This Week's Cases

Commonwealth v. Barnes, PICS Case No. 17-0030 (Pa. Dec. 28, 2016) Baer, J., Dougherty, J. (concurring) (14 pages).

Superior court erred in upholding appellant's sentence because appellant's challenge to his sentence was not waived and the commonwealth conceded that his sentence was unconstitutional under Alleyne v. U.S., 133 S. Ct. 2151. Vacated and remanded.

Commonwealth v. Arter, PICS Case No. 17-0029 (Pa. Dec. 28, 2016) Todd, J., Saylor ,C. J .(dissenting) (36 pages).

Superior court erred in denying appellant's motion to suppress evidence in his parole revocation hearing that had been suppressed in his criminal trial due to the lack of reasonable suspicion because under Art. I, ยง8 of the Pennsylvania Constitution, the exclusionary rule applied at appellant's revocation proceeding. Reversed.

Pocono Mtn. Sch. Dist. v. Pennsylvania Dept. of Educ., PICS Case No. 17-0037 (Pa. Dec. 28, 2016) Donohue, J.; Baer, J., (dissenting) (32 pages).

The Department of Education could only withhold funds equaling a charter school's PSERS contribution from the chartering school district if the charter school remained in operation at the time of withholding, since the Charter School Law further absolved the school district from any outstanding obligations of a closed charter school and delinquent PSERS contributions constituted an outstanding obligation or liability. Order of the commonwealth court reversed.

Schell v. Murphy, PICS Case No. 17-0039 (Pa. Super. Dec. 23, 2016) Strassburger, J. (7 pages).

A nonowner spouse who was party to a home improvement contract was not an indispensable party to a mechanics' lien action, because such an action was distinct from a breach of contract and was not intended to settle the contractual obligations of the parties. Order of the trial court reversed, case remanded.

Commonwealth v. Hecker, PICS Case No. 17-0027 (Pa. Super. Dec. 28, 2016) Stevens, P. J. (10 pages).

Trial court properly convicted inmate of spitting saliva on corrections officer where inmate filed his mouth with water and spat on officer because the testimonial and video evidence supplied sufficient circumstantial evidence to infer that a mixture of water and saliva landed on the officer. Affirmed.

Commonwealth v. Martinez, PICS Case No. 17-0028 (Pa. Super. Dec. 29, 2016) Stevens, P. J. (15 pages).

Trial court properly convicted appellant of terroristic threats because an express or specific threat was not necessary to sustain a conviction and while the trial court erred in not merging the terroristic threat conviction with the robbery conviction for purposes of sentencing, the reversal did not upset the sentencing scheme of concurrent sentences. Conviction affirmed, sentence affirmed in part and reversed in part.

Commonwealth v. Kpou, PICS Case No. 17-0044 (Pa. Super. Dec. 29, 2016) Stevens, J. (8 pages).

Mere assertion of innocence was insufficient to establish manifest injustice to warrant grant of a post-sentence motion to withdraw a guilty plea. Judgment of sentence affirmed.

Commonwealth v. Watley, PICS Case No. 17-0031 (Pa. Super. Dec. 29, 2016) Moulton, J. (27 pages).

Admission of a witness' sworn police statement and guilty plea colloquy were admissible as prior inconsistent statements where the witness' assertions of inability to recall events of the offense were followed by direct contradictions of sworn statements. Order of the PCRA court affirmed.

D.R.M. v. N.K.M., PICS Case No. 17-0032 (Pa. Super. Dec. 23, 2016) Dubow, J. (10 pages).

Mother D.R.M. appealed the denial of her application for leave to proceed in forma pauperis in the child custody dispute between her and father N.K.M over the parties' two children. In February 2016, the trial court found mother in contempt of the existing custody order, and ordered, among other things, that the parties' children attend counseling sessions. Mother, in contemplation of this appeal, filed her IFP petition, which was denied by the trial court after a hearing.

Neyman v. Buckley, PICS Case No. 17-0035 (Pa. Super. Dec. 28, 2016) Fitzgerald, J. (21 pages).

Family court erred in dismissing appellant's complaint for dissolution of her Vermont civil union because a Vermont civil union had to be considered the legal equivalent of a marriage for the purposes of dissolution under the Pennsylvania divorce code. Reversed.

Nicolaou v. Martin, PICS Case No. 17-0036 (Pa. Super. Dec. 22, 2016) Shogan, J. (26 pages).

The discovery rule did not sufficiently toll the statute of limitations for a medical malpractice claim based on alleged misdiagnosis where plaintiff subjectively believed she had been misdiagnosed and had certain objective evidence to support that belief. Summary judgment affirmed.

Rohe v. Vinson, PICS Case No. 17-0038 (Pa. Super. Dec. 28, 2016) Gantman, P. J. (26 pages).

Trial court erred in denying motorcyclist's motion in limine to preclude evidence of his alcohol consumption in his suit arising from a traffic accident because the evidence did not establish a degree of intoxication reasonably demonstrating motorcyclist's unfitness to drive and the admission of the testimony was not harmless error. Reversed and remanded.

Stapas v. Giant Eagle, Inc., PICS Case No. 17-0040 (Pa. Super. Dec. 23, 2016) Stabile, J. (34 pages).

Defendant was entitled to a motion for a new trial where the jury's verdict, which included $1.3 million in lost wages, was not supported by competent record evidence where plaintiff did not seek future lost wages. Judgment vacated, case remanded for retrial on the issue of damages.

Tioga County Dep't of Human Serv. v. Dep't of Human Serv., PICS Case No. 17-0041 (Pa. Commw. Dec. 28, 2016) Cohn Jubelirer, J. (12 pages).

The department of human services' order of remand directing the bureau to hold a hearing on the issue of expunging an indicated report naming an individual as the perpetrator of child abuse was not clear as to what issues the hearing was to address. Vacated and remanded.

Lincoln Inv'r, L.P. v. King, PICS Case No. 17-0034 (Pa. Commw. Dec. 22, 2016) Leavitt, J. (16 pages).

A county's adoption of a watershed storm water management plan was not a prerequisite for civil liability for flooding incidents under the Storm Water Management Act. Summary judgment affirmed.

Rufo v. Bd. of License and Inspection Review, PICS Case No. 17-0043 (Pa. Commw. Dec. 22, 2016) Friedman, J. (9 pages).

A windows/doors ordinance was unconstitutional because the ordinance had a purely aesthetic purpose rather its stated goal of reducing blight where municipality could not demonstrate how boarding up door and window openings contributed to blight and where ordinance permitted boarding up so long as it was conducted behind installed doors and windows. Order of the trial court affirmed.

Morris v. Treasury Dep't, PICS Case No. 17-0042 (Pa. Commw. Dec. 28, 2016) Colins, S.J. (7 pages).

Bureau of unclaimed property correctly denied claimant's claim to a savings account in the name of his mother and half-sister because the account became the property of the half-sister on the mother's death and of the half-sister's father on her death. Affirmed.

Zona v. PennDOT, PICS Case No. 17-0023 (C.P. Lawrence Sept. 15, 2016) Cox, J. (7 pages).

Administrative error on the part of both a county clerk and PennDOT led to a retroactive notice of suspension of driver's license years after the privileges were actually restored. The driver appealed to the Court of Common Pleas. The court found the delayed suspension improper and ordered rescission of the one-year license suspension.

Commonwealth v. Johnson, PICS Case No. 17-0018 (C.P. Lawrence Sept. 26, 2016) Cox, J. (13 pages).

Criminal defendant sought PCRA relief from his conviction on the basis of ineffective counsel. The court evaluated each of the appeal claims against the circumstances of the trial and content of the appeal, finding that defendant failed to allege sufficient information to support his claims for ineffectiveness. The court denied defendant's petition for post-conviction relief.

Dyer v. Meacham, PICS Case No. 16-1568 (C.P. Lycoming Dec. 2, 2016) Minora, S.J. (18 pages).

Dissatisfied parties to a family law/child custody case sought to sue the court-appointed psychological examiner for malpractice. In addition to plaintiffs' failure to provide a certificate of merit for their case, the court found other issues of immunity deriving from that original court appointment that hindered its ability to provide relief. For that reason, plaintiffs' motion was denied and the case dismissed as final order.

McCready v. Pa. Turnpike Comm., PICS Case No. 17-0019 (C.P. Lawrence Sept. 20, 2016) Motto, P.J. (26 pages).

Over 20 years after the original deed in fee simple in lieu of condemnation for property used for road construction, a grantor sought to limit the extent of the property thus conveyed, arguing that grantors had intended to convey only surface rights, not also the mineral rights below surface. Both parties sought summary judgment. The court's review of the circumstances, language of the contract, and case law led it to decide in favor of defendant, whose motion was granted. Plaintiff's was denied.

Lorenzen v. W. Cornwall Twp. ZHB, PICS Case No. 17-0020 (C.P. Lebanon Nov. 21, 2016) Tylwalk, P.J. (10 pages).

Citizens appealed the retroactive permit approval for structures for a repurposed pipeline and raised questions about the unquestioned exemption from the zoning ordinance requirements, based on assumptions about Sunoco's status as a public utility. The court agreed with the citizens and remanded the matter to the Zoning Hearing Board.

Wilson v. UPMC, PICS Case No. 17-0022 (C.P. Philadelphia Oct. 31, 2016) Patrick, J. (44 pages).

Defendants in a medical malpractice matter appealed from the court's decision to grant plaintiff a new trial on grounds they had not willfully disregarded court rulings and instructions in their presentation of material, and arguing that the injured party had not presented sufficient evidence to support her claim. The court provided copious examples of how defense counsel proceeded despite instructions to do otherwise, on multiple aspects, and also recounted the details of the normal and deviate standard of care at issue in the case for the benefit of the higher court.

Pallerino v. UPMC Jameson Cancer Ctr., PICS Case No. 17-0023 (C.P. Lawrence Oct. 24, 2016) Cox, J. (9 pages).

Cancer patient who suffered additional injury through unplanned contact with a machine sought relief as corporate negligence, and failed to submit a timely certificate of merit. The hospital moved for judgment non pros, and the court had to determine if the facts supported ordinary negligence or medical malpractice. The court ruled the case was medical in nature and denied the patient's motion to find the certificate not required.

Barrett v. Chervanka, PICS Case No. 16-1570 (C.P. Lackawanna Dec. 8, 2016) Nealon, J. (memorandum) (15 pages).

Following the injury to a student bowler by another student at a student event, the injured's parents filed suit against the minor who caused the injury. She then sued the bowling alley for negligence. The business sought summary judgment by invoking the no-duty rule. Motion denied.

T. Levy Assoc., Inc. v. Kaplan, PICS Case No. 17-0033 (EDPa. Dec. 22, 2016) Kearney, J. (7 pages).

Defendants moved to disqualify plaintiff T. Levy Associates' counsel, Spector, Gadon & Rosen, P.C., under Pennsylvania Rule of Professional Conduct 1.9 and 1.10, alleging that Michael Cross represented defendants Michael and Nina Kaplan before he joined Spector Gadon, and represented defendant BLC Beauty in litigation against its landlord. Defendants further alleged that Barry Brownstein, as a member of Spector Gadon, represented Ms. Kaplan and BLC Beauty in litigation. Defendant allege that attorney Cross may have acquired confidential information regarding the Kaplans' personal financial information while preparing their estate documents, but did not allege any specific confidential information that either attorney Cross or attorney Brownstein may have acquired during their representations of Ms. Kaplan and BLC Beauty in litigation.