This Week's Cases

Commonwealth v. Cherry, PICS Case No. 17-0206 (Pa. Super. Feb. 6, 2017) Dubow, J. (7 pages).

PCRA court erred in dismissing appellant's PCRA petition because appellant's appointed PCRA counsel did not file an amended PCRA petition after appellant filed a pro se petition or seek to withdraw pursuant to Turner/Finley and appellant's agreement to submit his case based on his pro se filings after an eight- minute hearing was a denial of his right to assistance of counsel. Vacated and remanded.

Commonwealth v. Proctor, PICS Case No. 17-0217 (Pa. Super. Feb. 9, 2017) Strassburger, J. (24 pages).

Conviction for drug delivery resulting in death was supported by the evidence despite the presence of other illicit drugs in the victim's system, where the drug provided by defendant constituted a lethal dose. Judgment of sentence affirmed.

M.G. v. L.D., PICS Case No. 17-0221 (Pa. Super. Feb. 8, 2017) Bowes, J. (51 pages).

Denial of grandfather's petition for partial custody was reversed where trial court basis of denial in grandfather's relationship with child's legal mother and involvement with biological mother's criminal defense had no evidentiary support to find that grandfather discussed such topics with child. Order of the trial court reversed, case remanded.

Gurecka v. Carroll, PICS Case No. 17-0209 (Pa. Super. Feb. 3, 2017) Bender, P.J. (16 pages).

Court properly granted an implied easement and permanently enjoined appellants from interfering with the repair and use of a sewer line that ran under their property and serviced appellee's property because the sewer was in existence before their predecessors-in-title bought the property. Affirmed.

Merrell v. Workers' Comp. Appeal Bd., PICS Case No. 17-0220 (Pa. Commw. Feb. 6, 2017) Leavitt, J. (17 pages).

An arbitrator's award of heart and lung benefits did not have a collateral estoppel effect on a subsequent workers' compensation proceeding because employer did not have a full and fair opportunity to litigate the extent of claimant's disability. Order of the WCAB affirmed.

All State Signz Co. v. Burgettstown Borough, PICS Case No. 17-0215 (Pa. Commw. Feb. 6, 2017) Leavitt, J. (12 pages).

Grant of summary judgment denying a writ of mandamus to issue a billboard permit following alleged inaction on the application by a municipal board was in error. Summary judgment reversed, case remanded.

Shvekh v. Zoning Hearing Bd., PICS Case No. 17-0213 (Pa. Commw. Feb. 6, 2017) Leavitt, P. J. (14 pages).

Trial court erred in upholding zoning board's decision that appellant's renting of her single-family dwelling was use as a "tourist home" because there was nothing in the ordinance to prohibit the owner of a single-family home from renting it out from time to time. Reversed.

Dep't of Human Serv. Pennsylvanians for Union Reform, Inc., PICS Case No. 17-0218 (Pa. Commw. Feb. 8, 2017) Brobson, J. (31 pages).

The addresses of direct-care workers was not facially exempt from disclosure under the Right-to-Know Law where the exemption relied upon by the agency was intended to protect disclosure of information personal to an applicant for or recipient of social services, including the identity of a protected individual's caregiver, and where addresses direct-care workers would not automatically lead to the disclosure of a worker's identity, but OOR was required to conduct a balancing test in light of the workers' constitutional right to privacy of their home addresses. Order of the OOR affirmed in part, reversed in part, case remanded.

Romeo v. Pa. Pub. Util. Comm'n, PICS Case No. 17-0212 (Pa. Commw. Feb. 8, 2017) Brobson, J. (14 pages).

State was not precluded from requiring property owners to allow electric utility company to install smart meters, but commission erred in dismissing complaint simply because complainant could not personally testify as to the health and safety effects of smart meters. Order of the PUC affirmed in part, reversed in part, case remanded.

Kaye v. Colosi, PICS Case No. 17-0167 (C.P. Northampton Jan. 11, 2017) Murray, J. (9 pages).

Arbitration provision in agreement for the purchase of real property was valid, and matters alleged by plaintiff's complaint were within the scope of the arbitration clause. Defendant's request to compel arbitration was granted, and the present matter was stayed pending arbitration.

Commonwealth v. Arroyo-Rivera, PICS Case No. 17-0185 (C.P. Lehigh County Jan. 17, 2017) Steinberg, J. (16 pages).

The totality of the circumstances showed that defendant charged with burglary, criminal homicide and terroristic threats voluntarily waived his Miranda rights and consented to the search of his vehicle and the seizure of his cellphone. Motions to suppress dismissed.

Commonwealth v. Ceasear, PICS Case No. 17-0176 (C.P. Lycoming Jan. 31, 2017) Lovecchio, J. (6 pages).

Defendant was not entitled to nominal bail, because most of the time between the filing of the criminal complaint and the hearing was excludable due to delay caused by defendant.

Commonwealth v. Brown, PICS Case No. 17-0173 (C.P. Lycoming Jan. 31, 2017) Butts, J. (9 pages).

Court found defendant's criminal case was fully litigated with the advice of three attorneys, and that defendant failed to show ineffective counsel. Guilty plea colloquy indicated that defendant made a knowing, voluntary and intelligent plea. The court rejected defendant's petition for post-conviction relief.

Phillips v. Roberts, PICS Case No. 17-0189 (C.P. Lycoming County Feb. 2017) Anderson, J. (4 pages).

Unemployment compensation review board's findings were not res judicata on the issue of cause for plaintiff's termination in her claims for sexual harassment and retaliation under the PHRA. Owner of company and supervisor could be personally liable for the alleged retaliation under the PHRA but mere mention of the owner in plaintiff's EEOC complaint was not sufficient to put him on notice. Preliminary objections sustained in part and overruled in part.

McCulloch v. Catasauqua Zoning Hearing Bd., PICS Case No. 17-0183 ( C.P. Lehigh County Jan. 25, 2017) Johnson, J. (7 pages).

Zoning board properly limited appellant to housing no more than 10 cats when it granted her a use variance to operate a kennel at her single-family residence because the limitation on the number of cats was directly related to the provision in the ordinance limiting the number of animals that were permitted to be maintained in a single-family residence in a residential district. Appeal denied and dismissed.

Kazmierczak v. Taylor Borough Dep't of Zoning, PICS Case No. 17-0181 (C.P. Lackawanna Jan. 31, 2017) Nealon, J. (7 pages).

Mandamus proceeding was not warranted where plaintiff had an alternative and adequate remedy for alleged zoning violation that was provided by statute. Defendants' preliminary objections were sustained and plaintiff's petition for mandamus was stricken.

Cook v. Marc Gelman, Esq., PICS Case No. 17-0197 (C.P. Philadelphia County Jan. 24, 2017) Coleman, J. (10 pages).

Court properly granted directed verdict in appellant's legal malpractice action against the attorney who represented him during the arbitration of his termination from the police department because appellant's alleged damages were too speculative and he failed to demonstrate any breach of fiduciary duty. Appeal denied.

Estate of Anna C. Kasych v. Butz, PICS Case No. 17-0184 (C.P. Lehigh Jan. 24, 2017) Varricchio, J. (16 pages).

A legal malpractice action was dismissed because representation of persons seeking estate planning services to charitably devise their estate and of the recipient charity by the same law firm did not, by itself, constitute a nonwaivable conflict of interest, and because it was barred by the 2-year statute of limitations where the action was brought more than 6 years after the legal representation at issue.

Kochmer v. Hopfner, PICS Case No. 17-0168 (C.P. Philadelphia Jan. 12, 2017) Massiah-Jackson, J. (14 pages).

Plaintiff failed to establish that the actions of the defendant driver more likely than not were the cause of the injuries plaintiff sustained. The court found sufficient evidence in the record to support the jury's verdict that plaintiff was 60 percent causally liable for his injures. Motion for new trial denied.

Capps v. Mondelez Global, LLC, PICS Case No. 17-0208 (3 Cir. Jan. 30, 2017) Restrepo, J. (21 pages).

Trial court properly granted summary judgment in appellant's action alleging violations of the FMLA and ADA after he was terminated because company's honest belief that appellant was misusing FMLA leave was a legitimate, nondiscriminatory reason for his discharge. Affirmed.

Lichtenstein v. Lower Merion Sch. Dist., PICS Case No. 17-0219 (E.D. Pa. Feb 8, 2017) Baylson, J. (23 pages).

A physically-disabled student receiving physical assistance at school pursuant to IDEA properly pleaded a "special relationship" under the Due Process Clause alleging that the school district failed to provide adequate facilities and personnel training to provide him with necessary physical assistance. Summary judgment denied; claims dismissed in part without prejudice.

Park v. Temple Univ., PICS Case No. 17-0211 (E.D. Pa. Jan. 24, 2017) Beetlestone, J. (11 pages).

Student's complaint alleging violations of his due process and equal protections rights and state law claims of breach of contract and unjust enrichment arising from his expulsion from university graduate studies for violations of the student code of conduct failed to present facts to support his allegations. Motion to dismiss granted.

Oji v. Devereux Found., PICS Case No. 17-0210 (E.D. Pa. Jan. 23, 2017) O'Neill, J. (20 pages).

Plaintiff failed to present sufficient evidence for a reasonable jury to conclude that employer discriminated or retaliated against him because of his disability because plaintiff did not present any evidence that he was qualified for his position with or without a reasonable accommodation. Summary judgment granted.

Brown v. The Vanguard Grp., Inc., PICS Case No. 17-0216 (E.D. Pa. Jan. 30, 2017) Surrick, J. (46 pages).

Plaintiff's employment retaliation and discrimination claim failed where employer articulated plaintiff's poor job performance due to lack of availability during business hours and inability to communicate with co-workers as basis for discipline and termination. Defendants' motion for summary judgment granted.

Yelland v. Abingdon Heights Sch. Dist., PICS Case No. 17-0214 (M.D. Pa. Feb. 9, 2017) Mannion, U.S.D.J. (34 pages).

Teacher, who was indefinitely suspended without pay after an allegation that he physically assaulted a student, sued school board, superintendent, principal and vice-principal for due process violations and malicious prosecution after a jury acquitted him and court found that he sufficiently stated cognizable claims that the predeprivation procedures used by defendants were not adequate to meet due process requirements and for malicious prosecution when he contended that superintendent, principal and vice-principal conducted a sham investigation, manufactured inculpatory evidence, ignored exculpatory evidence and made a knowingly false report to the police and the DA's office but the court found that his claim for post-deprivation procedural due process claim was premature, school officials' qualified immunity argument was premature and the claim for punitive damages against defendants in their official capacities had to be dismissed. Summary judgment granted in part and denied in part.

DeSue v. Aetna Life Ins. Co., PICS Case No. 17-0207 (W.D. Pa. Feb. 9, 2017) Schwab. U.S. D.J. (10 pages).

Plaintiff sued insurer alleging ERISA violations relating to her long term disability benefits and court held that plaintiff's request for compensation resulting from the delay in paying benefits and the loss of income and retirement savings caused by the initial denial of her benefits constituted a harm that might be compensable under §1132(a)(3) so that her claims for denial of benefits and breach of fiduciary duty were not necessarily duplicative. Motion to dismiss denied.