This Week's Cases

Antell v. First Niagara Bank, N.A., PICS Case No. 16-1273 (Pa. Super. Sept. 30, 2016) (memorandum) Panella, J. (15 pages).

Trial court properly dismissed appellant's complaint with prejudice in his action against appellee, servicer of appellant's mortgage loan, alleging intentional misrepresentation, violations of Unfair Trade Practices and Consumer Protection (UTPCPL), tortious interference with a contractual relationship and a quiet title claim because appellant failed to plead the required element of injury or damages. Affirmed.

Weaver v. Shoff, PICS Case No. 16-1278 (Pa. Super. Sept. 29, 2016) (memorandum) Jenkins, J. (4 pages).

Appellant appealed the trial court's grant of appellees' motion to rescind his leave to proceed in forma pauperis, and court transferred the appeal to the Commonwealth Court because the Commonwealth Court had an established line of authority on interpreting the Prison Litigation Reform Act, which governed a prisoner's opportunity to proceed in forma pauperis. Transferred.

Finch v. Am. Premier Underwriters, Inc., PICS Case No. 16-1276 (Pa. Super. Sept. 30, 2016) (memorandum) Olson, J. (12 pages).

Trial court erred in transferring venue of appellant's suit against former employers pursuant to the Federal Employers' Liability Act that alleged toxic exposure that led to bladder cancer because the facts showed that trial in appellant's chosen forum would represent only an inconvenience to the defense. Vacated and remanded.

Kirwin v. Sussman Automotive, PICS Case No. 16-1272 (Pa. Super. Oct. 7, 2016) Lazarus, J. (6 pages).

A "catchall" Unfair Trade Practices and Consumer Protection Law (UTPCPL) claim failed where plaintiffs were unable to prove justifiable reliance on alleged "bait and switch" pricing. Summary judgment affirmed.

Flagstar Bank, FSB v. Wampole, PICS Case No. 16-1280 (Pa. Super. Oct. 11, 2016) (memorandum) Stabile, J. (8 pages).

A bank's entry into a consented fine agreement with the Consumer Financial Protection Bureau for unfair and deceptive business practices did not constitute a substantial change in the facts or evidence to overcome the law of the case doctrine and justify setting aside a sheriff's sale, where the trial court had previously ruled that the bank had sufficiently proved mortgagors' default. Order of the trial court affirmed.

Commonwealth v. Demora, PICS Case No. 16-1275 (Pa. Super. Oct. 3, 2016) Panella, J. (7 pages).

Trial court found that appellant's registration requirement was not a material term of his plea agreement and denied his challenge to the application of SORNA reporting requirements to him but the appellate court declined to address appellant's arguments because he failed to name an indispensable party, the PSP, and the trial court lacked subject matter jurisdiction. Affirmed.

Owens v. Lehigh Valley Hosp., PICS Case No. 16-1277 (Pa. Super. Oct. 5, 2016) (memorandum) Olson, J. (10 pages).

Trial court properly granted summary judgment to hospital in employee's suit for wrongful termination in retaliation for invoking her workers' compensation rights because employee's suit was time-barred and there were no grounds for tolling the statute of limitations. Affirmed.

Domiano v. Domiano, PICS Case No. 16-1265 (Pa. Super. Oct. 6, 2016) (memorandum) Gantman, P.J. (22 pages).

The trial court did not err in accepting a master's report filed nearly two and a half years after hearing, where complaining party could not definitively demonstrate changes in value of marital property. Decree of the trial court affirmed.

Friedman v. Devon Manor, PICS Case No. 16-1269 (Pa. Super. Oct. 12, 2016) (memorandum) Ford Elliott, J. (11 pages).

Transfer of venue to the county where the alleged act of negligent care occurred was proper, even for a case additionally asserting a third party's own IIED and NIED claims. Order of the trial court affirmed.

Zawrotny v. Clark, PICS Case No. 16-1279 (Pa. Super. Oct. 4, 2016) (memorandum) Ott, J. (6 pages).

Estate's appeal of trial court's finding that son did repay loan to decedent was remanded for the production of a certified trial transcript and the trial court's Rule 1925(a) opinion. Remanded.

Werner v. Werner, PICS Case No. 16-1271 (Pa. Super. Oct. 7, 2016) Musmanno, J. (17 pages).

Children were entitled to the entire proceeds of the sale of real property purchased using funds held in custody for them.

Fargo v. Workers' Comp. Appeal Bd., PICS Case No. 16-1266 (Pa. Commw. Oct. 11, 2016) Colins, J. (14 pages).

A firefighter was statutorily required to bring a compensation claim for cancer as an occupational disease ostensibly caused by workplace exposure to carcinogens within 600 weeks of the last date of exposure. Order of the WCAB affirmed.

Balady Farms, Inc. v. Paradise Twp. Zoning Hearing Bd., PICS Case No. 16-1274 (Pa. Commw. Oct. 4, 2016) Covey, J. (17 pages).

Trial court erred in upholding zoning board's denial of farmer's application to add a chicken processing facility to his farm to process the chickens he raised on the farm because the proposed addition fell within the ordinance's definition of "agriculture" and thus, was permitted as of right. Reversed.

Berwick Twp. v. O'Brien, PICS Case No. 16-1264 (Pa. Commw. Oct. 12, 2016) Simpson, J. (39 pages).

A trial court's grant of declaratory judgment seeking to enjoin landowners from interfering with a township's exercise of its rights under a sewer line easement agreement was not beyond the scope of the "actual controversies." Order of the trial court affirmed.

In Re Balaji Invs. LLC, and Savana Props. LLC, PICS Case No. 16-1270 (Pa. Commw. Oct. 6, 2016) Wojcik, J. (14 pages).

Purchasers at an upset tax sale were not entitled to have real estate taxes that accrued between the sale and conveyance of title abated because a successful bid at an upset tax sale immediately vested a purchaser with an equitable interest in the property. Order of the trial court affirmed.

Aria Health v. R World Energy Solutions, PICS Case No. 16-1229 (C.P. Phila. Sept. 14, 2016) Glazer, J. (5 pages).

Aria Health contracted with a sales and engineering energy firm in 2013 to install electrical surge protection and power quality and optimization system at its hospitals. Its subcontractor was to install the system in accordance with local codes, but Aria discovered numerous code violations in 2014 and sued, alleging negligent design and installation, failure to supervise and failure to follow applicable building and electrical codes. Following an adverse decision on its preliminary objections and an attempt to compel arbitration where there was none in the contract, the contractor appealed the decision. The court revisited its arguments and recommended affirmation of its decision.

GMAC Mortg. v. Houseman, PICS Case No. 16-1236 (C.P. Adams Aug. 26, 2016) Campbell, J. (14 pages).

In a foreclosure action that dragged on since 2010, the homeowner suffered default judgment twice, followed by numerous stays of the sheriff's sale and then challenges to the legitimacy of the sale, without providing substantial evidence. He even acknowledged receipt of the eviction notice but refused to comply, causing further litigation effort on the part of the purchaser/mortgage holder, which culminated in the motion for summary judgment. Defendant failed to prove lack of jurisdiction, lack of authority and evidence of actual fraud in his attempt to thwart plaintiff's possession of the property. Plaintiff's motion for summary judgment was granted.

Commonwealth v. Moyer, PICS Case No. 16-1231 (C.P. Adams Sept. 7, 2016) Campbell, J. (4 pages).

Defendant charged and sentenced for a DUI two days before the ruling in Birchfield sought to have her sentence vacated in a timely post-trial petition. The court determined that she had not previously made an issue of her warrantless blood draw, and that unlike in Birchfield no enhanced penalty for a refusal was involved. Relying on the clarification of retroactive application of a new rule set forth in Commonwealth v. Cabeza, the court found that defendant's failure to raise the issue previously, including in her first post-trial petition, prevented the application of Birchfield to her case. The petition to vacate the sentence was denied.

Commonwealth v. Echols, PICS Case No. 16-1230 (C.P. Lackawanna Sept. 15, 2016) Nealon, J. (memorandum) (15 pages).

After causing a domestic violence event that called for police intervention, a charge that was later dropped, a state parole violator was found with drug paraphernalia. On two occasions he evaded police, the second after physical apprehension, from which he escaped. Pleading guilty to drug possession, he was finally charged with escape/detained on felony charge which went to jury trial, with defendant alternating between defense via counsel and pro se. Following conviction, he proceeded with new counsel to allege the insufficiency of trial counsel. Court-appointed PCRA counsel filed a petition to withdraw as counsel, which the court approved. Defendant was notified of the intent to dismiss the PCRA petition.

Renard v. Stea, PICS Case No. 16-1242 (C.P. Lycoming Sept. 30, 2016) Anderson, J. (6 pages).

Multiple failures of plaintiffs to provide their expert witness report by set deadlines and received by the court only the morning of pre-trial conference, well after summary judgment motions were filed, led to rejection by the court as untimely and prejudicial to defendants. Defendants' motions for summary judgment were granted.

Cosklo v. Moses Taylor Hosp., PICS Case No. 16-1234 (C.P. Lackawanna Sept. 23, 2016) Nealon, J. (memorandum) (18 pages).

In a medical malpractice action, following discovery and expert reports, defendant filed a motion for leave to amend his pleading to include a "two schools of thought" affirmative defense and counterclaim to co-defendants. Due to the timing of the motion and the fact that defendant's existing expert report did not present sufficient evidence to raise the argument that other physicians would have provided the same treatment, so that plaintiffs would not be on notice therefor, the motion to amend to include the affirmative defense was denied. Defendant was granted the ability to amend for a cross-claim, absent indications of prejudice to plaintiffs.

Earnest v. Nydegger, PICS Case No. 16-1244 (C.P. Centre Sept. 14, 2016) Grine, J. (8 pages).

A physician's choice to order follow-up tests and appointments instead of emergent care or consulting a second opinion led to a patient's collapse at home, from complications of the heart block determined on an EKG. She died in the hospital a few days later. The patient's husband filed a medical malpractice claim, including vicarious liability and a request for punitive damages. The physician and Mount Nittany Medical Center Health Services, Inc. filed preliminary objections arguing insufficiency of the pleading and that unnamed defendants could not implicate the employer. The court disagreed, and overruled defendants' preliminary objections.

In re Richards, PICS Case No. 16-1227 (Pa. Sept. 21, 2016) per curiam (11 pages).

In May 1996, petitioner Grahame P. Richards Jr. was disbarred for embezzlement of client funds in the amount of over $1,000,000. He served over 11 years in jail and made restitution to the estates he harmed, and was highly engaged in philanthropic and community-oriented activities since his release from prison. In May 2015 he petitioned for reinstatement to the Pennsylvania bar, not to actively practice law, but to continue achieving positive things with his license. Following a hearing, the hearing committee recommended the petition for reinstatement be granted. The court granted the petition, costs to be borne by petitioner.