This Week's Cases

Commonwealth v. Sepulveda, PICS Case No. 16-1045 (Pa. Aug. 15, 2016) Donohue, J. (20 pages).

The PCRA court did not have discretion to permit petitioner to amend his timely PCRA petition to raise new claims where the petition had already been fully adjudicated by the PCRA court. Order of the PCRA court vacated in part and affirmed in part.

Commonwealth v. Kingston, PICS Case No. 16-1025 (Pa. Aug. 15, 2016) Wecht, J.; Saylor, C.J. (dissenting) (19 pages).

The Crimes Code did not prohibit convictions on multiple counts, resulting in multiple judgments of sentence, of the same inchoate offense designed to culminate in a single underlying crime, where the purpose of the prohibition was to bar multiple convictions and judgments of sentence for multiple inchoate offenses. Order of the superior court reversed.

Commonwealth v. Lutz-Morrison, PICS Case No. 16-1046 (Pa. Aug. 15, 2016) Dougherty, J.; Todd, J. (dissenting) (9 pages).

Superior Court erred in upholding trial court's order that appellant, who pleaded guilty to three counts of possession of child pornography, was subject to lifetime registration under SORNA because the act required an act, a conviction and a subsequent act to trigger lifetime registration for multiple offenses. Reversed and remanded.

A.S. v. Pa. State Police, PICS Case No. 16-1039 (Pa. Aug. 15, 2016) Dougherty, J.; Todd, J. (dissenting) (34 pages).

A first-time, nonviolent offender convicted of multiple sex offenses from the same criminal episode was deemed to have only one conviction mandating a 10-year sex offender registration requirement under Megan's Law II. Order of the commonwealth court affirmed.

Phila. Fed'n of Teachers v. Sch. Dist., PICS Case No. 16-1024 (Pa. Aug. 15, 2016) Saylor, C.J. (24 pages).

Commonwealth court properly found that insofar as teachers were concerned, collective bargaining agreements were "teachers' contracts" and were excepted from a school reform commission's cancellation powers based on the construction of the term "teachers' contracts" in ยง693(a)(1). Affirmed.

Oakley v. Clark, PICS Case No. 16-1054 (Pa. Super. Aug. 12, 2016) (memorandum) Platt, J. (10 pages).

The trial court did not abuse its discretion in granting a motion in limine where the opposing party failed to supply a reply brief to the motion, where the trial court's order required the parties to submit briefs within 10 days of service. Judgment affirmed.

Commonwealth v. Langley, PICS Case No. 16-1044 (Pa. Super. Aug. 12, 2016) Stevens, J. (9 pages).

Appellant was not entitled to a jury trial for a misdemeanor DUI charge where, even though a conviction would subject appellant to harsher penalties for a subsequent DUI offense, neither the federal nor state constitutions guaranteed a jury trial for petty crimes. Judgment of sentence affirmed.

Commonwealth v. Gayle, PICS Case No. 16-1043 (Pa. Super. Aug. 10, 2016) Stevens, J. (11 pages).

The trial court properly dismissed a petition for return of property as moot where it determined that the commonwealth was credible in its assertion that it did not possess the property sought to be returned. Order of the trial court affirmed.

Commonwealth v. Brown, PICS Case No. 16-1042 (Pa. Super. Aug. 12, 2016) Lazarus, J. (20 pages).

Trial counsel's failure to meet with defendant at any time prior to or during trial constituted ineffective assistance of counsel warranting a new trial, regardless of counsel's performance during trial. Order of the PCRA court reversed; case remanded for new trial.

Commonwealth v. Wilson, PICS Case No. 16-1047 (Pa. Super. Aug. 11, 2016) Dubow, J. (5 pages).

Trial court erred in dismissing the complaint against appellant pursuant to Rule 600 because he was released on bail at the time of remand even though he was later incarcerated in another state on unrelated charges. Reversed.

Kutsch v. Anthony, PICS Case No. 16-1051 (Pa. Super. Aug. 15, 2016) (memorandum) Ford Elliott, P.J. (13 pages).

Trial court properly set father's monthly child support obligation at $572 because trial court did not abuse its discretion in basing father's obligation on his post-retirement income. Affirmed.

Krishack v. Milton Hershey Sch., PICS Case No. 16-1050 (Pa. Super. Aug. 15, 2016) Platt, J. (11 pages).

Trial court properly granted summary judgment for school in case brought by appellant former student alleging that he contracted histoplasmosis at the school 60 years ago because appellant failed to provide any evidence that the fungus that caused histoplasmosis was ever present at the school. Affirmed.

Barnes v. Alcoa, Inc., PICS Case No. 16-1040 (Pa. Super. Aug. 12, 2016) Olson, J. (15 pages).

A parent company was entitled to nonsuit on claims of negligence and negligent hiring/supervision in a snow-and-ice slip-and-fall case, where there was insufficient evidence to prove that employees responsible for maintenance of premises were under the direction and control of the parent company. Judgment affirmed.

Kehr v. Grissinger, PICS Case No. 16-1049 (Pa. Super. Aug. 12, 2016) (memorandum) Stevens, P.J. (13 pages).

Trial court appropriately granted an easement of necessity to appellees' landlocked property, and trial court properly located easement at the location of an easement created and used by a prior owner of their property. Affirmed.

City of Phila. v. Rivera, PICS Case No. 16-1030 (C.P. Philadelphia June 13, 2016) Carpenter, J. (12 pages).

Sheriff's sale to redeem tax lien on real property was appealed by owners. In a back and forth of motions for redemption/setting aside of the sale and failure to comply with court orders, the court granted owners' motion to set aside the sale. Purchaser of the property never filed a petition to intervene and, after the sale was to be set aside, appealed the denial of his motion to reconsider that order. The court, on appeal, recommended the motion be quashed on grounds that purchaser was not a party or, alternatively, that the appellate court affirm the motion to set aside the sale.

Vetter v. Miller, PICS Case No. 16-1032 (C.P. Berks Aug. 5, 2016) Fudeman, J. (11 pages).

Intoxicated driver's perception of driving events led him to be caught and dragged by another vehicle to whom he had shown threatening behavior. The jury found both drivers proportionately negligent and denied plaintiff-passenger's claim of IIED. The court did not err in its admissions of evidence at trial and denial of non-economic damages and recommended denial of plaintiff's appeal for new trial.

Germantown Cab Co. v. Phila. Parking Auth., PICS Case No. 16-1033 (C.P. Philadelphia June 28, 2016) Padilla, J. (4 pages).

Cab company originally cited for failure to pay its yearly taxicab assessment and received a penalty termed "out of service" from the Enforcement Department, where the terminology should have been "suspension" or "cancellation." Cab company appealed and requested a stay, which was denied. The court recommended remanding to allow the vacation of its orders from March 29 and April 1, 2016.

Healthcare Mgt. Servs. of Baltimore Cnty. v. Bracco Diagnostics, PICS Case No. 16-1034 (C.P. Philadelphia July 22, 2016) McInerney, J. (10 pages).

Lessor of generator of radioactive isotopes for medical imaging purposes suffered economic impact when the generator was recalled for several months in 2011. The lessor filed suit against the distributor of the generators for breach of contract, implied and express warranty and fraud. The claims failed due to lack of enforceable sales contract between the two parties and express limitations of liability in the distributor's various contracts.

In re A.M.C.L., PICS Case No. 16-1035 (C.P. Cumberland Aug. 10, 2016) Masland, J. (5 pages).

Following resuscitation of a victim of heroin overdose and stipulation of relevant facts under the Drug Overdose Response Immunity Act with regard to its implications for the 911 caller, the state argued that there were limits to immunity. The court disagreed and granted the motion to dismiss the charges against the juvenile victim.

In re D.G., PICS Case No. 16-1031 (C.P. Berks Aug. 9, 2016) Sprecher, J. (11 pages).

Son sought to have his elderly mother declared incompetent and a guardian appointed, based on irascible and willful behavior following the death of her other son. He engaged a psychologist in his cause, whose testimony supported his argument in part but also gave contrary information regarding mother's state of mind and ability to care for herself. Petitioner erred in not providing counsel for mother, who was absent from the hearing, but she sent her widowed daughter-in-law and sister to testify for her, which contributed to the court's finding that petitioner failed to meet his burden. The petition was denied, as the court found no present need for a guardian, and recommended affirmation of its order.

Santangini v. Krupa, PICS Case No. 16-1037 (C.P. Philadelphia July 14, 2016) Patrick, J. (7 pages).

Injured party in a slip-and-fall case sued the restaurant for negligence and breach of duty of care, alleging defects in design of the space, placement of fixtures and decor. Defendant argued that the injured party failed to plead grounds for negligence, since she did not provide expert witness testimony. The court agreed with defendant and granted its motion for summary judgment. On appeal, the court urged affirmation of its judgment.

Reyes v. Shah, PICS Case No. 16-1036 (C.P. Northampton July 7, 2016) Murray, J. (8 pages).

Property owner of land on which an uneven sidewalk caused an individual to trip and fall sought to have the case dismissed for failure to state a claim, on the basis of conflicting attributions of the site of the fall, since the location was in front of two conjoined house numbers. The property owner sought a demurrer for the claims against his property, but the court found that both complaints addressed the same cause of action. Dismissing it would require a premature decision on the liability of the alternate address. The court overruled the property owner's demurrer.

Scanlon v. The Gardens of Green Ridge, PICS Case No. 16-1038 (C.P. Lackawanna Aug. 10, 2016) Nealon, J. (memorandum) (23 pages).

Plaintiff's claims under the Wrongful Death Act (the Act) and punitive damages as well as defendants' objections under Pa. R.C.P. 1028(a)(6) were ordered to binding arbitration based on the contract signed when decedent was admitted to the nursing home. The claim for NIED was dismissed for legal insufficiency since plaintiff did not qualify under the bystander rule to recover for NIED.

In re Kennedy, PICS Case No. 16-1028 (Pa. Aug. 11, 2016) per curiam (14 pages).

Respondent submitted his verified statement of resignation from the bar for not reporting criminal convictions of embezzlement to the Disciplinary Board. The ODC determine he had violated Rules of Disciplinary Enforcement and of Professional Conduct in committing the crimes, not reporting them and engaging in conduct involving dishonesty and fraud that reflected adversely on the lawyer's honesty and trustworthiness. The ODC recommended convening a hearing committee to determine the final discipline.

In re Flaugh, PICS Case No. 16-1029 (Pa.Aug. 12, 2016) per curiam (16 pages).

Attorney who took on a personal injury case involving three persons failed to fulfill his duties in disbursing settlement monies for two and completely to follow through with the third, where failure to communicate with his client ranged from responding to questions to not conveying court dates. The incomplete disbursement of funds went hand in hand with mishandling of client funds. In light of the numerous violations of professional conduct regulations and failure to acknowledge or express remorse, the ODC recommended a lengthier suspension. The Disciplinary Board opted for a shorter suspension, noting that, despite the gravity of the offenses, it viewed the attorney as overwhelmed and "perhaps inept, but not malicious."

In re Corcoran, PICS Case No. 16-1027 (Pa. Aug. 11, 2016) per curiam (13 pages).

Despite the objections of the ODC as to the amount of debt still outstanding, the Disciplinary Board found petitioner satisfied the moral and professional requirements for reinstatement to the bar. The petition for reinstatement was granted; petitioner to pay the costs of the proceeding.

City of Phila. Fire Dep't v. Workers' Comp. Appeal Bd., PICS Case No. 16-1041 (Pa. Commw. Aug. 12, 2016) Leavitt, J. (22 pages).

The WCAB erred in applying the statutory presumption of liability for workplace compensation for cancer suffered by a firefighter, where the firefighter failed to prove that his particular type of cancer was an occupational disease; case remanded.