This Week's Cases

Karden Constr. Serv., Inc. v. D'Amico, PICS Case No. 16-0758 (Pa. Super. May 25, 2016) (memorandum) Stabile, J. (11 pages).

Trial court correctly found that there was no agreement between construction company and homeowner for the provision of professional services to assist with litigation and construction management, but trial court erred in holding that homeowner was not unjustly enriched by the provision of construction management services. Affirmed in part, reversed in part and remanded.

Pa. Pub. Util. Comm'n v. Seder/The Times Leader, PICS Case No. 16-0733 (Pa. May 25, 2016) Baer, J.; Saylor, J., dissenting. (23 pages).

A "tip letter" and documents from a subsequent investigation by Public Utility Commission staff were subject to disclosure pursuant to the Public Utility Code (PUC), which required disclosure of documents relied by upon by the commission in reaching a determination. Order of the commonwealth court reversed.

Commonwealth v. Dixon, PICS Case No. 16-0750 (Pa. Super. June 7, 2016) Ott, J. (14 pages).

The commonwealth acted with due diligence in attempting to compel its witness to appear to testify at trial by subpoenaing the witness and having detectives bring him to the courthouse. Judgment of sentence affirmed.

Commonwealth v. Rodriguez, PICS Case No. 16-0751 (Pa. Super. June 6, 2016) Platt, J. (7 pages).

The commonwealth was not required to prove that a liquid offered by appellant as his own urine in order to achieve a negative result on a drug test was actually urine, since the purpose of the statute was to punish deceitful attempts to evade detection on drug tests. Judgment of sentence affirmed.

Penn-Am. Ins. Co. v. Tomei, PICS Case No. 16-0689 (Pa. Super. May 24, 2016) (memorandum) Ford Elliott, J. (17 pages).

Insurer had no duty to defend and insure insured facing claims of negligence for failure to prevent/discover a noninsured third party's invasion of privacy on insured's premises. Summary judgment affirmed.

Get Busy Living Sol. LLC v. Main Line Ins. Office Inc., PICS Case No. 16-0756 (Pa. Super. May 23, 2016) (memorandum) Dubow, J. (25 pages).

Insurer was not obligated to provide notice of cancellation or nonrenewal of insurance policy on commercial property prior to lapse of policy term, where insurer provided insured with quote for renewal that was not accepted by insured. Summary judgment affirmed.

Erie Ins. Exch. v. Bristol, PICS Case No. 16-0753 (Pa. Super. May 27, 2016) (memorandum) Olson, J. (18 pages).

Insured's demand for arbitration and selection of an arbitrator did not toll the statute of limitations on a claim for uninsured motorist benefits. Summary judgment affirmed.

Natures Way Springs L.P., v. C. Panel Holding, LLC, PICS Case No. 16-0761 (Pa. Super. May 25, 2016) (memorandum) Dubow, J. (30 pages).

Trial court properly ruled against appellant in its declaratory action seeking to force appellees to share the costs of road repair based on an alleged "restrictive covenant" because the "restrictive covenant" in question was actually an easement. Affirmed.

Mayes v. Shope, PICS Case No. 16-0760 (Pa. Super. May 24, 2016) (memorandum) Panella, J. (18 pages).

Trial court properly refused to grant a new trial in medical malpractice case after defense witnesses improperly implicated nonparty medical professionals as the cause of appellant's injuries. Affirmed.

Urbine v. Sears Home Improvement Prods., Inc., PICS Case No. 16-0743 (Pa. Super. May 20, 2016) (memorandum) Ott, J. (8 pages).

Court of common pleas properly denied appellant's petition to open and strike the default judgment entered in appellee's favor by magisterial district court after appellant failed to attend a hearing. Affirmed.

Lil Shining Stars, Inc. v. Dep't of Human Serv., PICS Case No. 16-0759 (Pa. Commw. June 8, 2016) McCullough J. (25 pages).

Department of Human Services properly revoked petitioner's certificate of compliance to operate a child care center, because petitioner's Fourth Amendment argument as to the reasonableness of department's unannounced inspection visits failed. Affirmed.

Cadles of Grassy Meadows, II, LLC v. Bet Shavei-Tzion, PICS Case No. 16-0757 (Pa. Super. June 7, 2016) (memorandum) Dubow, J. (12 pages).

Trial court properly found a promissory note and mortgage in default and lifted all stays with respect to foreclosure and sale as to a 95-acre property owned by religious institution and used as collateral for a loan by a cemetery association. Affirmed.

Sch. Dist. of Phila. v. Jones, PICS Case No. 16-0762 (Pa. Commw. June 2, 2016) Covey, J. (33 pages).

School district failed to adhere to the mandatory provisions of the school code when it terminated teacher. Reversed.

Balentine v. Chester Water Auth., PICS Case No. 16-0746 (Pa. Commw. June 3, 2016) Covey, J. (15 pages).

The involuntary movement of a fully parked vehicle caused by the actions of a third party did not constitute "operation" of the vehicle sufficient to satisfy the motor vehicle exception to governmental immunity under the Tort Claims Act. Summary judgment affirmed.

Ward v. Potteiger, PICS Case No. 16-0763 (Pa. Commw. June 9, 2016) Covey, J. (15 pages).

Trial court properly dismissed appellant's sixth amended complaint with prejudice, because the vehicle liability exception to sovereign immunity did not apply where appellees, employees and officers of the county Office of Adult Probation and Parole (OAPP) allowed driver, who was on probation and who met with his parole officer and admitted he had injected heroin, to drive away from the office and hit appellant, because appellees did not operate the vehicle as a matter of law and the exception did not apply. Affirmed.

Sobat v. Borough of Midland, PICS Case No. 16-0754 (Pa. Commw. June 9, 2016) McCullough, J. (18 pages).

Appellant's claim was not subject to the utility service facilities exception to governmental immunity where appellant's damages stemmed from the municipality's negligent representations. Order of the trial court affirmed.

Deep Meadows Civic Ass'n v. Trusello, PICS Case No. 16-0752 (Pa. Commw. June 3, 2016) Covey, J. (15 pages).

A homeowner's property was not subject to a homeowners' association where the bylaws of the association were not publicly recorded and there was no reference in the owner's chain of title that the property would be subject to a HOA. Order of the trial court affirmed.

In re Estate of O'Connor Jr., PICS Case No. 16-0755 (Pa. Commw. June 8, 2016) Brobson, J. (12 pages).

Children's intestate share in an estate's wrongful death/survival claim was not a future interest, since it was ascertainable and certain with only the exact value uncertain. Order of the orphans' court affirmed.

Solid Waste Servs. v. City of Allentown, PICS Case No. 16-0718 (CP. Lehigh May 10, 2016) McGinley, J. (29 pages)..

City's change in manner of awarding contracts prompted allegations of unfair practices in the RFP process, by plaintiffs who had standing. The city was adjudicated to have acted within its charter.

Commonwealth v. Bartholomew, PICS Case No. 16-0765 (C.P. Lehigh, May 18, 2016) Steinberg, J. (43 pages).

Fraudulent user of POA to drain relative's savings and assets appealed jury conviction with nonspecific issues. Denied.

Page v. Moses Taylor, PICS Case No. 16-0688 (C.P. Lackawanna May 24, 2016) Nealon, J. (5 pages).

Defendants in medical malpractice case sought to prevent testimony regarding grief, solace and bereavement damages for stillborn twins, citing the original Superior Court interpretation, but later interpretations set new precedents. Motions in limine denied.

Korea Week v. GOT Capital, PICS Case No. 16-0716 (E.D. May 27, 2016) Kearney, J. (24 pages).

Request for class action certification for group of Korean-American businesses was caught up in high-interest loan cycles. Barred by terms of the contracts.

E. Approach Rehab. v. State Farm Mut. Auto. Ins. Co., PICS Case No. 16-0767 (E.D. May 31, 2016) Joyner, J. (memorandum) (11 pages).

Plaintiffs moved to remand the case to the prior jurisdiction, and defendants moved to dismiss the complaint of tortious interference. Motion to remand denied, and motion to dismiss granted.

Page v. Moses Taylor, PICS Case No. 16-0686 (C.P. Lackawanna May 18, 2016) Nealon, J. (9 pages).

MEDICAL MALPRACTICE Despite protestations to the contrary, preeclamptic stillbirth deemed to have a valid emotional effect on the mother. Defendants' motions in limine to preclude emotional distress testimony were denied.

Benedict v. Borough of Malvern, PICS Case No. 16-0764 (E.D. May 31, 2016) Dalzell, J. (11 pages).

Defendants in a suit for violation of substantive due process supervisory responsibility for injuries inflicted while under emergency care moved to dismiss. Count II against both defendants dismissed with prejudice; third defendant's motion to dismiss denied.

Mosne v. Heritage Food of Hazleton, LLC, PICS Case No. 16-0739 (Pa. Super. May 23, 2016) (memorandum) Jenkins, J. (16 pages).

Trial court properly denied store's petition to open default judgment in action brought by customer in slip-and-fall case because store did not satisfy the obligation of a corporate defendant to establish in-house mechanisms to monitor legal complaints lodged against it. Affirmed.

Quinn Buseck Leemhuis Toohey & Kroto, Inc. v. Cooper, PICS Case No. 16-0741 (Pa. Super. May 23, 2016) (memorandum) Shogan, J. (10 pages).

Trial court properly granted judgment on the pleadings to law firm in its suit against client based on breach of contract/specific performance when client refused to pay law firm after the case settled because client's claim that she did not authorize law firm to settle. Affirmed.

Navarra v. Navarra, PICS Case No. 16-0730 (Pa. Super. May 20, 2016) (memorandum) Mundy, J. (8 pages).

Appellee was only entitled to recover 50 percent of a guaranty paid by her and her husband where each spouse's share of the loan was 50 percent and only appellee brought an action to recover the loan. Judgment modified and affirmed.

Commonwealth v. Watson, PICS Case No. 16-0729 (Pa. Super. May 26, 2016) Stevens, J. (7 pages).

Appellant was not entitled to a motion for relief pursuant to Rule 600 where the delay in bringing appellant to trial was the result of appellant's trial counsel's serial requests for continuances. Judgment affirmed.

Commonwealth v. Hill, PICS Case No. 16-0728 (Pa. Super. May 31, 2016) Musmanno, J. (10 pages).

Theft by unlawful taking could not be merged with fraudulent business practices or home improvement fraud arising from the same criminal act where theft required unlawful control over movable property. Judgment of sentence vacated.

In re C.M.C., PICS Case No. 16-0737 (Pa. Super. May 26, 2106) Fitzgerald, J. (28 pages).

Trial court erred in finding voluntary relinquishment of mother's parental rights during an involuntary termination hearing because mother did not intelligently, voluntarily and deliberately consent to the termination of her parental rights. Vacated and remanded.

Pusey v. Allstate Ins. Co., PICS Case No. 16-0734 (Pa. Super. May 20, 2016) (memorandum) Stabile, J. (8 pages).

Appellant was only entitled to recover from underinsured motorist coverage damages after deduction of appellant's comparative negligence followed by deduction therefrom of amounts recovered from the underinsured motorist's policy. Judgment affirmed.

Waldron Elec. Heating & Cooling, LLC V. Yahr, PICS Case No. 16-0744 (Pa. Super. May 26, 2016) (memorandum) Bender, P. J. (7 pages).

The trial court properly granted summary judgment to appellee in defamation action filed by appellant because appellee's complaints to her friends, the Office of the Attorney General and two consumer websites were made in 2007, but appellant did not file suit until 2011. Affirmed.

Huffsmith v. PPL Elec. Util. Corp., PICS Case No. 16-0745 (Pa. Super. May 24, 2016) (memorandum) Panella, J. (7 pages).

The trial court improperly granted summary judgment against appellants on their intentional trespass claim where appellants presented evidence that created a genuine issue of material fact as to the location and/or extent of appellee utility company's right of way on appellants' property. Summary judgment reversed, and case remanded.

Pennsylvanians for Union Reform v. Pennsylvania Dept. of State, PICS Case No. 16-0731 (Pa. Commw. May 23, 2016) Jubelirer, J. (14 pages).

A requestor was not entitled to enforce disclosure of voter registration information pursuant to the Right-to-Know Law (RTKL). Final determination of the Office of Open Records affirmed.

Twp. of Salem v. Miller Penn. Dev., LLC, PICS Case No. 16-0742 (Pa. Commw. May 26, 2016) Colins, S. J. (18 pages).

Because the action was not time barred, trial court properly awarded damages to township for residential subdivision developer's failure to properly construct a road in a subdivision. Affirmed.

King v. Pittsburgh Water & Sewer Auth., PICS Case No. 16-0738 (Pa. Commw. May 27, 2016) Simpson, J. (36 pages).

Trial court properly denied appellant's motion for judgment notwithstanding the verdict (JNOV) in action she brought against sewer authority for injuries she suffered when her leg fell through a broken sewer grate. Affirmed.

Robbins v. Penn Ctr. House Inc., PICS Case No. 16-0735 (Pa. Commw. May 23, 2016) Colins, J. (18 pages).

The board of a housing cooperative could not unilaterally impose a limit on the number of dwelling units that could be owned by a single member, since the cooperative's bylaws did not grant the board authority to impose such a limitation. Order of the trial court affirmed in part and vacated in part.

Se. Reprographics Inc. v. Bur. of Prof'l & Occupational Affairs, PICS Case No. 16-0736 (Pa. Commw. May 24, 2016) Leadbetter, J. (23 pages).

An inventory and mapping of an electric utility's field assets and equipment did not constitute an engineering or land survey, because such activity did not involve the design of structures, equipment or works. Order of the State Registration Board for Professional Engineers, Land Surveyors and Geologists reversed.

In re CG, PICS Case No. 16-0720 (C.P. Lycoming May 27, 2016) Gray, J. (6 pages).

Mental health of incarcerated woman deteriorating under refusal of treatment prompted relative's petition for emergency examination and treatment. Denied, but petition to dismiss granted.

Ellwood City v. Heraeus Electro-Nite Co., PICS Case No. 16-0726 (C.P. Lawrence May 18, 2016) Hodge, J. (12 pages).

A faulty mathematical factor created a significant undercharge for electrical billing, which the municipality attempted to impose on a customer, who resisted based on a close reading of the municipal billing ordinance. Defendant's motion for judgment on the pleadings was granted.

Lawrence Cnty. TCB v. DeBlasio, PICS Case No. 16-0723 (C.P. Lawrence April 27, 2016) Hodge, J. (17 pages).

Petitioner motioned to set aside tax sale of property owned by out-of-state mortgage lender. Granted.

Commonwealth v. Hartman, PICS Case No. 16-0724 (C.P. Delaware May 16, 2016) Nilon, J. (35 pages).

Second conviction for child pornography and criminal use of communication facility appealed. Denied.

Diefenderfer v. PennDOT, PICS Case No. 16-0725 (C.P. Lawrence May 9, 2016) Motto, P.J. (8 pages).

Driver under suspension of license appealed from the restoration requirements, while respondent Pennsylvania Department of Transportation petitioned to quash his appeal. Both denied.

Commonwealth v. Wilcox, PICS Case No. 16-0727 (C.P. Lehigh April 1, 2016) Steinberg, J. (7 pages).

Omnibus pretrial motion alleged that search warrant in child pornography investigation failed to establish probable cause. Motion denied.

Commonwealth v. Merwarth, PICS Case No. 16-0719 (C.P. Lehigh April 18, 2016) Steinberg, J. (7 pages).

Omnibus pretrial motion alleged that search warrant in methamphetamine production case failed to establish probable cause for arrest. Motion denied.

Galeano v. Susquehanna Health Syst., PICS Case No. 16-0721 (C.P. Lycoming May 11, 2016) Anderson, J. (4 pages).

Outpatient physical therapy patient alleged breach of care in patient's fall, but provided as expert witness a civil engineer instead of a medical expert. Defendants' motion for summary judgment granted.

Laster v. Murray Inc., PICS Case No. 16-0722 (C.P. Montgomery March 8, 2016) Tilson, J. (62 pages).

Court order vacated fraudulently obtained divorce decree without relief, while plaintiff argued a different question, then appealed on questionable grounds. Denial of appeal recommended.

Mazzarella v. Fast Rig Support, PICS Case No. 16-0678 (3rd. Circuit May 23, 2016) Shwartz, C.J. (12 pages).

Affirmation of District Court decision requiring trucking companies to pay overtime to plaintiffs.