Unemployment Compensation Appeal

It took a while to receive the decision, but it was well worth the wait.  A client appears for an unemployment compensation hearing as the employer appealed the benefits.  The employer’s key witness, who received a subpoena, failed to appear and failed to provide any reason for not appearing.  During the hearing, the employer tried to elicit hearsay testimony to support their allegations of willful misconduct.  However, the referee correctly excluded the testimony as the witness was not present.  The referee indicated a decision would be forthcoming.  Approximately 2 days later, employee received notice that the hearing was being reopened to allow the witness to testify.

Pursuant to the Board Rules, reopening a case is strictly defined, and in this case imporoper.  However, over objection the referee conducted the hearing and ultimately denied the employee benefits.

Not being discouraged, we filed a review of the referee’s decision to sua sponte, reopen the case and obtained the benefits the employee rightly deserved.  See the Board’s decision below.

If you have an unemployment issue please contact:  Steven C. Townsend

 

Unemployment Decision

Beaver County district judge recuses in cases against suspended Aliquippa assistant police chief

An Aliquippa district judge recused herself Tuesday from two criminal cases against an Aliquippa assistant police chief, delaying the preliminary hearings that were scheduled to begin in the Beaver County Courthouse.

https://www.post-gazette.com/news/crime-courts/2018/10/23/Aliquippa-police-district-judge-recuses-Joseph-perciavalle-rachael-deltondo-homicide-beaver-county/stories/201810230125

 

Things you should know about motorcycle insurance

I am presently handling a case for a catastrophically injured cyclist.  He unfortunately found himself underinsured because of language found in his auto policy.  Like many of you,  he bought motorcycle insurance from a company that was not the company that insured his automobiles.  I am sure that he thought he was being very prudent in buying “supplemental” insurance.

WARNING! He had a great auto policy but, probably, like most of you, he did not read the exclusion in the small print.  His auto policy with high underinsured limits did not apply to a vehicle he owned which was not covered by his auto policy. Since he covered his motorcycle with another company, he was excluded from recovering his million dollars underinsured coverage under his auto policy.  If his motorcycle had been insured in the policy covering his auto, the exclusion would not have applied.  To make matters worse, his auto policy contained a provision excluding medical payments for injuries sustained while operating a motorcycle not insured by his auto carrier.

Check your policies now.  Whenever possible, cover your auto and motorcycle under the same policy.  If you have questions please give me a call,  as I don’t want to see anyone else in this position.

If you have already been injured and have been faced with this exclusion,  please give me a call.  Some insurance companies have failed to write the exclusion properly and recovery may be possible.

Aliquippa Investigation Continues to Derail

Aliquippa Assistant Police Chief Joseph Perciavalle III is facing a second criminal charge in connection with content found on his cell phone as part of the investigation into the death of teacher Rachael DelTondo, according to court records.

Assistant Chief Perciavalle, 43, of Aliquippa, is accused of secretly recording a 39-minute conversation between himself and police Chief Donald Couch on March 2, according to a criminal complaint. That’s the same day that Pennsylvania State Police executed a search warrant on Aliquippa city officesin connection with a grand jury investigation into allegations of theft.

In the recorded conversation, the pair discussed Aliquippa police, the pension fund, high school football and other topics, according to the complaint.

In Pennsylvania, one person cannot record a conversation with another person without both people’s permission. Chief Couch told investigators on June 29 that he never gave Assistant Chief Perciavalle permission to record the conversation.

Rachael DelTondo

Assistant Chief Perciavalle is charged with a single count of intercepting communications, a felony.

His attorney, Steven Townsend, said Tuesday that the complaint is “as written completely false.”

“There is a conversation on his cell phone, there’s no denying that, but the way it was recorded is definitely not as the affidavit reads,” Mr. Townsend said, adding that Assistant Chief Perciavalle denies any wrongdoing.

“I can’t get into specifics because there are other investigations going on,” the attorney said. “But there are certain exceptions under the wiretap act in which someone can be recorded — one [is] being in a public place, which this was.”

The complaint said Assistant Chief Perciavalle and Chief Couch “rode together on patrol” during the recorded conversation. Mr. Townsend said the pair was never in the same car.

“My client and Couch were not in the same patrol car when this conversation took place,” he said, and declined to elaborate.

Assistant Chief Perciavalle was also arrested in June on a separate felony charge of sending a sexually explicit video to a 17-year-old girl who later became a witness in Ms. DelTondo’s killing.

Aliquippa assistant police chief charged with sending sexually explicit material to minor

Authorities reviewed Assistant Chief Perciavalle’s phone records as part of the homicide investigation and discovered that he sent a video of a female urinating on a swing to the girl on May 10.

Assistant Chief Perciavalle was charged with sending the explicit video on June 8, two days after he took over as acting chief of the police department. He took leadership after Chief Couch was placed on paid administrative leave by city council for an unspecified reason that is not connected to the DelTondo investigation.

After Assistant Chief Perciavalle was arrested on June 8, longtime Capt. Robert Sealock was promoted to acting chief. He remains in the role.

Assistant Chief Perciavalle is scheduled to appear for preliminary hearings in both cases on Aug. 20.

Shelly Bradbury: 412-263-1999, sbradbury@post-gazette.com or follow @ShellyBradbury on Twitter. 

First Published July 10, 2018, 1:05pm

What you need to know about Act 235 and the PA Uniform Firearms Act

In late 2017, the Superior Court issued an absurd opinion regarding the interaction between Act 235 and PUFA.  It held that an individual who is Act 235 certified is not entitled to carry a firearm to and from work, absent a license to carry firearms, regardless of the language in Act 235 that requires a private security guard carry his/her certificate when “on duty or going to and from duty and carrying a lethal weapon.”  Although the Court stated that Act 235 and PUFA are not inconsistent, the opinion seems to indicate otherwise.

You might think that a person is exempt under Section 6106(b)(6), which declares:

(b)  Exceptions.  The provisions of subsection (a) shall not apply to:

(6) Agents, messengers and other employees of common carriers, banks, or business firms, whose duties require them to protect moneys, valuables and other property in the discharge of such duties.

Well according to the Court you would be dead wrong.  Why, well that question is a bit harder to answer as the Court stated that the EXCEPTIONS under Section 6106 are merely affirmative defenses.  What does that mean?  It means that the Commonwealth can and will arrest you if you have an Act 235 clearance, no firearm permit, AND you working in the scope of your employment.  It doesn’t make any sense, but they are effectively saying that it would be a lawful arrest and at trial you could defend yourself by asserting Section 6106(b)(6) as an affirmative defense.

Think about the exception in Section 6101(b)(1):  Constables, sheriffs, prison or jail wardens, or their deputies, policemen of this Commonwealth or its political subdivisions, or other law-enforcement officers.

Police officers, sheriffs etc. are not required to obtain concealed weapons permits for employment.  Therefore, under the Court’s reasoning, a police officer who is carrying a firearm and does not have a concealed fireman permit should be arrested and have to prove he was acting as a police officer at trial.

Clearly absurd.

If you are in law enforcement or have an Act 235 clearance, I strongly suggest that you obtain a license to carry under PUFA.

Juvenile Decertification

Attorney Steve Townsend represented Deontae Jones in this case and was the only lawyer who successfully argued to have his client’s case decertified back to juvenile court.  It took a great amount of effort and time, but as you can see, those efforts paid off.

The incident was a great tragedy, but hopefully it sends a message to others.

 

Lawrence “Pooh Rat” Reddick Jr. was found guilty Monday morning of first- and second-degree murder, robbery in 2016 Aliquippa double homicide.

BEAVER — The gallery of a Beaver County courtroom maintained a level of stoicism as a jury foreperson rendered its verdict Monday morning, convicting 19-year-old Lawrence “Pooh Rat” Reddick Jr. of first- and second-degree murder.

Some soft cries were heard from members of the victims’ families. Reddick himself showed little emotion as the verdict was read.

Reddick was found guilty of first-degree murder in the death of 18-year-old Dane Mathesius, of Brighton and New Sewickley townships, and second-degree murder of William Cade Booher, 16, of Beaver.

He also was found guilty of robbery, conspiracy, aggravated assault, reckless endangerment and carrying a firearm without a license.

The jury returned after about 12 hours of deliberations, having worked out a proclaimed “impasse” that was reached Friday afternoon.

At that time, the jury told the court it was “at an 11 to 1 impasse” because one juror was “not following the definition of reasonable doubt.” The jury said the unidentified juror was looking for a 100 percent certainty in determining a verdict.

In response, Beaver County Judge Kim Tesla reread to the jury the definition of what beyond a reasonable doubt means. He sent them back to continue discussions.

Jurors were dismissed at about 5 p.m. Friday and returned at 9 a.m. Monday. The verdict was rendered at about 10 a.m.

The jury foreperson fought tears as the conviction was read. Upon request of the defense, the jurors were polled, each of them agreeing to the conviction.

“There were tears,” District Attorney David Lozier said after the verdict. “The foreman of the jury had difficulty reading the verdict slip. They obviously took this very seriously and have respect for the process.”

He thanked the jury for its time and commitment to the case.

“They came back with a very courageous verdict, a first-degree homicide verdict in this kind of circumstance is hard, it takes a lot of courage for a jury to come back with a first-degree homicide verdict,” Lozier said.

A sentencing date for Reddick has yet to be set. Because he was a juvenile at the time of the homicide, Reddick does not qualify for an automatic sentence of life imprisonment for the conviction of first-degree murder. His sentence will be left to the decision of Tesla, who presided over the trial.

Co-defendant Ronald “Reno” Foster, 19, was tried in August and was found guilty of third-degree murder. He was sentenced to serve between 34 and 70 years in prison.

Deontae Jones, 19, who testified in the case, also was charged in the shooting. He pleaded to a count of conspiracy to commit robbery in juvenile court and is awaiting sentencing.

All three teens were 17 years old at the time of the incident.

Lozier said the double homicide impacted families across Beaver County, including the families of the three defendants.

“We can’t forget the fact that we have two dead children and a third 13-year-old boy that watched this happen in the car,” he said. “It also impacted the families of Aliquippa. This impacted six families in a devastating way. There are no winners.”

Lozier also said Reddick’s conviction will bring some closure to the families of Mathesius, Booher and the 13-year-old witness, many of whom witnessed the entire Reddick trial, as well as the trial against Foster.

“There were always questions as to whether or not the community would take this loss seriously enough, and I think this verdict answers that question,” Lozier said.

Theft Charges Dismissed

BEAVER — Criminal charges filed against the owner of a defunct personal-care home were dismissed prior to a preliminary hearing.

Lynn M. Katekovich, 58, was accused by state police of withholding pay from employees at her Big Beaver-based facility, Katera’s Kove.

The 78-bed facility on Norwood Drive was closed in October after an employee reported not having been paid by Katekovich for two months of work. In all, three employees were named in a criminal complaint filed against her.

One former employee reported she was not paid $560 by Katekovich for hours she worked between Sept. 24 and Oct. 14, police said. Another told police she had not been paid for two months of work, though the report did not specify the amount she was owed.

Police said a third employee reported her insurance through the company Aflac was canceled in March when Katekovich stopped paying into the account, even though the employee said she had money taken out of her pay to cover the insurance, police said.

Katekovich’s defense attorney, Steven Townsend, said all three cases were dismissed. Only one of the cases, he said, was “valid.” Katekovich resolved that case by paying the employee the $560 she was owed.

In the case of the Aflac account, Townsend said documents showed that the employee was actually covered by the company and that the money had not been taken out.

The third employee did not cooperate with the investigation and failed to appear in court, Townsend said.

Three charges of theft were dismissed against Katekovich. Townsend said Katera’s Kove remains closed.

At the time she was charged, 19 residents were relocated from the home, according to the Pennsylvania Department of Human Services.

SORNA – Constitutional Victory

This is one of the first cases in Pennsylvania to be resolved.

Order, PCRA, Redacted

I am pleased to have successffully represented a client who was unconstitutionally required to register as a sex offender since 2012.  In 2017, the Pennsylvania Supreme Court held that it is unconstitutional to require a person to register under 42 Pa.C.S. Chapter 97, where that person’s registration requirement had expired.  This decision focused on the SORNA legislation passed in 2012.

The SORNA legislation required individuals who for example, had a 10 registration requirement for certain offenses, to now register for life regardless of the initial registration requirements.  The Court got this one right and held that registration is  in essence a penalty and therefore, requiring an additional penalty was ex post facto and unconstitutional.

The U.S. Supreme Court denied a challenge to the Pennsylvania Supreme Court decision in Muniz filed by the Cumberland County District Attorney’s Office.

Recent Cases

Recent Cases Resolved by Thomas Gravina

 

PennDOT Liability for serious injuries sustained

by a female physician due to poor construction of a PennDOT

controlled road.

 

PennDOT liability for injuries sustained by a female

passenger due to dangerous, obstructed view

intersection.  Recovery made against both PennDOT

and driver’s insurance company.

 

Pedestrian accident causing a  tibia plateau fracture and ankle

injuries requiring extensive hardware to repair.

Recovery made against negligent driver

and client’s underinsured carrier.

 

Pedestrian accident causing tibial plateau fracture.

Rental car insurance company denied coverage

due to driver being unauthorized user of rental

vehicle.  Recovery received under client’s

uninsured automobile insurance benefits.

 

Dog bite injuries on the arms and legs of an

owner of a small dog that was attacked and

killed by a neighbor’s pitbull while out on a walk.

Recovery made against owner’s homeowner’s

insurance company.

 

Several dog bites settlements for injuries

sustained to clients when neighborhood

dogs entered the client’s yards   Settlements made against

dog owners’  homeowner’s insurance companies.

 

Wrongful Death of 62-year old male during

open heart surgery.  Recovery to Estate from

hospital and physician.

 

Nursing Home neglect in failing to clean Foley

Catheter resulting in infection.  Recovery made for

Deceased client’s estate.

 

Fall from a hospital bed resulting in hip

fracture of an 83-year old male.  Recovery

from hospital’s insurance company.

 

Fall on nursing home transit van resulting in

fractured rib and contusions.

 

Fall on ice causing extensive hip injuries and

Requiring a hip replacement, when employee of

Hospital fell walking to employer transport shuttle.

Recovery made against both Workers’ Compensation

Carrier and owner of parking garage.

 

Fall down on sidewalk at a nationally known grocery

store causing  a broken tooth and hand and leg injuries.

 

Fall down at a grocery store from liquid being on the floor,

causing injuries to back, legs and wrist.

 

Fall down in a restaurant due to poor lighting on stairway,

causing hip, leg, and bruised bladder problems for

elderly gentleman.

 

Settlement against physician for injuries sustained to

client’s neck due to laser treatment, which resulted in a permanent

scar.

 

 

 

Settlement against trucking company for rear-end crash

on Parkway, causing soft tissue, back and neck injuries.

 

Settlement for injuries sustained by client sitting on his

couch in his residence when a car came through the wall.

causing  injuries to his knees and exacerbating previous

conditions.

 

Uninsured claim settled by client’s insurance company for

broken hand, 3 broken ribs and facial lacerations.

 

Settlement to husband and wife clients who sustained serious

injuries to hands, head, neck, back and bladder contusions.

Recovery made against  negligent driver and client’s underinsured

carrier.

 

Settlement against owners of a Hawaiian horse riding stable when

Client fell from horse and sustained a broken wrist.

 

Settlement against police department for injuries

to client while in custody due to excessive force and aggression

of police officer, causing a fractured orbital facial bone.

 

Multiple motor vehicle accident settlements for soft tissue/

whiplash injuries

 

Things to Know About Pennsylvania Workers Compensation Laws

Workers Compensation is legislated under two separate Acts. The Workers Compensation Act was adopted in 1915. Originally, it was known as the Workmens Compensation Act. It has been amended many times since its original enactment. Occupational diseases are governed by the Occupational Disease Act of 1939. The administration of both Acts is under the supervision of the Pennsylvania Department of Labor and Industry which has extensive rule and regulation making powers.

At its simplest, an employee injured in the course and scope of his employment is entitled to receive payment of wage loss benefits and payment of medical expenses. When an injury occurs, the employer is required to report the injury to the Workers Compensation Bureau. The employer can accept liability and file the appropriate document which will result in payments beginning to the injured employee and payments of medical expenses paid directly to the medical providers. In this situation, an injured employee rarely requires consultation with counsel.

However, when an alleged employer fails to accept responsibility for the injury, the employee is required to file a Claim Petition. At this point, even the most sophisticated layman will find himself or herself trapped in a maze that cannot be navigated without the help of counsel knowledgeable in the interpretation of the Statues as amended and the case law that has developed over many years.

Examples of hurdles that may be encountered are: distinction of employee versus independent contractor, was the injured individual within the course and scope of employment when the injury occurred, and did the injury occur while on or off the premises.

Most injuries which occur on premises are compensable, while many off premises are not. In a case recently handled by our firm, we were able to extend the definition of on premises to an unusual situation.

In summary of that case, a worker parked her car in a garage off the employer’s campus at a reduced rate as an employee benefit. The employer provided shuttles from the garage to the employer’s campus. The employee parked her vehicle at the garage and slipped on sidewalk ice as she prepared to board the employer-provided vehicle. After being denied benefits by the Workers’ Compensation Judge, the Board on appeal reversed the decision and benefits were granted.

The Board reversed the WCJ and concluded that the claimant sustained her injuries on the extended premises of the employer and her injuries were compensable. The Board found that the employer posted “drop off and pick up” areas where

employees were required to board and disembark from the company-provided shuttle. The Board found the claimant’s injury was caused by the operation of the Defendant employer’s shuttle bus at that location. In short, the Board found that the shuttle pickup

and disembark area was an extension of the employer’s property and the employee was injured as a result of the condition of the extended premises. The lesson to be learned is that consultation with counsel should always be had in cases where an injury occurs when going to or leaving employment.

The Workers Compensation Law is extremely complex and issues arise constantly over the benefits owed to claimants who are injured in their employment. Some of those issues are:

  1. Compensation for Specific Loss such as:
  2. Disfigurement and determining the amount of compensation
  3. Benefits in respect to fatal injuries, accruing to the employee’s
  • (a)thumb, fingers and hand;
  • (b)forearm and arm;
  • (c)lower leg or leg
  • (d)toes and foot

surviving spouse and children, parents and brothers and sisters.

Settlement of Claims

By Section 449 of the Act, settlements for the first time were sanctioned, and as amended in 2006, the settlement approval process was streamlined. This procedure is known as a Compromise and Release Agreement (C & R) and in the proper case, will provide a lump sum payment to the claimant. It is also used in disputed cases to obtain a final resolution.

In summary, counsel should be consulted immediately in the event the employer disputes an injury claim. Counsel is also desirable in all cases when a Compromise & Release Agreement has been offered or suggested by the employer or its carrier.

If you have a Workers Compensation issue, you can’t afford to make the wrong decision in choosing a lawyer. Contact us today for your free no obligation evaluation.

Update Regarding Workers’ Compensation Act

Protz V. Workers Compensation Appeal Board (Derry Area School Board)

On June 20, 2017, the Pennsylvania Supreme Court found Section 306(a.2) of the Pennsylvania Workers Compensation Act to be unconstitutional. This Section allowed employers to demand that claimants undergo an impairment-rating evaluation (IRE) to determine the claimant’s “degree of impairment” due to the claimant’s compensable injury.

In almost every case, the degree of impairment found was less than 50%, which permitted the employer or its insurance carrier to change total disability benefits to partial disability benefits, limiting disability payments to 500 weeks.

With the decision in Protz, an injured claimant can continue receiving total disability benefits for as long as the work-related disability prevents a claimant from returning to work regardless of the degree of impairment.

Employees who, in the past, have had their benefits limited by IRE findings or have otherwise entered into settlements influenced by IRE evaluations or the expected results of an IRE Evaluation should have our firm review your case for possible re-opening.

The Heart and Lung Act

It should be recognized at the outset, that The Heart and Lung Act is somewhat of a misnomer as it applies to injuries sustained by certain public servants engaged in hazardous occupations. It would include, but is not limited to, the State Police Force, Enforcement Officers and Investigators of the Pennsylvania Board of Probation and Parole, Department of Corrections Employees, Special Agents at the Office of Attorney General, and many other officers engaged in hazardous occupations at State, County and Local Municipalities.

The Heart and Lung Act provides for what is essentially a salary continuation during temporary disability without the deduction of taxes.

While Heart and Lung benefits and Workers’ Compensation are separate programs, benefits can be received concurrently and upon happening of an injury in the course of employment, a claim should be made for both The Heart and Lung Act Benefits as well as Workers’ Compensation Benefits.

Heart and Lung Act Benefits are paid only during the period of temporary disability, and should that temporary disability become permanent, The Heart and Lung Benefits will cease; however, Workers’ Compensation Benefits will continue.