This Week's Cases

Commonwealth v. Vega-Reyes, PICS Case No. 16-0119 (Pa. Super. Jan. 7, 2016) Bowes, J. (9 pages).

A five-year statute of limitations in a later-enacted general statute was applicable over a four-year statute of limitations specifically attached to the crime in question, where the later-enacted general statute explicitly applied to all offenses under the Public Welfare Code. Order of the trial court reverse, case remanded.

CitiMortgage Inc. v. Barbezat, PICS Case No. 16-0116 (Pa. Super. Jan. 7, 2016) Ford Elliott, J. (24 pages).

An Act 6 Notice was not deficient because it named appellee as the mortgagee, even though appellee would not be assigned the mortgage for another two months after notice, because there was no statutory requirement for the actual mortgagee to be specifically identified. Summary judgment affirmed.

DeFranca v. Albino Concrete Constr. Co. Inc., PICS Case No. 16-0068(Pa. Super. Jan. 6, 2016) Mundy, J. (25 pages).

Defendant was not prejudiced by a finding of liability under a theory of agency where plaintiffs' complaint explicitly averred that defendant was liable through the actions of its agents. Judgment affirmed.

Vautar v. First Nat'. Bank of Pa., PICS Case No. 16-0125 (Pa. Super. Jan. 6, 2016) Lazarus, J. (14 pages).

Trial court properly imposed a constructive trust on funds appellant children received from their mother's estate because mother's breach of indemnity agreements regarding the proceeds of CDs funded by another sister gave the bank a superior right to the disputed funds. Affirmed.

FS Partners v. York Cnty. Tax Claim Bureau, PICS Case No. 16-0120 (Pa. Commw. Jan. 7, 2016) Colins, J. (15 pages).

A tax claim bureau satisfied its certified mail notice obligation when it was able to show that the receipt signature appeared to be that of the property owner or other individual authorized to sign on behalf of the owner or receive tax notices, and the bureau was not required to show that the property owner actually received the notice or that the signature was the actual signature of the owner. Order of the trial court affirmed.

F. Zacherl Inc. v. Flaherty Mech. Contractors LLC, PICS Case No. 16-0127 (Pa. Commw. Jan. 6, 2016) Brobson, J. (26 pages).

Trial court properly found for subcontractor on school construction project for breach of contract after prime contractor was fired and district asked subcontractor to finish the work it had contracted to do for prime contractor, but trial court erred in awarding attorney fees for prelitigation bad faith. Affirmed in part, vacated in part and remanded.

Brockway Borough Mem'l Auth. v. Dep't of Envtl. Prot., PICS Case No. 16-0114 (Pa. Commw. Jan. 6, 2016) Leavitt, J. (19 pages).

A gas-drilling permit was properly granted where there was no Clean Streams Law or Oil and Gas Act violation, because there was no water supply diminution where the water authority's well could be pumped. Environmental Hearing Board order affirmed.

City of Pittsburgh v. Fraternal Order of Police, PICS Case No. 16-0117 (Pa. Commw. Jan. 7, 2016) Leadbetter, J. (18 pages).

An interest arbitration panel did not have the authority to award a nonresidency clause into a police officers' collective bargaining agreement where the municipality had adopted a residency requirement in its home charter. Order of the trial court reversed.

Thomas Jefferson Univ. Hosp., Inc. v. Pa. Dep't of Labor & Indus., PICS Case No. 16-0124 (Pa. Commw. Jan. 6, 2016) Covey, J. (9 pages).

The Department of Labor and Industry correctly allowed a discharged employee to inspect her personnel file under the Personnel Files Act, and the employer's argument that the act only applied to employees and not to former employees failed because reading §§1 and 2 of the act together required a recently-discharged employee to be included in the definition of employee. Affirmed.

Item Dev. Assoc. LP v. Zoning Hearing Bd. of Twp. of Rostraver, PICS Case No. 16-0121 (Pa. Commw. Jan. 7, 2016) Leavitt, J. (18 pages).

Trial court erred in ruling that a nonconforming use was abandoned where prior owner continued to use the property in a similar manner, albeit to a less- intense extent, and executed an agreement with the new owner to continue using the property in the same nonconforming manner. Trial court order reversed.

Kretschmann Farm LLC v. Twp. of New Sewickley, PICS Case No. 16-0062 (Pa. Commw. Jan. 7, 2016) Leavitt, J. (31 pages).

Trial court and township did not err in granting a conditional use permit to build a gas compressor station, because objecting landowners did not meet their burden of showing that the compressor station would affect the public health, safety and welfare. Affirmed.

Weaver Hauling and Excavating LLC v. Dep't. of Labor and Indus., PICS Case No. 16-0126 (Pa. Commw. Jan. 6, 2016) Brobson, J. (29 pages).

Department properly held that members of petitioner, a multimember limited liability company, were employees rather than independent contractors because petitioner did not satisfy its burden of showing its members were free from direction and control and, while LLCs could be treated as partnerships in some matters, that did not apply to taxation. Affirmed.

Dep't. of Labor & Indus. v. Unemployment Comp. Bd. of Review, PICS Case No. 16-0122 (Pa. Commw. Jan. 7, 2016) Leavitt, J. (15 pages).

Unemployment compensation board properly used a case-by-case approach in evaluating whether a claimant had good cause for failing to timely register for employment search services under §401(b)(l)(i). Affirmed.

Protz v. Workers' Comp. Appeal Bd., PICS Case No. 16-0123 (Pa. Commw. Jan. 6, 2016) Pellegrini, P. J. (13 pages).

Workers' compensation appeal board properly awarded employer and insurer subrogation of claimant's third party medical malpractice recovery with respect to the award for her future medical expenses and lost wages. Affirmed.

Blanda v. Somerset Cnty. Bd. of Assessment Appeals, PICS Case No. 16-0113 (Pa. Commw. Jan. 6, 2016) Friedman, J. (16 pages).

County tax assessors were permitted to reassess a single property to correct mathematical and clerical errors regarding calculations of square footage of improvements on the property but could not change the grade of the property, since grading did not constitute mathematical or clerical error. Order of the trial court affirmed in part and reversed in part.

Chaudhuri v. Capital Area Transit, PICS Case No. 16-0115 (Pa. Commw. Jan. 7, 2016) McCullough, J. (13 pages).

A trial court's jury instructions expressing the law's preference for pedestrians to cross at crosswalks was not in error where the jury instruction, read as a whole, accurately informed the jury of a pedestrian's legal duty when crossing outside of a crosswalk. Judgment affirmed.

R. Martin Cos. v. Foster, PICS Case No. 16-0105 (C.P. Berks Sept. 23, 2015) Sprecher, J. (10 pages).

Defendant's amended counterclaim and joinder complaint were dismissed because of his refusal to serve the additional defendants more than four years after the date of filing, his failure to show a compelling reason for the delay and the prejudice suffered by plaintiff as a result. Defendant's appeal should be denied and dismissal affirmed.

Commonwealth v. Chmiel, PICS Case No. 16-0106 (C.P. Lackawanna Dec. 30, 2015) Nealon, J. (40 pages).

In this capital case, because defendant's third petition for habeas corpus and PCRA relief was untimely and contained previously litigated allegations of error, the court lacked jurisdiction to address the merits. Notice of intention to dismiss petition for habeas corpus and PCRA relief served on defendant.

Haines & Kibblehouse Inc. v. Ironshore Specialty Ins. Co., PICS Case No. 16-0108 (C.P. Philadelphia Dec. 30, 2015) Glazer, J. (16 pages).

Plaintiffs alleged breached of contract due to potential gap in insurance coverage. Broker did not breach contract where insurer prospectively amended policy to close coverage gap.

Selective Ins. Co. of S.E. v. Goldin, PICS Case No. 16-0106 (C.P. Monroe July 10, 2015) Williamson, J. (5 pp.) .

In this action seeking a declaratory judgment that defendant's losses were not covered by the homeowner's insurance policy issued by plaintiff because he had misrepresented that he lived in the premises, defendant's motion to dismiss co-defendant mortgagee was denied because the mortgagee retained an interest in the matter until defendant, whose Chapter 13 bankruptcy plan had been confirmed, actually paid the amount specified in the plan. Defendant's motion to dismiss Wells Fargo as a co-defendant denied.

Jakoubaskas v. Parker, PICS Case No. 16-0109 (C.P. Chester Jan. 8, 2016) Tunnell, J. (29 pages).

Where both parties breached lease, plaintiff's recovery of unpaid rent was decreased by a rent abatement. Court awarded reduced payment to plaintiff.

Rincavage v. Katz, PICS Case No. 16-0103 (C.P. Monroe Sept. 25, 2015) Williamson, J. (7 pages).

In this medical malpractice action, even reading the fourth amended complaint as a whole, the paragraphs asserting negligence against defendant-doctor and setting forth plaintiff's injuries were not sufficiently specific under Pa.R.Civ.P. 1019(a) and 1028(a)(3) and did not allow defendant to prepare a defense. Defendant's preliminary objection to those paragraphs was sustained.

Wagner v. Teneyck, PICS Case No. 16-0111 (C.P. Lycoming Jan. 5, 2016) Gray, J. (4 pages).

Plaintiff in dog bite personal injury case did not specify special damages. Demurrers were overruled, one objection was overruled and another objection was sustained.

Ingram v. Jiunta, PICS Case No. 16-0102 (C.P. Monroe Oct. 22, 2015) Williamson, J. (4 pages).

In this personal injury action, default judgment as to liability and causation was entered against defendant. Plaintiff was awarded $20,000 inclusive of medical expense and lost wages.

Estate of McFadden, PICS Case No. 16-0110 (C.P. Philadelphia Jan. 6, 2016) Carrafiello, J. (17 pages).

Fractional beneficiary maintained he complied with court's decrees in estate settlement. Appeal of decree ordering sale of estate's real property was without basis.

McCarthy v. McCarthy, PICS Case No. 16-0107 (C.P. Lawrence Nov. 18, 2015) Hodge, J. (23 pages).

Relatives of decedent were entitled to discovery related to disinternment of his body by his widow. Objections were dismissed.

Zanghi v. Freightcar Am., PICS Case No. 16-0132 (W.D. Pa. Jan. 19, 2016) Gibson, J. (55 pages).

Even if a substantial number of class members object to a proposed settlement, a court could approve a settlement that was negotiated in good faith, at arms' length, after extensive preparation for trial. The court approved a $32.75 million settlement as fair, adequate and reasonable.

EEOC v. FedEx Ground Package Sys., PICS Case No. 160134 (W.D. Pa. Jan. 25, 2016) Hornak, J. (17 pages).

Section 706 of the ADA allowed the Equal Employment Opportunity Commission to file a nationwide ADA class action against a company that allegedly failed to provide reasonable accommodations to entry-level workers who shared a common disability. Defendant's motion to dismiss denied.

Hill v. Cosby, PICS Case No. 16-0133 (W.D. Pa. Jan. 21, 2016) Schwab, J. (18 pages).

To state a valid claim for defamation, Pennsylvania law required that a defendant's statement have the general tendency to cause harm to plaintiff's reputation. Allegations that defendant comedian, his wife and his attorney complained that the media should "vet" accusers' stories of sexual abuse, that the public should "fact-check" and that the stories were "unsubstantiated" and "fantastical" were insufficient to state a defamation claim.