November 2009 Archives

In plaintiffs' suit against a school district on behalf of their daughter who suffers from cognitive and developmental disorders alleging that the district's failure to provide their daughter with appropriate eduction obstructed her intellectual growth, summary judgment for defendant favor is affirmed for the most part but a portion of its ruling is vacated and remanded where: 1) district court erred in determining that the plaintiffs do not have standing to pursue their Individuals with Disabilities Education Act claim; and 2) plaintiffs did not waive their right to proceed directly under the Rehabilitation Act and the ADA.   

Read Chambers v. Sch. Dist. of Phiadelphia Bd. of Educ., No. 07-4790

Appellate Information

On Appeal from the United States District Court for the Eastern District of Pennsylvania  

Opinion Filed November 20, 2009

Judges

Before: Barry, Fisher and Jordan, Circuit Judges

Opinion by Fisher, Circuit Judge 

Counsel

Counsel for Appellant:  David J. Berney

Counsel for Appellee:   Richard G. Turttle, Archer & Greiner

Defendant's sentence for unlawful possession of a firearm by a person previously convicted of a felony is vacated and remanded where: 1) the district court is restricted to considering the materials outlined by the Supreme Court in Sheppard for the sole purpose of determining to which part of the Pennsylvania simple assault statute defendant actually pled guilty to; and 2) in the event the materials do not demonstrate the mens rea to which defendant pled guilty, his simple assault conviction cannot qualify as a crime of violence in this case in light of the government's representation that it does not seek to define that conviction as a crime of violence to the extent it is premised on reckless conduct.     

Read US v. Johnson, No. 08-3693

Appellate Information

On Appeal from the United States District Court for the Western District of Pennsylvania

(D.C. No. 08-cr-0082-001)  

District Judge: Honorable Donetta W. Ambrose

Opinion Filed November 18, 2009

Judges

Before: Smith, Fisher and Nygaard, Circuit Judges

Opinion by Fisher, Circuit Judge 

Counsel

Counsel for Appellant: Renee Pietropaolo, Office of Federal Public Defender

Counsel for Appellee:  Robert L. Eberhardt, Rebecca R. Haywood, Laura S. Irwin, Office of the US Attorney

In one of the so-called "birther" suits challenging Barack Obama's eligibility to run for and serve as President of the United States based on claims that Obama was born in Kenya and therefore was not a natural born citizen of the United States, dismissal of the action is affirmed where plaintiff lacked standing to bring the suit because he suffered no injury particularized to him.    

Read Berg v. Obama, No. 08-4340

Appellate Information

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. No. 2-08-cv-04083)  

District Judge: Honorable Barclay Surrick

Opinion Filed November 12, 2009

Judges

Before:   Sloviter, Fuentes, and Hardiman, Circuit Judges

Opinion by Sloviter, Circuit Judge 

Counsel

Counsel for Appellant:  Philip J. Berg

Counsel for Appellee:  Robert F. Bauer, Perkins Coie LLP; Joseph E. Sandler, Thomasenia P. Duncan, David Kolkler, Kevin Deeley, Steve N. Hajjar

In debtors' bankruptcy proceedings for defaulting on their loan, ruling upholding the bankruptcy court's grant of summary judgment to the creditors and its denial of debtors' motion to amend is affirmed where: 1) the Rooker-Feldman doctrine precluded the bankruptcy court's jurisdiction over debtors' rescission claim because that claim was inextricably intertwined with a Court of Common Pleas' foreclosure judgment; 2) there was an adequate basis for summary judgment on the Truth in Lending Act damages claim, specifically, that debtors failed to create a genuine issue of material fact as to whether they had prior title insurance in connection with the loan; and 3) the bankruptcy court did not abuse its discretion in denying debtor's motion to amend as it was untimely.   

Read In re: Madera, No. 08-2205

Appellate Information

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. No. 2-07-cv-01396)  

District Judge: Honorable Knoll Gardner

Opinion Filed November 12, 2009

Judges

Before:  Sloviter, Fuentes, and Hardiman, Circuit Judges

Opinion by Sloviter, Circuit Judge 

Counsel

Counsel for Appellant:  David A. Scholl

Counsel for Appellee:  Sandhya M. Feltes

In plaintiff's 42 U.S.C. section 1983 action against the defendants claiming violation of her First Amendment rights of free speech and expression during a primary election campaign for judgeship on the County Court of Common Pleas, district court's order granting defendant's motion to dismiss is affirmed as defendants are not state actors and their actions toward plaintiff were not state actions that would subject defendants to section 1983 claims.   

Read Max v. Republican Comm. of Lancaster County, No. 08-4158

Appellate Information

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. No. 2-07-cv-04488)  

District Judge: Honorable James T. Giles

Opinion Filed November 13, 2009

Judges

Before:  Sloviter, Fuentes, and Hardiman, Circuit Judges

Opinion by Sloviter, Circuit Judge 

Counsel

Counsel for Appellant:  Paul A. Rossi, Robert M. Frankhouser, Jr., Kevin M. French, Hartman Underhill & Brubaker LLP.

Counsel for Appellee:   Mark D. Schwartz

In plaintiffs' class action suit against the defendant-union for violating the Driver's Privacy Protection Act in obtaining their personal information in the  union's efforts to unionize CINTAS, the largest domestic employer in the industrial laundry industry, district court's order denying a motion by the National Right to Work Legal Defense Foundation (NRTW)to modify a protective order that restricts access to certain records is affirmed as NRTW lack standing to request modification of the protective order because the records are not judicial records.                

Read Pichler v. Unite, No. 08-2354

Appellate Information

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(Civ. No. 2-04-cv-02841)  

District Judge: Honorable Stewart Dalzell

Opinion Filed November 13, 2009

Judges

Before:  McKee and Stapleton, Circuit Judges, and Irenas, Senior District Judge

Opinion by McKee,  Circuit Judge 

Counsel

Counsel for Appellant:  William L. Messenger, William J. Young, National Right to Work Legal Defense Foundation

Counsel for Appellee:   Lawrence T. Hoyle, Arlene Fickler, Hoyle Fickler Herschel & Mathes

In Labor Secretary's enforcement action under the Labor Management Reporting and Disclosure Act, 29 U.S.C. section 401, against Local 234 of the Transit Workers Union, district court's dismissal of the complaint for lack of subject matter jurisdiction is reversed and remanded where: 1) because a union member's post-election protest was a valid exercise of an available remedy, his subsequent administrative complaint to the Secretary was timely; and 2) Secretary's LMRDA enforcement action based on that administrative complaint is judicially sound. 

Read Solis v. Local 234, Transp. Workers Union, No. 09-1143

Appellate Information

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. No. 08-cv-1957)  

District Judge: Honorable Legrome D. Davis

Opinion Filed November 2, 2009

Judges

Before:  Barry, Fisher and Jordan, Circuit Judges

Opinion by Jordan, Circuit Judge 

Counsel

Counsel for Appellant:  Michael P. Abate, Michael F. Hertz, Laurie Magid, Thomas M. Bondy, Christopher C. Fonzone, Michael S. Blume, Virginia A. Gibson, U.S. Department of Justice

Counsel for Appellee:  Bruce Bodner, Kaufman, Coren & Ress, PC; Claiborne S. Newlin, Meranze & Katz

In plaintiffs' case against the school district under the Individuals in Education Act (IDEA), section 504 of the Rehabilitation Act of 1973, district court's grant of summary judgment in favor of the school district is affirmed, but its ruling with respect to the applicability of the Pennsylvania personal injury statute of limitations to the plaintiffs' claims under section 504 of the Rehabilitation Act is reversed. 

Read P.P. v. W. Chester Area Sch. Dist., No. 08-2874

Appellate Information

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. Civil No. 06-cv-04338)  

District Judge: Honorable James T. Giles

Opinion Filed November 2, 2009

Judges

Before:  Rendell, Fuentes, and Roth, Circuit Judges

Opinion by Rendell, Circuit Judge 

Counsel

Counsel for Appellant:  Dennis C. McAndrews, Gabrielle C. Sereni, McAndrews Law Offices

Counsel for Appellee:  Jennifer Donaldson, Sweet, Stevens, Katz & Williams