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submitted: August 1, 1988.
COMMONWEALTH OF PENNSYLVANIAv.ELMER C. MCCLUCAS, SR., APPELLANT
Appeal from the PCHA February 22, 1988, in the Court of Common Pleas of Dauphin County, Criminal, No. 684, 684 (A-D), 1985.
Patricia A. Wenger, Harrisburg, for appellant.
Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Com., appellee.
Olszewski, Montgomery and Hoffman, JJ.
[ 378 Pa. Super. Page 205]
This is an appeal from an order dismissing appellant's Post Conviction Hearing Act (PCHA) petition without an evidentiary hearing. Appellant asserts that the trial court erred in dismissing the petition when it raised: (1) the subsequent availability of exculpatory evidence that would have affected the outcome of the trial, and (2) the ineffectiveness of trial counsel for failure to appeal. We affirm.
In February, 1985, as the result of numerous incidents that occurred between appellant and his daughter, L.M., appellant was charged with corruption of minors, endangering the welfare of children, incest, indecent assault, two counts of simple assault, and three counts each of rape and statutory rape. On June 28, 1985, after a waiver trial, the court found appellant guilty of corruption of minors, incest, two counts of simple assault and three counts each of rape and statutory rape. After denying post-trial motions, the trial court sentenced appellant to concurrent terms of five-to-ten years for the three rapes, one-to-two years for the incest charge, and six-to-twelve months for simple assault. This Court affirmed the judgment of sentence on October 14, 1986. Commonwealth v. McClucas, 357 Pa. Super. 449, 516 A.2d 68 (1986).
On December 7, 1987, appellant filed a pro se petition under PCHA. Appointed counsel filed a supplemental petition on January 6, 1988. The petition was denied without a hearing on February 22, 1988, and this appeal followed.
Appellant first contends that the PCHA court erred in denying appellant's petition when it alleged that evidence had become available after trial that would have affected the outcome of the trial. Preliminarily, we note that:
The standard for determining whether the petition warrants a hearing is statutorily prescribed.
(a) When required. -- If a petition alleges facts that, if proven, would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer.
[ 378 Pa. Super. Page 206]
(b) When not required. -- The court may deny a hearing if the petitioner's claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner. The court may also deny a hearing on a specific question of fact when a full and fair evidentiary hearing upon that question was held at the original trial or at any later proceeding.
42 Pa.C.S. § 9549(a), (b).
The controlling factor in determining whether a petition may be dismissed without a hearing is the status of the substantive assertions in the petition. A petition may be denied with no hearing whatsoever when the petition asserts allegations which are frivolous; have already been adjudicated; or have been waived.
Commonwealth v. Weddington, 514 Pa. 46, 50, 522 A.2d 1050, 1052 (1987) (footnotes omitted).
When examining a PCHA court's grant or denial of relief, our scope of review is limited to determining whether the court's findings were supported by the record and its order otherwise free of legal error. Commonwealth v. Johnson, 347 Pa. Super. 93, 500 A.2d 173 (1985), citing Commonwealth v. Broadwater, 330 Pa. Super. 234, 241, 479 A.2d 526, 530 (1984); Commonwealth v. Bellamy, 321 Pa. Super. 471, 475, 468 A.2d 806, 808 (1983). We will not disturb the findings of the PCHA court unless they have no support in the record. Id. Further, with respect to issues of credibility we must defer to determinations made by the PCHA court. Id., citing Commonwealth v. Jones, 324 Pa. Super. 359, 363, 471 A.2d 879, 881 (1984).
Therefore, we proceed to evaluate appellant's claims under this established standard. Our review of appellant's supplemental PCHA petition reveals that appellant asserted as follows:
9. The petitioner is eligible for relief because of the unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have
[ 378 Pa. Super. Page 207]
affected the outcome of the trial if it had been introduced, as follows:
(a) [L.M.] was a material witness for the prosecution. [L.M.] was the purported victim of the alleged criminal acts.
(b) Without [L.M.'s] testimony at trial, it is likely that the finder of fact would not have found the petitioner guilty of the above-captioned charges.
(c) [L.M.] has told her mother that her testimony at trial was untrue. Specifically, [L.M.] falsified stories regarding the actions of petitioner thereby providing false evidence that led to the conviction of petitioner in the above-captioned charges.
(d) [L.M.] did not admit to the falsity of her statements until after the conclusion of petitioner's trial on the above-captioned charges.
Supplemental petition at 3.
The PCHA court determined that appellant's claim failed "for lack of specificity." Opinion at 3.*fn1 It is well settled that in order for after-discovered evidence to justify the grant of a new trial, "the evidence must have been discovered after the trial and must be such that it could not have been obtained at the trial by reasonable diligence, must not be cumulative or merely impeach credibility, and must be such as would compel a different result." Commonwealth v. Ryder, 488 Pa. 404, 407, 412 A.2d 572, 573 (1980), quoting Commonwealth v. Schuck, 401 Pa. 222, 229, 164 A.2d 13, 17 (1960), cert. denied 368 U.S. 884, 82 S.Ct. 138, 7 L.Ed.2d 188 (1961) (citations omitted). Moreover, in order for appellant to obtain relief on this basis under the PCHA, appellant's
[ 378 Pa. Super. Page 208]
petition "must either include affidavits, records and other supporting evidence or state why they are not included." 42 Pa.C.S.A. § 9545(b)(2). "The burden of establishing the ground upon which post-conviction relief is requested rests upon the person seeking that relief." Commonwealth v. Brown, 313 Pa. Super. 256, 259, 459 A.2d 837, 839 (1983), quoting Commonwealth v. Logan, 468 Pa. 424, 433, 364 A.2d 266, 271 (1976).
Instantly, appellant, in his PCHA petition, failed to support his allegation of after-discovered evidence with any evidence that would render the claim more than a bald allegation.*fn2 Appellant did not attach a sworn affidavit of his daughter's alleged recantation nor did he explain its absence. Furthermore, as the trial court noted, appellant did not specify when the alleged recantation occurred.*fn3 The trial court was, therefore, entirely correct in dismissing appellant's petition without a hearing on the grounds of lack of specificity.*fn4
Despite the technical flaws in appellant's petition, however, we will proceed to evaluate the merits of his claim because of the grievous nature of the offenses for which appellant now seeks a new trial. As has already been
[ 378 Pa. Super. Page 209]
stated, a PCHA petitioner is eligible for relief if he can prove the following:
(3) That his conviction or sentence resulted from one or more of the following reasons:
(xiii) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and that would have affected the outcome of the trial if it had been introduced.
42 Pa.C.S.A. § 9543(3)(xiii).
Appellant contends that the alleged recantation of the daughter's testimony falls into the above category. We disagree for the reason that the alleged recantation is not evidence which was unavailable at the time of trial. Evidence which is truly after-discovered evidence is that which comes to light after trial, and about which defendant is unaware. Commonwealth v. Frey, 512 Pa. 557, 517 A.2d 1265 (1986). Had appellant, in fact, not committed the acts upon which his convictions were based and had the daughter, in fact, fabricated the incidents she related at trial, this would have been known by appellant at the time of trial where he was free to elicit this information or attack the witness's credibility as the rules of court allowed. See, Commonwealth v. Frey, supra (alleged recantation of witness/accomplice's testimony was not after discovered evidence for the reason that appellant, as a party to the events, was obviously aware of them at the time of trial).
Furthermore, the nature of the after-discovered evidence upon which appellant bases his claim for relief is inherently unreliable. As a matter of general principle, recantation evidence is extremely unreliable and a new trial should not be granted unless the trial court is satisfied that the recantation is true. Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984); Commonwealth v. Nelson, 484 Pa. 11, 398 A.2d 636 (1979). Specifically, with respect to the instant case, the daughter's testimony at trial of her father's sexual assaults on her was corroborated by three other prosecution
[ 378 Pa. Super. Page 210]
witnesses.*fn5 Additionally, the daughter testified at trial, again with support by other witnesses, of threatening behavior towards her by her parents.*fn6 In view of this evidence, the trial court chose to disbelieve the daughter's alleged recantation. Without reservation, we affirm the trial judge's finding in this regard.*fn7
Appellant's second issue alleges the ineffectiveness of his prior counsel for not appealing three of the issues raised and denied in his post-trial motions, specifically: (1) the evidence was insufficient to establish the corpus delicti; (2) appellant's admissions were improperly admitted into evidence; and (3) communications between appellant and the
[ 378 Pa. Super. Page 211]
psychologist and CYS caseworkers were privileged and, therefore, improperly admitted in evidence. We deal with each of these contentions seriatim.*fn8
Preliminarily, we note that when faced with a challenge to the effectiveness of counsel we must first determine whether the underlying claim is of arguable merit. If the underlying claim presents arguable merit, we must evaluate whether the course chosen by counsel had some reasonable basis aimed at promoting the appellant's interests. Finally, the appellant must establish that the alleged ineffectiveness prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Instantly, we have determined that none of the issues underlying the ineffectiveness of counsel claim have arguable merit.
The first underlying claim is that the evidence was insufficient to establish the corpus delicti of the crime. Appellant directs his argument to the specific crime of statutory rape. Evidence of penetration is a necessary element in proving the corpus delicti of statutory rape. See, Commonwealth v. Grassmyer, 237 Pa. Super. 394, 352 A.2d 178 (1975). Although the daughter testified to penetration at trial, appellant contends that this testimony was vague and inconsistent and, therefore, was insufficient to establish the corpus delicti. This claim is meritless for the reasons as stated by the trial court in its opinion following post-trial motions. Specifically, the court stated the following:
[ 378 Pa. Super. Page 212]
In the present case the Commonwealth established through the testimony of the victim that the defendant had sexual intercourse with her over an extended period of time beginning when she was 11 years old (N.T. 28, 29, 34). The victim also testified that penetration had taken place (N.T. 18, 43-44). She appeared confused as to dates; however, that confusion appeared to result more from nervousness than from unbelievability. Nor did she appropriately define "sexual intercourse" at the outset of her testimony (see N.T. 16). However, that failure, too, can be attributed to her nervous state at trial, and as it was made clear during the course of her testimony that she understood what the act entailed and that that act was in fact what took place, the corpus delicti was sufficiently established . . .
Opinion, February 26, 1986, pp. 2-3.
Next, appellant contends that his statements to the CYS caseworkers and the psychologist were improperly admitted for the reason that an extra-judicial admission of a defendant cannot be received into evidence for the purpose of showing that a crime has been committed. This contention is meritless. Once the corpus delicti of a crime has been established, as was done in this case, the admission of a defendant may be properly used by the Commonwealth as further proof of the crime. Commonwealth v. Shoff, 273 Pa. 377, 417 A.2d 698 (1980).
Finally, appellant contends that his admissions to the CYS caseworkers and the psychologist were confidential information which should not have been disclosed without his consent. This contention is completely meritless in view of our decision in Commonwealth v. Arnold, 356 Pa. Super. 343, 514 A.2d 890 (1986). In Arnold, our Court dismissed the appellant's claim that he was entitled to the privilege of confidentiality and privacy pertaining to inculpatory statements made to a CYS worker. In so holding, our Court stated the following:
The issue of confidentiality is not present here as CYS is not only a treatment agency but is the investigative arm
[ 378 Pa. Super. Page 213]
of the statewide system of Child Protective Services. It is clear from the act that depending upon its findings, it has a wide range of responsibility including initiating court action, if necessary (supra). Thus while appellant was on notice from the law that his statements could be used against him in court actions, . . . he had no privilege of confidentiality in that regard . . .
Id., 356 Pa. Superior Ct. at 353, 514 A.2d at 895.*fn9
For all the foregoing reasons, therefore, we affirm the trial court's denial of appellant's claims without a hearing.
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Ticket to the Boneyard
Twelve years ago, Matthew Scudder lied to a jury to put James Leo Motley behind bars. Now the ingenious psychopath is free. And the alcoholic ex-cop-turned-p.i. must pay dearly for his sins. Friends and former lovers -- even strangers unfortunate enough to share Scudder's name -- are turning up dead. Because a vengeful maniac is determined not to rest until he's driven his nemesis back to the bottle...and then to the boneyard.
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The Mohawk women's volleyball team swept Canadore Panthers of North Bay, 25-15, 25-19, 25-18, at the Fennell Gymnasium on Saturday (Jan. 29). With the victory, the Mountaineers moved into a tie for third place in the Ontario Colleges Athletic Association West Region with Fanshawe, both with 12-4 records. Canadore fell to 7-10.
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Mountaineers' head coach Sean Pellow was not overly impressed by his side in the early going, but said a win is a win and conceded the team got better as the match wore on.
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By Staff Sgt. Kenneth D. Reed, 7th Army Training CommandOctober 3, 2016
GRAFENWOEHR, Germany -- The Sergeant Morales Club welcomed its newest members to the USAG Bavaria chapter, Sgt. 1st Class Edward Jervis, Staff Sgt. Danny Gardner and Staff Sgt. Robert Carter, all from 1st Battalion, 4th Infantry Regiment, Sept. 29, 2016, after completing the final selection board held at the 7th Army Noncommissioned Officer Academy, here.
Established in 1973 by Lt. Gen. George S. Blanchard, the Sergeant Morales Club promotes the highest ideals of integrity, professionalism and leadership for the enlisted force serving in Europe and its members exemplify a special kind of leadership characterized by a personal concern for the needs, training, development and welfare of Soldiers.
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Currently, the USAG Bavaria chapter has 12 members. Study sessions are held every week at the various locations throughout Grafenwoehr Training Area. Noncommissioned officers interested in joining the Sergeant Morales Club can visit the USAG Bavaria's Sergeant Morales Club on Facebook.


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Spears wins Oratorical Scholarship Sectional Contest
After placing first in the District competition four weeks ago, Lauren Spears competed in and won the American Legion Oratorical Sectional contest held in Romney on Saturday. She advances to the State Finals in Shinnston on March 8.
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November 23, 2009
APOLLO METALS, LTD, PLAINTIFFv.ELECTROPLATING TECHNOLOGIES, LTD, DEFENDANT
Apollo Metals filed a complaint in this court seeking a fourfold declaratory judgment that (1) it had not breached an agreement it made with Electroplating Technologies; (2) it had not misappropriated certain proprietary information or trade secrets belonging to Electroplating Technologies; (3) Electroplating Technologies' patents were not infringed; and (4) Electroplating Technologies' patents were invalid and/or unenforceable. The defendant responded with several counterclaims against the plaintiff.
The defendant now moves for the dismissal of all claims and counterclaims here, so that the parties may initiate binding arbitration pursuant to a Patent, Technical Information and Technical Assistance Agreement ("Agreement") between the parties. To that end, the defendant has incorporated into its motion a covenant not to sue. For the following reasons, I will grant the motion to dismiss and compel arbitration.
The defendant is the owner of proprietary information and the Patents-in-Suits,*fn1 each of which concern various metal coating and surface treating technologies, such as brush plating, anodizing, and electroplating. Compl. ¶ 7. On November 1, 1995, the parties entered into the Agreement for the plaintiff to license exclusively the right to use and practice certain proprietary information and patents related to brass, copper, nickel, and nickel-chromium plating for the manufacture, use, and sale of certain products. Id. ¶ 8. The parties have since executed several amendments to this Agreement which included converting the exclusive license into a non-exclusive license. Id. The Agreement includes an arbitration clause, which has not been altered by these amendments.
On July 29, 2006, the plaintiff sent the defendant a letter consistent with the terms of the Agreement providing six months notice of its intent to terminate the Agreement regarding the defendant's non-brass plating technologies. The plaintiff was no longer using the defendant's licensed technology on those lines. Compl. ¶ 9. A month later, the defendant sent the plaintiff a letter accusing the plaintiff of improperly using the patents and proprietary information, but did not specifically identify which patents or what information. The letter also accused the plaintiff of breaching the Agreement and interfering with the defendant's business relations. Id. ¶ 10. The plaintiff denied the allegations in correspondence dated October 12, 2006. Id. ¶ 11. Two weeks later, the defendant reiterated the allegations and threatened to pursue all available remedies if left unresolved. Id. ¶ 12.
Because of these threats and the plaintiff's resultant apprehension, the plaintiff brought suit here seeking a declaratory judgment, specifically, that: (1) it had not breached the Agreement; (2) it had not misappropriated trade secrets or proprietary information; (3) it had not infringed the defendant's patents; and (4) that the defendant's patents are invalid and/or unenforceable. The defendant filed a counterclaim against the plaintiff which included several claims of: infringement of patents, some of which were part of the Agreement and others were not; breach of the Agreement by the plaintiff; and fraudulent misrepresentation. On two occasions, the defendant amended its counterclaim so that only the breach of contract claim remains.
As part of its motion to compel arbitration, the defendant made the following representations in what it refers to as a "Covenant Not To Sue:"
(1) The defendant will not sue the plaintiff on the basis of any of the Patents-in-Suit, as defined in the plaintiff's complaint, for any infringing acts taking place on or before the date of this motion;
(2) The defendant will not sue the plaintiff on the basis of any of the Patents-in-Suit for any acts that involve apparatuses or processes that were used by the plaintiff in its Bethlehem, Pennsylvania facility on or before the date of this motion;
(3) The defendant does not contend that the plaintiff's X19 or X23 electroplating lines, as presently configured, appropriate technology that is within the scope of any of the claims of the Patents-in-Suit.
A. Plaintiff's Counts III and IV
Count III seeks a declaration that the plaintiff has not directly infringed, induced the infringement of, or been a contributory infringer of any claim of the Patents-in-Suit. Compl. ¶ 23. Count IV seeks a declaration that the Patents-in-Suit are invalid and/or unenforceable for failure to comply with the requirements of Part II of Title 25 of the United States Code. Id. ¶ 25. For the following reasons, the defendant's covenant not to sue divests the court of jurisdiction over these claims.
An actual controversy must exist at all stages of a declaratory judgment action, not merely at the time the complaint is filed. Preiser v. Newkirk, 422 U.S. 395, 401 (1975).
A covenant not to sue for any infringing acts that predate the filing date of the action divests the court of jurisdiction over claims relating to infringement and validity of patents that are within the scope of the covenant not to sue, provided that the covenant not to sue predates any consideration or resolution of the underlying patent infringement claim. Super Sack Mfg. Corp. v. Chase Packaging Corp., 57 F.3d 1054, 1058 (Fed. Cir. 1995); Amana Refrigeration, Inc. v. Quadlux, Inc., 172 F.3d 852, 855 (Fed. Cir. 1999), Fort James Corp. v. Solo Cup Company, 412 F.3d 1340, 1348 (Fed. Cir. 2005). A statement of counsel in motion papers regarding a covenant not to sue is sufficient to make the covenant binding. Super Sack, 57 F.3d at 1059. The covenant need only release the accused infringer from liability based on its past and present activities. Amana, 172 F.3d at 855-856 (actual controversy cannot be based on a fear of litigation over future products) (citing Super Sack, 57 F.3d at 1060).
Here, the defendant has covenanted that it will not assert any of the Patents-in-Suit against the plaintiff for the plaintiff's past or present activities. So far, there has been no consideration or resolution of the alleged infringement. Thus, an actual controversy no longer exists between the parties regarding the infringement or validity of the defendant's patents. In its response to the motion, the plaintiff concedes that this covenant and the defendant's admission of no infringement by the plaintiff are sufficient to deprive the court of subject matter jurisdiction over these claims. See Pl.'s Br. in Opp'n at 17-18. Accordingly, because the defendant's covenant deprives the court of jurisdiction, I will dismiss Counts III and IV of the plaintiff's complaint. Super Sack, 57 F.3d at 1058.
B. Remaining Claims and Counterclaim
The defendant argues that its sole remaining counterclaimand the plaintiff's two remaining claims are the only ones for which an actual controversy exists, that those claims are disputes arising under the Agreement, that they fall within the scope of the Agreement's Arbitration Clause, and that those claims should thus be sent to arbitration. I agree.
Arbitration is a creature of contract law. E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S., 269 F.3d 187, 195 (3d Cir. 2001). As such, "it is a way to resolve those disputes, but only those disputes, that the parties have agreed to submit to arbitration, First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995), and "a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit," AT&T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648 (1986). Accordingly, whether a party is bound to arbitrate is a matter to be determined by the court on the basis of the contract entered into by the parties. Id. at 649 (quoting John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 547 (1964)).
The Federal Arbitration Act provides that agreements to resolve disputes by arbitration "shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2; see Harris v. Green Tree Financial Corp., 183 F.3d 173, 178 (3d Cir. 1999) (the Federal Arbitration Act "makes arbitration agreements enforceable to the same extent as other contracts"). The Supreme Court has acknowledged that the arbitrability of a particular dispute is to be determined with a "healthy regard for the federal policy favoring arbitration." Moses H. Cone Mem'l Hosp. v. Mercury Constr., 460 U.S. 1, 24-25 (1983). Accordingly, "any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration." Id.
As the parties recognize, Pennsylvania contract law applies in this case. See Def.'s Ex. M at ¶ 15.02. It is well-settled in Pennsylvania that where a party to a civil action seeks to compel arbitration, a court must employ a two-part test to determine if arbitration is required. Keystone Technology Group, Inc. v. Kerr Group, Inc., 824 A.2d 1223, 1227 (Pa.Super. 2003). First, it must be determined whether a valid agreement to arbitrate exists. Id. Second, if such an agreement does exist, it must be determined if the dispute involved is within the scope of the arbitration provision. Id. The scope of the arbitration is determined by the intention of the parties as ascertained in accordance with the rules governing contracts generally. Id.There must be a meeting of the minds in order for there to be a valid contract to arbitrate. Quiles v. Financial Exchange Co., 879 A.2d 281, 285 (Pa.Super. 2005).
The Pennsylvania Supreme Court has held that an agreement to arbitrate must be "clear and unmistakable" and cannot arise "by implication." Id. at 161 (quoting Emmaus Mun. Auth. v. Eltz, 204 A.2d 926, 927 (Pa. 1964)). Thus, before a party to a lawsuit can be ordered to arbitrate, there should be an express, unequivocal agreement to that effect. Id. (emphasis in original) (citing Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d 51, 54 (3d Cir. 1980)). Here, the Arbitration Clause in the Agreement states:
15.03 In the event of any dispute arising under this Agreement, the parties agree that they will attempt to find an amicable solution to such dispute and that they will negotiate in good faith. However, in the event that it appears that a dispute cannot be resolved by such negotiation then either of the parties hereto shall have the right to initiate arbitration proceedings for the resolution of the dispute, except as the dispute may relate to the validity of any of the Licensed Patents or the scope of their claims. Any such unresolved dispute shall be finally settled definitively pursuant to the appointment of one or more independent arbitrator(s) mutually selected by the Licensor and Licensee. The arbitration procedure shall be carried out in Pennsylvania. The arbitrator(s) shall have the powers of friendly referee(s) and shall apply Pennsylvania law to the arbitration proceedings. Pending the completion of any arbitration proceedings, payments shall continue to be made in accordance with the provisions of this Agreement, with appropriate subsequent adjustments to be made to comply with any award rendered by the arbitrator(s).
See Def.'s Ex. M at 35-36. This arbitration provision is written and executed by the parties. It clearly involves commerce, and mandates arbitration for "any dispute arising under" the Agreement, unless and only to the extent that such disputes "relate to the validity of any of the Licensed Patents or the scope of their claims." The clause represents an express, unequivocal agreement between the parties to arbitrate disputes arising under the Agreement. I also note that neither party has challenged the clause's validity. Accordingly, pursuant to 9 U.S.C. § 2, I find that a valid agreement to arbitrate exists between the parties.*fn2 Keystone Technology, 824 A.2d at 1227.
Next, in determining if the dispute involved is within the scope of the arbitration provision, the district court must be satisfied of the arbitrability of an issue pursuant to Section 3 of the Act.*fn3 The court must determine who has the primary power to decide arbitrability in the case. Generally, the "question of arbitrability... is undeniably an issue for judicial determination." AT&T Techs., 475 U.S. at 649. However, in First Options of Chicago, Inc. v. Kaplan, the Supreme Court held that "the question 'who has the primary power to decide arbitrability' turns upon what the parties agreed about that matter." 514 U.S. 938, 943 (1995). The Court then advised that when deciding whether the parties agreed to arbitrate a certain matter, including arbitrability, courts generally should apply ordinary state-law principles that govern the formation of contracts. Id. at 944. However, "[c]courts should not assume that the parties agreed to arbitrate arbitrability unless there is 'clear and unmistakable' evidence that they did so." Id. (quoting AT&T Techs., 475 U.S. at 649).
In this case, there is no evidence that the parties delegated the power to decide arbitrability to an arbitrator, much less "clear and unmistakable" evidence. The Arbitration Clause is silent on this issue and neither party asserts that such delegation was intended. Accordingly, I find that the court has primary authority to determine whether the non-patent issues in this suit fall within the scope of the Arbitration Clause.
Qualcomm, Inc. v. Nokia Corp., 466 F.3d 1366, 1370-71 (Fed. Cir. 2006).
Once the court decides, as here, that the question of arbitrability is for judicial determination, it undertakes an arbitrability inquiry in order to be satisfied that the issue involved is referable to arbitration. AT&T Techs, 475 U.S. at 649. In determining whether the remaining claims are within the scope of the arbitration provision, I will consider each in turn.
1. Defendant's Counterclaim Count XIII
The Agreement provides that in the event of the plaintiff's early termination of the Agreement, the plaintiff "agrees to discontinue use of Technical Information*fn4 and furthermore agrees to cease practicing the claims of Licensed Patents at the time early termination of this Agreement takes place." See Def.'s Ex. M at ¶ 13.02. Counterclaim Count XIII acknowledges these obligations of the plaintiff, see Countercl. ¶ 6, but alleges, however, that the plaintiff has breached the Agreement by continuing to use Technical Information on its brass plating line and its non-brass plating lines after January 31, 2006, the date of termination. Id. ¶¶ 8-9.
The Agreement also provides that the defendant "shall be permitted during the License Period upon written request to [the plaintiff] to send a reasonable number of its employees to visit and observe the production of Licensed Products on Licensee Lines in Licensee Facilities and to discuss such products and their production with [the plaintiff's] employees." See Def.'s Ex. M at ¶ 9.01. Counterclaim Count XIII further alleges that the plaintiff has breached that provision of the Agreement by refusing to allow site visits by representatives of the defendant or its prospective licensees who would seek to observe the plaintiff's production or negotiate sublicensing agreements. Id. ¶¶ 15, 16, 27, 28, 29.
All of these allegations form the basis of the defendant's request for a declaration that the plaintiff has breached the Agreement, and are therefore disputes "arising under" the Agreement. Moreover, I am satisfied that these disputes are within the scope of the arbitration provision. Accordingly, I will dismiss this counterclaim with prejudice and instruct the parties to initiate binding arbitration of Counterclaim Count XIII.
2. Plaintiff's Count I
In addition to the provisions discussed above, the Agreement provides that the plaintiff "shall pay to [the defendant] for the exclusive rights to the use of the Technical Information and the Licensed Patents for the manufacture of Licensed Products in the USA in accordance with the schedule of license fees and Royalty payments... in connection with each type of electroplated product of Licensed Products, which correlates to the top or exterior metal coating of such electroplated product." See Def.'s Ex. M at ¶ 6.01. Count I of the complaint seeks a declaration that the plaintiff is not using the defendant's technology on its non-brass plating lines in breach of the Agreement. Compl. ¶ 16. The plaintiff insists that it continues to uphold and abide by the terms and obligations of the Agreement including paying royalties for the licensed brass plating technologies. Id. ¶ 17. This dispute clearly arises under the Agreement, and I am satisfied that it is within the scope of the arbitration provision. Accordingly, I will dismiss it, and instruct the parties to initiate binding arbitration of Count I.
3. Plaintiff's Count II
Count II of the complaint seeks a declaration that the plaintiff is not using, without authorization, any non-brass plating technology identified as proprietary information of the defendant, or as a trade secret of the defendant. Compl. ¶¶ 19-20. The plaintiff argues that this claim embraces issues that fall outside of the Agreement. I do not agree.
The disclosure of the defendant's trade secrets and proprietary information to the plaintiff, and the plaintiff's use of the defendant's trade secrets and proprietary information are both governed by the terms of the Agreement. Article II of the Agreement governs, inter alia, the defendant's disclosure of technical information to the plaintiff during the life of the Agreement, and the corresponding rights and responsibilities the parties owe each other. See Def.'s Ex. M. Article III of the Agreement governs confidentiality, and mandates that "all such Technical Information shall be received and treated by Licensee as secret and confidential," and that "in consideration of Licensee disclosing Licensee Information to Licensor, that any and all Licensee Information disclosed after the Effective Date shall be received and treated as secret and confidential by Licensor." Id. ¶¶ 3.01, 3.02. Article XIII of the Agreement provides that should the plaintiff terminate the Agreement early, it "agrees to discontinue use of Technical Information and furthermore agrees to cease practicing the claims of Licensed Patents at the time early termination of this Agreement takes place." Id. ¶ 13.02. Contrary to the plaintiff's argument, the claims in Count II are not covered by the exclusion to the Arbitration Clause. None of these issues relate to the validity of the Patents-in-Suit or the scope of the their claims. Rather, Count II seeks a declaration that the plaintiff is not using certain technology, i.e., the defendant's proprietary information or trade secrets, without the defendant's authorization. This dispute arises under the Agreement, and I am satisfied that it is within the scope of the arbitration provision. Accordingly, I will dismiss it, and instruct the parties to initiate binding arbitration of Count II.*fn5
An appropriate Order follows.
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Just 7-days after a Calabar businessman, was freed from the den of kidnappers, he has reportedly died.
According to his family who made the announcement, the said businessman, Chief Kenneth Ekeanyanwu Okpala, was held in captivity by suspected kidnappers and was only allowed to leave one week later after paying a N10 Million ransom.
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Montgomery AL Real Estate & Homes for Sale
1 Properties Found
The median home value in Montgomery, AL is $20,000.
This is
lower than
the county median home value of $119,800.
The national median home value is $177,414.
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Courtesy: Century 21 Southern Star
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CHARMING CURB APPEAL - You will love this wonderful home in a quiet settled area. From the drive to the front door this home says Welcome. Home features a large greatroom with attractive stone fireplace complete with wood burning stove, neutral paint and new carpet. The kitchen offers new stainless steel refrigerator and stove plus an extra oven for the holiday meals. You may have a small breakfast table in the kitchen area or use the dining room for extra guests. The master bedroom is a good size with a new bathroom to sooth away the stress of the day, which boasts a large beautiful tiled shower with glass surround, tiled flooring, beautiful granite topped vanity with tons of drawers and cabinets plus clear sink bowl and linen closet. The second bedroom offers space plus two separate closets and built-in desk, could be used for an office or guest room. Third bedroom is a wonderful size. The guest bath is done in the popular blue and brown colors just needs a little paint of your choice to make this bath pop. This home offers new carpet and neutral paint & 5 ceiling fans. The backyard is fenced and backs up to the Dalraida Elementary school, a student could walk to school easily from the back gate. For the handy person you have a great wired workshop and attached storage. Pull your car right up under the carport to enter the kitchen with your groceries. The front landscaping is very attractive. You must see this home to truly appreciate. Call for your personal tour.
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2 years, 3 months
Medium | Male
Meet Lonnie!!! Lonnie is a young Hound/Terrier mix, approximately 2 years old, and weighing around 35-40 pounds. Lonnie is a lovely dog who gets along with all people and likes other dogs. Lonnie is arriving 9/3/16j and will be up to date on vaccinations, neutered, and micro chipped.
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United States District Court, Tenth Circuit
July 2, 2013
CHRISTINE TATUM, Plaintiff,v.CAROLYN W. COLVIN, Acting Commissioner of Social Security [1], Defendant.
Sam A. Crow, U.S. District Senior Judge
This is an action reviewing the final decision of the Commissioner of Social Security denying the plaintiff disability insurance benefits and supplemental security income payments. The matter has been fully briefed by the parties.
I. General legal standards
The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that "the findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." The court should review the Commissioner's decision to determine only whether the decision was supported by substantial evidence and whether the Commissioner applied the correct legal standards. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994). Substantial evidence requires more than a scintilla, but less than a preponderance, and is satisfied by such evidence that a reasonable mind might accept to support the conclusion. The determination of whether substantial evidence supports the Commissioner's decision is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it really constitutes mere conclusion. Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). Although the court is not to reweigh the evidence, the findings of the Commissioner will not be mechanically accepted. Nor will the findings be affirmed by isolating facts and labeling them substantial evidence, as the court must scrutinize the entire record in determining whether the Commissioner's conclusions are rational. Graham v. Sullivan, 794 F.Supp. 1045, 1047 (D. Kan. 1992). The court should examine the record as a whole, including whatever in the record fairly detracts from the weight of the Commissioner's decision and, on that basis, determine if the substantiality of the evidence test has been met. Glenn, 21 F.3d at 984.
The Social Security Act provides that an individual shall be determined to be under a disability only if the claimant can establish that they have a physical or mental impairment expected to result in death or last for a continuous period of twelve months which prevents the claimant from engaging in substantial gainful activity (SGA). The claimant's physical or mental impairment or impairments must be of such severity that they are not only unable to perform their previous work but cannot, considering their age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d).
The Commissioner has established a five-step sequential evaluation process to determine disability. If at any step a finding of disability or non-disability can be made, the Commissioner will not review the claim further. At step one, the agency will find non-disability unless the claimant can show that he or she is not working at a "substantial gainful activity." At step two, the agency will find non-disability unless the claimant shows that he or she has a "severe impairment, " which is defined as any "impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled. If the claimant's impairment does not meet or equal a listed impairment, the inquiry proceeds to step four, at which the agency assesses whether the claimant can do his or her previous work; unless the claimant shows that he or she cannot perform their previous work, they are determined not to be disabled. If the claimant survives step four, the fifth and final step requires the agency to consider vocational factors (the claimant's age, education, and past work experience) and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. Barnhart v. Thomas, 124 S.Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of the analysis. Nielson v. Sullivan, 992 F.2d 1118, 1120 (10thCir. 1993). At step five, the burden shifts to the Commissioner to show that the claimant can perform other work that exists in the national economy. Nielson, 992 F.2d at 1120; Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). The Commissioner meets this burden if the decision is supported by substantial evidence. Thompson, 987 F.2d at 1487.
Before going from step three to step four, the agency will assess the claimant's residual functional capacity (RFC). This RFC assessment is used to evaluate the claim at both step four and step five. 20 C.F.R. §§ 404.1520(a)(4), 404.1520(e, f, g); 416.920(a)(4), 416.920(e, f, g).
II. History of case
On February 3, 2011, administrative law judge (ALJ) James Harty issued his decision (R. at 10-19). Plaintiff alleges that she has been disabled since June 10, 2008 (R. at 10). Plaintiff is insured for disability insurance benefits through December 31, 2013 (R. at 12). At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since plaintiff's alleged onset date (R. at 12). At step two, the ALJ found that plaintiff has the following severe impairments: pseudotumor cerebri (idiopathic intracranial hypertension), essential hypertension, chronic kidney disease with mild proteinuria, and headaches (R. at 13). At step three, the ALJ determined that plaintiff's impairments do not meet or equal a listed impairment (R. at 13). After determining plaintiff's RFC (R. at 13-14), the ALJ determined at step four that plaintiff is unable to perform his past relevant work (R. at 17). At step five, the ALJ determined that plaintiff could perform other jobs that exist in significant numbers in the national economy (R. at 18-19). Therefore, the ALJ concluded that plaintiff was not disabled (R. at 19).
III. Did the ALJ err at step 2 by not considering the diagnosis of depressive disorder?
The burden of proof at step two is on the plaintiff. See Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993)(the claimant bears the burden of proof through step four of the analysis). A claimant's showing at step two that he or she has a severe impairment has been described as "de minimis." Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir. 1997); see Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988)("de minimis showing of medical severity"). A claimant need only be able to show at this level that the impairment would have more than a minimal effect on his or her ability to do basic work activities. Williams, 844 F.2d at 751. However, the claimant must show more than the mere presence of a condition or ailment. If the medical severity of a claimant's impairments is so slight that the impairments could not interfere with or have a serious impact on the claimant's ability to do basic work activities, the impairments do not prevent the claimant from engaging in substantial work activity. Thus, at step two, the ALJ looks at the claimant's impairment or combination of impairments only and determines the impact the impairment would have on his or her ability to work. Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997). A claimant must provide medical evidence that he or she had an impairment and how severe it was during the time the claimant alleges they were disabled. 20 C.F.R. § 404.1512(c), § 416.912(c).
Plaintiff does cite to evidence that plaintiff was diagnosed with depressive disorder (R. at 470, 526), and was prescribed Prozac (R. at 480). However, plaintiff does not cite to any medical evidence that this impairment would have more than a minimal impact on plaintiff's ability to work. For this reason, the court finds that the ALJ did not err by failing to include this limitation as a severe impairment at step two.
Furthermore, once the ALJ finds that the claimant has any severe impairment, he has satisfied the analysis for purposes of step two. The ALJ's failure to find that additional alleged impairments are also severe is not in itself cause for reversal. However, the ALJ, in determining plaintiff's RFC, must consider the effects of all of the claimant's medically determinable impairments, both those he deems "severe" and those "not severe." Hill v. Astrue, 289 Fed.Appx. 289, 291-292 (10th Cir. Aug. 12, 2008); see Dray v. Astrue, 353 Fed.Appx. 147, 149 (10thCir. Nov. 17, 2009); Brescia v. Astrue, 287 Fed.Appx. 626, 628-629 (10th Cir. July 8, 2008).
In making his RFC findings, the ALJ stated that he considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence; the ALJ also stated that he considered the opinion evidence (R. at 14). Furthermore, the ALJ indicated that in making his RFC findings, he "must consider all of the claimant's impairments, including impairments that are not severe" (R. at 12). In light of the fact that the ALJ found other severe impairments at step two, considered all symptoms and evidence when making RFC findings for the plaintiff, considered all of plaintiff's impairments, including non-severe impairments when making his RFC findings, and the failure of plaintiff to cite to any medical evidence that plaintiff had limitations from her depression that were not included in the ALJ's RFC findings, the court finds that the ALJ did not err by failing to include depression as a severe impairment at step two.
IV. Did the ALJ err by failing to order a consultative examination regarding plaintiff's depression?
Consultative medical examinations may be ordered by the ALJ when the information needed is not readily available from medical treatment sources. 20 C.F.R. §§ 404.1512(f), 404.1519a(a)(1). The Commissioner has broad latitude in ordering consultative examinations. Nevertheless, it is clear that, where there is a direct conflict in the medical evidence requiring resolution, or where the medical evidence in the record is inconclusive, a consultative examination is often required for proper resolution of a disability claim. Similarly, where additional tests are required to explain a diagnosis already contained in the record, resort to a consultative examination may be necessary. There must be present some objective evidence in the record suggesting the existence of a condition which could have a material impact on the disability decision requiring further investigation. The claimant has the burden to make sure there is, in the record, evidence sufficient to suggest a reasonable possibility that a severe impairment exists. When the claimant has satisfied this burden in that regard, it then becomes the responsibility of the ALJ to order a consultative examination if such an examination is necessary or helpful to resolve the issue of impairment. In a counseled case, the ALJ may ordinarily require counsel to identify the issue or issues requiring further development. In the absence of such a request by counsel, the court will not impose a duty on the ALJ to order a consultative examination unless the need for one is clearly established in the record. The ALJ should order a consultative exam when evidence in the record establishes the reasonable possibility of the existence of a disability and the result of the consultative exam could reasonably be expected to be of material assistance in resolving the issue of disability. Hawkins v. Chater, 113 F.3d 1162, 1166-1168, 1169 (10th Cir. 1997; see Madrid v. Barnhart, 447 F.3d 788, 791-792 (10th Cir. 2006)(where additional tests are required to explain a diagnosis already in the record, resort to a consultative examination may be necessary).
As noted above, the claimant has the burden to make sure there is, in the record, evidence sufficient to suggest a reasonable possibility that a severe impairment exists. However, plaintiff cites to no medical evidence suggesting a reasonable possibility that a severe impairment exists. In light of the broad latitude accorded to an ALJ in ordering a consultative examination, the court finds no clear error by the ALJ in not ordering a consultative examination.
V. Did the ALJ fail to properly consider the medical records of Dr. Baker, plaintiff's ophthalmologist?
The ALJ gave significant weight to the opinions by the state agency physicians, Dr. Tella, whose report is dated December 3, 2009 (R. at 456-461), and Dr. Siemsen, whose report is dated February 3, 2010 (R. at 485-492) (R. at 16). Neither Dr. Tella nor Dr. Siemsen noted any visual or environmental limitations (R. at 458-459, 488-489). However, the ALJ discussed the medical records by Dr. Baker, an ophthalmologist (R. at 15), and the ALJ included in his RFC findings that plaintiff must avoid even moderate exposure to direct sunlight and bright lights, must avoid more than frequent video monitor work, must avoid exposure to dangerous machinery and unprotected heights, and is limited to occupations that do not require more than frequent use of depth perception (R. at 14).
The court will not reweigh the evidence or substitute its judgment for that of the Commissioner. Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005); White v. Barnhart, 287 F.3d 903, 905, 908, 909 (10th Cir. 2002). Although the court will not reweigh the evidence, the conclusions reached by the ALJ must be reasonable and consistent with the evidence. See Glenn v. Shalala, 21 F.3d 983, 988 (10th Cir. 1994)(the court must affirm if, considering the evidence as a whole, there is sufficient evidence which a reasonable mind might accept as adequate to support a conclusion).
The ALJ gave significant weight to the two state agency medical assessments; however, the ALJ also considered the medical records of Dr. Baker and the testimony of plaintiff (R. at 14), and included in his RFC findings additional visual and environmental limitations not contained in those two assessments. The medical records of Dr. Baker do not indicate that plaintiff has limitations which are not contained in the ALJ's RFC findings. Therefore, the court finds no error by the ALJ in his evaluation of the state agency assessments or the medical records of Dr. Baker.
VI. Did the ALJ err in his credibility analysis?
Credibility determinations are peculiarly the province of the finder of fact, and a court will not upset such determinations when supported by substantial evidence. However, findings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995). Furthermore, the ALJ cannot ignore evidence favorable to the plaintiff. Owen v. Chater, 913 F.Supp. 1413, 1420 (D. Kan. 1995).
When analyzing evidence of pain, the court does not require a formalistic factor-by-factor recitation of the evidence. So long as the ALJ sets forth the specific evidence he relies on in evaluating the claimant's credibility, the ALJ will be deemed to have satisfied the requirements set forth in Kepler. White v. Barnhart, 287 F.3d 903, 909 (10th Cir. 2002); Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). Furthermore, the ALJ need not discuss every relevant factor in evaluating pain testimony. Bates v. Barnhart, 222 F.Supp.2d 1252, 1260 (D. Kan. 2002). An ALJ must therefore explain and support with substantial evidence which part(s) of claimant's testimony he did not believe and why. McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir. 2002). It is error for the ALJ to use standard boilerplate language which fails to set forth the specific evidence the ALJ considered in determining that a claimant's complaints were not credible. Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir. 2004). On the other hand, an ALJ's credibility determination which does not rest on mere boilerplate language, but which is linked to specific findings of fact fairly derived from the record, will be affirmed by the court. White, 287 F.3d at 909-910.
The court will not reweigh the evidence or substitute its judgment for that of the Commissioner. Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005); White v. Barnhart, 287 F.3d 903, 905, 908, 909 (10th Cir. 2002). Although the court will not reweigh the evidence, the conclusions reached by the ALJ must be reasonable and consistent with the evidence. See Glenn v. Shalala, 21 F.3d 983, 988 (10th Cir. 1994)(the court must affirm if, considering the evidence as a whole, there is sufficient evidence which a reasonable mind might accept as adequate to support a conclusion). The court can only review the sufficiency of the evidence. Although the evidence may support a contrary finding, the court cannot displace the agency's choice between two fairly conflicting views, even though the court may have justifiably made a different choice had the matter been before it de novo. Oldham v. Astrue, 509 F.3d 1254, 1257-1258 (10th Cir. 2007).
The ALJ found that plaintiff's allegations of disability were inconsistent with her activities of daily living and with the medical evidence of record. The ALJ also found that plaintiff's credibility is reduced by inconsistencies in her testimony and her behavior during the hearing (R. at 17).
The court will first address the ALJ's finding that her disability was inconsistent with her activities of daily living. The ALJ noted that plaintiff testified that she could attend to personal care needs, care for her dog, perform household chores, prepare meals, drive a car, shop for groceries, handle her own finances, and attend parent-teacher conferences. The ALJ found that this level of activity was inconsistent with allegations of disabling headaches and vision loss.
However, the sporadic performance of daily activities does not establish that a person is capable of engaging in substantial gainful activity. Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993). The ability to do light housework and visit with friends provides little or no support for a finding that a person can perform full-time competitive work. Draper v. Barnhart, 425 F.3d 1127, 1130-1131 (8th Cir. 2005).
While the court has some concerns regarding the ALJ's reliance on plaintiff's daily activities, the court concludes that the balance of the ALJ's credibility analysis is supported by substantial evidence in the record. Branum v. Barnhart, 385 F.3d 1268, 1274 (10th Cir. 2004)("While we have some concerns regarding the ALJ's reliance on plaintiff's alleged failure to follow a weight loss program and her performance of certain minimal household chores, we conclude that the balance of the ALJ's credibility analysis is supported by substantial evidence in the record"). The balance of the credibility analysis was closely and affirmatively linked to substantial evidence, including medical opinion evidence regarding plaintiff's RFC. Furthermore, plaintiff did not argue that other medical evidence established that plaintiff had additional limitations not included in the ALJ's RFC findings.
IT IS THEREFORE ORDERED that the judgment of the Commissioner is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).
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Indoor Marijuana Grow Facility Approved For HygieneAn indoor marijuana grow facility has been approved in the community of Hygiene in Boulder County.
Flooding Evacuees Return To Find More HeartbreakWeary Colorado evacuees have begun returning home after days of rain and flooding, but Monday's clearing skies and receding waters revealed only more heartbreak.
Colorado Mom's Work Inspired State Child Abuse LawMichelle Peterson's son is subject to strict rules about his interaction with adults, especially those who are entrusted to coach or teach him.