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March 13, 1962
TAX REVIEW BOARDv.HYDROCARBON RESEARCH, INC., APPELLANT.
Appeal, No. 145, Jan. T., 1962, from order of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1960, No. 1116, in case of Tax Review Board v. Hydrocarbon Research, Inc. Order affirmed.
Joseph W. Marshall, Jr., with him Duane, Morris & Heckscher, for appellant.
Leonard B. Rosenthal, Assistant City Solicitor, with him James L. Stern, Deputy City Solicitor, and David Berger, City Solicitor, for Tax Review Board, appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
This is an appeal from an order of the Court of Common Pleas No. 1 of Philadelphia County which dismissed the appeal of Hydrocarbon Research, Inc. (Hydrocarbon) from a decision of the Philadelphia Tax Review Board (Board), which sustained deficiency tax assessments levied against Hydrocarbon for the years 1953, 1954, 1956 and 1957 under the Philadelphia mercantile license tax ordinance.
Hydrocarbon, a New Jersey Corporation with its principal office in the City of New York, specializes in the design and engineering of technical process structures for the oil and chemical industries and has developed a scientific process for the production of anhydrous ammonia. In 1953-1954 Hydrocarbon constructed an ammonia plant for the Atlantic Refining Company at its Point Breeze refinery in Philadelphia. In 1956-1957 Hydrocarbon expanded Atlantic's anhydrous ammonia facilities.
Hydrocarbon filed returns under the Philadelphia mercantile license tax ordinance for the years 1953, 1954, 1956 and 1957 which disclosed the amount of payments received from Atlantic for its work. On July 13, 1959, the Department of Collections of the City of Philadelphia levied deficiency tax assessments against Hydrocarbon for these years. After filing a petition for review with the board and after that board had sustained the deficiency tax assessments, as corrected, Hydrocarbon appealed to the Court of Common Pleas No. 1 of Philadelphia County which, in turn, sustained the board.
The sole question raised on this appeal is whether the Philadelphia mercantile license tax violates the
[ 406 Pa. Page 398]
uniformity requirements of the Pennsylvania Constitution in its application to a taxpayer, such as Hydrocarbon, who does not engage in business in Philadelphia on a continuing basis.
We have carefully examined the record herein and the provisions of the ordinance, the constitutionality of which is attacked. We are satisfied that such provisions are valid and that the instant case is ruled by Goldstein v. Pittsburgh School District, 372 Pa. 188, 93 A.2d 243.
We accordingly affirm the order of the court below on the following excerpts from the opinion of President Judge HAGAN of the court below:
"[Hydrocarbon] constructed an extensive installation for the Atlantic Refining Company in the City of Philadelphia, which required engineering as well as actual construction work. The Tax Review Board found that [Hydrocarbon] commenced work in Philadelphia on January 1, 1953, and worked in Philadelphia for the entire years of 1953 and 1954. The Board also found that [Hydrocarbon] did no work in Philadelphia in 1955 but performed additional work for Atlantic in Philadelphia commencing in April of 1956 and continuing into 1957.
"Under the Philadelphia Mercantile Tax Ordinance, a taxpayer engaged in business in Philadelphia pays taxes for a given year based upon his receipts for the prior year. Where the taxpayer has been in business for the entire prior year, no problem is presented. With respect, however, to a taxpayer who was in business for only a portion of the prior year and also with respect to the first year of business, a problem is presented; and under the ordinance a formula is prescribed. Under this formula, receipts for a given period are divided by the number of months in the period and are then multiplied by the number of months business was actually conducted, in order to 'annualize' the figures.
[ 406 Pa. Page 399]
"As a result of the application of the above formula, [Hydrocarbon] paid taxes for the years 1953 and 1954, and again for 1956 and 1957, upon amounts in excess of its actual receipts for those years. [Hydrocarbon's] contention is that a formula which can result in the payment by one taxpayer of a tax based upon gross receipts in excess of actual receipts (such as is the case here) and in other cases can result in a payment by a taxpayer of a tax based upon gross receipts far less than the actual receipts, constitutes such a lack of uniformity as violates the constitutional provisions requiring uniformity of taxation. In support of its contention, the defendant relied primarily upon the Allentown School District Mercantile Tax Case, 370 Pa. 161. The City, on the other hand, relied upon the case of Goldstein v. Pittsburgh School District, 372 Pa. 188. After careful examination of these cases, we came to the conclusion that the Pittsburgh case is controlling, and that, therefore, the City's position must prevail.
"The Pittsburgh Mercantile Tax which was construed in the Goldstein case was almost identical to the Philadelphia Mercantile Tax, with respect to the provisions which are here in question. The same argument of lack of uniformity as is made here was made in that case and was rejected by the Supreme Court. The Court there held that, while a tax based upon actual receipts would appear to be the fairest form of tax, it could not be said that a formula based upon the previous year's receipts is so unfair or results in such a lack of uniformity as to be invalid.
"In the Goldstein case, the Supreme Court referred to its prior decision in the Allentown School District Mercantile Tax Case, relied upon by [Hydrocarbon], and specifically distinguished the two cases. The Court pointed out that the Allentown Mercantile Tax Case had involved not only provisions similar to those contained in the Pittsburgh and Philadelphia Ordinances,
[ 406 Pa. Page 400]
which are here in question, but also involved other classifications as well as a mixing of fiscal and calendar years which resulted in such confusion as to make the tax invalid.
"The difference between the Goldstein case and the Allentown School District Mercantile Case was also pointed out in the case of Radio & Motor Service, Inc. v. Dunn, 177 Pa. Superior Ct. 576, which dealt with an Altoona tax ordinance. The Superior Court there pointed out that the law as established in the Goldstein case, involving the Pittsburgh tax, was that the payment of a tax based upon an estimate of a prior year's receipts did not render the tax invalid. The Superior Court further pointed out that the Altoona tax ordinance, which was there before it, was invalid because it not only based the tax for a given year on an estimate founded on the receipts of a prior year or a portion thereof, but, in addition, imposed a tax upon a taxpayer on an estimate which was based upon more months than the taxpayer had actually been in business in a given year. This was not so in the Pittsburgh tax involved in the Goldstein case, nor is it so in the Philadelphia tax involved in the instant case.
"It was for the foregoing reasons that we found that the instant case is ruled by Goldstein v. Pittsburgh School District, 372 Pa. 188, and we accordingly dismissed the appeal and affirmed the decision of the Tax Review Board."
Order affirmed. Costs on Hydrocarbon.
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Release Date of 'Kadhalum Kadanthu
Pogum' : Actor Vijay Sethupathi's 'Kadhalum Kadanthu Pogum' has finally got is releasing date. As per the latest reports, 'Kadhalum Kadanthu Pogum' has been confirmed for February, 14th release date. Nalan Kumarasamy has written and directed the movie while C.V Kumar and K.E Gnanavel Raja has jointly produced the movie. Stay tuned for more updates on Vijay Sethupathi's 'Kadhalum Kadanthu Pogum'.
Kadhalum Kadanthu Pogum Release Date Finally Confirmed
Release Date of 'Kadhalum Kadanthu


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Working Daze by John Zakour and Scott Roberts
- December 27, 2013
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Comments (20) (Please sign in to comment)
He he hee!
He'll be rewarded for his kindness with a huge jar of Nutella, for said English Muffins. Yum!
If you are reading my fun, short, serial, story Kiss Them Deadly Remember this is a short weak to vote and control what I write next. :)
hmm toasted english muffin with melting butter yum
WTF? Don't get the connection between muffins, bells, Angels and the kid in the cap. In Oz language, this one went through to the keeper. i.e. didn't get a bat on it (cricket term meaning totally missed it).
it's either just a kid, or it could be the "Littlest Angel"; from the movie "It's a Wonderful Life", every time a bell rings, an angel gets its wings; and Roy probably burned up English muffins in his toaster oven, thus setting off afire alarm which rings instead of blares (imho).
If Roy has eaten an entire package of muffins, his tummy's gonna hurt tonight. On the other hand, at least six angels have gotten their wings via Roy's hunger. WTG, Roy!
When the toaster oven finishes its cycle, a bell rings.
The ringing bell signaling that an angel got its wings is from IT'S A WONDERFUL LIFE. Since Roy is toasting one muffin after another, and his oven dings…
The kid is just a typical Hollywood movie urchin. I wanted people of different ages and types, but I thought having an everyday kid would make it too sad. A stereotype like this removes it a step from reality.
He hasn't even started on the Corn Toast-R-Cakes.
I always figured him as a Toaster Strudel kind of guy.
Those are after the Corn Toast-R-Cakes.
They don't necessarily have to hear it in Heaven. How loud could the ornament on George Bailey's tree have been? Yet we're made to believe that Clarence got his wings. Or maybe the angels have sharp hearing.
The bell is just the 'ding' on the toaster oven. Roy has not set the house on fire. Seems unlikely he would keep putting in more muffins if he had. Although, with his appetite…
I'm right there with ya Roy. I got a new toaster oven and I am putting it to the test.
- Load the rest of the comments (5).
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La Crosse, WI


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August 3, 2012
C.W., A MINOR CHILD BY AND THROUGH HER MOTHER, PLAINTIFFS,v.CAPISTRANO UNIFIED SCHOOL DISTRICT, DEFENDANT.
Before the Court is a document titled "Motion for Summary Judgment," which is an appeal of a decision by the Office of Administrative Hearings in an action under the Individuals with Disabilities Education Act ("IDEA").*fn1 (Dkt. 19). After reviewing the moving papers and oral argument, the court AFFIRMS the decision by the Office of Administrative Hearings.
This appeal is brought on behalf of student C.W. ("Student") by her mother K.S. ("Mother") against Capistrano Unified School District ("District"). As discussed in this opinion, infra, the Court finds that the ALJ's decision is thorough and careful and thus adopts the ALJ's findings of fact in their entirety. The Court summarizes those findings here very briefly to provide context for this appeal.
a.June 14, 2010, through October 28, 2010: beginning of triennial assessment, creation of Prior Report, and IEP Team meeting regarding Prior Report No one disputes that Student has "long been eligible for special education" based on her disability, which is classified as "Other Health Impairment." ALJ Decision, Bates no. 165, 175. Precisely because Student is eligible for special education, District conducted a "triennial assessment" of Student. Id. at 165.
Part of this assessment began on June 14, 2010, and continued through October 21, 2010. Id. This part of the triennial assessment was recorded in an October 22, 2010, report ("Prior Report"). Id. This Prior Report was discussed at an Individualized Education Program ("IEP")*fn2
Team meeting on October 28, 2010. Id. at 165; Bates no. 190-237.
Student's appeal does not challenge the sufficiency of this Prior Report.
b.September 22, 2010, through January 5, 2011: triennial assessment continued and creation of Disputed Report
On September 22, 2010, District requested Mother's consent to conduct an additional part of the triennial assessment to determine Student's visual and motor skills. Id. at 165. This part of the triennial assessment was conducted from December 3, 2010, through January 5, 2011 and was recorded in another report ("Disputed Report"). See Disputed Report, Bates no. 242.
The "purpose" of this Disputed Report was to "evaluate [Student's] present levels and to assist the IEP team in developing an IEP." See ALJ Decision, Bates no. 175. The purpose of the Disputed Report was not to "determine [Student's] eligibility" for special education services. Id.
The Disputed Report does not contain the phrase "[Student] may need special education and related services." The Disputed Report instead states on its first page that a prior "IEP lists [Student's] educational diagnosis as OHI -- Other Health Impairment." See Disputed Report, Bates no. 242. The Disputed Report also identifies five "Unique Needs" of Student and fourteen "accommodations . . . to assist [Student] in the classroom." Id. at 250. The Disputed Report concluded with the assessor's statement that "[i]t was a privilege to evaluate [Student]." Id. at 251.
c.January 12, 2011: Mother tells District that the Disputed Report is stupid
At the January 12, 2011, meeting to discuss the Disputed Report, Mother informed the IEP Team that the Disputed Report was "stupid." ALJ Decision, Bates no. 172-73, ¶ 39-40. Mother did not provide additional insight into the basis for her belief that the Disputed Report was stupid. Transcript, Bates no. 498-99.
d.January 25, 2011: Mother and representative "disagree" with the Disputed Report
On January 25, 2011, Mother's representative sent a letter stating that, "[o]n behalf of [Mother], we hereby disagree with the" Disputed Report. See January 25, 2011, Letter, Bates no. 319-320. The letter does not provide additional insight into the basis for the disagreement.
The letter "request[ed] an independent educational evaluation for occupational therapy" for Student. Id.
e.March 7, 2011: District requests due process hearing to defend Disputed Report
After reevaluating the Disputed Report, District concluded that it was sufficient and thus requested a due process hearing to avoid the additional expense of an independent educational evaluation. The District filed its complaint on Mach 7, 2011, which is 41 days after it had received Mother's letter. See ALJ Decision, Bates no. 173.
f.August 2, 2011: Mother appeals ruling from due process hearing
Mother commenced the present action on August 2, 2011, on behalf of Student. See Compl. (Dkt. 1). The action demands that District: (1) provide three years of occupational therapy to Student; (2) provide three years of occupational therapy consultation; (3) fund an independent educational evaluation of Student for occupational therapy; and (4) fund Student's attorney's fees and costs. Id.
II.Legal Standard
a.Standard of Review where the ALJ's decision is thorough and careful
Where, as here, a party challenges the outcome of a due process hearing under the Individuals with Disabilities Education Act ("IDEA"), the reviewing court receives the administrative record, hears any additional evidence, and, "basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(B); 3 Americans with Disab.: Pract. & Compliance Manual § 11:267.
The standard of review of an administrative decision is a modified de novo standard, based primarily on a review of the stipulated administrative record. Seattle Sch. Dist. No. 1 v. B.S., 82 F.3d 1493, 1499 (9th Cir. 1996); Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1471-1473 (9th Cir. 1993). Complete de novo review is inappropriate. J.G. v. Douglas County Sch. Dist., 552 F.3d 786, 793 (9thCir. 2008); E.W. v. Rocklin Unified Sch. Dist., 2006 U.S. Dist. LEXIS 71151, *15(E.D. Cal. 2006) ("Because the deference potentially accorded the administrativeproceedings, complete de novo review is inappropriate.").
In reviewing the decision, the court must give "due weight" to the underlying administrative proceedings, which means that the court should not try the case anew. Henry Hudson Cent. Sch. Bd. of Educ. v. Rowley ("Rowley"), 458 U.S. 176, 206 (1982) (finding that courts should not "substitute their own notions of sound educational policy for those of the school authorities which they review"); Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 891-892 (9th Cir. 1995).
Where an administrative law judge's report is "careful and thorough," the reviewing court may exercise "discretion to give [the report] quite substantial deference." Capistrano, 59 F.3d at 892; Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994). A decision is thorough and careful when the hearing officer "participates in the questioning of witnesses and writes a decision 'contain[ing] a complete factual background as well as a discrete analysis supporting the ultimate conclusions.'" R.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 942 (9th Cir. 2007) (citing Park v. Anaheim Union High Sch. Dist., 464 F.3d 1025, 1031 (9th Cir. 2006). A carefully-articulated administrative-level opinion meets the "thorough and careful" standard. L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 908 (9th Cir. 2009). Exactly how much weight is "due" to an administrative law judge's findings is a matter of discretion of the courts. Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir. 1987); see also Capistrano, 59 3d. at 891.
b.The ALJ's decision here was thorough and careful
The Court concludes that the decision by the administrative law judge (ALJ) who presided over the due process hearing in this case should be reviewed with substantial deference because his findings are thorough and careful.
First, the ALJ's 14-page decision includes a thorough factual background summarizing the evidence presented at the due process hearing. The ALJ issued 41 detailed factual findings related to the issues presented at the due process hearing. Indeed, Student does not object to any factual errors in the ALJ's decision; Student's sole basis for appeal is two purported legal errors.
Second, the ALJ carefully considered the testimony of the three witnesses who testified and thoroughly researched the relevant law. The ALJ also accurately summarized the governing law. See e.g., ALJ Decision, Bates 173-75.
In sum, the Court concludes that the ALJ's decision contains no factual errors and was thorough and careful. Because the ALJ's decision is thorough and careful, the Court reviews the ALJ's decision with substantial deference. See Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994).
Student argues that the ALJ erred by holding that: (1) the Disputed Report's failure to use the words "[Student] may need special education and related services" was not a procedural violation; or (2) the District's filing of a request for a due process hearing was timely where it was done 41 days after receipt of Mother's letter stating she disagreed with Disputed Report.
a.The Disputed Report did not violate the IDEA
"[P]rocedural flaws in an IEP's formulation do not automatically violate the IDEA." Van Duyn ex rel. Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821 (9th Cir. 2007). Rather, a student establishes an IDEA violation if she shows both: (1) the school did not comply with the required procedures; and (2) the resulting "IEP is not 'reasonably calculated to enable the child to receive educational benefits.'" Id. (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester County v. Rowley, 458 U.S. 176, 206-07 (1982)). The Ninth Circuit has also described this second prong as requiring "a material failure to implement an IEP." Id. at 822.
Student contends that the Disputed Report contains a procedural violation because the Disputed Report did not state that Student "may need" special education services and did not state a "basis" for such a determination. Mot. at 4.*fn3 Conspicuously absent from Student's argument is any indication how this alleged procedural violation resulted in an IEP that was not reasonably calculated to enable her to receive educational benefits.
i.Student has not shown a procedural violation
The relevant procedural requirement-California Education Code Section 56327- requires the creation of a "written report, or reports, . . . of the results of each assessment" and provides eight types of information that the "report shall include," such as "[w]hether the pupil may need special education and related services" and the "basis for making the determination." Cal. Educ. Code § 56327(a-b).
The Disputed Report sufficiently stated that Student may need special education services based on a disability because the Disputed Report stated that Student actually was diagnosed by a prior IEP Team as having a disability rendering her eligible for special education services, namely, "Other Health Impairment."*fn4 See Disputed Report, Bates no. 242 (first page stating that a prior "IEP lists her educational diagnosis as OHI -- Other Health Impairment."). Obviously, the "basis for making the determination" that Student may need special education services is this prior diagnosis. See Cal. Educ. Code § 56327(a-b).
The purpose of the Section 56327(a) and (b) requirements is to ensure that the assessment report contains information from which the IEP Team can determine if the child has a disability that makes her eligible for special education. The Disputed Report more than adequately fulfills this purpose because it states that a prior IEP Team has already diagnosed Student as having a disability that makes her eligible for special education. This appeal is especially frivolous given that no one disputes that Student is eligible for special education services. District did not dispute Student's eligibility at the time the Disputed Report was written nor at any time throughout this lengthy litigation. See ALJ Decision, Bates no. 175 ("Student had long been eligible for special education.").
Student's argument appears to hinge on the lack of the exact words "[Student] may need special education and related services" in the Disputed Report. However, Student cites no authority finding a procedural violation of Section 56327 where these exact words are not used. The Court sees no reason to treat this specific statutory phrase as a mystical incantation that all school districts must utter to protect themselves from liability.
Accordingly, the Court concludes that the Disputed Report was not a procedural violation.
ii.Student has not shown that the resulting IEP was not reasonably calculated to enable the child to receive educational benefits
Alternatively, even if the Dispute Report's failure to repeat a statutory phrase was a procedural violation, Student has failed to show the second prong of a claim under the IDEA, namely, that the IEP was not reasonably calculated to enable the child to receive educational benefits. An ALJ "may find" this second prong is satisfied "only if" the alleged "procedural inadequacies" either: (1) "impeded the child's right to a free appropriate public education"; (2) "significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents' child"; or (3) "caused a deprivation of educational benefits." 20 U.S.C. § 1415(f)(3)(E)(ii).
Student does not even mention the law regarding this second prong of an IDEA claim based on procedural violations, nor make any argument. Instead, Student appears to believe that a procedural violation, without anything more, entitles her to three years of occupational therapy, three years of occupational therapy consultation, funding for an independent educational evaluation, and attorney's fees and costs.*fn5
Student's interpretation of the IDEA would impose on educators a labyrinthine set of procedures by which parents and their legal representatives can trap school districts into funding expensive private testing and therapy. Such a "rule would exalt form over substance," creating a financial windfall to parents and unfairly punishing schools that actually accomplish the goals of the IDEA by providing a free appropriate public education to children with disabilities. See Doyle v. Arlington Co. Sch. Bd., 806 F.Supp. 1253, 1260 (E.D.Va. 1992).
Indeed, District's efforts to accommodate Student in this case perfectly illustrate why the both the Supreme Court and Ninth Circuit hold that "procedural flaws in an IEP's formulation do not automatically violate the IDEA." See Van Duyn ex rel. Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821-22 (9th Cir. 2007) (interpreting the same statute at issue here, 20 U.S.C. § 1415(f)(3)(E)(ii)); Rowley, 458 U.S. 176, 207 (1982). As the ALJ observed, no one disputes that "Student had long been eligible for special education." See ALJ Decision, Bates no. 175. Indeed, the Disputed Report reflects the District's lengthy efforts to accommodate Student's disability. The Disputed Report is part of a "triennial assessment" of Student and its "purpose" was to "evaluate [Student's] present levels and to assist the IEP team in developing an IEP"; the Disputed Report was not intended to "determine [Student's] eligibility" for special education services because no one disputed Student's eligibility. Id. The Disputed Report reflects District's sincere commitment to assessing Student's needs for special education, shown by the identification of Student's five "Unique Needs" and fourteen "accommodations . . . to assist [Student] in the classroom." Disputed Report, Bates no. 250. The Disputed Report also reflects a profound respect for Student in particular and students with disabilities in general, shown by the assessor's conclusion that "[i]t was a privilege to evaluate [Student]." Id. at 251.
In sum, because Student has shown neither a procedural violation nor that the violation was material, the ALJ's decision is AFFIRMED as to this issue.
b.The 41 days between Student's vague notice of disagreement and District's request for a due process hearing is not unnecessary delay
Where, as here, Mother "requests an independent educational evaluation at public expense" and District requested a due process hearing to avoid this expense, District's request was required to be made "without unnecessary delay." 34 C.F.R. § 300.502(b)(2); see also Educ. Code, § 56329(c). While the statutes do not define "unnecessary delay," no California case at the administrative or appellate levels has held that 41 days or less constitutes an unnecessary delay. To the contrary, the briefest period of time actually determined to be an "unnecessary delay" in a California case at any level appears to be 74 days. See, e.g., Student v. Los Angeles Unified School Dist., 48 IDELR 293 (2007), OAR No. N2006120420, consolidated with Los Angeles Unified School Dist., OAH No. N2007050027.
Student argues that the ALJ erred in holding that District acted without unnecessary delay because "no binding precedent" exists regarding a 41-day delay and the ALJ relied on a case that was not absolutely factually-analogous, J.P. ex rel., E.P. v. Ripon Unified Sch. Dist., 207CV02084MCEDAD, 2009 WL 1034993 (E.D. Cal. Apr. 15, 2009). In that case, the court held that the district acted without unnecessary delay despite filing its due process complaint "more than two months" after a parent's request for an independent educational evaluation. J.P. ex rel., E.P. v. Ripon Unified Sch. Dist., 207CV02084MCEDAD, 2009 WL 1034993, *7-8 (E.D. Cal. Apr. 15, 2009). The court reasoned that the delay was not unnecessary because the district and parent continued to negotiate after the parent filed her request and the parties "did not come to a final impasse [until] less than three weeks before the [d]istrict's due process report was filed." Id. at *7.
Student's argument is, frankly, frivolous. First, Student cites absolutely no authority showing that 41 days is unnecessary delay, and this Court has found none. Second, Student cites no authority for the novel proposition that an ALJ errs as a matter of law by reaching a holding where no "binding precedent" yet exists. Such an absurd rule would turn the concept of precedent on its head. Precedent accumulates by courts ruling on issues that were never previously adjudicated; precedent could not exist if courts abstained from ruling on issues that had not been previously adjudicated.
Finally, the Court notes that, if there was any delay, it was necessitated by Mother's vague letter stating she "disagree[d]" with the Disputed Report but failing to identify any basis for the disagreement. See January 25, 2011, Letter, Bates no. 319-320 ("On behalf of [Mother], we hereby disagree with the occupational therapy report presented at the IEP team meeting on January 12, 2011."). As District notes, without any specific objection, District was required to reevaluate the entire Disputed Report. Such detailed review obviously takes time and money. Mother could have reduced this time and money by identifying her specific objections to the Disputed Report. Her failure to do so reflects poorly on her, not on District.
Accordingly, the ALJ's decision is AFFIRMED as to this issue.
c.Attorney's fees
Given that Student has failed on appeal, her request for attorney's fees is DENIED.
However, the Court is willing to entertain a future motion for attorney's fees from District.
The Court does not relish writing opinions denying appeals by disabled students. However, such opinions are necessary when the bases for appeal are frivolous. This is not a case where a school refused to provide special education services to a disabled student based on hyper-technicalities or vague statements in its assessment report of the student. Rather, this is a case where the school agreed that the student was eligible for special education services, agreed to conduct an additional assessment of the student, and then thoroughly reevaluated the report of that assessment when the parent informed the school that she thought the report was "stupid" and that she "disagree[d]" with it. See ALJ Decision Bates No. 172-73, ¶ 39-40.
America's public schools, unlike for-profit and religious schools, are institutions devoted to the noble principle that children with disabilities should receive a "free appropriate public education."*fn6 But while such education is "free" in the sense that disabled children do not pay for it directly, the money must come from somewhere, namely, school districts' budgets. Because school districts' budgets are not infinite, the IDEA's appeals process and remedies are designed to ensure that children with disabilities are accommodated, not to drain public schools of the funding necessary for such accommodation. The frivolous arguments advanced by Mother in this case have forced District to incur expenses in this litigation that could have funded the special education of students with disabilities, including Mother's own child. If District wishes to recover these expenses so as to provide services to Student and other children like her, District is free to file a motion to do so.
IV. Disposition
For the foregoing reasons, the Court AFFIRMS the ALJ's decision. If District, as prevailing party, wishes to move for reimbursement for reasonable attorney's fees, it should file:
(1) a Proposed Final Judgment by August 9, 2012; and
(2) a Motion for Reasonable Attorneys fees by August 13, 2012, with a hearing date of September 10, 2012, prominently displayed on the first page.
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And We Are Changed: Encounters with a Transforming God
"If I've encountered God, why do I still feel the same?"
Most of us have had encounters with God time and again, but we often fail to recognize them or allow ourselves to be changed by them. When God meets you, His presence, power, and love should transform your life—forever.
Using the compelling biblical accounts of the children of Israel, Ruth, Mary, Martha, and Lazarus, a ...more
Most of us have had encounters with God time and again, but we often fail to recognize them or allow ourselves to be changed by them. When God meets you, His presence, power, and love should transform your life—forever.
Using the compelling biblical accounts of the children of Israel, Ruth, Mary, Martha, and Lazarus, a ...more
Paperback, 240 pages
Published July 1st 2003 by Moody Publishers
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Mar 16, 2014 Audrey rated it really liked it
No fancy words, no complicated concepts – just simple, dynamic, powerful truth from God's Word. My appreciation for this wonderful book far surpassed my initial expectation, and I'm deeply grateful to Priscilla Shirer for this beautiful book, for just this time in my life when God knew what I would need most to remember and meditate on from his marvellous Word. I so appreciate and am greatly impressed with the specific examples Priscilla uses from her own life, as well as the appropriate stories ...more
Oct 12, 2008 Samuel rated it really liked it
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Change. Who doesn't ? Everyone who wants Jesus more and more in their lives want to change to become true bearers of his image. But are we ? Are we all thoughts and talk but no action ? We can go on reading and agreeing but when the crunch times appear, are we willing to go through them to indeed be changed ? There's a difference between knowing there is a need to change and truly surrending control to God to allow for the change. Can we say "And we are changed" with confident if someone ask us ...more
Jun 11, 2013 Regina rated it it was ok
Recommends it for: Young women
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There should be two rows of stars. One for how good a book may be and one for how well it appealed to me. Or not. My mom gave me this book for Christmas. She was no doubt drawn to it because its author is the daughter of Tony Evans, a preacher and author that my mom appreciates. This book, however, did not speak to me. I think, perhaps, it might speak to younger women.
Jul 24, 2009 Kelley rated it really liked it
This book talked about some very relevant topics for me. I found it to be motivating and encouraging as well. I will probably keep it close at hand for a while to read certain chapters again.
May 12, 2013 Sheryl rated it really liked it
Uplifting and filled with relevant stories and situations. Easy to read and the takeaways are great!
Aug 27, 2015 Lynette Myers rated it it was amazing
This is a fantastic, Encouraging and convicting book. I am changed.
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Queried last week about the thinnest positions in this year's draft, a veteran and highly respected personnel executive identified fullback, center, safety and tight end as "definitely among" the most shallow talent pools.
So while it was somewhat surprising to see center Peter Konz of Wisconsin and Stanford tight end Coby Fleener still on the board at the end of Round 1 – two prospects ranked by most as the premier players at their respective positions – it wasn't altogether shocking. Fullback, of course, has gone the way of the dodo or the single wing in the NFL, and one might not be tabbed until Saturday.
But the rather average evaluation of the 2012 safety prospects didn't keep two players from the interior secondary, Mark Barron of Alabama (Tampa Bay, No. 7 overall) and Notre Dame's Harrison Smith (Minnesota, 29th), from being picked in the first round. In fact, there was just one more first-round cornerback, three, than there were safeties on Thursday night.
Not to diminish the talents of Barron and Smith, clearly the top two safeties on just about every team's draft board, but their selections probably had as much to do with the enhanced profile of the position as with their individual skills.
"It's definitely a hot position, with people throwing the ball so much," Smith allowed, after the Vikes traded up for a second choice late in the round to grab him.
Minnesota was a mess last season at safety, using five different starters and five staring combinations, during the season. In terms of performance at safety, more so than stability (or lack thereof), Tampa Bay wasn't far behind. And so the choices made pretty good sense.
The only catch: Both Smith and Barron are more "in the box," old-fashioned safeties, the kind that has slipped some in vogue around the NFL the past few years, as clubs concentrate on safeties with some cornerback coverage skills. Watch Barron on tape and he struggles a bit in coverage, despite terrific football smarts and awareness for the game. Smith was actually a linebacker for the Fighting Irish early in his career.
Granted, Barron finished with a dozen interceptions during a celebrated college career, but seven came in one season, and he notched just five over the past two years. All seven of Smith's career interceptions were in one season, 2010.
But even with the concentration on coverage, teams admire physical toughness, and Barron and Smith both bring that. Ditto for football acumen, a prerequisite for the safety position.
Said Barron late Thursday night: "You not only have to play well, but you have to know where everyone should be (lined up). It's a head game, too, right? I think teams take that into consideration and respect it."
Once little more than a first-round afterthought, the safety position is gaining a grudging, yet growing, respect. Sure, corners are always going to rate higher on the priority list, and rightly so. But Barron is the sixth safety chosen in the top 10 in the past 10 drafts, the third in the last six. There have now been four top seven safeties in seven seasons.
Twice in the past three drafts, three times in the last six, there were two or more safeties tabbed in the first round.
There is generally a run on safeties in the second and third rounds, in part because they are safer choices in those spots, and because they play so much on special teams, and that may be the case on Friday night. But the position, despite the contention that it is a modest talent pool this year, is slowly gaining respect.
Safety gaining respect in draft
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Football Preview: Stuart Hall set for a breakout second season
By Jeremy Balan
In many ways, Stuart Hall High School's first football season was more about getting its feet wet than wins and losses, but year two is another story.
The Knights not only have the desire to make an impact in 2011, but may also have the players to do so.
What's inspiring so much optimism from the Knights is a mix of solid senior leadership from players like Laboyd Ricard and Alex Asadorian, and an influx of new talent, including starting sophomore running back Ethan Hankins.
"This team has a lot of speed," said Stuart Hall head coach Richard Robinson, who will take over coaching duties from athletic director John Bertken in 2011. "We have strength too, but our speed is well-rounded. Even our big guys can move and we have plenty of weapons we can use."
Stuart Hall will move from the Coastal League to play an entirely independent 8-man schedule with a mix of Central Coast Section and North Coast Section teams that went a combined 31-25 last season.
Ricard, a speedy and dynamic all-around player, will again be a focal point as the Knights' quarterback. Unlike last season, however, the Knights hope to limit the pressure on Ricard, who often had to carry a heavy load.
"He's our quarterback, so we definitely want him to be the leader of the team, but we don't want him running every play," Robinson said. "He's going to have a sense of what he can and can't do, because this can't be a one-man show. If Laboyd has a great game and we lose, that's a waste in my book."
Hankins, a stocky but quick runner, will help ease Ricard's load, as will a group of young, athletic receivers.
"I'm going to spread it out a lot more. We have some really good receivers and a good running back. It's not going to be all on me," Ricard said. "We have more experience and we're way more prepared. We're looking really good coming into the season."
Ricard and Hankins will likely have the ball in their hands often on offense, but the undisputed leader on the other side of the ball will be Asadorian, who will lead the defense at linebacker.
"The main thing we're looking for out of Alex is to be that guy at linebacker, and really take control and be a leader out there in all aspects," Robinson said. "You can tell he's very motivated. He works hard. You never have to tell him to pick it up, but we have a lot of guys like that. That part of it is making it easier on me."
A three-sport standout, Asadorian is looking to start what could be an outstanding senior year with a successful football campaign.
If all goes as planned, the Knights will enter the final week of their season in a showcase, not only for the school, but for 8-man football.
For the first time in history, an 8-man game will be played at historic Kezar Stadium, featuring Stuart Hall and Anderson Valley of Boonville on Oct. 29.
"I did that obviously for us, to get us out on the stage and to get people to come out and watch, but I also wanted to promote eight-man football," Bertken said. "It'd be nice if some of these other schools could look at the eight-man game and said, 'Hey that's not a bad alternative.' I know they're thinking about it."
For the players and coaches, Kezar presents the largest of stages in the City and they hope to live up to it.
"It's a big stage and it's going to be our coming-out party," Robinson said. "A lot of eyes are going to be on us, so we definitely want to play well. When people look back on this season, that's the game they're going to remember."
2011 Schedule
Week 0: Fri. 9/2 – @ Woodside Priory (Portola Valley), 4 p.m.
Week 1: Fri. 9/9 – @ Pinewood (Los Altos Hills), 4 p.m.
Week 2: Sat. 9/17 – @ Alma Heights (Pacifica), 1 p.m.
Week 3: Fri. 9/23 – @ Potter Valley, 7 p.m.
Week 4: Sat. 10/1 – vs. Point Arena @ Treasure Island, 3 p.m.
Week 5: Sat. 10/8 – vs. Crystal Springs Uplands (Hillsborough) @ Treasure Island, 1 p.m.
Week 6: Bye
Week 7: Sat. 10/22 – vs. Mendocino @ Treasure Island, 1 p.m.
Week 8: Sat. 10/29 – vs. Anderson Valley (Boonville) @ Kezar Stadium, 7 p.m.
8 Comments
Just curious….Same rules as 11-man football? Three linemen, two recievers, two running backs, and a quarterback?
this is a joke, even if these guys were 11 man, any school in the city, WCAL or AAA, would destroy them
It's easy to beat up on a team in its SECOND year. Let them get their feet wet and establish themselves before making such negative comments! At least they are out there trying and that's what counts. It will be funny if they end up having a winning record, then what would you say?!
whats funny is theya re the only undefeated team in the city so mouths should be shut
That is not true.
Sacred Heart Cathedral's Football team is 2 – 0.
They beat Terra Nova and St. Mary's
Your mouth should shut first before throwing out inaccurate boasts. Only undefeated? Youre lucky Jeremy gives you the time of day to cover this mini-arena football team!
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April 8, 2009
PEDRO & SONS CONSTRUCTION AND PEDRO ORTIZ, PLAINTIFFS-RESPONDENTS,v.SANTOS URIBE AND LEONARDA URIBE, DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-5308-04.
Submitted March 17, 2009
Before Judges Winkelstein and Gilroy.
Defendants Santos Uribe and Leonarda Uribe*fn1 appeal from the July 3, 2008 order that denied their motion to vacate the December 19, 2005 judgment entered against them in the amount of $20,000. We reverse.
We briefly state the combined facts and procedural history as adduced from defendants' appendix. Defendants own a three-unit building at 137 Butler Street in the City of Paterson. In December 2002, the building caught fire and damaged the units. In February 2003, defendants contacted a local contractor, plaintiff Pedro Ortiz of plaintiff Pedro & Sons Construction, for an estimate to repair the building.
Ortiz estimated the cost of repairs at $48,500. Leonarda Uribe advised Ortiz to draft a contract and send it to Citi Mortgage (Citi), defendants' mortgagee, for approval. Citi was in possession of the fire insurance proceeds and consented to release those proceeds in increments, "depending on the percentage of the work that was completed." Ortiz agreed to draft a contract and present it to defendants and Citi for review.
By April 2003, no contract had been presented to defendants. However, without obtaining the necessary permits from the City, Ortiz placed a dumpster in front of defendants' property. Santos Uribe received a summons because of the illegally-parked dumpster. Defendants requested Ortiz to obtain the necessary permit so that they could have the summons dismissed. However, because of his failure to produce the permit and timely present defendants with a contract, defendants paid the summons and informed Ortiz that his services were no longer required. As such, plaintiffs never conducted any repairs on defendants' building.
Thereafter, defendants contacted another contractor to complete the necessary repairs and received an estimate of $120,000. A contract was presented to Citi for the work, and by May 2003, the new contractor commenced the repairs.
On December 21, 2004, plaintiffs filed a complaint in the Law Division against defendants, demanding $20,000 for goods and services rendered. On February 2, 2005, defendants filed an answer pro se. The parties were ordered to submit to non-binding arbitration on September 7, 2005. As a result of defendants' failure to appear at the arbitration proceeding, the court entered an order striking their answer pursuant to Rule 4:21A-4(f). Based on the proofs submitted at the arbitration hearing, the arbitrator entered an award that day against defendants in the amount of $20,000.
On November 1, 2005, the court entered an order dismissing the action because the parties failed to either confirm the arbitration award or demand a trial de novo within fifty days of its entry. R. 4:21A-6. After both parties received notice of the November 1, 2005 dismissal, plaintiffs filed a motion on November 30, 2005, seeking to vacate the dismissal and confirm the arbitration award. On December 19, 2005, the court granted plaintiffs' motion and entered judgment, confirming the arbitration award.*fn2
On May 8, 2008, plaintiffs sent defendants a copy of the December 19, 2005 order, together with an information subpoena. Although defendants had not received plaintiffs' mailing of May 8, 2008, they received notification of the judgment when served with plaintiffs' June 5, 2008 motion seeking to enforce litigant's rights for failure to answer the information subpoena.
On June 26, 2008, defendants filed a cross-motion to vacate the December 2005 judgment. Although they acknowledged that they were properly served with the complaint and the November 2005 order of dismissal, defendants denied receiving the arbitration notice, the order suppressing their answer for failure to appear at the arbitration proceeding, a copy of the arbitration award, and plaintiffs' motion to vacate dismissal and confirm the arbitration award.
On July 3, 2008, the court granted plaintiffs' motion to enforce litigant's rights, and denied defendants' motion to vacate the judgment. Although the court did not express its reasons for denying defendants' motion in an oral or written opinion, it did note on the order the following explanation of its disposition of the motion, pursuant to Rule 1:6-2(f):
Application is denied. Notice was given to defendants of motion to enforce arbitration award and to enter a judgment. This was done in 2005. No basis under R. 4:50-1 provided to allow this court to vacate default judgment.
On appeal, defendants argue that the trial court erroneously denied their motion seeking to vacate the order of judgment pursuant to Rule 4:50-1. We agree.
Generally, upon service of an order striking a defendant's answer for failure to appear for an arbitration proceeding pursuant to Rule 4:21A-4(f), the defaulting party may move for relief from the sanction only on a showing of "good cause [for the non-appearance] and on such terms as the court may deem appropriate, including litigation expenses and counsel fees incurred for services directly related to the non-appearance."
R. 4:21A-4(f). Here, defendants were never served with the order striking their answer for failure to appear at the arbitration proceeding or with the arbitration award, thus depriving them of the opportunity to seek vacation of the order and award prior to plaintiffs seeking confirmation of the award. Because the order of judgment was entered against defendants with their answer having been suppressed, we equate their motion as one to vacate a default judgment under Rule 4:50-1.
Rule 4:50-1 provides the circumstances under which a court may set aside an order of judgment, including: "(a) mistake, inadvertence, surprise, or excusable neglect; . . . or (f) any other reason justifying relief from the operation of the judgment or order."*fn3 In addition, a party seeking to set aside a default judgment must establish that he or she has a meritorious defense. Mancini v. EDS, 132 N.J. 330, 334 (1993); Goldhaber v. Kohlenberg, 395 N.J. Super. 380, 391 (App. Div. 2007).
Whether to vacate a default judgment pursuant to this rule "is left to the sound discretion of the trial court and will not be overturned on appeal absent a mistaken exercise of that discretion." Nowosleska v. Steele, 400 N.J. Super. 297, 302 (App. Div. 2008). However, discretion "means legal discretion, in the exercise of which the judge must take account of the law applicable to the particular circumstances of the case and be governed accordingly." State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966). Thus, "[i]f the trial judge misconceives the applicable law or misapplies it[,] . . . the exercise of legal discretion lacks a foundation and becomes an arbitrary act." Ibid. In those circumstances, we need not defer to the trial court's discretionary ruling. Alves v. Rosenberg, 400 N.J. Super. 553, 563 (App. Div. 2008).
A motion to vacate a default judgment pursuant to Rule 4:50-1 is "viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964); see also Nowosleska, supra, 400 N.J. Super. at 303. "A court's liberality in vacating default judgments is justified, since a default judgment is based only on one side's presentation of the evidence without due consideration to any countervailing evidence or point of view, and, thus, may not be a fair resolution of the dispute." Nowosleska, supra, 400 N.J. Super. at 303. Accordingly, all doubts are "resolved in favor of the parties seeking relief." Mancini, supra, 132 N.J. at 334.
We are satisfied that defendants not only established excusable neglect under Rule 4:50-1(a), but also exceptional circumstances under subsection (f) of the rule warranting relief from the judgment. It is undisputed that defendants never received the notice to arbitrate, a copy of the order of September 7, 2005 striking their answer for failure to appear at the arbitration proceeding, a copy of the arbitration award, or plaintiffs' motion of November 30, 2005, seeking to vacate the November 1, 2005 dismissal and to confirm the arbitration award. In addition, defendants were not served with a copy of the December 19, 2005 order entering judgment against them until two and one-half years later, when they were served with plaintiffs' June 5, 2008 motion seeking to enforce litigant's rights.
Additionally, defendants have raised a meritorious defense to plaintiffs' complaint. Defendants deny that plaintiffs performed any work on their building. In fact, the record indicates that another contractor made the repairs. We are satisfied that the trial court mistakenly exercised its discretion by failing to view defendants' motion with "with great liberality." Marder, supra, 84 N.J. Super. at 319. Accordingly, we reverse the order of July 3, 2008, and remand to the trial court for further proceedings consistent with this opinion.
Reversed and remanded.
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Hard Hitta.
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By The Way.
400 Live!
Party All The Time.
California Love.
My Dog.
True. This son doesn't really tell the story of the album cuts. He's definitely more talented than Bryson Tiller.
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Nah fam. The album is actually really good. This song isn't really representative but it's catchy so I know why they put it out.
Didnt i smash you calling you troll patrol when you tried trolling me? Dam how many times i told you to get off my dick......
Cats on here dont break down the music like that. These comment sections are romper room.........
song is better than the video.


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Things may be pretty tough for songstress Katherine Jenkins, what with her record label allegedly giving her the boot after a string of diva-like demands, but you wouldn't have known it from the grin on her face as she arrived at the Oxford Union on Thursday.
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The only thing that didn't match her conservative look was her face of heavy makeup. Well, nothing says "I'm ready for an intellectual debate" like loads of black eyeliner. *Rolls eyes*.
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