This Week's Cases

Racioppi v. Progressive Ins. Co., PICS Case No. 16-0639 (Pa. Super. May 11, 2016) (memorandum) Ford Elliott, P.J. (13 pages).

Insurer did not breach for failure to pay underinsured motorist (UIM) benefits where insured's policy had lapsed/expired, and insured's failure to pay the premium to renew the policy constituted an overt act to cancel the policy. Order of the trial court affirmed.

Cnty. of Erie v. Am. Fed'n of State Cnty. and Mun. Emps. Dist. Council 85, Local 2666, PICS Case No. 16-0634 (Pa. Commw. May 12, 2016) Friedman, J. (8 pages).

An employer's "supervising rights" did not authorize employer to permit one employee to exercise his "bumping rights" under the CBA while denying another employee the same right. Order of the trial court affirmed.

H.M.O. v J.R.O., PICS Case No. 16-0645 (Pa. Super. May 11, 2016) (memorandum) Ford Elliott, P.J. (7 pages).

Court dismissed father's appeal of the trial court's order regarding custody and visitation for the mother's and father's four children, because the father did not pay for the transcript of the lower court trial, did not ask the trial court to proceed in forma pauperis, as he was told to do, and, without the notes of testimony, court could not conduct a meaningful review. Appeal dismissed.

Feingold v. Vasiliadis, PICS Case No. 16-0644 (Pa. Super. May 9, 2016) (memorandum) Strassburger, J. (16 pages).

Trial court properly dismissed appellant's claims and denied his motion to recuse where appellant, a disbarred attorney, sought to involve himself in garnishment proceedings on the grounds that one of the parties allegedly owed him a percentage of the judgment. Affirmed.

Commonwealth v. Brown, PICS Case No. 16-0641 (Pa. Super. May 10, 2016) Olson, J. (25 pages).

The trial court erred in admitting the autopsy report in a murder case, because the autopsy report was testimonial, and the medical examiner who testified was not the doctor who performed the autopsy. Affirmed.

Commonwealth v. Walker, PICS Case No. 16-0648 (Pa. Super May 13, 20160 Bender, J. (18 pages).

Trial court's jury instructions directing jury to find appellant guilty if it concluded appellant was intentionally in contact with a minor specifically to engage in the act of sexual assault or indecent assault did not require that commonwealth specifically prove appellant intended to engage in sexual or indecent assault of a minor. Judgment of sentence affirmed.

Commonwealth v. Slattery, PICS Case No. 16-0647 (Pa. Super. May 13, 2016) Lazarus, J. (8 pages).

The trial court should have suppressed evidence from a traffic stop where police lacked probable cause for the stop, because officer incorrectly believed appellant was required to signal a lane change at least 100 feet prior to making the lane change. Judgment of sentence reversed; case remanded for retrial.

In the Matter of Keegan, PICS Case No. 16-0636 (Pa. Super. May 10, 2016) (memorandum) Shogan, J. (10 pages).

The trial court did not abuse its discretion in appointing a third-party co-guardian to serve alongside the incapacitated person's daughter, despite that the incapacitated person's durable power of attorney appointed daughter as attorney-in-fact. Order of the trial court affirmed.

Willis v. Commonwealth, PICS Case No. 16-0623 (C.P. Monroe March 16, 2016) Higgins, J. (10 pages).

Firearm rights disability imposed by federal statute could not be restored by state solutions. Petition was dismissed for lack of jurisdiction.

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Reverse Mortg. Solutions, Inc. v. Psut, PICS Case No. 16-0618 (Pa. Super. May 6, 2016) (memorandum) Ott, J. (7 pages).

A homeowner in a mortgage foreclosure action was not entitled to attorneys' fees from the mortgage company after the action was discontinued due to the company's failure to provide Act 6 notices, where homeowner was not a "prevailing party." Order of the trial court affirmed.

Chase Home Fin., LLC v. Garrett, PICS Case No. 16-0617 (Pa. Super. May 6, 2016) (memorandum) Musmanno, J. (5 pages).

The court was precluded from addressing issues raised on appeal where appellant failed to timely file his concise statement of issues. Order of the trial court affirmed.

Commonwealth v. Volk, PICS Case No. 16-0587 (Pa. Super. April 29, 2016) Strassburger, J. (13 pages).

Appellant was not entitled to PCRA relief where, although appellant had filed his petition during the term of his sentence of incarceration, the PCRA court's decision was delayed by its own negligence until after the expiration of appellant's sentence, which rendered appellant ineligible for PCRA relief under the terms of the statute. Order of the PCRA court affirmed.

Commonwealth v. Rapak, PICS Case No. 16-0586 (Pa. Super. April 29, 2016) Stevens, J. (12 pages).

The suppression court erred in determining that the magistrate erred in determining there was sufficient probable cause to support issuance of a search warrant for a residential property, when the suppression court erroneously focused its analysis on appellee, the owner/resident of the property. Order of the suppression court reversed.

Forty Seven Hundred, L.P. v. David Whitnack Distrib. Inc., PICS Case No. 16-0590 (Pa. Super. May 4, 2016) (memorandum) Stabile, J. (5 pages).

An appeal of an order for discovery sanctions was quashed where the appeal was from an interlocutory order that did not qualify as a collateral order, because the claims of the appeal would not be irreparably lost by postponing until final disposition of the case. Appeal quashed.

Gardell v. Gardell, PICS Case No. 16-0591 (Pa. Super. May 3, 2016) (memorandum) Bender, P.J. (10 pages).

A mistake or lack of knowledge regarding the value of the marital estate was not a valid basis for the trial court to strike or vacate a divorce degree. Order of the trial court affirmed.

Hotel Furniture Liquidators of Phila., Inc. v. Castor Ave. Props., LLC, PICS Case No. 16-0592 (Pa. Super. April 29, 2016) (memorandum) Musmanno, J. (25 pages).

Trial court properly denied a landlord's petition to reopen a default judgment in action brought by a tenant who was ordered by the city to leave the premises on four hours' notice due to fire code and safety violations, because the landlord's petition was untimely, the landlord did not provide a reasonable excuse, and credible evidence in the record supported the amount of damages awarded. Affirmed.

McCans v. Burgess, PICS Case No. 16-0594 (Pa. Super. May 4, 2016) (memorandum) Olson, J. (12 pages).

Trial court erred in summarily finding appellant attorney guilty of criminal contempt when attorney failed to withdraw her appearance or show up for a scheduled conference as ordered by the trial. Vacated and remanded.

Muhammad v. Ali, PICS Case No. 16-0596 (Pa. Super. May 4, 2016) (memorandum) Gantman, P.J. (17 pages).

Trial court properly granted doctor's summary judgment motion and motion for preclusion of expert testimony in medical malpractice case, because the allegations in the case required expert opinion, absent which patient could not make out a prima facie case of medical negligence, and patient failed to comply with case management and discovery orders requiring the production of an expert report. Affirmed.

Hill v. Slippery Rock Univ., PICS Case No. 16-0577 (Pa. Super. May 3, 2016) Shogan, J. (13 pages).

Trial court erred in finding that no recovery was possible in appellant parents' suit against university and NCAA for the failure to test for sickle cell trait (SCT) as part of the pre-participation medical evaluation after their son collapsed and died during a basketball practice. Reversed in part.

McCarthy v. Riddell, PICS Case No. 16-0595 (Pa. Super. April 26, 2016) (memorandum) Musmanno, J. (12 pages).

Trial court erred in striking de novo appeal in a dispute over the return of a residential lease security deposit on the grounds of untimeliness and improper venue, because the trial court used the wrong rule to determine timeliness, and appellees waived the improper venue issue by not filing preliminary objections. Vacated and remanded.

Estate of Mantell, PICS Case No. 16-0589 (Pa. Super. May 4, 2016) (memorandum) Olson, J. (9 pages).

Appellant lacked standing to challenge decedent's will where appellant failed to show that decedent lacked testamentary capacity. Order of the trial court affirmed.

City of Phila. v. Auguste, PICS Case No. 16-0597 (Pa. Commw. April 29, 2016) Friedman, J. (9 pages).

Trial court erred in setting aside sheriff's sale of property for nonpayment of taxes because trial court relied on issues raised sua sponte and city did satisfy the statutory notice requirements. Reversed.

Cnty. of Allegheny v. Allegheny Court Ass'n of Prof'l Emp., PICS Case No. 16-0588 (Pa. Commw. May 2, 2016) Pellegrini, J. (15 pages).

An arbitrator's determination that a grievance petition was timely under the terms of a CBA was sustained where such a procedural determination construed and applied the CBA and satisfied the deferential essence test. Trial court order affirmed.

BR Assoc. v. Bd. of Comm'r of Twp. of Upper St. Clair, PICS Case No. 16-0585 (Pa. Commw. May 5, 2016) Simpson, J. (30 pages).

The board of commissioners did not err in approving a nonresidential development plan based on its stormwater management plan. Order of the trial court affirmed.

In re Condemnation by PennDOT, PICS Case No.16-0593 (Pa. Commw. May 5, 2016) Simpson, J. (16 pages).

Trial court correctly denied a petition to reopen a settled and discontinued eminent domain action, because the trial court correctly determined that the alleged damages sounded in trespass, not eminent domain, were not compensable under the code, and the code provided no mechanism to reopen a settled and discontinued case. Affirmed.

Chesco Coring & Cutting v. Mega Concrete, PICS Case No. 16-0602 (C.P. Philadelphia March 4, 2016) Djerassi, J. (memorandum) (7 pages).

After resolution of actions in U.S. District Court and state court, defendants moved for summary judgment on wrongful use of civil process and abuse of process. Granted.

Brown v. Gong, PICS Case No. 16-0601 (C.P. Monroe March 24, 2016) Zulick, J. (6 pages).

Nonjury trial had found a breach of partnership agreement, which was followed by posttrial motions by both parties. Both parties' motions denied.

Commonwealth v. Michael, PICS Case No. 16-0603 (C.P. Lycoming April 27, 2016) Lovecchio, J. (5 pages).

Defendant sought to dismiss all charges of drug possession and paraphernalia based on the Drug Overdose Immunity Statute. Motion granted.

Commonwealth v. Potter, PICS Case No. 16-0604 (C.P. Lawrence March 30, 2016) Motto, P.J. (15 pages).

In a pretrial motion, defendant filed a motion for suppression of evidence obtained from a warrantless search of premises. Denied.

Hendershot v. Emmeci, PICS Case No. 16-0607 (C.P. Northampton April 19, 2016) Murray, J. (8 pages).

Plaintiff, a staffing agency worker, was injured on the job at contract facility. The court needed to determine statutory employer.

Cosgrove v. Easton Coach, PICS Case No. 16-0605 (C.P. Northampton April 26, 2016) Murray, J. (14 pages).

Bus operators seeking broad discovery through subpoenas of various injury and financial records were opposed by plaintiff objections. Defendants' motion to strike objections partly granted, partly denied.

Anderson v. Sisters Serving Sisters Inc., PICS Case No. 16-0599 (C.P. Philadelphia April 26, 2016) Massiah-Jackson, J. (5 pages).

Co-defendant club owner who did not have business insurance coverage was sued for injuries sustained on the premises and challenged the suit for improper service of process. Denied.

Albanese v. Dewitsky, PICS Case No. 16-0598 (C.P. Monroe March 17, 2016) Harlacher Sibum, J. (13 pages).

After filing a stipulation removing punitive damages from the claim against Molly's Irish Grille, injury victim of car crash sought to reopen discovery and amend complaint to claim for punitive damages. Denied.

Birnbaum v. Desko, PICS Case No. 16-0600 (C.P. Monroe March 23, 2016) Zulick, J. (13 pages).

Plaintiff seeking to quiet title on foreclosed property filed for summary judgment against original owner and straw party participant. Granted.

In re DiCristofaro, PICS Case No. 16-0606 (C.P. Chester April 25, 2016) Tunnell, J. (3 pages).

An inheritance tax payment for the estate of Margaret DiCristofaro was received by the State Department of Revenue with a postmark two days past the three-month early payment discount period. The estate appealed on the basis that it had timely deposited the payment in a mailbox on May 6, the final day of the discount period, prior to the last pickup time. The postmark on the envelope read May 8, and the Department of Revenue refused to apply the 5 percent discount. The Inheritance and Estate Tax Act provision, 72 P.S. §9142, is clear in stating that, if the tax is paid within three months, the 5 percent discount would be allowed.

In re Rainone, PICS Case No. 16-0608 (Pa. March 17, 2016) per curiam (30 pages).

Lawyer Sebastian M. Rainone petitioned the Disciplinary Board for reinstatement. Denied.