This Week's Cases

US Spaces, Inc. v. Berkshire Hathaway Homeservices, PICS Case No. 17-0877 (Pa. Super. June 5, 2017) Panella, J. (7 pages).

Trial court erred in relying on a local rule in denying appellant's petition to vacate an arbitration award and not issuing a rule to show cause because the local rule constrained the discretion of the trial court and appellant's petition, alleging that it was denied the right to an opportunity to be heard when the arbitration panel decided the matter without a hearing, was not insufficient as a matter of law. Reversed.

Lechowicz v. Moser, PICS Case No. 17-0959 (Pa. Super. May 31, 2017) Ransom, J. (11 pages).

Trial court erred in holding that appellant's petition to open and/or stay a judgment was time-barred because there was no notice of execution and the promptness requirement of rule 2959 did not attach but appellant's argument that the note constituted an extension of credit by appellee lacked merit and his bald assertion that the legal fees involved were unreasonable did not provide the basis for a meritorious defense. Affirmed.

Commonwealth v. Smith, PICS Case No. 17-0951 (Pa. Super. May 31, 2017) Ott, J. (10 pages).

Separate search warrant was not required to conduct DNA analysis for identification purposes where individual did not have protectable privacy interest in identification. Judgment of sentence affirmed.

Commonwealth v. Monarch, PICS Case No. 17-0950 (Pa. Super. June 6, 2017) Panella, J. (11 pages).

Prior inconsistent recorded statement about defendant's intoxication was properly admitted, under the trial court's discretion, to impeach a witness, where the jury as factfinder could determine whether the recorded statement was inconsistent with the witness' trial testimony and weigh the witness' testimony and credibility accordingly. Judgment of sentence affirmed.

Commonwealth v. Lankford, PICS Case No. 17-0948 (Pa. Super. May 30, 2017) Lazarus, J. (11 pages).

Sentence did not violate constitutional prohibition against cruel and unusual punishment where it was not grossly disproportionate to convicted crimes, nor would it inhibit defendant's access to allegedly necessary mental health treatment. Judgment of sentence affirmed.

Commonwealth v. Lawrence, PICS Case No. 17-0949 (Pa. Super. May 30, 2017) Stevens, J. (23 pages).

Appellate counsel's concession that the evidence was sufficient to establish a killing with malice constituted a strategic concession and was not ineffective assistance of counsel. Order of the PCRA court affirmed.

Commonwealth v. Forsythe, PICS Case No. 17-0947 (Pa. Super. June 1, 2017) Lazarus, J. (11 pages).

The trial court erred in suppressing evidence found on defendant's person after a vehicle stop since the arresting officer was acting under a municipal drug task force agreement that did not require county ratification and, thus, his conduct did not violate the Municipal Police Jurisdiction Act. The appellate court reversed the trial court's order of suppression.

In the Interest of: C.K., a Minor, PICS Case No. 17-0955 (Pa. Super. June 5, 2017) Strassburger, J. (21 pages).

CYF failed to make reasonable efforts at facilitating permanency plan of reunification where court ordered family trauma therapy and CYF failed to adequately communicate the purpose of the court-ordered therapy to its contracted provider such that children's progress was delayed to due assignment to therapy unqualified to address family's needs. Order of the trial court affirmed.

J.M v. K. W., PICS Case No. 17-0958 (Pa. Super. May 31, 2017) Bowes, J. (22 pages).

Trial court properly found mother in contempt for relocating with the children in contravention of an order directing compliance with §5337 but trial court erred in finding her in contempt for enrolling child in preschool because there had been no legal determination of custody and abused its discretion in changing custody as a contempt sanction because there was no express notice that custody would be at issue. Affirmed in part and reversed in part.

J.A.F. v. C.M.S., PICS Case No. 17-0957 (Pa. Super. June 1, 2017) Ford Elliott, P.J., (12 pages).

Mother appealed trial court's order denying her petition asserting that a sperm-donor contract existed between her and child's biological father and that father lacked standing in the child custody case but the order she appealed from was not a final order since it was entered in an ongoing child custody proceeding and was not a compete resolution of the pending custody claims. Appeal quashed.

Carney v. Carney, PICS Case No. 17-0944 (Pa. Super. May 31, 2017) Stevens, J. (16 pages).

The trial court erred in failing to consider evidence related to the potential sale of the parties' successful trucking business before assigning the entire asset to husband as part of the equitable distribution of the parties' marital estate. The appellate court affirmed in part, reversed in part and remanded for further proceedings.

In the Interest of D.F., PICS Case No. 17-0956 (Pa. Super. June 7, 2017) Dubow, J. (16 pages).

Trial court properly terminated mother's parental rights where child was adjudicated dependent shortly after birth, had strongly bonded with foster/pre-adoptive mother and mother's mental health and drug and alcohol problems interfered with her ability to care for the child, she had not utilized all available resources to deal with her problems and failed to do what needed to be done to establish a parent-child relationship with the child. Affirmed.

Harmon v. Unemployment Compensation Bd. of Review, PICS Case No. 17-0952 (Pa. Commw. June 7, 2017) Brobson, J. (29 pages).

Claimant ineligible for unemployment compensation benefits where, although available to work, claimant was incarcerated during period of benefits. Order of the UCBR affirmed.

Tepper v. Phila. Bd. of Pensions and Retirement, PICs Case No. 17-0962 (Pa. Commw. June 2, 2017) Cohn Jubelirer, J. (17 pages).

Trial court properly affirmed the board's decision that collateral estoppel prevented officer from relitigating whether he was acting "in office or employment" when he murdered his neighbor after a personal argument while off-duty because a federal jury hearing the victim's family's civil rights complaint determined that officer was a state actor and collateral estoppel applied. Affirmed.

Holy Redeemer Health Sys. v. Workers' Compensation Appeal Bd. (Lux), PICS Case No. 17-0954 (Pa. Commw. June 6, 2017) Brobson, J. (12 pages).

Claimant's loss of earning power was attributable to work-related injury, and claimant was therefore entitled to workers' compensation benefits, where employer specifically created permanent alternative position for claimant within her physical restrictions and offered it to her at a lower wage. Order of the WCAB affirmed.

Highmark, Inc. v. Voltz, PICS Case No. 17-0953 (Pa. Commw. June 2, 2017) Simpson, J. (24 pages).

Insurer reimbursement rates were exempt from disclosure under Right-to-Know Law because insurer was statutorily required to submit them to Insurance Department, and thus department was construed to have "requested" the documents. Order of the Office of Open Records reversed.

Commonwealth v. Hopkins, PICS Case No. 17-0927 (C.P. Lycoming May 10, 2017) Gray, P.J. (7 pages).

In connection with criminal charges for possession of firearms, defendant waived his argument regarding his constitutional right to bear arms by failing to raise it in his pretrial motion. The court denied defendant's motion to dismiss the remaining firearms charges because the trial on the firearms matters was properly severed from the trial on the drug charges.

Commonwealth v. Leone, PICS Case No. 17-0922 (C.P. Northampton Jan. 9, 2017) Roscioli, J. (5 pages).

A single trial in a criminal matter was proper where trying multiple charges together would allow the commonwealth to present the full context of its investigation and provide the jury with the complete story surrounding the alleged crimes. The court denied defendant's motion to sever.

Commonwealth v. Bond, PICS Case No. 17-0915 (C.P. Lycoming May 30, 2017) Lovecchio, J. (8 pages).

Under the "plain feel doctrine," police had probable cause to arrest defendant where the arresting officer frisked him and detected what he immediately recognized as narcotic packaging hidden in defendant's groin area. The court denied defendant's omnibus pretrial motion to suppress evidence.

SAM v. KSM, PICS Case No. 17-0936 (C.P. Lycoming May 30, 2017) McCoy, J. (10 pages).

Husband's failure to make minimum monthly payments on an equitable distribution award constituted contempt, and wife was entitled to judgment for total unpaid installments, plus attorney fees. The issue of double-dipping from the same resource to pay support and the property division payments could have been addressed by a modification proceeding, which husband failed to pursue.

In the Interest of S.G., PICS Case No. 17-0930 (C.P. Carbon May 10, 2017) Matika, J. (21 pages).

In this dependency proceeding, father's failure to adequately address his child's mental health needs met the criteria for placing the child in a residential facility, which was the least restrictive placement.

Atlantic Wind, LLC v. Penn Forest Twp. Zoning Hearing Bd., et al, PICS Case No. 17-0912 (C.P. Carbon May 12, 2017) Serfass, J. (9 pages).

Plaintiff failed to establish that its right to due process was violated by an alleged unsafe environment at a fire hall where the local zoning board held a hearing on a zoning application to construct a wind turbine absent evidence that board members were unable to impartially decide the matter because they felt unsafe. The court recommended that plaintiff's appeal be dismissed.

Goonan v. Dombroski, PICS Case No. 17-0917 (C.P. Northampton Feb. 27, 2017) Roscioli, J. (7 pages).

Buyers of real property could not make out a claim for fraud where they signed a sale agreement which included an express disclaimer provision regarding representations as to the condition of the property. The court denied plaintiffs' motion for reconsideration.

Irving v. Smith, PICS Case No. 17-0916 (C.P. Northampton Feb. 7, 2017) Roscioli, J. (19 pages).

Genuine issues of material fact existed as to a minor's assumption of risk and consumption of alcohol prior to his death, which precluded summary judgment. However, the court granted summary judgment in favor of defendant land owners, because there was no evidence they acted in a willful or malicious manner.

In Re Klaas, PICS Case No. 17-0960 (3d Cir. June 1, 2017) Krause, J. (26 pages).

District Court properly affirmed bankruptcy court's granting of a grace period to debtors who made the final payment on their base plan a few weeks after the end of the 60-month period because the bankruptcy court had the discretion under the code to grant a reasonable grace period for debtors to cure an arrearage. Affirmed.

Chaborek v. Allstate Financial Services, LLC, et al, PICS Case No. 17-0945 (E.D. Pa. June 5, 2017) McHugh, J. (9 pages).

Plaintiff sufficiently plead at least two potentially successful claims against defendants for fraud and negligent misrepresentation; therefore, defendants failed to satisfy their heavy burden of persuading the court that plaintiff fraudulently joined them as part of his lawsuit to defeat diversity jurisdiction. The court granted plaintiff's motion to remand.

Checker Cab Philadelphia v. Philadelphia Parking Authority et al, PICS Case No. 17-0946 (E.D. Pa. June 6, 2017) Baylson, J. (17 pages).

The plaintiff taxi cab operators sufficiently alleged claims under the U.S. Constitution's equal protection and takings clauses where they claimed the Philadelphia Parking Authority engaged in disparate treatment by heavily regulating traditional taxis while failing to regulate transport network companies such as Uber and Lyft and asserted that taxi operators had a property right in their medallions. The court denied in part defendants' motion to dismiss.

Rann Pharmacy, Inc. v. Shree Navdurga, LLC, PICS Case No. 17-0961 (E.D. Pa. June 2, 2017) Schiller, J. (9 pages).

Plaintiff's motion for contempt based on the allegation that defendants continued to use the original name of their pharmacy after it had been found to violate the Lanham act failed because the only evidence presented was an undated advertising postcard. Motion denied.