This Week's Cases

D.P. v. G.J.P., PICS Case No. 16-1161 (Pa. Sept. 9, 2016) Saylor, C.J.; Baer, J. (concurring and dissenting) (27 pages).

A statutory provision conferring upon grandparents standing to seek custody, based solely on the separation of the parents, was unconstitutional because it improperly presumed parents' lack of fitness due solely to their separation.

Dickerson v. DeSimone, Inc., PICS Case No. 16-1160 (Pa. Super. Sept. 7, 2016) (memorandum) Lazarus, J. (8 pages).

Probable cause for a crime, based on an individual's return of property having removed part of the value of the property, provided an absolute defense to a claim of malicious prosecution. Judgment affirmed.

Commonwealth v. Pukowsky, PICS Case No. 16-1157 (Pa. Super. Sept. 8, 2016) Dubow, J. (12 pages).

Correspondence to a family member, never delivered, prepared on the instructions of a therapist did not qualify as confidential under the psychotherapist-patient privilege. Judgment of sentence affirmed.

Commonwealth v. Shull, PICS Case No. 16-1158 (Pa. Super. Sept. 13, 2016) Stevens, J. (53 pages).

The trial court erred in sentencing outside the guideline range where it failed to apply the deadly weapon used enhancement where defendant "used" the weapon by holding it in front of victim, causing her fear for her safety to increase. Judgment of sentence vacated, case remanded for resentencing.

Commonwealth v. Simonson, PICS Case No. 16-1159 (Pa. Super. Sept. 12, 2016) Olson, J. (18 pages).

Police were entitled to perform a warrantless gunshot residue swab on appellant's hands pursuant to the search-incident-to-arrest exception, as the swab did not unreasonably intrude upon appellant's diminished expectation of privacy while under arrest. Judgment of sentence affirmed.

B.G. Balmer & Co., Inc. v. Frank Crystal & Co., Inc., PICS Case No. 16-1155 (Pa. Super. Sept. 9, 2016) Stabile, J. (29 pages).

The trial court did not abuse its discretion in awarding punitive damages for breach of restrictive employment covenants where the trial court found outrageous conduct in appellants' conspiracy to set up a separate business in competition with their employer. Judgment affirmed.

In re A.O., PICS Case No. 16-1164 (Pa. Super. Sept. 9, 2016) (memorandum) Panella, J. (16 pages).

Orphans' court erred in denying agency's petition for involuntary termination of mother's parental rights because orphans' court failed to consider the entire history of the case. Reversed.

WFIC, LLC v. Labarre, PICS Case No. 16-1154 (Pa. Super. Sept. 13, 2016) Bender, P. J. (15 pages).

Trial court properly dismissed appellant attorney's challenge to the distribution of litigation proceeds based on his amended fee agreement. Affirmed.

QBE Ins. Corp. v. Walters, PICS Case No. 16-1151 (Pa. Super. Sept. 9, 2016) Bowes, J. (15 pages).

Trial court properly granted summary judgment in favor of insurance company in declaratory judgment action insurer brought to adjudicate its obligations in suit by cafe patron shot in parking lot. Affirmed.

Webb v. Volvo Cars of N. Am. LLC, PICS Case No. 16-1153 (Pa. Super. Sept. 9, 2016) Stabile, J. (25 pages).

Trial court erred in its jury instructions in action based on negligence and strict liability claims arising from a death in an automobile accident. Vacated and remanded.

Liberty Philadelphia REO, LP v. EFl Partners V. LP, PICS Case No. 16-1148 (Pa. Super. Sept. 8, 2016) (memorandum) Ott, J. (12 pages).

Trial court erred in denying appellant's petition to fix the fair market value on the Spruce Street properties on the basis of a lack of jurisdiction because Pa.R.A.P. 1701(b) and (c) allowed the court to retain jurisdiction over that issue despite a pending appeal. Reversed.

McLafferty v. Council for Ass'n of Owners of Condo. No. One, PICS Case No. 16-1149 (Pa. Super. Sept. 12, 2016) Bowes, J. (20 pages).

Trial court erred in finding that the Uniform Condominium Act did not apply retroactively to the process of homeowner's association's amendment of the original declaration of condominium. Reversed.

In re Estate of Loucks, PICS Case No. 16-1162 (Pa. Super. Sept. 9, 2016) Bowes, J. (10 pages).

A beneficiary was not authorized to invade trust principal, where such an act would run counter to the express terms of the trust providing for perpetual distributions of trust income. Order of the orphans' court affirmed.

Commonwealth v. Duncan, PICS Case No. 16-1156 (Pa. Commw. Sept. 9, 2016) McCullough, J. (13 pages).

The trial court erred in issuing mandamus ordering a magistrate judge to enter guilty verdicts on traffic citations, where the Supreme Court had original jurisdiction over mandamus to courts of inferior jurisdiction. Order of the trial court vacated, case transferred to the Supreme Court.

Kegerise v. Delgrande, PICS Case No. 16-1163 (Pa. Commw. Sept. 13, 2016) McCullough, J. (30 pages).

An employer erred in treating an employee's federal complaint alleging constructive termination as the employee's resignation, since a claim for constructive termination did not first require the employee's resignation. Order of the trial court affirmed.

Trometter v. Pa. Labor Relations Bd., PICS Case No. 16-1152 (Pa. Commw. Sept. 8, 2016) Brobson, J. (15 pages).

Labor relations board erred in concluding that it lacked the authority and jurisdiction to enforce §1701 of the Public Employees Relations Act (PERA) )and in transferring a complaint alleging a violation of §1701 to the attorney general's office. Reversed.

Piole v. Pupich, PICS Case No. 16-1141 (C.P. Allegheny Sept. 12, 2016) Hertzberg, J. (10 pages).

A new trial was properly granted on the basis of the jury's consideration of extraneous information, where the trial court found credible a witness' testimony regarding jurors discussing searching one of the parties on the Internet.

Arvonio v. PNC Fin. Serv. Grp., Inc., PICS Case No. 16-1135 (C.P. Lackawanna Aug. 24, 2016) Minora, J. (25 pages).

A motion for sanctions based on defendant's failure to designate a corporate designee that was fully knowledgeable on all the areas of inquiry listed in the notice of deposition was improper.

Marano v. Fulton Bank, N.A., PICS Case No. 16-1140 (C.P. Lancaster July 15, 2016) Ashworth, J. (17 pages).

A series of written documents setting forth the terms of plaintiffs' employment constituted a complete, integrated agreement subject to the parol evidence rule, such that evidence of fraud in the inducement of a contract could not be introduced.

Commonwealth v. Burkhart, PICS Case No. 16-1143 (C.P. Monroe July 7, 2016) Higgins, J. (15 pages).

The refusal of a bank loan proved to be the breaking point for one man who took out his frustrations verbally and then physically on his girlfriend and housemate. Despite attempts to defuse the situation, he repeatedly escalated interactions into threats to kill her and her family, punctuated by a wielded knife and other sharp object, over the course of an afternoon, night, and the next morning. Numerous charges were filed against him, reflecting the severity of the situation, which defendant attempted to play down. He petitioned for habeas corpus relief with regard to most of them, and the court refuted his arguments by showing prima facie cause for each. One charge was dismissed and one held in abeyance for trial.

Commonwealth v. Sebring, PICS Case No. 16-1144 (C.P. Monroe July 18, 2016) Patti-Worthington, J. (10 pages).

Two dog walkers in a park, a mother with her son and a single male, came to an altercation when the boy's dog got loose and approached the man's dog. He pulled a firearm and threatened to kill the boy's dog if it came toward his again, eventually replacing the gun, under discussion with the mother, who reported the incident to police. A criminal complaint was filed against the man with charges of simple assault (dismissed at preliminary hearing), reckless endangerment and disorderly conduct. Following defendant's motion for habeas corpus, the commonwealth attempted to revive the simple assault charge in a criminal information. The court found it arose from the same circumstances and was thus dismissed from the information, granting defendant's motion in part and denying in part by retaining the other charges.

Commonwealth v. Rolle, PICS Case No. 16-1139 (CP Monroe July 19, 2016) Higgins, J. (18 pages).

A possession with intent to distribute charge was severed from prostitution/human trafficking charges where the criminal conduct in each docket was not so similar as to demonstrate a common scheme and plan.

Carson v. Barletta, PICS Case No. 16-1138 (C.P. Monroe Aug. 1, 2016) Higgins, J. (22 pages).

Mother's proposed relocation with children with a grant of primary physical custody was in best interest of children due to father's problems controlling anger and mother's better capacity to provide care and support, although father was to be awarded extended visitation.

Yost v. Farmers Ins. Grp., PICS Case No. 16-1146 (C.P. Monroe July 21, 2016) Williamson, J. (5 pages).

Injuries deriving from a car accident led to neck fusion surgery and continued chiropractic care. The insurer sought a peer review of the claim and called it unnecessary, and the injured and her medical treatment provider filed suit for payment of the bills plus legal fees. Insurers objected to the legal fees and filed a preliminary objection. The court clarified the differing issues involving the timing of the request and determined the question of legal fees could not be decided before trial. Preliminary objections were denied.

Clifford v. Cmty. Med. Ctr., PICS Case No. 16-1136 (CP Lackawanna Aug. 24, 2016) Minora, J. (40 pages).

Summary judgment was improper where there was a material question of fact for a jury to decide whether medical providers were grossly negligent in discharging a suicidal patient.

Richter v. Pocono Med. Ctr., PICS Case No. 16-1142 (C.P. Monroe July 15, 2016) Williamson, J. (6 pages).

Reference to the staff of a medical center as a unit was sufficiently specific to identify the agents and employees of a corporate defendant in a medical malpractice action, where the identities of the agents and employees who treated plaintiffs would be known to defendant and would be identified by plaintiff in the course of discovery.

Zamora v. Pocono Manor Investors, PICS Case No. 16-1147 (C.P. Monroe July 20, 2016) Williamson, J. (6 pages).

When a minor patron of a restaurant was served alcohol, she became intoxicated and hurt herself on a glass door. She filed a complaint against the restaurant owners alleging violations of the Dram Shop Act and common-law negligence. The restaurant objected on grounds that she did not allege conduct that rose to the threshold of conduct warranting punitive damages and that the Dram Shop Act precluded common-law negligence. The court agreed with the restaurant on the first claim but found that the negligence claim was linked with the claim of serving alcohol to an underage recipient, granting their preliminary objections in part and denying in part.

Westgate v. Keystone Blind Ass'n, PICS Case No. 16-1145 (C.P. Monroe July 14, 2016) Williamson, J. (10 pages).

A supervisor at a rest stop received notification by a female employee of unapproved photography in the restrooms by a second employee and initiated an investigation of the incident. Soon afterward, the supervisor was terminated by the rest stop management, whereupon he filed suits under EEOC and state PHRC regulations. After mediation failed, he filed a third suit under the Whistleblower Law. Defendant raised preliminary objections, answered by the supervisor's objections. Both sets were granted in part and denied in part.

In the Matter of Sigman, PICS Case No. 16-1137 (Pa. Aug. 17, 2016) per curiam (19 pages).

Despite having committed two transgressions during suspension, petitioner's efforts to maintain gainful employment, keep current with CLE and developments in the law and work in the community, were more strongly indicative of petitioner's readiness to resume the practice of law.