should have discovered, the injury that forms the basis for his or her claim. The time that a plaintiff should have discovered the miscalculation should be when he received his first benefit reward.
Because Miller did not make a claim within the six year statue of limitations, beginning on the first day he received a benefit reward, April 1987, his case was dismissed. If there was not a length of time attached to the statute of limitations then it would not be a limitation at all, according to Fuentes.
After numerous attempts to contact Miller’s lawyer, Robert P. Merenich of Gemmel, Todd and Merenich, he had no comment regarding Miller’s case.
The statutes of limitations are in place to encourage resolution to disputes in a timely fashion as well as repose for defendants and to avoid litigation where there is lost or distorted evidence. It ensures that evidence is kept and that claims are efficiently ruled upon, according to Fuentes.

Court Ruling Favors the State in Decade-Long Dispute Over Little Juniata River

Sheila Berninger

Sheila Berninger
COM 365/665
Civil Case Story

Hed: Court Ruling Favors the State in Decade-Long Dispute Over Little Juniata River

Huntingdon County, Pennsylvania-Judge Stewart Kurtz of the Huntingdon County court of common pleas issued an opinion Monday that ended a property dispute that has lasted more than ten years between three Commonwealth of Pennsylvania agencies and several owners of land adjacent to the Little Juniata River. The judge ruled in favor of the Commonwealth, stating that the river is state-owned property and accessible to the public.

"This decision confirms that the Little Juniata River is a water to which the public is entitled to access for use and enjoyment," Meg Murphy, Assistant Counsel, Office of Chief Counsel, DEP, said of the judge's ruling in favor of the state.

However, Donny Beaver, Jr., operator of the Spring Ridge Club, who argues on behalf of the defendants, says that private ownership of the waters will be more likely to preserve them. On January 21, 2006, Beaver was quoted in the New York Times as saying, "Our goal is to save these trout streams from being sprawled into another shopping mall, like the one that got built near the headwaters of the Little J (Little Juniata River). They're better off in our hands."

"It is not clear at this point whether Mr. Beaver or the other defendants intend to file an appeal," Murphy said.

Beaver's attorney, Charles A. Bierbach, could not be reached for comment.

The Commonwealth of Pennsylvania, Department of Environmental Protection (DEP), Department of Conservation and Natural Resources (DCNR), and Fish and Boat Commission (FBC) first filed suit in June 2003 against a group of Huntingdon County residents and a fishing club who claimed that they had ownership rights to the Little Juniata River. The complete list of defendants includes property owners Connie L. Espy, Camp Espy Farms, Donald L. Beaver, Jr., Hidden Hollow Enterprises, Inc., Paradise Outfitters, Legacy Conservation Group, LLC., Spring Ridge Club, Angling Fantasies, LLC, and Bellwood-Antis Enterprises, Inc.

The Little Juniata River, considered by the locals to be a renowned Pennsylvania fishery, is approximately 32 miles long. It is situated on the north side of the city of Altoona and flows through Huntingdon County. Spruce Creek flows into the river.

In its initial complaint to the court, the state agencies claimed that the defendants verbally and physically harassed members of the public who fished or waded in the 1.3 mile section of the river adjacent to their properties. The defendants also hung cables with "No Trespassing" signs at the upstream and downstream ends of their property and on the riverbanks. The state made several complaints about the landowners behavior before filing suit last year. Local law officials claim that they received complaints about the landowners trying to restrict the public use of the river since the 1990s. Several people testified that the landowners filmed or photographed them, claiming that they would report them to the authorities for trespassing. Others claim that the landowners cursed at them and threw rocks. Up to that point, the river had been known as a great fishing spot. In response to the public's complaints, DEP sent two letters, one on March 27, 2002, and another on June 17, 2002 notifying the landowners that the river is state-owned and open for public use.

The state first filed complaint against the landowners adjacent to the river in June 2003. The landowners responded by presenting argument of their right to ownership to the river in common pleas court in January 2004. The state returned argument that the landowners had right to the land, but not the river itself. A nonjury trial was held in Huntingdon County court of common pleas on June 12 through June 16, 2006. A decision was not reached at trial and the court ordered on September 21, 2006 that both parties must submit written reports supporting their arguments to the court by November 20, 2006.

To back up its case, the state cited the Pennsylvania constitution which mandates that "Pennsylvania's public natural resources are the common property of all the people, including generations yet to come." The state also argued that owners of land along navigable banks of bodies of water like the Little Juniata River do not have exclusive rights to use of the river. This law was enforced in a case in 1826, Shrunk v. Schuylkill Navigation Co., in which a navigable waterway is defined as any waterway that can transport goods or serve as a mode of travel. According to state law, a navigable waterway cannot be privately owned. In addition, the state argued that navigability must be evaluated through the eyes of the 18th and 19th century America, prior to the invention of modern day modes of transportation, because that is when the river was used as a significant route of commerce. The plaintiffs cited historical evidence about the Little Juniata River from Huntingdon Gazette newspaper articles dating back to the 1700s, proving that the river was used to transport goods from grist mills, saw mills, distilleries, a nail factory, tan yards, and a forge.

Cathleen Curran Myers, Department of Environmental Protection Deputy Secretary for Water Management, testified that the Little Juniata River is in fact a navigable river, and that it has been thought as such for decades. Myers also testified that the defendants and everyone supporting their actions were in violation of the Dam Safety Act because they strung cables across the river and hung signs. The Dam Safety Act prohibits people from crossing a stream with any material, such as cables or a sign. Dr. Judith A. Heberling, a professional historian of 30 years, testified that the Little Juniata River was transportation highway for commercial and agricultural products during the 18th and 19th century, thus making it a navigable waterway and public property.

The defendants' historian, Nancy Shedd, investigated the historical use of the river as a highway of commerce for people and goods. She found that the river was only useful to transport people and goods when the waters were at flood level. In her testimony, however, she acknowledged her "somewhat unconventional trainingin history", according to the state's report filed with the court. Other testimony delivered by the defendants supported conclusions about the current geological state of the river, not its history, according to the state's report.

History played a huge role in the Judge Kurtz' decision. Based on the state's argument, Judge Kurtz found that the Little Juniata River meets the test for historic navigability. He also found that the landowner's titles are limited to the shores of the river by virtue of the 1794 public highway declaration, which states that the river is for public use, and was put into effective nine years before the landowners predecessors acquired their properties. In light of the major focus on preserving nature in the present day U.S., this case could symbolize a crossroads between the freedom to natural resources that this country has enjoyed since its beginnings and the property ownership and privacy frenzy that has taken hold nationwide.

A#1 Charter Bus Co. vs. Fred&Sons

Wednesday afternoon the Philadelphia Municipal Court listened to the case brought by plaintiff A#1 Charter Bus Co. vs. Fred&Sons at City Hall.

Judge Gary DiVito listened intently as to how the ordeal began.

An A#1 Charter Bus Co. bus broke down mid-December en route and needed repairs. The driver then enlisted the help of Fred&Sons repair shop. The defendant agreed to install a used engine provided by the plaintiff for $1800. The bus was to be fixed in eight days, as agreed upon by both parties.

The bus company, which rents out 40-or-more passenger motor coaches, felt the need to sue the repair shop, when it took 60 days. The repair shop also wanted to charge $5000 for the maintenance, which they claimed increased due to labor costs. Fred&Sons refused to return the bus to A#1 Charter Bus Co., until its demands were met.

Attorney for A#1 Charter Bus Co., Richard K. Teitell, Esquire, explained the background of the case and said that Fred&Sons held the bus “hostage.” President of A#1 Charter Bus Co., Robert Wilson, who was also present at the trial, confirmed this.

The suit was filed January 12, 2007 for replevin, according to the docket report. This is the recovery of goods wrongfully taken or detained, according to dictionary.com. A#1 Charter Bus Co. wanted the bus in question returned and the charge to fix it brought back down to $1800. Wilson’s attorney stated that his client’s company lost profits because it had one less bus to rent out.

At the time of the trial on January 31, the defendant failed to appear. Teitell, of his own law office, and his client, Wilson, were the only two people present.

Teitell, clad in a grey suit with a ruddy complexion, noted at the trial that Fred&Sons was an unregistered business. The owner’s actual name could be anything. This violates the Fictitious Name Registration Act.

The Act insures a public record of the identity of an individual who conducts business under any other name then their legal or registered corporate name. In other words, a fictitious name owner must have a public record of their real name, according to floridasmallbusiness.com. Fred&Sons did not have this available.

Teitell, a member of the Pennsylvania Bar Association, stated that Fred&Sons shouldn’t have a basis for any claims against the plaintiff because of their violation of the Act.

He has much experience in this field since his law office specializes in general civil litigation cases as well as other types of cases. Personally, Teitell has over 100 cases under his belt. He was not available for further comments on the trial.

DiVito ruled that the bus should be returned to A#1 Charter Bus Co. from Fred&Sons and the dropped the price charges. This is not a landmark decision.

He has been known to carefully consider all angles of cases that deal with monetary amounts. In the summer of 2006 DiVito looked at the ruling on the Roberts vs. Grand King Buffet case.

The plaintiff, Anastasia Roberts sued Grand King Buffet after she chewed on a bloody, pus-covered bandage, according to the Philadelphia Report: Developments in the Philadelphia Court of Common Pleas. A jury awarded her $4 million for her mental and physical suffering. DiVito, after looking over the case lower the amount to $50,000, which he thought was more appropriate and the actual maximum amount noted when the plaintiff filed her suit. He said that she suffered no physical injury and her mental suffering did not prevent her from continuing her life.

-Selina Poiesz

Lancaster man wants toy, throws fit and throws employee

Noah Cohen
COM 365

Lancaster man wants toy, throws fit and throws employee


David Flower, 23 of Lancaster PA was charged with assaulting four Burger King employees after a dispute over a child’s toy on June 30.
The argument began at 6:15 pm when Flower argued how much he was charged for his meal at the drive through window.
Flower also demanded that he be given the free toy from the movie Chicken Run. The employee refused to give Flower the toy because they were for children only.
Flower, who is a father of two, became enraged and started shouting about the toy before punching two male employees and throwing another over a counter.
During the alleged assault, Flower broke a shelf almost striking a small child standing near by.
The Burger King, located on the 3100 block of Kirkwood Highway, was crowded with parents and children who scrambled for cover during the attack.
“All this for a toy? Have we become so obsessed with collecting things that we’ve forgotten how to act?” said Assistant District Attorney Colleen McGinnis.
“Society shouldn’t tolerate this kind of behavior.” McGinnis added.
Flower was arrested and charged with three counts of assault, malicious destruction of property and disorderly conduct.
After failing to post $10,000 bail he was remanded to the New Castle County Detention Center, awaiting trial.