This Week's Cases

Grimm v. Universal Med. Serv., Inc., PICS Case No. 17-0319 (Pa. Super. March 1, 2017) Bender, P. J. (17 pages).

Trial court properly awarded attorney fees under the WPCL in appellee's breach of contract and WPCL claims even though they caused the total amount recovered by appellee to exceed the limit set forth in Pa. R. Civ. P. 1311 because interpreting "damages recoverable" to include attorney fees accomplished the purpose of both rule 1311.1 and the WPCL. Affirmed.

Deek Inv., L.P. v. Murray, PICS Case No. 17-0367 (Pa. Super. March 3, 2107) Stabile, J. (13 pages).

Trial court erred by failing to recognize that appellee's writ of execution was filed beyond the statute of limitations, in finding that the statute of limitations ran from the date of the trial court's 2005 order enforcing the parties' forbearance agreement rather than the original entry of judgment and in holding that equitable tolling applied. Order vacated.

Commonwealth v. Savage, PICS Case No. 17-0364 (Pa. Super. March 7, 2017) Dubow, J. (13 pages).

A CYS investigation report was inadmissible under the business records exception to the hearsay rule because the contents of the report originated from a witness outside of CYS. Judgment of sentence affirmed.

Commonwealth v. Chambers, PICS Case No. 17-0362 (Pa. Super. March 7, 2017) Solano, J. (20 pages).

Mace was an instrument of crime and a deadly weapon where it was used to render the victim defenseless during an assault in which the defendant repeatedly punched and kicked and verbally threatened the life of the victim. Judgment of sentence affirmed.

Commonwealth v. Torres-Kuilan, PICS Case No. 17-0365 (Pa. Super. Feb. 27, 2017) Ott, J. (8 pages).

Trial court properly allowed seven year old witness in child molestation case to testify via closed circuit television because 42 Pa.C.S. §5985(a.1)(2) did not prevent the judge from hearing the evidence of the witness coordinator who accompanied the child to court and the witness coordinator's testimony corroborated the judge's own observations that the child was upset and refused to enter the courtroom. Affirmed.

Commonwealth v. Watson, PICS Case No. 17-0366 (Pa. Super. March 8, 2017) Lazarus, J. (16 pages).

Trial court erred in sentencing when it mistakenly believed it was statutorily required to impose a sentence of intermediate punishment for the mandatory maximum term required for a second DUI offense, where a trial court was not bound to the mandatory maximum when sentencing a defendant to CIP. Judgment of sentence vacated, case remanded for resentencing.

Commonwealth v. Plowden, PICS Case No. 17-0363 (Pa. Super. March 8, 2017) Ott, J. (18 pages).

Trial court erred in holding that the Rule 600 time limits had expired and dismissing the charges against appellee because the commonwealth used due diligence in its IAD transfer request. Reversed.

K.W. v. S.L., PICS Case No. 17-0375 (Pa. Super. March 6, 2017) Stabile, J. (19 pages).

Trial court erred by denying father's objections and granting in loco parentis standing to appellees on an implied basis because father acted in a manner inconsistent with consent by promptly informing private agency that he did not want child to be adopted after being informed that she was residing with prospective adoptive parents and by filing a custody complaint. Vacated.

In the Interest of N.B., PICS Case No. 17-0374 (Pa. Super. March 8, 2017) Strassburger, J. (12 pages).

Juvenile court erred in suppressing appellee's statement to police on Miranda grounds because any coercion, if it existed, was by appellee's mother and not the police. Reversed.

Freundlich & Littman, LLC v. Feierstein, PICS Case No. 17-0369 (Pa. Super. Feb. 23, 2107) Bender, P.J. (16 pages).

Trial court erred in holding that judicial privilege barred appellants' claims for wrongful use of civil proceedings and abuse of process based on counterclaim appellees filed in prior litigation allegedly for the purpose of witness intimidation because judicial privilege did not bar claims under the Dragonetti act. Order vacated.

Steele v. Workers' Comp. Appeal Bd. (Findlay Twp.), PICS Case No. 17-0379 (Pa. Commw. March 8, 2017) Jubelirer, J. (12 pages).

WCJ erred in accepting lay testimony to establish a volunteer firefighter's direct exposure to carcinogens where the Workers' Compensation Act required him or her to submit PennFIRS reports to establish direct exposure. Order of the WCAB reversed, case remanded.

Demko v. City of Pittsburgh Zoning Bd. of Adjustment, PICS Case No. 17-0368 (Pa Commw. March 7, 2017) Hearthway, J. (20 pages).

Zoning board erred in granting variances and special exceptions for redevelopment of nonconforming property where developers sought to increase nonconformity, rather than merely maintaining existing nonconformity. Order of the trial court affirmed.

In Re: Appeal of Aram K. Jerrehian, PICS Case No. 17-0373 (Pa. Commw. March 6, 2017) Leavitt, J. (22 pages).

A township zoning board erred in holding that a right-of-way was not a "street" under the zoning code. Appeal granted in part and rejected in part.

In re Appeal of Chestnut Hill Cmty. Ass'n, PICS Case No. 17-0372 (Pa. Commw. March 3, 2017) Covey, J. (17 pages).

Zoning board erred in granting a variance to construct a front yard open-air parking space where property owners' inability to reach a rear parking space did not represent a physical circumstance unique to the property constituting an unnecessary hardship. Order of the trial court reversed.

State Emp. Ret. Sys. v. Campbell, PICS Case No. 17-0378 (Pa. Commw. March 3, 2017) Cosgrove, J. (6 pages).

OOR erred in ordering disclosure of retired state employees' home addresses without first performing a balancing test between the public interest in disclosure and the employees' privacy interest. Final determination of the OOR vacated, case remanded.

Germantown Cab Co. v. Philadelphia Parking Auth., PICS Case No. 17-0370 (Pa. Commw. March 6, 2017) Leavitt, J. (11 pages).

Taxicab regulating authority could not impose its service regulations upon a partial rights taxicab operating outside the service area of its PUC certificate, since a partial rights taxicab was regulated solely by the PUC, but instead could only cite such a taxicab for unlicensed activity. Order of the trial court reversed.

Trapasso v. Marryshow, PICS Case No. 17-0346 (C.P. Monroe Jan. 18, 2017) Williamson, J. (17 pages).

In negotiating the terms of an easement, defendant acted with apparent authority on behalf of his brother and with actual authority as personal representative of his mother's estate. In reliance on defendant's agreement to the terms of an easement, plaintiff proceeded to incur engineering and legal expenses to effectuate the easement. Defendant breached the parties' agreement by failing to execute the easement deed, and was liable for damages.

Commonwealth v. Rudinski, PICS Case No. 17-0256 (C.P. Lycoming Feb. 9, 2017) Butts, P. J. (10 pages).

Defendant filed a post-sentence motion arguing discovery violations and seeking a new trial based on after discovered evidence in his trial for having child pornography on his computer but the court found no discovery violation because it was incumbent on defense counsel to seek the expert's full report prior to trial and defendant offered no evidence to support the allegations of wrongdoing by the commonwealth's expert witness. Motion denied.

Commonwealth v. Conte, PICS Case No. 17-0345 (C.P. Monroe, Jan. 18, 2017) Higgins, J. (8 pages).

Defendant in sexual assault case was not entitled to a taint hearing where the alleged victim was 29 years old and there was no evidence in the record that she was incompetent to testify.

Take Back Your Neighborhood v. Zoning Bd., PICS Case No. 17-0309 (C.P. Philadelphia, Feb. 7, 2017) Fletman, J. (7 pages).

Zoning board properly granted a special exception to allow property to be used as a nonmedical program facility because applicant met all the requirements for a special exception and appellant, which contended that the proposed facility would be a detriment to the neighborhood, failed to meet its burden of proof and presented no evidence of specific safety or parking concerns. Affirmed.

Murray v. Tripodi, PICS Case No. 17-0354 (C.P. Philadelphia Mar. 1, 2017) Ceisler, J. (7 pages).

Defendant waived her right to challenge the court's ruling where she filed to timely provide a copy of her statement of errors to the court. The court held defendant's appeal should be quashed.

City of Phila. v. Albert's Rest., Inc., PICS Case No. 17-0343 (C.P. Philadelphia, Feb. 16, 2017) Butchart, J. (13 pages).

Defendants were not entitled to relief where their attorney failed to appear at trial, because the matter had been placed on an expedited track, and counsel was provided ample notice of the trial date in accordance with court procedures.

Calkins v. Butz, PICS Case No. 17-0313 (C.P. Lehigh, Jan. 15, 2017) Varricchio, J. (12 pages).

Claims raised by plaintiff as administrator of an estate against the decedent's former attorney for professional negligence and breach of contract were time barred. The court granted defendants' motion for judgment on the pleadings and dismissed the complaint.

Wilcox v. Commonwealth, PICS Case No. 17-0357 (C.P. Philadelphia Mar. 1, 2017) Wright Padilla, J. (6 pages).

Where a driver who had been arrested for driving under the influence was not provided with a reason for asking him to submit to a second breathalyzer test, suspension of his license was improper.

Hannah v. Sch. Reform Comm'n, PICS Case No. 17-0299 (C.P. First Judicial District, Civil Div. Feb. 14, 2017) Padilla, J. (8 pages).

School reform commission properly considered principal's testimony as to what students told him in hearing about appellant substitute teacher's termination for showing student sexually inappropriate pictures of himself because local agencies were not bound by the technical rules of evidence and commission also based its decision on appellant's testimony and credibility. Affirmed.

Larry Pitt & Assoc. v. Lundy Law, LLP, PICS Case No. 17-0377 (E.D. Pa. Feb. 28, 2017) Rufe, J. (21 pages).

Plaintiff's post-discovery motion to amend was denied for causing prejudice to defendants where defendants would have been forced to restart discovery. Plaintiff's motion for leave to amend complaint denied.

Malibu Media, LLC v. Doe, PICS Case No. 17-0376 (M.D. Pa. March 3, 2017) Conner, C.J.) (16 pages).

Defendant's assertions might offer him a defense to plaintiff's pending copyright infringement action but his attempt to transform affirmative defenses into a counterclaim failed because plaintiff had immunity under the Noerr-Pennington doctrine and defendant's admitted knowledge undermined his fraud, RICO and consumer protection law claims. Counterclaim dismissed.

Hannon v. Lowe's Home Ctr., Inc., PICS Case No. 17-0371 (M.D. Pa. Feb. 27, 2107) Munley, U.S.D.J. (9 pages).

Plaintiff's motion for reconsideration of his negligence action against defendant for failing to supervise the construction of a display house that plaintiff's employer was building failed because his argument that the display house presented a "special danger" was not supported by the record. Motion denied.