1 Tuesday, April 30, 2013 Vol. XXXVI No. 18 pennsylvania Lawweekly Energy and Natural Resources Two Recent Suits Display Scope of Gas Lease Litigation By zack needles Of the Law Weekly Two complaints recently filed in the U.S. District Court for the Western District of Pennsylvania serve as examples of the wide scope of gas lease-related litigation coming out of the state s natural gas plays. In one case, a landowner filed a class action suit against two subsidiaries of Royal Dutch Shell, alleging one of the companies forestalled competitors by holding itself out as the landowner s oil and gas lessee, only to ultimately cancel the lease and renege on an agreement to pay the landowner a nearly $140,000 signing bonus once gas prices dropped. In the other, Texas-based driller Endeavor Energy Resources filed suit against Pittsburgh law firm Gatto & Reitz, alleging the firm has failed to account for or return about $2.7 million Endeavor had placed in the firm s escrow account to be used as a potential bonus payment to landowners in lease negotiations that eventually fell through. The driller further alleged that the firm has also failed to account for or return an additional $200,000 that was to have been deducted from proceeds the driller received in an Ohio land deal and earmarked for bonus payments in a separate Pennsylvania deal. Steve Saunders, a Scranton-based oil and gas lawyer who was not involved in either case, said the amount of lease litigation between landowners and drillers has decreased recently compared to four or five years ago. Saunders said this is at least in part because of the fact that operators have largely staked out their positions in Pennsylvania and the majority of the leases being negotiated now are renewals of existing leases. As for litigation between drillers and their attorneys, Saunders said those types of cases are rare, particularly with regard to the larger operators, which tend to pay their counsel on an hourly basis. Saunders said this type of litigation could, however, pick up if deals in which firms have agreed to work with smaller operators on a contingency-fee basis begin to sour and fee disputes arise. Scan the above QR code with your smartphone to read more stories from our Big Play collection. Signing-Bonus Suit In Walney v. SWEPI, plaintiff Thomas J. Walney filed suit against defendants SWEPI LP and its general partner, Shell Energy Holding Group, in the Venango County Court of Common Pleas on March 5, but the defendants removed the case to the Western District on April 12. On April 15, Walney filed a motion to have the case remanded back to the Venango County trial court, arguing that the defendants motion to remove the case to federal court had been filed more than 30 days after they were served the complaint on March 11 and was therefore invalid. The defendants stated in their notice of removal that they were served with the complaint March 14. Walney s attorney, Joseph E. Altomare of Titusville, Pa., told the Law Weekly See Gas Lease on Page 11 Judiciary Should Task Force Change Power of Attorney Process? BY Ben present Of the Law Weekly For many attorneys who practice estate planning and elder law, the process of assigning a person power of attorney when his or her elder relative has become incapable of making decisions is the cheapest and most practical course of conduct. Unfortunately, the lawyers acknowledged, it's also the one most prone to abuse. According to Raymond J. Falzone Jr., a Delaware County attorney who regularly practices in elder law planning, the only time a person who is granted power of attorney provides an accounting of his or her actions under Pennsylvania rules is if another party intervenes. And, at that point, Falzone said the "horses are already out of the barn." With that in mind, several lawyers agreed that power of attorney should be a key focus of the Pennsylvania Supreme Court's recently formed elder law task force chaired by Justice Debra Todd which comes as the American population, and particularly that of Pennsylvania, is aging at an increasing pace. While attorneys diverged on the point of whether there should be more accountability placed on those with powers of attorney, all were in agreement that educating Pennsylvania's aging population about the process was a good thing. The task force, made up of 38 judges, lawyers and social workers, has been charged with recommending solutions that include court rules, legislation, educational imperatives and other practices, according to a press release earlier this month from the Administrative Office of Pennsylvania Courts. The task force has three subcommittees one examining the qualifications of guardians and attorneys working with the elderly; a second devoted to looking at the monitoring and data collection for guardianship; and a third on elder abuse and power of attorney. According to the release, there are 2 million Pennsylvanians over the age of 65, representing more than 15 percent of the state's population and making Pennsylvania the fourth-oldest state in the country by that standard. Baby boomers, who make up 76 million of the country's population, will surely provide a surge to that population on a state level. "As a society, we have increased concentration on child abuse, but the issue of elder abuse has not kept pace," Todd said in the release. "This task force is the judiciary's attempt to study the issues under its purview and make adjustments now, before the numbers of older Pennsylvanians and the commensurate jump in abuse occurs." According to the release, research funded by the National Institute of Justice found that about 11 percent of people over 60 suffered from some sort See Task Force on Page 11 Inside PLW People in the News... 2 Ethics Forum... 4 Workers Compensation... 5 Verdicts & Settlements... 7 Government Capitol Report... 9 Family Law Lawyer to Lawyer Plus 34 Digests starting on page 15
2 2 Pennsylvania Law Weekly tuesday, April 30, 2013 Cite This Page as 36 PLW 412 CONTENTS PEOPLE IN THE NEWS 4 Ethics Forum Talking to jurors after a trial can be informative if done appropriately, Samuel C. Stretton writes. 5 Workers' Compensation The burden for employers to seek and obtain a suspension of a claimant s workers compensation benefits based upon voluntary withdrawal from the workforce just became complicated, writes Deborah A. Beck. 8 Government While the topic of alcohol privatization has received renewed political traction with Governor Tom Corbett's announcement that he would fulfill a campaign promise to move the state out of the wine and liquor business, HB 790 represents the first detailed account of what such a plan might entail, Alva C. Mather writes. 10 Family Law The use of parenting coordinators did not pass a cost-benefit analysis, writes Sean P. McCusker. Honored David B. White, founding member of Burns White, was one of two individuals named as this year s Distinguished Alumni by Duquesne University School of Law. White White was scheduled to receive the award April 19 at the 61st annual Law Alumni Reunion Dinner. White, who was nominated by his peers, was selected by the university for his distinguished achievements in the legal profession. Edward G. Lanza, an associate at Eckert Seamans Cherin & Mellott, received an Alumni Diversity Award for Leadership in the Legal Profession from the Student Bar Association s diversity committee of Pennsylvania State University Dickinson School of Law. Lanza is the first-ever recipient of the alumni award, presented at the inaugural Diversity Banquet and Awards Ceremony on April 6. Lanza is resident in the firm s Harrisburg office and a member of the firm s diversity committee. Speakers state regulatory compliance and thirdparty reimbursement. Hennessey focuses his practice on health care matters including tax, regulatory, corporate and transactional issues. Additions Felicity Sara Hanks joined Hill Wallack as an associate in the employment and labor practice group. Hanks will concentrate on employment, labor, municipal and school Hanks law, and related litigation. She will work from the firm s Yardley, Pa., office. Hanks represents private and public entities as well as financial institutions, businesses, and individuals in all aspects of labor and employment. Brian Gondek joined Frankel & Kershenbaum as of counsel to the firm. His work at Frankel & Kershenbaum includes assisting families and individuals with their estate planning and probate needs. Gondek will also assist the firm s clientele in any civil matters that may arise, such as contract disputes or real estate transactions. CAPITOL REPORT Corbett's Business Tax Cut Proposal Approved By House Committee Bill Limiting Obamacare Abortion Funding Approved by House PAGE 9 KEY DIGESTS FAMILY LAW...16 In this matter of first impression, this court held unequivocally that absent an exigent circumstance that prevents a petitioner s appearance, due process mandates that a trial court convene an ex parte hearing prior to entering a temporary PFA order, but found that the lack of an ex parte hearing here was not grounds for reversal of the final PFA order. Affirmed. Ferko-Fox v. Fox. CIVIL PROCEDURE...18 Although the court censured appellant attorney s behavior for multiple failures to appear, the court was constrained to reverse because the trial court did not have authority under Pa.R.Civ.P. 218 to impose monetary sanctions. Stewart v. Foxworth. Joseph W. Gramc and Patrick C. Manning of Goehring, Rutter & Boehm addressed the real property section of the Allegheny County Bar Association on tax sales. The presentation reviewed tax sales in Allegheny County, including sheriff s sales and the city of Pittsburgh s treasurer s sales. Gramc works extensively on behalf of municipalities in the collection of municipal claims, taxes and liens. Manning focuses his practice on municipal creditors rights and tax collection matters. Stevens & Lee attorneys Richard J. King and Daniel J. Hennessey presented at the fifth annual Healthcare Financial Management Association s Spring Institute in Philadelphia on April 10. King and Hennessey discussed new payment/reimbursement models, such as ACOs, bundled payment initiatives and value-based purchasing, which have evolved from the health care reform regulations. King concentrates his practice in health law with emphasis on federal and Announcements Robert A. Korn and Karin Corbett, members of the construction law group of Kaplin Stewart Meloff Reiter & Stein in Blue Bell, Pa., are contributing authors of the Pennsylvania Bar Institute s recently published Pennsylvania Construction Law: Project Delivery Methods, Execution, and Completion. They authored the chapter titled Tort Actions Arising on Construction Projects, which focuses on tort claims against the design professional and others involved in the construction process. The Legal won t be asking for official nominations until early June, but it s time to begin thinking about outstanding attorneys under the age of 40 in Pennsylvania to nominate for The Legal s Lawyers on the Fast Track. Keep them in mind, because when The Legal begins accepting nominations, your insight will play a key role in helping highlight the excellent work attorneys are doing across the state. All potential items for People in the News should be addressed to Alexa Woronowicz at The Legal Intelligencer.
3 Cite This Page as 36 PLW 413 tuesday, April 30, 2013 Pennsylvania Law Weekly 3 Insurance Law Third-Party Settlement Triggers UIM Statute of Limitations BY Ben Present Of the Law Weekly The statute of limitations for an underinsured motorist claim in Pennsylvania starts running when the policyholder settles with or gets a judgment against a third-party tortfeasor, the state Superior Court has ruled in an issue of first impression. In so holding, the three-judge panel declined to endorse the theory of plaintiffs Tammy and Joseph Hopkins that the four-year statute of limitations in a UIM claim started to run when Erie Insurance Co. denied their claim for benefits, as opposed to the date of settlement in the tort claim. The court also dismissed claims that Erie acted in bad faith and that, accordingly, the trial court should have exercised its equitable powers in advancing the UIM claims. To Order: The plaintiffs, husband and wife, sought to appoint arbitrators and compel arbitration under their policy, but did not file the requisite paperwork until nearly six years after they settled the underlying tort claim. In a 19-page opinion, the court affirmed a Montgomery County judge, who had dismissed the Hopkinses' petition and denied their Are You Keeping Up With the Times? claim. Rosenthal court further declined to hold The court's decision that the statute runs upon an insurer de- in Hopkins nying a claim. Get The v. Erie Legal Insurance Intelligencer s the instant case, Judge Cheryl Lynn hinged on two prior Allen, writing for the court, said: "Here, Court decisions Rules Forms the applying on Boyle and CD-ROM Rosenthal, we hold Superior Court's that the four-year statute of limitations 1983 decision in on underinsured motorist claims begins Boyle v. State Farm to run when the insured settles with, or Allen Court Rules Mutual Forms Automobile on CD-ROM secures is a an judgment invaluable, against, the underinsured you owner to access or operator. numerous Accordingly, Insurance time-saving and the U.S. Court tool of that Appeals allows for the Third Circuit's analysis in State [the Hopkinses'] underinsured motorist court forms civil, criminal, appellate, and more, Farm Mutual Automobile Insurance v. claims in this case are barred by the Rosenthal as in well as all Pennsylvania statute State of forms. limitations." These forms In Boyle, the court ruled that an Judge Paula Francisco Ott joined are in PDF format and writable Word format, and action to enforce a contract does not Allen. Judge Susan Peikes Gantman concurred surrounding the result. counties. accrue until cover a party's Philadelphia rights under and that nine contract Detailed have "vested," instructions which the court are included. The court also disagreed with the defined in the UM/UIM context as occurring after three events have occurred. First, the insured must be in a motor plaintiffs that the trial court erred by not using its equitable powers to grant their petition to compel arbitration, including vehicle accident; second, the insured not equitably tolling the statute of limitations ext. and 2453 declining to hold that Erie must be injured Call in , that accident; lastly, the insured knows the uninsured status acted in bad faith in invoking a statute of the other Visit driver. of limitations defense. In Rosenthal, the Third Circuit ruled Quoting a 1967 Pennsylvania Supreme that the four-year Scan statute the QR of limitations code to Court the decision, at right Walters v. Ditzler, Allen begins to run when the insured party settles his or her claim or gets an award against an underinsured driver, expanding a Boyle decision that had been constrained to uninsured drivers. The said there was no better evidence of the Hopkinses' own "'supine negligence, lassitude and lack of diligence'" than the 21 months between a March 9, 2009, letter Erie sent to them notifying them that the statute of limitations had expired and the Hopkinses' petition to compel arbitration, filed on December 2, In a third issue, the plaintiffs claimed Erie acted in bad faith when it gave them the impression it was evaluating materials in an effort to settle the UIM claim. Accordingly, the Hopkinses argued, Erie was estopped from asserting a statute of limitations defense. The court, siding with Erie, pointed out the three-and-a-half-year gap between Erie's initial request for records in June 2004 and the plaintiffs' eventual demand package with medical records in January 2008, which Allen noted Erie had asserted was incomplete. "Contrary to [the Hopkinses'] contention, Erie's invocation of the statute of limitations defense was not done in bad faith, but in response to [the plaintiffs'] lack of due diligence in pursuing their claim," Allen said. "The record is devoid of any action by Erie precluding [the Hopkinses] from petitioning for the appointment of arbitrators and for compelling arbitration prior to December 2010." "Despite [plaintiffs] counsel's acknowledgement to Erie on September 5, See UIM on Page 12 Are You Keeping Up With the Times? Get The Legal Intelligencer s Court Rules Forms on CD-ROM Court Rules Forms on CD-ROM is an invaluable, time-saving tool that allows you to access numerous court forms civil, criminal, appellate, and more, as well as all Pennsylvania State forms. These forms are in PDF format and writable Word format, and cover Philadelphia and nine surrounding counties. Detailed instructions are included. To Order: Call , ext Visit Scan the QR code to the at right
4 4 Pennsylvania Law Weekly tuesday, April 30, 2013 Cite This Page as 36 PLW 414 ethics forum questions and answers on professional responsibility Bad prosecutorial behavior should not be condoned. I do a lot of court-appointed criminal defense out of Philadelphia. At times, I see young assistant district attorneys make statements they should not make during closing and opening speeches. What is the responsibility of the District Attorney s Office in the Appellate Division when it is clear the young assistant has acted incorrectly? I normally see briefs attempting to defend these actions to the utmost when, in reality, the Appellate Division is reinforcing the bad conduct at the trial level. Is it ethical for the Appellate Division to do that? Anyone who does criminal defense, particularly court-appointed criminal defense, knows the frustration in Pennsylvania in dealing with the appellate courts and prosecutorial misconduct. No matter what a district attorney says or does, sometimes it seems as if the appellate court either ignores it or bends over backward to justify the conduct. Very few cases are reversed on prosecutorial misconduct, even though a review of arguments often shows statements of personal opinions, misstatements of evidence and inflammatory statements. But the question is not about the appellate courts. It is about the Appellate Divisions and District Attorney s Office. Clearly, all of the lawyers who have the privilege of serving as an assistant district attorney or assistant U.S. attorney have important responsibilities. These responsibilities are more enhanced for the prosecutor. Under the Rules of Professional Conduct, there is a specific rule about special responsibilities of prosecutors found at Rule 3.8. This rule prohibits an assistant district attorney from prosecuting a case he or she knows is not supported by probable cause. There is a requirement that the prosecutor not take advantage of an unrepresented defendant. It requires timely disclosure of all mitigating evidence and requires the prosecutor to not make statements to the press or public that could prejudice the case and also to ensure that the law enforcement personnel don t make similar statements. Comment 1 to Rule 3.8 clearly places the heavy burden of responsibility on a prosecutor: A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Any appellate division of a prosecutorial office should be very careful in its advocacy when trying to justify misconduct by an assistant district attorney during the trial. This issue has been discussed in great detail by the respected ethics professor Monroe Freedman in an article titled The Use of Unethical and Unconstitutional Practices and Policies by Prosecutors Offices, found in the Washington Law Journal, Volume 52, No. 1. Freedman begins the article by pointing out two serious ethical problems. The first is the adoption by chief prosecutors of policy or practices for the office that violate defendants constitutional rights and, second, he notes what he calls the rogue prosecutor, who purposefully adopts unethical and/or unconstitutional tactics, such as concealing exculpatory evidence. He noted when the prosecutor s office seeks to justify the unethical conduct of the rogue prosecutor, that conduct then becomes office policy and encourages similar misconduct. Freedman then notes some offices will have two approaches. The first approach is to disavow the prosecutor s conduct, but then to argue that the defendant is not entitled to any redress. Freedman also criticizes the disciplinary authorities in various states for not taking appropriate disciplinary action. He noted a study that showed there had been just 100 reported cases of professional discipline of federal and state prosecutors during the last century, which would be an average of one disciplinary case per year. Freedman notes the failure of the courts and disciplinary authorities to take remedial action and/or disciplinary action encourages this type of prosecutorial misconduct. Freedman discusses some cases. One case of particular interest is Texas v. Morton, where a man spent 25 years in prison for a murder he did not commit. Morton always said he was innocent. The new district attorney fought Morton s access to DNA for more than five years. When Morton was finally able to get the DNA tested, it demonstrated he was innocent and implicated another man. The person implicated had a long criminal record and lived nearby. It turned out that the District Attorney s Office in the state of Texas had strong evidence about this other man at the trial potentially being the culprit, but never Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa It is one thing for a prosecutor to act badly, but it is far worse when the prosecutor s office tries to justify that conduct or excuse it. By samuel c. stretton Special to the Law Weekly told Morton s lawyer about that, according to Freedman. The prosecutor who hid the evidence of the other person is now a sitting judge in the state of Texas. The new prosecutor, who fought long and hard to prevent the DNA from being given, said he opposed the DNA because the prior DA asked him to do so and they were friends. So far, nothing has been done to the prior district attorney who hid this evidence and misled the defendant s lawyer. Freedman mentions prosecutorial offices that have a win-at-all-costs attitude or policy. Freedman discusses other forms of prosecutorial misconduct that studies reveal. He discusses the use of cooperating witnesses, which is common among prosecuting offices. He notes that many of these people will say anything. He notes some prosecutorial offices refused to have a central index record of jailhouse informants. One prosecutorial office actually had a memo indicating the reason for lack of a central record was to prevent defense counsel from attacking the credibility of these jailhouse or confidential informants. Freedman points out that one of the dirty little secrets is that if you perjure yourself as a prosecution witness, no one is going to prosecute you. One of the examples Freedman notes is the case of Illinois v. Rivera, 777 NE 2nd 360 (Illinois Appellate Court, 2002). In that case, the defendant was convicted on the testimony of an informant and a supposed coerced confession. The victim was an 11-year-old girl. Subsequently, when the DNA showed that the sperm in the victim s vagina was not the defendant s, the prosecutor made an incredible argument that this 11-year-old girl had supposedly been sexually active and, therefore, the exclusion should not exonerate the defendant. Freedman notes other examples where prosecutors have turned on the victim in such an unethical way, and the difficulties with the prejudicial pretrial publicity by prosecutors. He concludes that part of the problem is the failure of both trial and appellate courts to recognize this misconduct and to take the appropriate action or reverse convictions. He also notes the failure of disciplinary authorities to hold the prosecutors accountable. As a number of authorities have concluded, the failure to hold prosecutors accountable has contributed to a culture in too many prosecutorial offices in which prosecutors act as if they are above constitutional and ethical restraints, Freedman writes. The article exposes a problem that is often ignored. This problem is known by any lawyer who practices criminal law regularly and argues in the appellate courts. There is time now for this conduct to change. Disciplinary authorities have to be more vigilant and should investigate reversals or misconduct by prosecutors and take action that will result in loss of license. Only by doing so will prosecutors know they are not above the law. These kinds of actions tarnish the many excellent prosecutors who work in offices and are true public servants, giving long hours of time at very low rates of pay. The appellate courts have to rethink their position. Pennsylvania has been very clear for years that personal opinion is not allowed and inflammatory statements are not allowed. Yelling or screaming at a defendant or pointing at them is not allowed. Sending a message is not allowed, etc. Despite that, the Superior Court s memorandum opinions are replete with examples of this kind of conduct regularly and repeatedly. Everything is justified as rhetorical flair or supposedly responding to the defense argument. Freedman s article is a wake-up call for many. It is one thing for a prosecutor to act badly, but it is far worse when the prosecutor s office tries to justify that conduct or excuse it and, further, when the appellate courts refuse to remedy the situation. Talking to jurors after a trial can be informative if done appropriately. I completed a jury trial recently and, after it was done, found my opponent, who lost a case, speaking to several jurors outside about how wrong their decision was and telling them things that were not introduced as part of the evidence. Clearly, the jurors were upset. Is that ethical conduct? That conduct is wrong and highly unethical. Such conduct is vindictive on the part of someone who is a sore loser. Cases are won in the courtroom based on law and evidence and obviously skills of persuasion. Jurors are the fact-finders and do the best they can with the evidence that is presented. For an advocate to then go outside and suggest to a jury that they made a mistake is a very serious act of misconduct, particularly if the advocate is referring to evidence or information that was not of record and not presented. By doing so, the advocate or lawyer has pretty much ruined the jurors experience. Jurors are people who give their See Ethics on Page 13
5 Cite This Page as 36 PLW 415 tuesday, April 30, 2013 Pennsylvania Law Weekly 5 Commentary Workers Compensation By Deborah A. Beck Special to the Law Weekly Robinson Provides Employers a New Standard to Prove Voluntary Retirement The burden for employers to seek and obtain a suspension of a claimant s workers compensation benefits based upon their voluntary withdrawal from the workforce just became complicated, because the Pennsylvania Supreme Court s decision in City of Pittsburgh and UPMC Benefit Management Services v. Workers Compensation Appeal Board (Robinson), A.3d, 18 WAP 2011 (Pa. March 25, 2013), placed its seal of approval on the totality of the circumstances test previously espoused by a plurality of the Commonwealth Court. An employer that seeks a suspension of benefits based upon a claimant s voluntary withdrawal from the workforce must establish job availability either through job referrals or a labor market survey, unless it can prove that the totality of the circumstances reveals that such return-to-work efforts would be futile. If the employer is able to demonstrate that a claimant has voluntarily withdrawn from the workforce, then the burden shifts to the claimant to show he or she either was seeking employment or a work-related injury forced him or her into retirement. If a claimant is unable to meet his or her burden, the employer does not need to prove job availability. Employers, unfortunately, will be unable to meet the totality of the circumstances test by the claimant s mere receipt of, or application for, a retirement pension, disability pension, Social Security disability benefits or old-age Social Security retirement benefits. A claimant s pension status combined with the lack of job hunting may also no longer be enough to demonstrate that a claimant voluntarily withdrew from the workforce. The fact a claimant has not looked for a job since his or her work injury may also be insufficient. The Supreme Court in Robinson chose not to establish a bright-line standard, opting instead to maintain the totality of the circumstances test, a heightened burden that an employer may have a difficult time meeting. The following limited issue was focused upon by the Supreme Court: Did the Commonwealth Court err by holding that, in a petition to suspend compensation benefits based upon an alleged voluntary withdrawal from the workforce, the employer bears the burden of showing by the totality of Deborah A. Beck is an associate with Margolis Edelstein in its workers compensation department. She has been representing employers and workers compensation insurance carriers for more than 16 years. the circumstances that the claimant has chosen not to return to the workforce? Dorothy Robinson sustained a workrelated injury in 1997 while working for the city of Pittsburgh as a police officer. After this work injury, the employer placed her in a light-duty office position. On October 15, 2001, the claimant sustained additional work-related injuries. After sustaining these injuries, the claimant did not return to the light-duty position and was still not able to return to her pre-injury position as a police officer. The employer did not offer the claimant any other modified duty position after October 15, At the end of 2004, the claimant applied for and received a disability pension because her work-related injury disabled her from performing her pre-injury position as a police officer. On October 30, 2007, the employer obtained a medical opinion that the claimant was able to return to modified-duty work. After forwarding the claimant a notice of ability to return to work, the employer filed a petition to suspend compensation benefits. The employer alleged the claimant was capable of working but voluntarily removed herself from the workforce, as she has not looked for or sought employment in the general labor market. The claimant filed an answer denying the averments contained in the suspension petition and claiming that she remained attached to the workforce and had registered for work with the Pennsylvania Job Center and she was not working because the employer had eliminated her light-duty position. The workers compensation judge (WCJ) concluded that the claimant had not voluntarily removed herself from the workforce and denied the employer s suspension petition. Following the Workers Compensation Appeal Board s (WCAB) affirmation, the employer appealed to the Commonwealth Court of Pennsylvania, which affirmed in an en banc plurality decision. The Commonwealth Court plurality adopted a totality of the circumstances standard and, in applying this standard, concluded that the employer Receipt of a pension is just one fact of many possible probative facts that must be considered in determining whether the claimant has voluntarily withdrawn from the workforce. did not provide sufficient evidence to show that the claimant had intended to retire. Thus, because the claimant failed to retire from the workforce, the plurality concluded that the employer was required to show the availability of suitable work within the claimant s restrictions to sustain its burden, which it did not do. The Supreme Court in Robinson first dispelled the myth that Southeastern Pennsylvania Transportation Authority v. WCAB (Henderson), 669 A.2d 911 (Pa. 1995), and Republic Steel v. WCAB (Petrisek), 640 A.2d 1266 (Pa. 1994), established a presumption that a claimant who separates from employment and receives a pension has voluntarily withdrawn from the workforce. In fact, the Robinson court stated, We do not believe it selfevident, or even logical to presume, from the simple fact that a claimant accepts a pension, a conclusion that the claimant has completely and voluntarily withdrawn from the workforce, or is prohibited from working in any capacity. The court in Robinson did note that the fact that a claimant elects to receive a pension, regardless of type, is not devoid of evidentiary weight, and may well be probative of a claimant s desire to leave the workforce; however, such fact only gives rise to a permissive inference that the claimant is retired. The court cautioned that receipt of a pension is just one fact of many possible probative facts that must be considered in determining whether the claimant has voluntarily withdrawn from the workforce. The Robinson court did point out two practical points that can be taken from Henderson: (1) an unequivocal statement from the claimant that he had no intention of seeking future employment was not required to show that claimant had removed himself from the workforce; and (2) an employer cannot have the prohibitive burden of proving that a claimant has no intention of continuing to work. Regarding the Commonwealth Court s totality of the circumstances test, the Supreme Court stated this was a conclusion consistent with its holding in Henderson and, as such, the Commonwealth Court in Robinson did not establish a new test. In fact, the Supreme Court stated that the totality of the circumstances test was simply another way of saying that the fact-finder must evaluate all of the relevant evidence in determining whether a worker has retired from the workforce. In answering the question posed by the court for review, it was determined that it necessarily follows that, when all of the evidence is in, the employer seeking to suspend benefits ultimately bears the burden of proving that the claimant has voluntarily removed him or herself from the workforce. Taking the entirety of the Supreme Court s decision into consideration, the burden of proof in a suspension of benefits based upon a voluntary withdrawal from the workforce by a claimant is as follows: (1) the claimant s acceptance of a pension entitles the employer only to a permissive inference that the claimant has retired, but such an inference is not, on its own, sufficient evidence to establish that the worker has retired; rather, the inference must be considered in the context of the totality of the circumstances; (2) if the employer produces sufficient evidence to support a finding that the claimant has voluntarily left the workforce, then the burden shifts to the claimant to show that there has been a compensable loss of earning power. If the employer does not present sufficient evidence to show that the claimant has retired, then the employer must proceed as in any other case involving a proposed modification or suspension of benefits and show job availability. According to the Supreme Court, its holding in Robinson will not impose a prohibitive burden on employers, nor does it subject employers to the unreasonable task of proving the claimant s state of mind; the employer retains the ability to present evidence to establish a claimant s retirement status, such as the claimant s receipt of a pension, the claimant s own statements relating to voluntary withdrawal from the workforce and the claimant s efforts or nonefforts to seek employment. As the voluntary retirement standard is largely dependent upon the views of the fact-finder, the WCJ, it may be useful for the parties to request a bifurcation in order for the WCJ to determine if the employer established a voluntary withdrawal from the workforce by the claimant. If so, then the burden would shift See Retirement on Page 13