This Week's Cases

Commonwealth v. Moody, PICS Case No. 15-1637 (Pa. Oct. 27, 2015), Eakin, J.; Baer and Stevens, J.J., concurring; Saylor, C.J. and Todd, J., dissenting (32 pages).

The Superior Court erred in concluding that the summary contempt proceedings below were improper because the trial court failed to prove that it personally observed the events that took place in the courtroom gallery. Reversed and remanded.

Lancaster Cnty. v. Pa. Bd. of Labor Relations, PICS Case No. 15-1633 (Pa. Oct. 27, 2015) Stevens, J.; Saylor, C.J., concurring (45 pages).

The Commonwealth Court erred in holding that, for purposes of establishing an unfair labor practice claim under the Public Employee Relations Act, a complainant must prove that the management official who made an adverse employment decision had knowledge of the employee's protected activity.

Dental Benefit Providers, Inc. v. Eiseman, PICS Case No. 15-1641 (Pa. Oct. 27, 2015) Saylor, C. J., Stevens, J., dissenting (22 pages).

Commonwealth Court correctly denied requester's Right-to-Know Law request for documents including contracts, rate schedules and correspondence in DPW's possession concerning provider rates because the DPW did not possess the provider rates and the RTKL channeled access to third party records through §506(d)(1) which required an actual contract between the DPW and the third party that had the documents and no such contract existed in this case.

Commonwealth v. Eiseman, PICS Case No. 15-1640 (Pa. Oct. 27, 2015) Saylor, C.J., Eakin J. (dissenting) (25 pages).

Commonwealth Court erred in finding that MCO rates were not financial records and were protected from disclosure under the Right-to-Know Law trade-secrets/confidential proprietary information exemption because records that had to be submitted to a government agency for approval and which embodied a delegation of a governmental function of the agency were records "dealing with" the agency's monetary disbursement and services acquisition.

Perelman v. Perelman, PICS Case No. 15-1626 (Pa. Super. Oct. 14, 2015) Wecht, J. (24 pages).

Given the differences between a Rule 11 proceeding and a Dragonetti Act trial, the trial court did not err or abuse its discretion in denying defendants' preliminary objections to plaintiffs' Dragonetti Act complaint, which objections relied on the alleged preclusive effect of a federal court's denial of Rule 11 sanctions.

Commonwealth v. Walsh, PICS Case No. 15-1643 (Pa. Super. Oct. 23, 2015) Gantman, P.J. (20 pages).

Court properly denied appellant's motion for post-conviction DNA testing of the hammer with which he was accused of assaulting wife because he failed to satisfy the threshold requirements for DNA testing pursuant to 42 Pa.C.S. §9543.1(a)(2).

Commonwealth v. Johnson, PICS Case No. 15-1644 (Pa. Super. Oct. 20, 2015) Donohue, J. (19 pages).

The sentencing court properly considered the number of prior record score points, rather than total prior convictions, where the sentencing guidelines assign point scores to each type of offense. Judgment of sentence affirmed.

Dubose v. Quinlan, PICS Case No. 15-1651 (Pa. Super. Oct. 23, 2015) Elliott, J. (28 pages).

Defendants were not entitled to JNOV on the issue of punitive damages in this nursing home liability action where there was sufficient evidence of defendants' substandard care such that the issue of punitive damages was submitted to the jury.

Smires v. O'Shell, PICS Case No. 15-1639 (Pa. Commw. Oct. 26, 2015) Leavitt, J. (20 pages).

Licensees, whose driving privileges were revoked long after they had been convicted of offenses that required license suspension under the Vehicle Code, could not seek mandamus relief as they had another legal remedy to challenge the license suspensions.

Weaver v. State Emp. Ret. Bd., PICS Case No. 15-1618 (Pa. Commw. Oct. 23, 2015) Simpson, J. (22 pages).

State Employees Retirement Board did not abuse its discretion or commit an error of law in holding that employee's unpaid disciplinary suspension was not the type of leave for which credit could be purchased or credited service awarded.

Williams v. Unemployment Compensation Bd. of Review, PICS Case No. 15-1647 (Pa. Commw. Oct. 20, 2015) Friedman, J. (10 pages).

The UCBR abused its discretion in denying reconsideration of denial of benefits when it determined that claimant was ineligible for benefits because he worked for his wife, while failing to consider relevant legal authority.

Magistrate v. Douglass, PICS Case No. 15-1658 (C.P. Montgomery Aug. 28, 2015) Smyth, J. (10 pages).

The date of the notice of the court's order, not the date counsel reviewed the order, determined the timeliness of defendant's compliance with the order.

Kay, Tabas & Niknam Ophthalmology Assocs., P.C v. Gibraltar, PICS Case No. 15-1664 (C.P. Philadelphia Oct. 2, 2015) Djerassi, J. (13 pages).

Forum selection clause in data backup services agreement applied to breach of contract claim arising from loss of client's electronic business data.

Scartelli Constr. Serv., Inc., v. Lackawanna Cnty., PICS Case No. 15-1646 (C.P. Lackawanna Aug. 20, 2015) Braxton, S.J., Minora, J. (31 pages).

Plaintiff was not entitled to vacate and remand arbitration award following defendant's motion for summary judgment, where plaintiff was not denied due process by the lack of an evidentiary hearing, as neither arbitration rules nor state law required a hearing before the arbitrator. Petition to vacate arbitrator's award denied.

CNB Realty Trust v. Hudson, PICS Case No. 15-1663 (C.P. Lackawanna Oct. 8, 2015) Nealon, J. (16 pages).

An in rem judgment was granted to mortgagee where the mortgage was not included in the upset sale price and remained in default.

Snell v. Montoursville Area Sch. Dist., PICS Case No. 15-1660 (C.P. Lycoming Aug. 11, 2015) Anderson, J. (4 pages).

Plaintiffs failed to establish the heavy burden of proof required for the court to enjoin the properly constituted school board from awarding contracts where the board's decision was the result of a deliberative process free of arbitrary and capricious conduct, abuse of discretion or bad faith.

Dieter v. Dieter, PICS Case No. 15-1659 (C.P. Carbon May 22, 2015) Nanovic, J. (13 pages).

Under the circumstances, the parties' marriage was valid and plaintiff was not estopped from maintaining her divorce action by the prior order denying alimony pendente lite on the basis that there was no marriage.

O'Brien v. Ohio Cas. Ins. Co., PICS Case No. 15-1665 (C.P. Lackawanna Oct. 14, 2015) Minora, J. (10 pages).

An ATV accident did meet the insurance policy definition of an insured location to trigger coverage where the accident occurred on a public road.

WolfBlock, LLP v. Fed. Ins. Co., PICS Case No. 15-1648 (C.P. Philadelphia Sept. 22, 2015) Djerassi, J. (16 pages).

Separation agreement payments did not constitute employee, pension, or welfare benefits because the agreement was a contract executed for the purpose of terminating a partner's interest in the partnership and releasing any claims the partner may have had against the partnership. Motion for summary judgment granted.

Rentschler, LLP v. Zoning Hearing Bd. of the Borough of Slatington, PICS Case No. 15-1662 (C.P. Lehigh Oct. 7, 2015) Reichley, J. (8 pages).

Because the Zoning Hearing Board's oral denial of appellant's application at a public meeting constituted its final decision, appellant could not later withdraw his application and divest the board of jurisdiction.

Sutch v. Roxborough Mem'l Hosp., PICS Case No. 15-1616 (C.P. Philadelphia Oct. 23, 2015) Allen, J. (8 pages).

Disqualification of defense counsel for contacting the employer of plaintiff's expert witness was proper as it constituted a violation of the Rules of Professional Conduct and obstructed the trial process, but counsel's appeal was untimely.

Black Wolf Rod & Gun Club, Inc. v. Int'l Dev. Corp., PICS Case No. 15-1661 (C.P. Lycoming Oct. 16, 2015) Gray, J. (11 pages).

An earlier deed effectuated the reservation of subsurface rights until such rights were divested by tax sales; a later deed excepting and reserving those rights reserved the subsurface estate.

Mills v. Gubbio's, LLC, PICS Case No. 15-1645 (C.P. Lackawanna Oct. 2, 2015) Nealon, J. (16 pages).

A landlord did not owe a duty to remove snow and ice from a sidewalk where the landlord did not retain control over the sidewalk or common area and the lease imposed exclusive responsibility for snow/ice removal upon the commercial tenant. Motion for summary judgment granted.

Williams v. Webb Law Firm, PICS Case No. 15-1636 (3d Cir. Oct. 29, 2015) Rendell, J. (7 pages).

An employee who alleges that a law firm breached its fiduciary duty when it classified him as an independent contractor must file suit within three years of the date on which he possessed "actual knowledge" about the law firm's alleged breach.

NY Life Ins. v. Legault, PICS Case No. 15-1653 (E.D. Pa. Oct. 23, 2015) Jones, J. (7 pages).

Absent a change-of-beneficiary form, a phone call or a letter to a life insurance agent, or other written evidence, a claimant may not prevail on her claim that the decedent declared that he intended to make her the beneficiary of his life insurance policies. Claimant did not prove that decedent made a reasonable effort to make her the beneficiary.

Petrosky v. Allstate Fire and Cas. Ins., PICS Case No. 15-1652 (E.D. Pa. Oct. 30, 2015) Davis, J. (27 pages).

Police officer who was struck by a motorist when he responded to the scene of a motor-vehicle accident was not injured when "in, on, getting into or out of" his patrol car.

Tesser v. A-C Prod. Liab. Trust, PICS Case No. 15-1535 (E.D. Pa. Sep. 28, 2015) Robreno, J. (21 pages).

Plaintiff was not judicially estopped from asserting an asbestos claim when he failed to disclose the claim in his prior bankruptcy action, where the asbestos claim had been administratively dismissed during the entirety of the bankruptcy action.

Intellectual Ventures I LLC v. Erie Indem. Co., PICS Case No. 15-1490 (W.D. Pa. Sep. 25, 2015) Hornak, J. (77 pages).

The transfer of a parent patent did not automatically transfer rights to the continuation patent application, such that, absent an explicit reference in a schedule of assigned patents, plaintiff lacked standing to assert infringement because it did not have ownership of the patent rights.

Wright v. Misty Mountain Farm, LLC, PICS Case No. 15-1612 (Pa. Super. Oct. 9, 2015) Jenkins, J. (13 pages).

In dispute over ownership of subsurface rights, trial court properly granted summary judgment to appellees, successors in interest to grantors in 1950 deed, because a provision in the 1950 deed for a 1949 oil and gas lease was an exception and the grantors retained ownership of the rights and passed them to their successors in interest. Affirmed.

E.R.L. v. C.K.L., PICS Case No. 15-1599 (Pa. Super. Oct. 19, 2015) Bowes, J. (13 pages).

Pursuant to Pa.R.Civ.P. 1910.16-5, the trial court properly treated father's inheritance as an asset that provided a basis to deviate from the guideline support obligations calculated using father's earning capacity. Affirmed.

Martinez v. Christian Fin. Mgmt. Corp., PICS Case No. 15-1606 (Pa. Super. Oct. 7, 2015) Bender, J. (11 pages).

Federal law protecting the assessment of taxes from state action did not preempt a state court from enjoining a payroll services company from issuing amended W-2s, where W-2s constituted an information-gathering phase occurring prior to the assessment of taxes. Order of the trial court affirmed.

McGarry v. Philly Rock Corp., PICS Case No. 15-1608 (Pa. Super. Oct. 15, 2015) (memorandum) Wecht, J. (18 pages).

Trial court properly granted JNOV to indoor rock climbing facility when appellant, injured while bouldering, sued facility for negligence because appellant assumed the risk of injury as a matter of law where she testified that she knew the risk of injury in bouldering and signed a waiver accepting responsibility for her injuries. Affirmed.

E. Stroudsburg Univ. of Pa. v. Ass'n of Pa. State Coll. and Univ. Faculties, PICS Case No. 15-1598 (Pa. Commw. Oct. 19, 2015) Friedman, J. (10 pages).

An arbitrator properly found that the defendant university violated the tenure-review procedures set forth in an applicable collective bargaining agreement where the university president did not consider faculty assessments before denying grievant's application for tenure. Affirmed.

GSP Mgmt. Co. v. Duncansville Mun. Auth., PICS Case No. 15-1601 (Pa. Commw. Oct. 19, 2015) Brobson, J. (15 pages).

In this case of first impression, the Commonwealth Court held that a customer may challenge its sewer bills by establishing that a substantial part of the metered water entering the property did not reach the sewage system. Reversed in part.

PPL Elec. Utils. Corp. v. City of Lancaster, PICS Case No. 15-1610 (Pa. Commw. Oct. 15, 2015) McCullough (37 pages).

Court granted utility's application for summary relief as to §§ 263B-3, 263B-4(6) and 263D-1 of a city ordinance enacted to manage the city's right of way and public utility use of the right of way because those sections were preempted by code and invalid and city was enjoined from enforcing them but §263B-5, imposing an annual maintenance fee, was not a public utility regulation and was not preempted. Summary relief granted.

UGI Util. Inc. v. City of Lancaster, PICS Case No. 15-1611 (Pa. Commw. Oct. 15, 2015) McCullough J. (15 pages).

Court granted utility's application for summary relief as to §§ 263B-2, 263B-3, and 263B-4(9) of a city ordinance enacted to manage the city's right of way and public utility use of the right of way because those sections were preempted by code and invalid and city was enjoined from enforcing them but §263B-5, imposing an annual maintenance fee, was not a public utility regulation and was not preempted. Summary relief granted.

Commonwealth v. Jannini, PICS Case No. 15-1597 (Pa. Commw. Oct. 15, 2015) Brobson, J. (17 pages).

Where defendant was not required by the Borough of Greensboro to have a sidewalk in front of his property, the borough could not prohibit him from removing an old sidewalk by making the sidewalk unpassable. Reversed.

Famularo Catering Inc. v. Commonwealth, PICS Case No. 15-1600 (Pa. Commw. Oct. 16, 2015) Friedman, J. (7 pages).

The Pennsylvania Department of Revenue did not err in concluding that certain individuals, who were described as casual laborers, were engaged in employment under §4(l)(2)(B) of the Unemployment Compensation Law. Affirmed.

Kauffman Metals, LLC v. Dep't of Labor and Indus., PICS Case No. 15-1604 (Pa. Commw. Oct. 15, 2015) Leadbetter, J. (17 pages).

A company was required to pay unemployment compensation tax for wages paid to its nominal partners where the company was not a bona fide partnership because nominal partners had little or no capital at risk in the business, received their income from hourly wages rather than distribution of profits, and did not share in the management of the business. Order of the Department of Labor and Industry affirmed.

Level 3 Commc'ns, LLC v. Commonwealth, PICS Case No. 15-1605 (Pa. Commw. Oct. 15, 2015) Brobson, J. (11 pages).

The sale of Internet access infrastructure service was not a taxable telecommunication service where the service constituted a point of presence that served as the point where an end-user's access to the Internet began, and therefore constituted nontaxable Internet access. Order of the Board of Finance and Revenue reversed.

Metro. Edison Co. v. City of Reading, PICS Case No. 15-1609 (Pa. Commw. Oct. 15, 2015) Brobson, J. (8 pages).

Trial court erred in holding city liable in negligence in case brought by owner of electrical duct bank damaged during city excavation to repair sewer because the exception to immunity in §8542(b)(5) of the Political Subdivision Tort Claims Act did not apply where the dangerous condition derived from the conduct of city's employees in removing soil from beneath the duct bank. Reversed.

Litwack v. Dreamline, PICS Case No. 15-1628 (C.P. Chester Aug. 26, 2015) Tunnell, J. (40 pages).

Defendant home improvement company that misrepresented its credentials was not liable to homeowners for breach of contract, but were liable for plaintiffs' attorney fees under the UTPCPL as actual damages.

Bragalone v. Aqua Vantage Pools & Spas, PICS Case No. 15-1603 (C.P. Lycoming Oct. 20, 2015) Anderson, J. (8 pages).

Failure to perform pool installation in a workmanlike manner using substandard materials constituted both a breach of the installation contract and violation of the UTPCPL, but did not impose personal liability on the president of the corporate defendants. Judgment for plaintiffs.

Jersey Shore Hosp. v. Conly, PICS Case No. 15-1627 (C.P. Lycoming Oct. 12, 2015) Gray, J. (6 pages).

Breach of contract for professional support services not established in the absence of course of conduct. Plaintiffs' motion for judgment on the pleadings denied.

KMB Shamrock, Inc. v. LNR Transp., Inc., PICS Case No. 15-1630 (C.P. Lackawanna Sept. 25, 2015) Nealon, J. (36 pages).

Sellers' alleged misrepresentation of documented revenues relating to the sale of FedEx delivery routes and vehicles, may constitute a breach of the implied duty of good faith and fair dealing.

Hotel Furniture Liquidators of Phila., Inc. v. Castor Ave. Props., LLC, PICS Case No. 15-1629 (C.P. Philadelphia Aug. 28, 2015) McInerney, J. (10 pages).

Petition to open default judgment properly denied where counsel's excuse of not recognizing the legal entity sued as one belonging to her client was not reasonable.

Avon Grove Sch. Dist. v. Cox, PICS Case No. 15-1602 (C.P. Chester Oct. 9, 2015) Tunnell, J. (13 pages).

Documents were exempt from disclosure under the Right-to-Know Law where evidence demonstrated that the documents were drafted for and kept confidential to school district and used in the process of negotiating its collective bargaining agreement with its teachers. Final determination of the Office of Open Records reversed.

Morgan v. SEPTA, PICS Case No. 15-1601 (C.P. Philadelphia Sept. 17, 2015) Ceisler, J. (11 pages).

Accident scene photographs showing appellant's bottle of beer and appellant's statements to physicians regarding his heavy drinking on the day of the accident were admissible where offered for purposes other than to establish that appellant was intoxicated at the time of the accident.

Lincoln Investors LP v. King, PICS Case No. 15-1631 (C.P. Chester Sept. 28, 2015) Tunnell, J. (20 pages).

The discovery rule did not toll plaintiffs' negligence and statutory claims relating to flooding of their property due to neighboring development.

Dominguez v. Yahoo, PICS Case No. 15-1617 (3d Cir. Oct. 23, 2015) Ambro, J. (9 pages).

If an administrative agency issues a declaratory ruling while a case is pending, the Third Circuit can vacate and remand, to permit the district court to reconsider in light of the declaratory ruling. Decision granting summary judgment to defendant vacated in case in which plaintiff seeks damages in the amount of $13.9 million.

In re Blood Reagents Antitrust Litig., PICS Case No. 15-1624 (E.D. Pa. Oct. 19, 2015) DuBois, J. (72 pages).

Admissible expert testimony that virtually all customers paid more than they would have paid in the absence of alleged anticompetitive conduct can help to establish that common issues of fact exist. Motion to certify class action brought by purchasers of blood reagents granted.

Hanover Ins. v. Urban Outfitters, PICS Case No. 15-1625 (3d Oct. 23, 2015) Roth, J. (19 pages).

Pursuant to the "prior publication" exclusion, an insurance policy can exclude coverage for conduct that allegedly began before the policy took effect and that continued after the insurance policy took effect. In this precedential case, judgment was granted to insurance company.

Commonwealth v. Rodriguez, PICS Case No. 15-1593 (C.P. Lehigh Sept. 3, 2015) Ford, J. (9 pages).

Because federal law applied and the officers acted in good faith, the search warrant was valid.

Hanrahan v. Blank Rome LLP, PICS Case No. 15-1511 (E.D. Pa. Oct. 2, 2015) Pappert, J. (11 pages).

Plaintiff failed to assert a cause of action for employment discrimination based on disability where plaintiff failed to allege a specific employment policy or practice of discrimination and a policy's/practice's causation of discrimination through statistical evidence, and where plaintiff's theory of discrimination rested on numerous assumptions, presumptions, and speculation. Motion to dismiss granted.

Cnty. of Berks v. Otis Elevator Co., PICS Case No. 15-1499 (E.D. Pa. Sept. 23, 2015) Stengel, J. (10 pages).

Plaintiff was entitled to injunctive relief requiring defendant elevator service company to deliver diagnostic service tools to plaintiff after plaintiff terminated the parties' service agreement, where delivery was contemplated under the agreement and where public safety was at risk without the tools. Motion for injunctive relief granted.

In the Matter of Quinn, PICS Case No. 15-1586 (Pa. Aug. 7, 2015) per curiam (20 pages).

Pursuant to the report and recommendation of the Disciplinary Board, the Supreme Court granted the petition for reinstatement of Brian S. Quinn.

Torres-Bobe v. Unemployment Comp. Bd. of Review, PICS Case No. 15-1582 (Pa. Commw. Oct. 8, 2015) McCullough, J. (14 pages).

Unemployment Compensation Board of Review properly upheld referee's findings that claimant violated employer's harassment policy, engaged in willful misconduct and was ineligible for benefits despite claimant's argument that board and referee erred in letting a witness testify by telephone. Affirmed.

Menard v. PennyMac Loan Serv. LLC, PICS Case No. 15-1585 (C.P. Lackawanna Aug. 17, 2015) Minora, J. (14 pages).

In this mortgage foreclosure action, plaintiff was the proper holder of the note secured by the mortgage and had standing to foreclose and had set forth a prima facie case for foreclosure. Defendants' preliminary objections denied.

In re Appeal of Hotel Liquor License, PICS Case No. 15-1579 (Pa. Commw. Oct. 8, 2015) McCullough, J. (10 pages).

Trial court properly denied renewal of liquor license because current owner's challenges to the court's ruling were simply attacks on the trial court's determinations of evidentiary weight in assessing violations of the conditional licensing agreement. Affirmed.

In re Processed Egg Prods. Antitrust Litig., PICS Case No. 15-1470 (E.D. Pa. Sept. 18, 2015) Pratter, J. (61 pages).

Plaintiffs were entitled to class certification in their antitrust action where plaintiffs were able to demonstrate, that defendant egg producers engaged in a conspiracy to raise egg prices by restricting supply. Motion to certify class granted in part and denied in part.

Dougherty v. Phila. Newspapers, L.L.C., PICS Case No. 15-1576 (Pa. Super. Oct. 14, 2015) (memorandum) Bowes, J. (30 pages).

The trial court properly found that no statement about plaintiff, a political candidate, in any article published in the Philadelphia Inquirer was capable of defamatory meaning as a matter of law. Affirmed.

Williams v. Beavers, PICS Case No. 15-1578 (C.P. Lackawanna Sep. 9, 2015) Nealon, J. (8 pages).

A driver's duty to other traffic in making a U-turn was not limited to oncoming traffic, and therefore there was a triable issue of fact as to whether defendant was negligent in observing traffic approaching from behind before commencing his U-turn. Motion for summary judgment denied.

Maroz v. Arcelormittal Monessen, PICS Case No. 15-1594 (W.D. Pa. Oct. 15, 2015) Schwab, J. (11 pages).

Allegations that plaintiffs lost the use and enjoyment of property, which decreased in value, because defendant corporation did not take "all reasonable action" to prevent particulate matter from becoming airborne, could be sufficient to state a cause of action. Motion to dismiss claims for private nuisance and trespass that allegedly resulted from environmental pollution denied.

Corson v. Croce, PICS Case No. 15-1592 (C.P. Philadelphia Aug. 17, 2015) Fox, J. (6 pages).

Sanctions were appropriate where defense counsel failed to present a reasonable excuse for the delay in delivering settlement funds.

Commonwealth v. Williams, PICS Case No. 15-1574 (Pa. Super. Oct. 6, 2015) Mundy, J. (18 pages).

The Superior Court found that Philadelphia Local Rule of Criminal Procedure 630(J), which required all commonwealth appeals from grants of suppression to be filed within 15 days, was void and unenforceable as it conflicted with Pa.R.Crim.P. 1005(C). Judgment affirmed.

Ziemlewicz v. Bd. of License & Inspection Review, PICS Case No. 15-1591 (C.P. Philadelphia Aug. 24, 2015) Padilla, J. (6 pages).

A street vending license was appropriately revoked where evidence established that the owner had effectively transferred the license to a third party.

Sheaffer v. Conewago Twp., PICS Case No. 15-1589 (C.P. Adams Sept. 16, 2015) Kuhn, J. (25 pages).

Township's attempt to condition approval of a property developer's street occupancy permit application on extra-statutory demands was not within its scope of authority.

Saladworks, LLC v. Workers' Comp. Appeal Bd., PICS Case No. 15-1580 (Pa. Commw. Oct. 6, 2015) McGinley, J. (19 pages).

Workers' Compensation Appeal Board erred in finding that seller of restaurant franchises was a statutory employer of claimant employee of franchisee because company was in the business of selling franchises, not in the business of operating restaurants and since franchisee did not have workers' compensation insurance, Uninsured Employers Guaranty Fund was responsible. Reversed.

Russo v. Allegheny Cnty., PICS Case No. 15-1572 (Pa. Commw. Oct. 7, 2015) Colins, J. (16 pages).

The Court of Common Pleas of Allegheny County, as a court of the unified judicial system, was entitled to the sovereign immunity of the commonwealth; the enforcement mechanisms prescribed in the Whistle-blower Law could not be constitutionally enforced against a judicial employer. Preliminary objections sustained.

Cook v. Moses Taylor Hosp., PICS Case No. 15-1577 (C.P. Lackawanna Sep. 15, 2015) Nealon, J. (11 pages).

An order compelling deposition was reversed where medical evidence was submitted to show that the deponent suffered from a degenerative neurological condition that impaired her ability to recall events or understand questions. Order compelling videotaped deposition reversed.

Deutsche Bank Nat'l Trust Co. v. Gardner, PICS Case No. 15-1575 (Pa. Super. Oct. 14, 2015) Strassburger, J. (20 pages).

Where the notice supplied to defendant did not inform him clearly that his "existing first mortgage was unaffected by timely rescission of his second mortgage," the notice did not comply with the requirements of the Truth in Lending Act and, therefore, defendant had three years to exercise his rescission rights. Vacated and remanded.

U.S. Bank Nat'l Ass'n v. Davis, PICS Case No. 15-1590 (C.P. Delaware Aug. 28, 2015) Green, J. (10 pages).

Appellant-mortgagee failed to offer admissible evidence that it provided notice of its intent to foreclose to the appellee-mortgagor. Appellee's motion for compulsory nonsuit granted.

Truax v. Roulhac, PICS Case No. 15-1583 (Pa. Super. Oct. 7, 2015) Mundy, J. (25 pages).

Trial court erred in granting summary judgment to land owners in premises liability case arising from an accident in which a vehicle drove over a concrete wheel stop in a parking lot and injured a pedestrian because appellant presented sufficient evidence from which a jury could find that the harm was foreseeable. Reversed.

Pa. Gen. Energy Co. v. Grant Twp., PICS Case No. 15-1596 (W.D. Pa. Oct. 14, 2015) Baxter, J. (18 pages).

The lack of a permit from the Pennsylvania Department of Environmental Protection might not be relevant to a claim that a company lacked standing to request a declaratory judgment on the enforceability of a municipal ordinance that purported to prevent the company from engaging in "activities related to fossil fuel extraction and production." Motion to dismiss denied.

Commonwealth v. Black 2009 Ford Mustang, PICS Case No. 15-1573 (Pa. Commw. Oct. 7, 2015) Colins, J. (12 pages).

The trial court did not err in ordering the forfeiture of petitioner's motor vehicle where petitioner's use of the vehicle as collateral facilitated a transaction involving the illegal sale of drugs. Affirmed.

Office of Disciplinary Counsel v. Steiner, PICS Case No. 15-1587 (Pa. Aug. 7, 2015) per curiam (13 pages).

Pursuant to the report and recommendation of the Disciplinary Board, the Supreme Court ordered that respondent James Allen Steiner, who was convicted of conspiracy to commit wire fraud, be suspended from the bar for one year, retroactive to Dec. 16, 2013, the date of his temporary suspension, and that he pay costs to the Disciplinary Board.

Martinez v. Am. Honda Motor Co., Inc., PICS Case No. 15-1461 (C.P. Philadelphia Sep. 17, 2015) New, J. (12 pages).

Evidence of a defective seat belt design and of an alternative safer, practicable design was sufficient to support the jury's verdict that the defect was the cause of plaintiff's injuries.

Doe v. S.E. Delco Sch. Dist., PICS Case No. 15-1595 (E.D. Pa. Oct. 13, 2015) McHugh, J. (10 pages).

Motion to dismiss state-created-danger claim against official who, in response to claims of inappropriate touching, allegedly transferred fifth-grade teacher to another class, so that he was responsible to teach second-graders, denied.

Walters v. Zoning Hearing Bd., PICS Case No. 15-1581 (Pa. Commw. Oct. 8, 2015) McCullough, J. (15 pages).

Trial court erred in finding that appellant adjacent landowners lacked standing to challenge board's granting of an application to convert one non-conforming use to another non-conforming use with an attendant variance because appellants appeared at the hearing, testified and submitted photographs to counter assertions made by tower company's expert and the stipulation appellants offered was conditional and in the alternative. Reversed.

Commonwealth v. Hitcho, PICS Case No. 15-1509 (Pa. Sept. 29, 2015) Stevens, J.; Saylor, C. J. (concurring) (71 pages).

During the penalty phase of a capital trial, the trial court properly admitted commonwealth's specific rebuttal evidence of prior criminal misconduct not resulting in conviction where defendant had previously submitted mitigating evidence of his good character. Judgment of sentence affirmed.

Commonwealth v. Melendez-Negron, PICS Case No. 15-1508 (Pa. Super. Sept. 25, 2015) Donohue, J. (13 pages).

The PCRA court correctly granted relief for ineffective assistance of counsel that advised defendant to accept a plea bargain to a mandatory minimum sentence provision previously pronounced unconstitutional by the U.S. Supreme Court, but improperly ordered resentencing where such relief would deny the commonwealth the benefit of its plea bargain. Order affirmed, guilty plea vacated, case remanded.

Commonwealth v. Frederick, PICS Case No. 15-1507 (Pa. Super. Sept. 25, 2015) Stabile, J. (15 pages).

The trial court erred in failing to suppress evidence obtained following a violation of the knock and announce rule without an exigent circumstance, where violation of the rule required suppression. Judgment of sentence vacated; case remanded.

Shahid v. Rahman, PICS Case No. 15-1517 (Pa. Super. Sept. 28, 2015) (memorandum) Strassburger, J. (11 pages).

Trial court did not err in its equitable distribution of marital property because husband did not substantiate the claimed use of wife's funds to purchase stocks that lost value nor in assigning a value of zero to marital home, despite husband's assertion of a negative equity of $51,000 because his close relatives resided in the other part of the house rent-free. Affirmed.

In re S.S.W., PICS Case No. 15-1515 (Pa. Super. Sept. 24, 2015) Stabile, J. (13 pages).

Trial court properly denied mother's and stepfather's petition seeking involuntary termination of father's parental rights because court thoroughly considered the facts and found that father's absence was due to the PFA action, criminal charges, loss of his job, and mental health issues and that father had completed counseling, turned his life around and found steady work. Affirmed.

In re A.R., PICS Case No. 15-1514 (Pa. Super. Sept. 29, 2015) Bender, J. (8 pages).

Trial court did not abuse its discretion in terminating father's parental rights where father's claims that court erred in denying him a continuance to obtain counsel and in not appointing counsel for him were meritless. Affirmed.

Barton v. Lowe's Home Ctrs., Inc., PICS Case No. 15-1489 (Pa. Super. Sept. 24, 2015) Jenkins, J. (19 pages).

A products liability plaintiff could alternatively plead design and manufacturing defects and failure to warn in sufficiently pleading a products liability claim, and did not need to disprove or foreclose non-defective reasons for the product's causing of injury at the pleadings stage. Order reversed.

W. Chester Univ. of Pa. v. Schackner, PICS Case No. 15-1513 (Pa. Commw. Sept. 17, 2015) Pellegrini, P.J. (35 pages).

A third-party contractor of an agency that participated in the Office of Open Records' decisional process lacked standing to appeal the OOR's decision where the RTKL only authorized a requestor or agency to appeal from an OOR decision, but could appeal under due process in order to protect identifiable property interests in trade secrets. Order of OOR affirmed in part.

State Farm Mut. Auto. Ins. Co. v. Commonwealth of Pa. Ins. Dep't, PICS Case No. 15-1519 (Pa. Commw. Sept. 24, 2015) Friedman, S.J. (8 pages).

Commissioner properly determined that insurer violated Act 68 by cancelling driver's automobile policy on the grounds that her license had been suspended for underage alcohol consumption because Act 31, 18 Pa.C.S.§6310.4(d), prohibited an insurance company from cancelling automobile insurance based on a license suspension for underage alcohol consumption. Affirmed.

Slusser v. Black Creek Twp. Zoning and Hearing Bd., PICS Case No. 15-1518 (Pa. Commw. Sept. 23, 2015) Leavitt, J. (7 pages).

Zoning board's issuance of non-conforming use certificate was appropriate even though board erroneously relied on timeliness to dismiss objectors' appeal because approval of the certificate gave property owners no additional property rights, did not authorize new development or construction and the issuance of the certificate was not appealable under §914.1. Affirmed on other grounds.

Schwartz v. Phila. Zoning Bd. of Adjustment, PICS Case No. 15-1474 (Pa. Commw. Sept. 24, 2015) Colins, S.J. (23 pages).

Trial court properly upheld zoning ordinance that defined "family" to prevent appellants from renting their single-family homes to more than three unrelated college students because the constitutionality of a zoning ordinance was subject to a rational basis review. Affirmed.

Kuziak v. Borough of Danville, PICS Case No. 15-1516 (Pa. Commw. Sept. 29, 2015) McCullough J. (15 pages).

Trial court properly denied rental unit owner's challenge to borough ordinances requiring the registration of and payment of license fees for residential rental units because court properly refused to hold a de novo hearing in owner's challenge to board ruling. Affirmed.

Binswanger of Pa., Inc. v. TSG Real Estate LLC, PICS Case No. 15-1505 (C.P. Philadelphia Sept. 1, 2015) McInerney, J. (13 pages).

Defendant TSG appealed from the order of the court sustaining the preliminary objections of plaintiff Binswanger of Pa., to TSG's counterclaims, and granting Binswanger's motion for summary judgment and denying TSG's cross-motion for summary judgment. The action arose out of an exclusive brokerage agreement between TSG and Binswanger for Binswanger to market real estate owned by TSG.

Flagstar Bank, FSB v. Winter, PICS Case No. 15-1522 (C.P. Lehigh March 6, 2015) Reichley, J. (6 pages).

In this mortgage foreclosure action, defendant's affirmative defenses related to her blindness were meritless where she complied with the terms of a mortgage for several years before she stopped paying it.

Wells Fargo Bank, N.A. v. Golphin, PICS Case No. 15-1521 (C.P. Monroe Jan. 30, 2015) Mark, J. (7 pages).

A party who waived all issues and who filed a defective appeal in a mortgage foreclosure action was not entitled to file motions out of time without leave of court.

Commonwealth v. Johnson, PICS Case No. 15-1530 (C.P. Berks Aug. 10, 2015) Keller, J. (11 pages).

The prosecution's failure to disclose a key prosecution witness's numerous contacts with police constituted a Brady violation that warranted a new trial. The grant of defendant's petition for post-conviction relief was warranted.

Commonwealth v. Heffernan, PICS Case No. 15-1531 (C.P. Montgomery July 16, 2015) Smyth, J. (15 pages).

Finding that defendant's petition for post-conviction relief challenging the judgment of sentence on his plea was both procedurally and substantively moot and that it no longer had jurisdiction to further entertain the petition, the court dismissed it.

Consol. Rail Corp. v. Ace Prop. & Cas. Ins. Co., PICS Case No. 15-1523 (C.P. Philadelphia July 15, 2015) McInerney, J. (61 pages).

In this environmental contamination case, Conrail bore the burden of showing that its claims with respect to each of the contaminated sites fell within the limited coverage under the operations clause of the insurance policies.

Corter v. Smith, PICS Case No. 15-1532 (C.P. Lycoming July 2, 2015) Gray, J. (4 pages).

In this action seeking replacement cost insurance coverage, the opinion of one of plaintiff's proffered experts on liability and damages was substantially undermined by his pecuniary interest in the case. Defendant's motion in limine granted in part and denied in part.

Sandvik Inc. v. Mecca C & S Inc., PICS Case No. 15-1533 (C.P. Lackawanna May 18, 2015) Nealon, J. (20 pages).

Since plaintiff's discontinuance with prejudice barred a reassertion of the misappropriation of trade secrets claims against defendants and a completed expert's report would not be probative of whether plaintiff had filed suit in bad faith, defendants failed to show that their rights would be prejudiced if the discontinuance was not stricken. Defendants' petition to strike denied.

Young Law Grp. PC v. Weisberg, PICS Case No. 15-1510 (C.P. Philadelphia July 16, 2015) McInerney, J. (9 pages).

In this defamation action arising out of an underlying legal malpractice action, plaintiffs' abuse of process claim was dismissed for failure to allege any perversion of properly issued process or coercive use of process for an improper purpose. Defendants' preliminary objections granted in part.

Burgos v. Philabundance, PICS Case No. 15-1506 (C.P. Philadelphia Sept. 14, 2015) Younge, J. (36 pages).

Defendant in a malicious prosecution action was not entitled to judgment as a matter of law where plaintiff's theory rested on defendant's omission or failure to disclose material information to law enforcement, including information not requested by law enforcement officers. Motion for post-trial relief denied.

Reyes v. Netdeposit, LLC, PICS Case No. 15-1397 (3d Cir. Sept. 2, 2015) McKee, C.J. (41 pages).

The district court erred in holding that a proposed class failed to meet the commonality and predominance requirements for certification when it required plaintiff to show absolute proof of fraud by defendants, rather than correctly applying the predominance of evidence standard. Order of the district court reversed.

Estate of Ware v. Hosp. of Univ. of Pa., PICS Case No. 15-1529 (E.D. Pa. Sept. 29, 2015) Leeson, J. (10 pages).

The Price-Anderson Act pre-empts state-law claims that arise out of the same occurrence. State-law claims of corporate negligence, fraud and intentional infliction of emotional distress arose from a separate occurrence and survived.

insurance policy

Gen. Refractories Co. v. First State Ins. Co., PICS Case No. 15-1406 (E.D. Pa. Sept. 9, 2015) Restrepo, J. (23 pages).

An insured recovering payment under an excess liability insurance policy was entitled, as a matter of legal right, to pre-judgment interest in excess of policy limits, as insurer's failure to pay upon demand deprived insured of use of the insurance money. Judgment entered in favor of plaintiff.

Palladino v. City of Bethlehem, PICS Case No. 15-1527 (E.D. Pa. Oct. 2, 2015) Heffley, J. (12 pages).

A plaintiff who was "highly successful" and who obtained a "substantial" recovery can be entitled to attorney fees as a prevailing party. Court rejected defense request to reduce attorney fees 50 percent based on limited success and approved attorney fees of $112,815.

Jackson v. Wells Fargo Bank, PICS Case No. 15-1528 (W.D. Pa. Sept. 30, 2015) Cercone, J. (45 pages).

A presumption of fairness exists, if arms-length settlement negotiations take place, discovery is sufficient, plaintiffs' attorneys are experienced and only a small number of individuals object to settlement. Court approved class-action settlement of $5.85 million, which included attorney fees of $1.5 million, or $949 per hour, as fair, reasonable and adequate.

Commonwealth v. Bennett, PICS Case No. 15-1476 (Pa. Super. Sept. 17, 2015) Ott, J. (12 pages).

Where defendant availed himself of his right to file a pro se response to an Anders brief, defendant essentially filed an advocate's brief and the appellate court was limited to examining only those issues raised and developed in the brief. Judgment affirmed.

Commonwealth v. Swope, PICS Case No. 15-1443 (Pa. Super. Sept. 16, 2015) Jenkins, J. (13 pages).

Defendant's challenge to the imposition of his consecutive sentences as unduly excessive, together with his claim that the court failed to consider his rehabilitative needs and mitigating factors upon fashioning a sentence, presented a substantial question for appellate review. Affirmed.

Symbolbild hohe Kosten für Medizin

Commonwealth v. Jordan, PICS Case No. 15-1477 (Pa. Super. Sept. 22, 2015) Bowes, J. (43 pages).

The trial court abused its discretion in ordering the commonwealth to reveal the identity of a confidential informant involved in several controlled-buys as part of a drug investigation since disclosure of the informant's identity was not required under Brady v Maryland. Reversed and remanded.

Commonwealth v. Batts, PICS Case No. 15-1408 (Pa. Super. Sept. 4. 2015) Mundy, J. (46 pages).

The trial court did not err in imposing a life sentence without parole upon the juvenile defendant after considering relevant age-related factors as it followed the proper procedure set forth by the U.S. Supreme Court in Miller v. Alabama. Affirmed.

Commonwealth v. Mathis, PICS Case No. 15-1478 (Pa. Super. Sept. 22, 2015) Elliott, J. (26 pages).

In this case of first impression, the Superior Court held that a parole agent's statutory authority to detain and arrest parolees includes the ancillary authority to conduct a weapons frisk of any person present during an arrest or home visit where the agent has a reasonable suspicion that the person may be armed and dangerous. Affirmed.

Commonwealth v. Hoffman, PICS Case No. 15-1442 (Pa. Super. Sept. 11, 2015) Gantman, P.J. (13 pages).

While this case involved defendant's second offense for driving under the influence, the provisions of 42 Pa.C.S. §§9763 and 9804 allowed the trial court to sentence him and similar offenders to an intermediate punishment program after undergoing an assessment, notwithstanding the mandatory minimum sentencing provisions of 75 Pa.C.S. §3804. Vacated and remanded.

Custody of child

In re Adoption of G.L.L., PICS Case No. 15-1485 (Pa. Super. Sept. 21, 2015) Lazarus, J. (10 pages).

Trial court properly denied petition by Office of Children, Youth and Families to involuntarily terminate mother's parental rights because there was a demonstrated bond between mother and child and the negative impact of keeping child in foster care was outweighed by the permanent damage he would sustain from the termination of mother's parental rights. Affirmed.

Estate of Davis v. Treadway, PICS Case No. 15-1444 (Pa. Super. Sept. 11, 2015) (memorandum) Stabile, J. (16 pages).

The orphans' court did not err in granting respondent's motion for summary judgment based on laches where respondent's pleadings alleged facts sufficient to establish laches as a defense to the objections to an account of decedent's estate. Affirmed.

Trust Under Agreement of Taylor, PICS Case No. 15-1488 (Pa. Super. Sept. 18, 2015) Lazarus, J. (20 pages).

Orphan's Court erred in denying beneficiaries' petition to modify trust to allow for removal and replacement of a corporate trustee without seeking court approval because orphan's court incorrectly imposed on beneficiaries requirements not contemplated by the plain language of §7740.1 and incorrectly imported the requirements of §7766. Reversed.

Easton Condo. Ass'n, Inc. v. Nash, PICS Case No. 15-1479 (Pa. Commw. Sept. 18, 2015) Pellegrini, P.J. (8 pages).

The trial court erred in denying a petition to open a default judgment since, under Pa.R.Civ.P. 237.3(b), defendant was not required to assert a reasonable excuse for her inactivity or delay in responding where her petition was filed within 10 days of the entry of judgment and she alleged a meritorious defense. Vacated and remanded.

Ness v. York Twp. Bd. of Commissioners, PICS Case No. 15-1459 (Pa. Commw. Sept. 17, 2015) Colins, J. (16 pages).

Where respondent did not file its application for attorney fees within 30 days of the trial court's final order dismissing appellant's unsuccessful petition for review, the trial court lacked jurisdiction to act on respondent's request for attorney fees made under 42 Pa.C.S. §2503(9). Vacated.


Powell v. Unemployment Comp. Bd. of Review, PICS Case No 15-1460. (Pa. Commw. Sept. 17, 2015) Brobson, J. (12 pages).

The Unemployment Compensation Board erred in refusing to allow attorneys, whose licenses were suspended, to appear as claimant's representative at hearings because board ignored its own rules and applied attorney disciplinary rules that were enforceable only by the Supreme Court and the Disciplinary Board. Remanded.

Protz v. Workers' Comp. Appeal Bd., PICS Case No. 15-1486 (Pa. Commw. Sept. 18, 2015) Pellegrini, P.J. (35 pages).

Workers' Compensation Appeal Board erred in upholding the constitutionality of §306(a.2) of the Workers' Compensation Act because §306(a.2) was an unconstitutional delegation of legislative authority insofar as it proactively approved versions of the AMA Guides beyond the Fourth Edition without review. Vacated and remanded.

RIO Supply, Inc. of Pa. v. Unemployment Comp. Bd. of Review, PICS Case No. 15-1487 (Pa. Commw. Sept. 18, 2015) McCullough, J. (9 pages).

Unemployment Compensation Board properly found that claimant's reduction in pay and benefits constituted necessitous and compelling reasons to quit his job because board did not, as employer contended, impermissibly shift the burden of proof to employer but rather, found employer's testimony to be uncorroborated hearsay. Affirmed.

S.W. Energy Prod. Co. v. Forest Res., LLC, PICS Case No. 15-1501 (C.P. Lycoming Aug. 14, 2015) Anderson, J. (5 pages).

A lease might violate the Guaranteed Minimum Royalty Act where the terms of the lease include the assignment back of royalty payments.

Search and Seizure warrant. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

Commonwealth v. James, PICS Case No. 15-1497 (C.P. Lawrence June 23, 2015) Piccione, J. (12 pages).

Given the totality of the circumstances, and balancing the Roland factors, the police officers' nighttime warrantless entry into and search of defendant's residence was illegal as there was neither probable cause nor exigent circumstances. Defendant's motion to suppress and petition for habeas corpus relief granted.

Commonwealth v. Killiany, PICS Case No. 15-1481 (C.P. Lackawanna Aug. 26, 2015) Nealon, J. (25 pages).

Merging defendant's conviction for arson endangering persons for damaging "an inhabited building or occupied structure of another" with other conviction for arson endangering persons where damaging "an inhabited building or occupied structure of another" was an alternative basis for establishing a conviction for arson endangering persons and there were only two separate groups of victims of defendant's arson. Motion for reconsideration of sentence granted in part and denied in part; motion for judgment of acquittal and new trial denied.

Businessman texting

Pace v. Ranalli, PICS Case No. 15-1496 (C.P. Delaware July 9, 2015) Dozor, J. (19 pages).

The facts and circumstances provided sufficient evidence that appellee was a protected person under the Prohibition From Abuse Act and that appellant engaged in a course of conduct that put appellee in reasonable fear of imminent bodily injury requiring a final PFA order. Grant of final PFA order should be affirmed.

gavel and book

Kinavey v. W. Jefferson Hills Sch. Dist., PICS Case No. 15-1482 (C.P. Allegheny Aug. 17, 2015) Hertzberg, J. (7 pages).

School district did not engage in impermissible commingling of prosecutorial and adjudicatory functions where school district retained separate counsel to represent the board and act as a hearing officer while district's solicitor served in prosecutorial role.

Levin v. Schuykill Twp. Bd. of Supervisors, PICS Case No. 15-1483 (C.P. Chester Aug. 26, 2015) Tunnell, J. (8 pages).

A second-class township did not exceed its authority in giving final land development approval to a plan, submitted by a school district to develop property for construction of a school, which included drainage improvements, where approval did not constitute condemnation by the township. Appeal denied.

Weygandt v. Zoning Hearing Bd. of Newlin Twp., PICS Case No. 15-1484 (C.P. Chester Aug. 10, 2015) Tunnell, J. (12 pages).

Zoning board improperly granted a variance for the number of horses kept on a commercial equine facility where there was no evidence that there were any physical constraints or features of the property that would prevent it from complying with the zoning ordinance and where only the property owners, rather than the property itself, were subject to hardship. Order of the zoning hearing board reversed in part.

Keta Gas & Oil Co. v. Proctor, PICS Case No. 15-1465 (C.P. Lycoming Aug. 14, 2015) Anderson, J. (5 pages).

Heirs of property owner were entitled to a hearing as to whether fraud prevented them from learning of a quiet title action.

Kowalski v. Pocono Country Place, Inc., PICS Case No. 15-1450 (C.P. Monroe April 2, 2015) Zulick, J. (8 pages).

A property owners association was an indispensable party in a suit concerning improprieties in the election of its board of directors, and plaintiff was therefore permitted to amend his complaint to substitute the POA's governing corporation. Demurrer sustained.

Winona Lakes Prop. Owners Ass'n Inc. v. Church, PICS Case No. 15-1498 (C.P. Monroe Feb. 24, 2015) Harlacher Sibum, J. (8 pages).

In this action to recover homeowner's association dues, defendants were the owners of record of property notwithstanding the unsuccessful tax sale. Defendants' preliminary objections overruled.

In the Matter of Rehrig, PICS Case No. 15-1500 (C.P. Northampton July 31, 2015) Beltrami J. (18 pages).

A surcharge was assessed where co-executrices sold decedent's real property to a family member with a gift of equity, thereby breaching their standard of care.

Glaberson v. Comcast Corp., PICS Case No. 15-1491 (E.D. Pa. Sept. 22, 2015) Padova, J. (35 pages).

In an extensively litigated, highly complex antitrust case, a court can approve a class-action settlement provided that it is fair, reasonable and adequate. Motion to approve $50 million settlement granted.

Lovett v. Connect, PICS Case No. 15-1469 (E.D. Pa. Sept. 11, 2015) Hey, J. (16 pages).

A proposed settlement that keeps confidential the precise amount of the settlement fund does not thwart the purposes of the Fair Labor Standards Act, because it does not hide defendant employer's allegedly illegal compensation practices. Proposed settlement of wage claims of 54 plaintiff employees approved.

Longenecker-Wells v. Benecard Serv., PICS Case No. 15-1492 (M.D. Pa. Sept. 22, 2015) Caldwell, J. (14 pages).

Even if plaintiffs make up a well-defined class, particularly known to defendants, no cause of action may exist for negligence that results solely in economic damages, unaccompanied by physical or property damage.

Walney v. Swepi, PICS Case No. 15-1493 (W.D. Pa. Sept. 14, 2015) Conti, J. (55 pages).

A named plaintiff may serve as a class representative, even if plaintiff previously was convicted of committing a crime, provided that the named plaintiff's interests are aligned with those of the class. Motion to certify class action on breach-of-contract counts granted.

picture of signed contract paper with glasses

Celec v. Edinboro Univ., PICS Case No. 15-1440 (W.D. Pa. Sept. 18, 2015) Hornak, J. (36 pages).

Contractual and negligence claims against a public university stemming from its failure to add decedent's same-sex domestic partner as beneficiary on life insurance offered by the university were barred by sovereign immunity. Motion to dismiss granted.

Church Mut. Ins. Co. v. Alliance Adjustment Grp., PICS Case No. 15-1480 (E.D. Pa. Sept. 14, 2015) Sanchez, J. (19 pages).

Attorneys were not liable for negligent misrepresentation and fraudulent insurance claims where attorneys' liability allegedly arose from misrepresentations and fraudulent claims in court complaints, as judicial privilege granted immunity for statements made in the course of judicial proceedings. Motion to dismiss granted in part and denied in part.

Dunlap v. Ridley Park Swim Club, PICS Case No. 15-1411 (Pa. Super. Sept. 4, 2015) (memorandum) Olson, J. (14 pages).

Where one co-defendant made a prima facie showing of a settling defendant's negligence, the trial court abused its discretion by not including the settling defendant on the jury verdict form so as to allow the jury to apportion responsibility. Reversed and remanded.

Whiting v. Penn Power Co., PICS Case No. 15-1438 (C.P. Lawrence April 29, 2015) Motto, P.J. (14 pages).

Since it was reasonable to interpret "property" in the agreement granting defendant an easement for the construction/maintenance of a transmission line over plaintiffs' property to include cattle, plaintiffs sufficiently alleged a breach-of-contract claim arising from their electrocution. Defendant's preliminary objections overruled.

Veloric v. Doe, PICS Case No. 15-1457 (Pa. Super. Sept. 14, 2015) Shogan, J. (17 pages).

Appeal of a discovery order compelling appellants' attendance at a deposition was not an appealable collateral order despite their claims of Fifth Amendment privilege against self-incrimination. Appeal quashed.

C.E. Pontz Sons, Inc. v. Purcell Constr. Co., PICS Case No. 15-1453 (Pa. Super. Sept. 1, 2015) (memorandum) Ott, J. (20 pages).

The trial court correctly found that parties to a subcontract agreement had orally agreed to modify the contract to allow extra work to be done without a written change order, and correctly found that appellee did not breach the contract by filing late "claims for extras." Affirmed.

Commonwealth v. Baldwin, PICS Case No. 15-1454 (Pa. Super. Sept. 16, 2015) Ford Elliott, P.J. (9 pages).

Trial court abused its discretion when it failed to order automatic expungement and denied expungement absent an objection by the commonwealth in an accelerated rehabilitative disposition case because Pa.R.Crim.P. 320 contained clear and unambiguous language that automatic expungement was mandatory when a judge ordered the dismissal of charges upon completion of ARD. Reversed.

Commonwealth v. Grow, PICS Case No. 15-1409 (Pa. Super. Sept. 4. 2015) Lazarus, J. (17 pages).

The trial court did not err in following the Superior Court's 2013 decision in Commonwealth v. Musau and imposing a maximum sentence of six months of incarceration for defendant's second-offense driving under the influence with refusal to submit to chemical testing. Affirmed.

In the Interest of D.C.D., PICS Case No. 15-1456 (Pa. Super. Sept. 11, 2015) Ott, J. (16 pages).

Trial court did not abuse its discretion in concluding that "compelling reasons" existed for the early termination of minor's delinquency supervision because the court considered all the goals of the Juvenile Act, including the protection of the community. Affirmed.

Vensko v. Encompass Home and Auto Ins. Co., PICS Case No. 15-1452 (Pa. Super. Sept. 11, 2015) (memorandum) Musmanno, J. (18 pages).

Plaintiff's claim was not typical of proposed class members where alleged deception by insurance company of legality of purchased policies pursuant to case law did not apply to plaintiff. Order of the trial court affirmed.

In re Chocolate Confectionery Antitrust Litig., PICS Case No. 15-1468 (3d Cir. Sept. 15, 2015) Fisher, J. (52 pages).

Allegations that American manufacturers possessed the motive to engage in price fixing, that prices rose and that executives elsewhere engaged in price fixing, may be insufficient to raise an inference that American manufacturers also engaged in price fixing. Judgment affirmed.

In re Imprelis Herbicide Mktg., PICS Case No. 15-1467 (E.D. Pa. Sept. 18, 2015) Pratter, J. (9 pages).

Plaintiffs who fail to timely opt out of a class-action settlement and unsuccessfully attempt to assert a warranty claim may not possess a product-liability cause of action against a manufacturer. Defendant's motion to dismiss granted.

Gurecka v. Carroll, PICS Case No. 15-1455 (Pa. Super. Sept. 9, 2015) (memorandum) Lazarus, J. (11 pages).

Trial court erred in granting a permanent injunction preventing property owners from interfering with private sewer line that ran across their property where line had existed for 50 years but neither property owners, neighbor connected to the line, nor their predecessors knew of the existence of the line. Reversed.

Walk v. Alvernia Coll., PICS Case No. 15-1458 (Pa. Super. Sept. 8, 2015) (memorandum) Stabile, J. (13 pages).

Trial court properly granted summary judgment in favor of college and security service in student's action for trespass, negligence and violations of privacy for search of her dormitory room that found marijuana, hashish and an empty alcohol bottle because the housing contract she had signed and the student handbook gave college the right. Affirmed.

Gorsline v. Bd. of Supervisors of Fairfield Twp., PICS Case No. 15-1445 (Pa. Commw. Sept. 14, 2015) Leavitt, J. (22 pages).

The trial court erred in denying appellant's application to construct and operate a natural gas well on land in Lycoming County where the proposed use satisfied a "savings clause" requirement that the use be similar to and compatible with other uses permitted in the residential agricultural zone. Reversed.

Hidden Creek, L.P. v. Lower Salford Twp. Auth., PICS Case No. 15-1446 (Pa. Commw. Sept. 14, 2015) Covey, J. (21 pages).

The trial court properly denied a motion for summary judgment based on the applicable statute of limitations where a township authority's failure to comply with the Municipality Authorities Act may have deprived a developer of information necessary to evaluate the accuracy of tapping fees imposed. Affirmed.

Red Run Mountain, Inc. v. Earth Energy Consultants, LLC, PICS Case No. 15-1451 (C.P. Lycoming June 18, 2015) Gray, J. (19 pages).

The president of a three-shareholder closed corporation had both statutory, as well as inherent/implied/apparent authority and agency by estoppel to execute an oil and gas exploration contract and royalty agreement on behalf of the corporation. Summary judgment granted.

Milton Home Sys. Inc. v. Sur Dev. and Build., Inc., PICS Case No. 15-1463 (C.P. Philadelphia July 28, 2015) McInerney, J. (20 pages).

Maryland substantive law applied in this contribution case regarding whether the injured party was contributorily negligent and/or assumed the risk of injury.

Killinger v. Hosler Corp., PICS Case No. 15-1449 (C.P. Lycoming July 1, 2015) Gray, J. (9 pages).

Plaintiff, in a breach of contract claim, could plead a theory of quantum meruit in the alternative, and could plead quantum meruit to a third party where the third party received a benefit from plaintiff and mislead others to receive that benefit. Demurrer sustained in part and overruled in part.

Commonwealth v. Dorsey-Pace, PICS Case No. 15-1447 (C.P. Lawrence June 30, 2015) Cox, J. (10 pages).

Defendant's statements admitting ownership of an AK-47 were inadmissible under the corpus delicti rule, where the commonwealth could not, through independent evidence, establish defendant's ownership or constructive possession of the weapon. Petition for writ of habeas corpus granted; charge dismissed.

Hemcher v. Hemcher, PICS Case No. 15-1400 (C.P. Delaware July 8, 2015) Dozor, J. (15 pages).

Where appellant could not explain shortfalls of funds transferred to appellee pursuant to an equitable distribution error, the only viable explanation was that appellant willfully acted with wrongful intent in failing to comply with the order.

In re Land Use Appeal of Feldman, PICS Case No. 15-1448 (C.P. Chester July 27, 2015) Tunnell, J. (29 pages).

A developer could include public lands as part of its open space requirements in its conditional use proposal where the public land remained open for public use. Decision of the board of supervisors affirmed.

Porter v. Zoning Hearing Bd. of Greenfield Twp., PICS Case No. 15-1462 (C.P. Lackawanna Aug. 14, 2015) Nealon, J. (18 pages).

Property owner's pre-purchase knowledge of a zoning restriction, standing alone, did not result in a self-created hardship. Zonging board's denial reversed.

Watson v. Families Forward, PICS Case No. 15-1217 (C.P. Philadelphia July 30, 2015) Massiah-Jackson, J. (4 pages).

Whether the deficits and defects in the care, custody and control of a city swimming pool constituted dangerous conditions to defeat governmental immunity was a question for the jury. City's motion for summary judgment denied.

Wisler v. Manor Care of Lancaster PA, LLC, PICS Case No. 15-1422 (Pa. Super. Sept. 8, 2015) Stabile, J. (18 pages).

Trial court correctly refused to compel arbitration in survival action brought by executors alleging negligence and reckless conduct in appellant facility's treatment of decedent because son lacked the authority to sign an arbitration agreement on decedent's behalf during the admission process where son alleged he had decedent's power of attorney. Affirmed.

Tinstman v. Bassaly, PICS Case No. 15-1433 (C.P. Lawrence March 31, 2015) Cox, J. (16 pages).

Plaintiff's medical malpractice claims arising from surgery performed in 1993 were barred by the statute of repose but her claims regarding the surgeon's failure to inform her of his failure to remove her fallopian tubes and the associated risks at a March 8, 2005 examination were not. Defendant's motion for summary judgment granted in part, denied in part.

Green v. Pa. Hosp., PICS Case No. 15-1413 (Pa. Sep. 3, 2015) Todd, J. (24 pages).

There was sufficient evidence to create a jury question as to whether a treating physician was acting as a hospital's agent for the purposes of vicarious liability for the hospital. Order of the Superior Court affirmed in part and reversed in part.

Paluti v. Cumberland Coal LP, PICS Case No. 15-1420 (Pa. Super. Sept. 4, 2015) Jenkins, J. (15 pages).

In dispute over subsurface mining rights, an appeal on order sustaining appellee's preliminary objections, dismissing two of the counts in the complaint, staying proceedings on another count, and giving appellants leave to file an amended complaint was quashed as the order was neither a final, appealable order under Pa.R.App.P. 341 nor an appealable interlocutory order.

Obermayer, Rebmann Maxwell & Hippel, LLP v. Third Pillar Sys. Inc., PICS Case No. 15-1419 (Pa. Super. Sept, 4, 2015) (memorandum) Panella, J. (7 pages).

Trial court did not abuse its discretion in denying appellant's motion to open a default judgment because the petition was untimely, appellant failed to present a justifiable excuse for the delay, appellant failed to present a meritorious defense. Affirmed.

Nat'l Asset Loan Mgmt. Ltd. v. McCann, PICS Case No. 15-1418 (Pa. Super. Sept. 3, 2015) (memorandum) Lazarus, J. (17 pages).

Trial court properly issued a charging order and a monitor order in appellee's action to enforce a judgment of an Irish court because appellee properly filed a praecipe under the Uniform Foreign Money Judgment Recognition Act. Orders affirmed and appeal quashed.

McCullon v. Piccotti, PICS Case No. 15-1417 (Pa. Super. Sept. 4, 2015) Ott, J. (13 pages).

No unjust enrichment occurred where plaintiffs expended funds to maintain and improve defendants' property with the expectation that plaintiffs would be afforded first opportunity to purchase the property, but failed to purchase due to an inability to secure financing. Order of the trial court affirmed.

Commonwealth v. Mauz, PICS Case No. 15-1410 (Pa. Super. Sept. 9. 2015) Stabile, J. (9 pages).

The trial court erred in finding defendant guilty of disorderly conduct under 18 Pa.C.S. §5503 as the evidence was insufficient to establish that defendant acted with intent to cause public annoyance, inconvenience or alarm. Vacated.

Young v. Martin, PICS Case No. 15-1436 (3d Cir. Sept. 8, 2015) Krause, J. (29 pages).

Allegations that prison officials strip searched an inmate and placed him naked in a restraint chair for nearly 14 hours—well beyond the maximum amount of eight hours—can be sufficient to state a claim for cruel and excessive punishment in violation of the Eighth Amendment. Defense motion for summary judgment vacated.

Gen. Refractories Co. v. First State Ins., PICS Case No. 15-1406 (E.D. Pa. Sept. 9, 2015) Restrepo, J. (23 pages).

Even if parties settle for the policy limit, a court can award prejudgment interest at the statutory rate of six percent. Prejudgment interest of $15 million awarded, after parties settled asbestos-related insurance claims for $21 million policy limit.

L.H. v. Pittston Area Sch. Dist., PICS Case No. 15-1435 (M.D. Pa. Sept. 10, 2015) Mannion, J. (32 pages).

A school teacher's alleged conduct in saying, "Shut up," "I can't stand you," and "Do you have a problem or Tourette's," while highly inappropriate and unprofessional, did not rise to the level of shocking the conscience, as required to prove a substantive due-process claim. Defense motion for summary judgment granted.

Boyds, LP v. To, PICS Case No. 15-1387 (Pa. Super. Aug. 28, 2015) (memorandum) Gantman,P.J. (14 pages).

The trial court did not abuse its discretion in sustaining in part defendant's preliminary objections to plaintiff's breach of contract complaint where the covenant not to compete at issue barred defendant from certain activities, but did not preclude outright ownership of his own business. Affirmed.

Capponi v. Berg, PICS Case No. 15-1384 (C.P. Philadelphia Aug. 12, 2015) Carpenter, J. (14 pages).

Plaintiffs were properly granted a new trial when the weight of the evidence did not support the jury's verdict that plaintiffs were nine times more negligent than defendant, as the evidence established that defendant was negligent as a matter of law when she ignored traffic signals and signs.

Watts v. Manheim Twp. Sch. Dist., PICS Case No. 15-1361 (Pa. Aug. 26, 2015) Baer, J., Saylor, C.J., concurring; Stevens, J., dissenting (30 pages).

The Commonwealth Court correctly held that the school district had to provide transportation to and from both mother's and father's residences where child had two residences by virtue of his parents' equally shared physical custody because such transport furthered the goal of compulsory school attendance. Affirmed.

Bailets v. Pa. Tpk. Comm'n, PICS Case No. 15-1377 (Pa. Aug. 31, 2015) Eakin, J. (17 pages).

A claim under the Whistleblower Law was improperly dismissed when plaintiff-appellant made a prima facie showing that he was admonished by superiors not to report observations regarding waste by government contractors, such that there was a genuine issue of material fact. Summary judgment reversed.

Commonwealth v. Carter, PICS Case No. 15-1385 (Pa. Super. Sept. 1, 2015) Jenkins, J. (10 pages).

While the trial court did not violate defendant's Sixth Amendment rights by denying his request to have an attorney from court-appointed counsel's office participate as co-counsel during trial, defendant's sentence was unconstitutional under the U.S. Supreme Court's decision in Alleyne v. U.S. Convictions affirmed; sentence vacated and remanded for resentencing.

Commonwealth v. Ford, PICS Case No. 15-1379 (Pa. Super. Sept. 2, 2015) Shogan, J. (8 pages).

Trial court properly recused assistant DA from case because assistant DA had previously represented defendant when assistant DA had worked as a public defender but trial court erred in disqualifying the entire county district attorney's office without determining whether confidential information had been disclosed and whether measures could prevent such disclosure. Reversed and remanded.

Shinal v. Toms, PICS Case No. 15-1357 (Pa. Super. Aug. 25, 2015) Platt, J. (26 pages).

Trial court properly declined to strike prospective jurors for cause and gave correct jury instructions in a medical malpractice case based on informed consent because appellants' argument that the prospective jurors should have been struck for presumed prejudice was not supported by the evidence. Affirmed.

Belgravia Condo. Ass'n v. 1811 Belgravia Assoc., PICS Case No. 15-1359 (Pa. Super. Aug. 13, 2015) (memorandum) Jenkins, J. (17 pages).

Trial court properly denied engineer's post-trial motion seeking JNOV in case arising from conversion of a century-old building into a condominium because the engineer failed to preserve its economic loss argument by moving for a compulsory nonsuit, and the evidence of record established that engineer overlooked visible defects. Affirmed.

Nat'l Ass'n for the Advancement of Multijurisdiction Practice v. Castille, PICS Case No. 15-1405 (3d Cir. Aug. 26, 2015) Krause, J. (18 pages).

A Pennsylvania rule that allows experienced attorneys to be waived in and admitted to the bar without taking the bar exam, if they pass the bar exam or practice law for the major portion of five of the seven previous years in a "reciprocal state," does not favor in-state economic interests over out-of-state economic interests. Judgment that the Pennsylvania rule does not violate the Commerce Clause of the United States Constitution affirmed.

Gillis v. Respond Power, PICS Case No. 15-1404 (E.D. Pa. Aug. 31, 2015) Shapiro, J. (7 pages).

If named party plaintiffs possess different views of their rights, a court can find that plaintiffs did not prove that questions of law or fact existed that were common to the class. Motion to certify putative class action denied.

Tompkins v. Farmers Ins. Exch., PICS Case No. 15-1390 (E.D. Pa. Aug. 18, 2015) Leeson, J. (14 pages).

Plaintiffs were entitled to conditional certification of their collective action for unpaid pre-shift work, for defendant's employees in 49 states, where plaintiffs, located in three different states, were subject to a similar policy of being required to perform pre-shift work without compensation. Motion for conditional certification of collective action granted.

United States ex rel Galmines v. Novartis Pharm. Corp., PICS Case No. 15-1391 (E.D. Pa. Aug. 19, 2015) Pratter, J. (5 pages).

Deposition of a high-ranking executive of defendant was quashed under the apex doctrine, where plaintiff could not demonstrate that the executive had personal or superior knowledge of facts alleged or that information could not be obtained through lower-level employees or less burdensome employees. Subpoena quashed.

Checkpoint Sys., Inc. v. All-Tag Sec. S.A., PICS Case No. 15-1389 (E.D. Pa. Aug. 18, 2015) Tucker, C.J. (12 pages).

A patent infringement suit was an "exceptional" case under §285 of the Patent Act where evidence established that plaintiff's motivation for the suit was to bankrupt defendant, a competitor, and where plaintiff failed to make pre-suit investigation with the actual accused infringing product. Renewed motion for attorneys' fees granted.

Zhuang v. Hanover Ins., PICS Case No. 15-1423 (W.D. Pa. Sept. 3, 2015) Schwab, J. (14 pages).

Allegations that an attorney provided services "normally performed" by a lawyer and failed to obtain title insurance did not involve fraud or self-interest. Policy exclusions that defendant insurance company cited did not bar coverage, and the court granted judgment to plaintiff in the amount of $804,798 against defendant insurance company for breach of contract.

In re A.J.N., PICS Case No. 15-1395 (C.P. Lawrence March 25, 2015) Motto, P.J. (28 pages).

Rejecting plaintiff's request for expungement of his involuntary commitments based on procedural and substantive errors, the court found he had demonstrated that he could possess weapons without risk to himself or others. Plaintiff's petition for relief under 18 Pa.C.S.A. §6105(f) from the prohibition against possessing firearms imposed by §6105(c)(4) granted.

SVNE Pharma, Inc. v. N.E. Phila. Pharmacy, Inc., PICS Case No. 15-1386 (C.P. Philadelphia July 28, 2015) McInerny, J. (8 pages).

Plaintiff's equitable rescission claim failed summary judgment where plaintiff failed to promptly seek rescission of an agreement to purchase a business upon learning of facts of the operation of the business that allegedly gave rise to a claim for rescission.

Sapozhnikov v. Commonwealth Pa. Dep't of Transp., PICS Case No. 15-1394 (C.P. Monroe Feb. 25, 2015) Zulick, J. (12 pages).

In this negligence action arising out of a collision with a commonwealth truck/snow plow, the references in plaintiffs' complaint to unspecified commonwealth employees, agents, servants, contractors and/or representatives were struck and the claims regarding negligent snow removal and administrative negligence were struck as they did not fall within an exception to sovereign immunity. Defendants' preliminary objections sustained.

Newhard v. Monroe Cnty. Tax Claim Bureau, PICS Case No. 15-1392 (C.P. Monroe March 4, 2015) Zulick, J. (8 pages).

In this action seeking to set aside a tax sale, the court found that plaintiff-wife, who had a marital interest in the property but whose name was not on the deed, was not entitled to notice of the sale and that the tax claim bureau had met the requirements for a proper sale. Plaintiffs' petition to set aside the tax sale denied.

Hemcher v. Hemcher. PICS Case No. 15-1400 (C.P. Delaware July 8, 2015) Dozor, J. (15 pages).

Willful violation of an equitable distribution order led to finding of civil contempt.

In re Estate of Rood, PICS Case No. 15-1373 (Pa. Super. Aug. 28, 2015) Wecht, J. (23 pages).

The orphans' court properly found that decedent's investment accounts were subject to wife's right of election under 20 Pa.C.S. §2203 where the accounts satisfied the criteria of subsection 2203(a)(3), which embodied the long-standing policy against the disinheritance of a spouse. Affirmed.

Nowakowski v. Drexel Family Med. PICS Case No. 15-1396 (C.P. Philadelphia July 31, 2015) Rau, J. (7 pages).

An unlicensed and unregistered physician cannot provide a certificate of merit to support a medical negligence claim.

Ulmer v. L.F. Driscoll Co., PICS Case No. 15-1360 (Pa. Super. Aug. 17, 2015) (memorandum) Donohue, J. (21 pages).

Trial court erred in granting a motion to preclude appellant's expert from testifying and in granting general contractor's motion for a nonsuit in construction accident case because reasonable minds could have differed as to whether appellant's injury was caused by general contractor's decision to have elevator doors stored in the lobby when the lobby had been covered with a protective floor covering and whether appellant's accident was a result of the floor covering. Reversed and remanded.

Stodghill v. Pa. Bd. of Probation & Parole, PICS Case No. 15-1358 (Pa. Commw. Aug. 27, 2015) Leadbetter, J. (5 pages).

Pennsylvania Board of Probation and Parole properly refused to consider prisoner for parole after he served his minimum sentence because prisoner failed to successfully participate in mandatory sex offender treatment and prisoner's argument that the statute only required some attendance and not completion of the program was unavailing. Motion for judgment on the pleadings denied.

Pula v. Zoning Hearing Bd. of Borough of Mount Pocono, PICS Case No. 15-1393 (C.P. Monroe March 30, 2015) Mark, J. (10 pages).

Because installation of a cremation unit within an existing garage in accordance with a conditional use approval was not a change in use that would result in an increase in dimensional nonconformities, the zoning hearing board abused its discretion and erred in upholding the zoning officer's denial of appellants' request for a building permit.

Blackwood, Inc. v. Reading Blue Mountain & N. R.R. Co., PICS Case No. 15-1383 (Pa. Super. Aug. 28, 2015) (memorandum) Bowes, J. (43 pages).

The trial court did not err in applying an evidentiary presumption in favor of the defendant railroad and in finding that plaintiff did not rebut the presumption that defendant compensated landowners for taking land through eminent domain. Affirmed.

Brown v. Pa. Dep't. of State, PICS Case No. 15-1378 (Pa. Commw. Sept. 2, 2015) Friedman, S.J. (10 pages).

Trial court properly upheld OOR's dismissal of petitioner's appeal from the department's denial of his request for letters issued to medical licensees after petitioner filed complaints with licensing boards against licensees because the requested records were exempt under §708(b)(17)(vi)(A) of the Right-to-Know Law. Affirmed.

Commonwealth v. George. PICS Case No. 15-1401 (C.P. Lehigh May 5, 2015) Steinberg, J. (10 pages).

The witness identifications of defendants were not so suggestive as to give rise to a substantial likelihood of misidentification.

First Liberty Ins. Corp. v. Coll, PICS Case No. 15-1310 (Pa. Super. Aug. 7, 2015) (memorandum) Ott, J. (17 pages).

The trial court did not err in finding that the plaintiff insurance company was not required to provide coverage to homeowners for a dog bite injury where the subject policy excluded coverage for incidents occurring while the insureds provided home daycare services. Affirmed.

Polaski v. Whitson, PICS Case No. 15-1353 (C.P. Lehigh June 30, 2015) Johnson, J. (17 pages).

A physician had a duty to advise a patient regarding a disease contracted by the patient, for the benefit of a non-patient, third party child of the patient, where the disease was asymptomatic in the non-patient child and was likely to be genetically inherited. Summary judgment denied.

Becker v. M.S. Reilly, Inc., PICS Case No. 15-1308 (Pa. Super. Aug. 13, 2015) Stabile, J. (8 pages).

The trial court did not err in granting defendant's motion to strike off plaintiff's discontinuance, which was filed just days before the scheduled trial, given plaintiff's lack of diligence in prosecuting his case and his late decision to discontinue as well as defendant's preparedness for trial. Affirmed.

Estate of Klemm v. Platea Cemetery Ass'n, PICS Case No. 15-1309 (Pa. Super. Aug. 5, 2015) (memorandum) Wecht, J. (10 pages).

The trial court erred in sustaining defendants' preliminary objections to plaintiffs' writ of summons since such a writ is not a "pleading" for purposes of Pa.R.Civ.P. 1028 and, therefore, defendants' preliminary objections were not permitted. Reversed and remanded.

Prof'l Sales, Inc. v. Estate of Brehaut, PICS Case No. 15-1311 (Pa. Super. June 18, 2015) (memorandum) Bender, J. (12 pages).

The trial court erred in granting defendants judgment on the pleadings where plaintiff could establish an exception to the statute of frauds rule if the company could prove that defendant admitted the parties entered into an oral agreement for the purchase and sale of a rare and expensive vehicle. Reversed and remanded.

Commonwealth v. Burton, PICS Case No. 15-1348 (Pa. Super. Aug. 25, 2015) Bender, J. (47 pages).

The trial court erred in rejecting defendant's untimely Post Conviction Relief Act petition, which relied on the after-discovered facts exception to the timeliness requirement, since the presumption of access to information available in the public domain does not apply where the untimely PCRA petitioner is pro se. Reversed and remanded.

Benet v. Thomas, PICS Case No. 15-1281 (Pa. Super. Aug. 7, 2015) (memorandum) Musmanno, J. (9 pages).

Trial court correctly transferred wrongful death/negligence action to Susquehanna County where the shooting occurred and where the individual and corporate defendants were sited because appellant's argument that corporation's purchase of inventory in Luzerne County justified venue in that county was unavailing since the purchase of goods was merely incidental to the corporation's business. Affirmed.

In re Estate of Hornburg, PICS Case No. 15-1349 (Pa. Super. Aug. 4, 2015) (memorandum) Ott, J. (20 pages).

The orphans' court did not err in finding that decedent's Cayman Island bank accounts fell outside the subject prenuptial agreement where these accounts, which were in existence at the time the agreement was executed, did not fit within the description of "separate property." Affirmed.

Franconeri v. Febbraio, PICS Case No. 15-1371 (C.P. Monroe March 17, 2015) Zulick, J. (8 pages).

In this action against an HVAC subcontractor who allegedly removed an air conditioning unit installed on plaintiffs' property, plaintiffs sufficiently stated a cause of action for conversion. Defendant's preliminary objections granted in part, denied in part.

In re Estate of Ferraro, PICS Case No. 15-1364 (C.P. Lawrence May 11, 2015) Hodge, J. (8 pages).

Petition to remove executrix of estate denied where, as beneficiaries of decedent's estate, petitioners had the authority to request an accounting of respondent's actions as decedent's power of attorney.

Allied World Assurance v. Steadfast Ins., PICS Case No. 15-1376 (E.D. Pa. Aug. 24, 2015) McHugh, J. (7 pages).

An insurance company that provides $20 million in excess liability insurance can deduct the amount it paid to attorneys to negotiate a settlement from the $20 million, and pay the plaintiffs in the underlying medical-malpractice action $19.2 million. Insurer's motion for summary judgment granted.

Freedom from Religion Found. v. Connellsville Area Sch. Dist., PICS Case No. 15-1375 (W.D. Pa. Aug. 28, 2015) McVerry, J. (50 pages).

A large, granite monument that stood alone on school grounds and that proclaimed, "I am the Lord thy God," followed by the 10 Commandments, violated the Establishment Clause, because it possessed the effect of endorsing a particular religious message.

Burkley v. Mun. Auth. of Westmoreland Cnty., PICS Case No. 15-1374 (W.D. Pa. Aug. 17, 2015) Fischer, J. (15 pages).

To establish a prima facie case of political patronage discrimination, a plaintiff must prove that his public employment did not require political affiliation and that his constitutionally protected conduct was a substantial factor in his discharge. As result of board members' testimony that a county solicitor was not required to affiliate with a particular political party, plaintiff established a prima facie case of political patronage discrimination. Defendants' motion for summary judgment denied.

Krasley v. Audelo, PICS Case No. 15-1352 (C.P. Lehigh July 1, 2015) McGinley, J. (8 pages).

Plaintiff's failure to provide evidence or prognosis from treating medical professionals that she suffered a permanent loss of bodily function was fatal to her claim for damages for pain and suffering under the Political Subdivision Tort Claims Act and entitled defendants to judgment as a matter of law.

Caroselli v. Rice, PICS Case No. 15-1332 (C.P. Monroe March 17, 2015) Williamson, J. (13 pages).

The real estate exception to sovereign immunity was not applicable since plaintiff failed to show that the injuries were caused by defects in the land itself and the matter did not involve supervision of traffic management. PennDOT's motion for summary judgment granted.

Commonwealth v. Treiber, PICS Case No. 15-1313 (Pa. Aug. 17, 2015) Eakin, J; Saylor, C.J., dissenting (92 pages).

Trial counsel's failure to object to the admission of canine DNA evidence produced under novel scientific procedure was not in error where the overwhelming weight of circumstantial evidence tended to prove appellant's guilt. Order of the PCRA court affirmed.

Schanne v. Addis, PICS Case No. 15-1321 (Pa. Aug, 17, 2015) Saylor, C.J., Eakin, J., concurring, Stevens, J., dissenting (21 pages).

Pennsylvania Supreme Court answered a certified question and held that judicial privilege did not apply to an allegation made by an adult before commencement of any quasi-judicial proceeding without an intent that it lead to a quasi-judicial proceeding in case where former student told a friend about a romantic relationship with a teacher while she was in high school.

Bank of New York Mellon v. Johnson, PICS Case No. 15-1322 (Pa. Super. Aug. 19, 2015) Gantman, P.J. (13 pages).

Trial court properly denied appellant's petition to strike a default judgment in a mortgage foreclosure action because appellant failed to demonstrate a fatal defect on the face of the record in her challenge to the adequacy of the complaint and the service of process. Affirmed.

Commonwealth v. Smith, PICS Case No. 15-1314 (Pa. Super. Aug. 19, 2015) Gantman, P.J. (13 pages).

Appellant waived his ineffectiveness of PCRA counsel claim where he failed to raise in a timely manner in response to the PCRA court's Rule 907 notice of intent to dismiss appellant's PCRA petition. Order of the PCRA court affirmed.

Venosh v. Henzes, PICS Case No. 15-1274 (Pa. Super. Aug. 7, 2015) Bowes, J. (11 pages).

The privilege established by the Pennsylvania Peer Review Protection Act did not apply to an insurer's review of plaintiff's surgery since that review was not conducted by a professional health care provider. Affirmed.

Czimmer v. Janssen Pharm., Inc., PICS Case No. 15-1315 (Pa. Super. Aug. 20, 2015) Mundy, J. (42 pages).

The use of "substantial factor" in jury instructions in a prescription medication negligent failure to warn case decided under Virginia law did not entitle appellant-defendant to a new trial. Judgment affirmed.

Stephens v. Clash, PICS Case No. 15-1317 (3d Cir. Aug. 5, 2015) Smith, J. (23 pages).

The discovery rule applied to a private cause of action for sexual abuse of a minor, where, despite the statute's inclusion of a provision delaying the application of the limitations period, the lack of a provision expressly providing for the discovery rule did not automatically bar application of the rule. Dismissal affirmed.

Office of Disciplinary Counsel v. Williams, PICS Case No. 15-1334 (Pa. June 25, 2015) per curiam (13 pp.).

Respondent who pleaded guilty to failing to file tax returns and entered a plea of nolo contendere to misapplication of entrusted funds was suspended for five years, retroactive to the date of his temporary suspension.

Lamar Cos. v. Brad Aric, L.L.C., PICS Case No. 15-1273 (Pa. Super. Aug. 7, 2015) (memorandum) Wecht, J. (17 pages).

The trial court did not err in concluding that since defendant had constructive knowledge of plaintiff's possessory interest in the subject property, defendant was not a bona fide purchaser of the property and could not assert a priority interest over plaintiff's interest. Affirmed.

U.S. Bank Nat'l Ass'n v. Perez, PICS Case No. 15-1335 (C.P. Delaware June 23, 2015) Green, J. (8 pages).

Where it was undisputed that appellant defaulted on his mortgage and failed to prove fraud, and appellee-bank showed that it held and owned the note and mortgage through the chain of assignments and had complied with the Pennsylvania pre-foreclosure requirements, the court entered an in rem judgment in favor of appellee. Judgment for appellee should be affirmed.

Niggel v. Tiernan, PICS Case No. 15-1331 (C.P. Allegheny July 13, 2015) Hertzberg, J. (7 pages).

Plaintiffs' shares of their father's company were appropriately transferred to them following his death pursuant to the shareholder agreement.

Moll v. Reinhart and Rusk Inc., PICS Case No. 15-1336 (C.P. Monroe May 11, 2015) Williamson, J. (9 pages).

Finding that the passage of nearly four years between the writ of summons and the filing of the complaint, without compelling reason for delay, constituted a lack of due diligence. Defendants' motion to dismiss for lack of prosecution granted.

Ramalingam v. Keller Williams Realty Grp., Inc., PICS Case No. 15-1320 (Pa. Super. Aug. 18, 2015) Platt, J. (27 pages).

Trial court properly found in favor of real estate agent and because plaintiff homebuyer's claims of negligence and breach of fiduciary duty failed where buyer made a knowing decision to waive his rights to place money in escrow by complying with the agreement of sale requirement to deposit the money directly with the builder. Affirmed.

Commonwealth v. Bogdan, PICS Case No. 15-1329 (C.P. Lawrence April 1, 2015) Motto, P.J. (21 pages).

Defendant's right of appeal reinstated nunc pro tunc based on ineffective assistance of counsel in filing a late appeal.

Lockman v. Berkshire Hills Assocs., L.P., PICS Case No. 15-1270 (Pa. Super. Aug. 7, 2015) (memorandum) Musmanno, J. (10 pages).

The trial court did not err in applying the "hills and ridges" doctrine to plaintiff's slip and fall case where the evidence of record, including plaintiff's own testimony, established the existence of generally slippery conditions at the time of his fall. Affirmed.

Commonwealth v. Heleva, PICS Case No. 15-1333 (C.P. Monroe March 13, 2015) Zulick, J. (25 pages).

After reviewing the history of defendant's case, the court concluded that he had no Rule 600 speedy-trial issue and, therefore, counsel was not ineffective in seeking dismissal under the rule. Defendant's petition for post-conviction relief denied.

Office of Governor v. Davis, PICS Case No. 15-1316 (Pa. Comm. Aug. 12, 2015) Simpson, J. (18 pages).

Exemptions to the Right-to-Know Law could have been supported by affidavit or other documentary evidence, but an affidavit would not be necessary where proof of the right to the exemption was clear on the face of the records themselves. Final determination of the OOR vacated.

PSB Credit Servs., Inc. v. Shawnee Tabernacle Church, Inc., PICS Case No. 15-1327 (C.P. Monroe April 22, 2015) Zulick, J. (10 pages).

An oral agreement to stay mortgage payments was invalid under the Statute of Frauds.

PR Fin. Ltd. P'ship v. Elias, PICS Case No. 15-1319 (Pa. Super. Aug. 20, 2015) (memorandum) Panella, J. (12 pages).

Trial court correctly found that appellee breached his lease after the leased premises was destroyed in a fire but erred in finding that there was no duty to rebuild based on alleged ambiguity in the lease. Affirmed in part and reversed and vacated in part.

Johnson v. Slack, PICS Case No. 15-1318 (Pa. Super. Aug. 12, 2015) (memorandum) Jenkins, J. (11 pages).

Trial court properly granted damages to appellee property owners after appellant failed to make good on the guarantee in the lease agreement. Affirmed.

Downs v. Anapol Schwartz, PICS Case No. 15-1338 (E.D. Pa. Aug. 12, 2015) Restrepo, J. (42 pages).

A mentor's withdrawal of a positive reference can constitute an adverse employment action, for purposes of an employee's claim of retaliation after engaging in protected activity. Defense motion for summary judgment on retaliation count denied.

R.P. Hoffman Excavating v. Turtle Assocs., L.L.C., PICS Case No. 15-1328 (C.P. Monroe March 16, 2015) Zulick, J. (10 pages).

Arbitration was required prior to litigation pursuant to a provision in the parties' construction subcontract.

In re Estate of Miller, PICS Case No. 15-1330 (C.P. Chester June 3, 2015) Tunnell, J. (13 pages).

The executrix of decedent's will was not entitled to force a sale of his real property based on its dilapidated condition, which would dispossess respondent and deprive her of the testator's grant of a personal right of occupancy in an apartment on the property.

Commonwealth v. 2002 Subaru Impreza, PICS Case No. 15-1312 (Pa. Commw. Aug. 19, 2015) Brobson, J. (6 pages).

The commonwealth could proceed with a civil forfeiture proceeding as opposed to seeking criminal forfeiture as part of appellant's criminal case, where the language of the crimes code indicated that such was the legislative intent. Order of the trial court affirmed.

Moore v. Angie's List, PICS Case No. 15-1340 (E.D. Pa. Aug. 7, 2015) Dalzell, J. (28 pages).

Allegations that a membership review service advertised it was only a "passive conduit" for consumer reviews, although service providers could pay advertising fees to receive higher rankings on search results, could be sufficient to allege fraud and unfair trade practices. Defendant's motion to dismiss denied.

Betz v. Temple Health Sys., PICS Case No. 15-1339 (E.D. Pa. Aug. 6, 2015) Pappert, J. (7 pages).

Allegations that female co-workers engaged in sexually explicit conduct that included pretend groping may be insufficient to allege same-sex harassment. Registered nurse's claims of hostile work environment dismissed.

Ramirez v. Cohan, PICS Case No. 15-1294 (C.P. Monroe May 22, 2015) Williamson, J. (10 pages).

Plaintiff's medical malpractice complaint did not lack legal sufficiency or specificity and was sufficient to give defendants notice of the claims against them and the identities of defendants' agents, pleaded as a unit, could be gathered during the discovery process. Defendants' preliminary objections denied.

LaCivita v. Town & Country Bar and Grill, PICS Case No. 15-1292 (C.P. Lawrence June 11, 2015) Cox, J. (9 pages).

Plaintiff's Dram Shop Act complaint lacked sufficient specificity to permit defendant to prepare its defense but her failure to join the allegedly intoxicated drivers involved in the accident did not materially alter any party's ability to protect its rights. Defendant's preliminary objection regarding lack of specificity sustained; the objection for failure to join indispensable parties overruled.

Commonwealth v. Barnett, PICS Case No. 15-1240 (Pa. Super. July 29, 2015) Bowes, J. (31 pages).

Defendant was not entitled to relief based upon a claim of ineffective assistance of counsel where trial counsel filed a motion in limine to preclude, and repeatedly objected to, the introduction of defendant's silence in response to an incriminating statement as a tacit admission. Affirmed.

Commonwealth v. Salter, PICS Case No. 15-1285 (Pa. Super. Aug. 4, 2015) Stabile, J. (18 pages).

Trial court erred in suppressing evidence because court's finding that officer lacked probable cause for a traffic stop for an unilluminated license plate and for subsequent arrest of appellee under suspicion of DUI was in error. Reversed.

Commonwealth v. Davis, PICS Case No. 15-1241 (Pa. Super. July 29, 2015) Allen, J. (12 pages).

The trial court properly applied 42 Pa.C.S. §5914 in this criminal matter to suppress defendant's confidential communications to his wife, which occurred outside the presence of third parties. Affirmed.

Commonwealth v. Mathias, PICS Case No. 15-1242 (Pa. Super. July 29, 2015) Strassburger, J. (13 pages).

The trial court lacked authority to revoke defendant's probation and sentence him to a term of imprisonment where, at the time of resentencing, defendant's prior term of probation already had expired. Judgment of sentence vacated.

Commonwealth v. Giordano, PICS Case No. 15-1284 (Pa. Super. Aug. 5, 2015) Wecht, J. (17 pages).

Trial court properly found defendant guilty of possessing a weapon on school property when he wore a sword in the administration building to argue about the school dress code. Affirmed.

Starling v. Lake Meade Prop. Owners Ass'n, Inc., PICS Case No. 15-1272 (Pa. Super. Aug. 11, 2015) Bowes, J. (25 pages).

The trial court erred in ruling that a 1968 deed created a fee simple absolute ownership interest to a property owner's association in a subdivision cul-de-sac since the grantor in a deed cannot convey title to property greater than that owned by the grantor. Reversed and remanded.

Devon Robotics, LLC v. DeViedma, PICS Case No. 15-1275 (3d Cir. Aug. 5, 2015) Krause, J. (24 pages).

A denial of a motion for summary judgment was not subject to the appellate jurisdiction provided for in the Federal Arbitration Act, where the FAA only provided for appeals from denials of petitions to order arbitration to proceed or of motions to compel arbitration. Denial of summary judgment affirmed.

Jones v. SEPTA, PICS Case No. 15-1269 (3d Cir. Aug. 12, 2015) Hardiman, J. (17 pages).

In this case of first impression, an employee's suspension with pay did not constitute an "adverse employment action" under the substantive discrimination provision of Title VII. Affirmed.

Travelers Indem. Co. v. Cephalon, Inc., PICS Case No. 15-1236 (3d Cir. Aug. 10, 2015) Greenaway, J. (9 pages).

Plaintiffs who brought claims for fraud, intentional and negligent misrepresentation and violations of state consumer protection laws lacked standing to sue, failed to plead with specificity and failed to establish fraud under the Federal Rules of Civil Procedure. Affirmed.

In re Avandia Mkting., Sales Practices, and Prods. Liability Litig., PICS Case No. 15-1156 (E.D. Pa. July 21, 2015) Rufe, J. (12 pages).

Law firm that hired signatories to an MDL attorney participation agreement as its trial counsel was subject to the terms of the agreement and therefore, was subject to the district court's jurisdiction.

Todd v. U.S. Bank, N.A., PICS Case No. 15-1279 (E.D. Pa. July 22, 2015) Jones, J. (9 pages).

Plaintiff's class action was denied certification as premature where it was found that plaintiff failed to identify with specificity the numerosity of potential plaintiffs, and had failed to conduct class discovery to identify common questions of fact or law, or claims or defenses. Motion denied without prejudice.

Incubadora Mexicana, SA De CV v. Zoetis, Inc., PICS Case No. 15-1277 (EDPa. July 31, 2015) Beetlestone, J. (13 pages).

An action brought by Mexican corporations was not dismissed for forum non conveniens where the court found a strong public interest in having the matter heard in Pennsylvania, and also found no conflict between Pennsylvania and Mexican law favoring having the matter decided under Mexican law by a Mexican court where defendants failed to prove a difference in the law. Motion to dismiss denied.

Horsch v. Suburban Mgmt. Co., PICS Case No. 15-1300 (C.P. Montgomery June 30, 2015) Smyth, J. (8 pages).

A landlord out of possession may be responsible for injuries suffered by third parties on the leased premises. Defendant's objections overruled.

Lozado v. Workers' Comp. Appeal Bd., PICS Case No. 15-1278 (Pa. Commw. Aug. 5, 2015) Cohn Jubelirer, J. (24 pages).

The filing of a writ of summons by an employee for a tort claim against an uninsured employer stemming from an alleged work-related injury, when filed to preserve the employee's cause of action against the statute of limitation and where the employee had yet to recover from a civil action, did not serve to bar a workers' compensation claim against the Uninsured Employers Guaranty Fund. Order of the board reversed in part and affirmed in all other parts.

Thomas v. Thomas, PICS Case No. 15-1297 (C.P. Lawrence May 26, 2015) Motto, P.J. (12 pages).

Where father acted in defiance of a court order granting custody to mother he could not avoid paying child support.

SEPTA v. City of Phila., PICS Case No. 15-1015 (Pa. Commw. Aug. 7, 2015) Leavitt, J. (46 pages).

The Commonwealth Court concluded that SEPTA was not subject to the City of Philadelphia's anti-discrimination ordinances. Reversed.

Maione v. Greenway Ctr., Inc., PICS Case No. 15-1298 (C.P. Monroe April 2, 2015) Zulick, J. (10 pages).

The law of the case doctrine prevented the court from revisiting a decision that denied plaintiff's request to substitute a party after the statute of limitations had run.

Rohan v. White, PICS Case No. 15-1293 (C.P. Monroe May 21, 2015) Williamson, J. (16 pages).

In this breach of contract action, the court found that defendant-seller neither expressly nor impliedly waived the mortgage-commitment deadline and since plaintiffs failed to meet that deadline, defendant was entitled to terminate the agreement. Plaintiffs' motion for judgment on the pleadings denied.

Washburn v. N. Health Facilities, Inc., PICS Case No. 15-1280 (Pa. Super. Aug. 7, 2015) Bowes, J. (15 pages).

No valid agreement to arbitrate existed where appellee, decedent's wife, signed a separate arbitration agreement for decedent upon his admission to the facility, but lacked the representative capacity to sign on decedent's behalf. Order of the trial court affirmed.

Horst v. Union Carbide Corp., PICS Case No. 15-1276 (C.P. Lackawanna Aug. 3, 2015) Nealon, J. (18 pages).

A motion to transfer venue for forum non conveniens was properly denied where defendant failed to provide evidence to prove that plaintiff's choice of forum was oppressive or vexatious, where some of the defendant corporations were located in the chosen forum. Petition to transfer venue denied.

Diaz v. Kilby, PICS Case No. 15-1295 (C.P. Monroe June 4, 2015) Higgins, J. (12 pages).

On investment advisor's petition to vacate an arbitration award entered against him, the court found that he had failed to meet his burden of showing that the action was barred by the statute of limitations and compensatory and punitive damages and attorney fees were improperly awarded. Defendant's petition to vacate award denied.

City of Allentown v. Int'l Ass'n of Fire Fighters Local 302, PICS Case No. 15-1282 (Pa. Commw. Aug. 7, 2015) Pellegrini, P.J. (34 pages).

In reviewing an interest arbitration panel award issued under the Policeman and Fireman Collective Bargaining Act, trial court erred in denying city's petition to vacate the shift manning requirements because minimum manning concerned a managerial prerogative beyond the scope of the CBA. Affirmed in part and reversed in part.

Commonwealth v Creazzo, PICS Case No. 15-1267 (C.P. Lehigh June 18, 2015) Steinberg, J. (9 pages).

Under the totality of the circumstances, defendant's consent to a blood test after his involvement in a fatal car crash was voluntary, despite the failure to advise him of his right to refuse. Defendant's motion to suppress the test results denied.

Maula v. Northampton Cnty. Div. of Assessment, PICS Case No. 15-1261 (C.P. Northampton July 2, 2015) Beltrami, J. (9 pages).

Because the tax-upset sale and subsequent conveyance of the parcel at issue did not meet the definition of a "split-off" in Act 319, the property owner was not liable for roll-back taxes.

Shaffer v. Visaggio's Inc., PICS Case No. 15-1250 (Pa. Super. July 29, 2015) (memorandum) Allen, J. (42 pages).

Trial court properly adopted appraiser's report regarding the value of appellant's business, in dissenting shareholder's action for valuation after a merger, because the evidence relied on by the appraiser was competent and substantial. Affirmed.

Commonwealth v. Gakhal, PICS Case No. 15-1264 (C.P. Delaware June 30, 2015) Nilon, J. (19 pages).

The deletion of language in the verdict slip on the retaliation charge that did not pertain to the facts was not error and sufficient evidence supported the conviction of retaliation against a victim or witness. Judgment of sentence should be affirmed.

Wells Fargo Bank, N.A. v. Gilroy, PICS Case No. 15-1256 (Pa. Super. July 22, 2015) (memorandum) Jenkins, J. (13 pages).

Trial court properly denied homeowner's petition to set aside a sheriff's sale in a mortgage foreclosure action because homeowner waived claim that appellee failed to send a foreclosure notice that complied with VA foreclosure regulations. Affirmed.

Commonwealth v. Pennybaker, PICS Case No. 15-1208 (Pa. Super. July 28, 2015) Musmanno, J. (9 pages).

The fact that appellant was subject to a lifetime sex offender registration requirement could be objectively determined by reference to statute, and therefore a mandatory minimum sentence based on a failure to register was constitutionally permissible. Judgment of sentence affirmed.

Commonwealth v. Ricker, PICS Case No. 15-1209 (Pa. Super. July 17, 2015) Bowes, J. (30 pages).

Hearsay alone was sufficient to prove one element of an offense for the purposes of a preliminary hearing, and defendant was not constitutionally entitled to confront adverse witnesses at a preliminary hearing. Order of the trial court affirmed.

Commonwealth v. Robinson, PICS Case No. 15-1243 (Pa. Super. Aug. 3, 2015) Gantman, P.J. (12 pages).

The court ruled that criminal defendants were not entitled to verbatim written transcript of videotaped child witness testimony, and holding that the trial court did not have inherent rule making authority or discretionary power to order the commonwealth to provide transcripts or to sanction the commonwealth by precluding testimony. Order of the trial court reversed.

Pusey v. Allstate Ins. Co., PICS Case No. 15-1258 (C.P. Delaware May 21, 2015) Green, J. (6 pages).

Damages awarded in an underinsured motorist claim had to be reduced to account for plaintiff's comparative negligence.

In re Jones Trusts, PICS Case No. 15-1259 (C.P. Montgomery March 18, 2015) Herron, J. (18 pages).

The trust beneficiaries' objections to the trustees' past fees were overruled where the beneficiaries either explicitly consented or acquiesced to the fees for more than two decades without seeking an account.

In re Estate of Kuntz, PICS Case No. 15-1262 (C.P. Lycoming July 16, 2015) Lovecchio, J. (6 pages).

Notwithstanding having the power to sell decedent's real estate under the will, co-executors might be subject to a personal surcharge if they did so over the objection of the residual beneficiary who offered to purchase the property and pay the estate debt.

William Penn Bank v. East Inv., LLC, PICS Case No. 15-1260 (C.P. Montgomery June 19, 2015) Smyth, J. (16 pages).

In an action to quiet title, plaintiffs must sufficiently plead their claims of fraud and misrepresentation against a lien holder who perfected a confessed judgment only days before the sale.

TEB v. SLB, PICS Case No. 15-1265 (C.P. Lycoming June 23, 2015) McCoy, J. (10 pages).

The draft QDROs regarding husband's police pension and deferred compensation plan and wife's retirement plan were consistent with the terms of the parties' marital settlement agreement and 23 Pa.C.S.A. §3501(c). Husband ordered to sign the orders.

In re W.M., PICS Case No. 15-1263 (C.P. Lehigh May 11, 2015) Steinberg, J. (12 pages).

An award of restitution was warranted where the juvenile held an unauthorized house party that resulted in damage to the home and the amount of restitution was determined considering the amount of damage, his responsibility for it, and his ability to pay. Restitution ordered.

Neshaminy Sch. Dist. v. Neshaminy Fed'n of Teachers, PICS Case No. 15-1249 (Pa. Commw. July 29, 2015) McCullough J. (28 pages).

Trial court erred in upholding arbitrator's award holding that school district locked out teachers when district did not reopen schools on less than 24 hours' notice that a strike had ended because the award violated public policy and failed to draw its essence from the CBA. Vacated.

Valley Forge Sewer Auth. v. Hipwell, PICS Case No. 15-1255 (Pa. Commw. July 31, 2015) Covey, J. (14 pages).

Trial court properly entered judgment in favor of sewer authority for its municipal claim against homeowner for failure to pay retroactive sewer bill after authority discovered that it had been under-billing homeowner because homeowner had no contractual defenses against the lien and homeowner's "reasonable contest' argument was unavailing in a Municipal Claims and Tax Liens Act action. Affirmed.

Feger v. Fiorillo, PICS Case No. 15-1212 (Pa. Super. July 22, 2015) (memorandum) Bender, J. (9 pages).

Because alleged legal malpractice could have occurred in the law office, that was a sufficient basis to support the trial court's transfer of venue to the county where the law office was located. Order of the trial court affirmed.

Slutter v. Kerrick, PICS Case No. 15-1248 (CP Monroe, June 5, 2015) Higgins, J. (13 pages).

Family's construction company obtained an irrevocable license to operate on the family property where the family members who owned the property and who later purchased the property were aware that the business had expended money to improve the section of property it used.

Estate of Gallagher, PICS Case No. 15-1245 (Pa. Super. July 23, 2015) (memorandum) Gantman, P.J. (21 pages).

Summary judgment was improper as a genuine issue of material fact existed as to whether decedent had designated appellant primary beneficiary of decedent's life insurance policy. Summary judgment reversed.

Valincius v. Weiner, PICS Case No. 15-1252 (Pa. Super. July 23, 2015) (memorandum) Lazarus, J. (18 pages).

Trial court properly found that release signed by appellants in hormone replacement therapy law suit barred medical malpractice claims against appellees as the release was signed after the alleged malpractice was discovered and suit was filed, and there was no requirement that a release had to be predicated on a specific "event." Affirmed.

Estate of Deckard v. Pa. Liquor Control Bd., PICS Case No. 15-1244 (Pa. Commw. July 31, 2015) McCullough, J. (20 pages).

Where a proprietor had made physical distinctions between a proposed liquor licensed area, and an interconnected, unlicensed grocery store and a physically separate gas station on the same tract of land, and restrict the sale of alcohol solely to the licensed area, the Liquor Control Board did not abuse its discretion in granting an application for license transfer. Order of the board affirmed.

Staron v. Workers' Comp. Appeal Bd., PICS Case No. 15-1142 (Pa. Commw. July 17, 2015) Friedman, S.J. (11 pages).

Workers' Compensation Appeal Board properly upheld WCJ's decision that claimant painter, injured when he fell off a roof, was an employee at the time of injury under the Construction Workplace Misclassification Act because he signed the independent/subcontractor agreement after he was injured. Affirmed.

Malt Beverage Distribs. Ass'n v. Pa. Liquor Control Bd., PICS Case No. 15-1246 (Pa. Commw. July 31, 2015) McCullough, J. (22 pages).

Because applicant had physically demarcated and distinguished the premises of a proposed licensed restaurant and the premises an unlicensed convenience store selling liquid fuel, the board did not abuse its discretion in granting an application for license transfer. Order of the Liquor Control Board affirmed.

Nationstar Mortg. LLC v. Martinez, PICS Case No. 15-1266 (C.P. Lehigh June 10, 2015) Reichley, J. (6 pages).

Because defendant-mortgagors had entered into a loan modification agreement with plaintiff's predecessor-in-interest and the modified mortgage was subsequently assigned to plaintiff, plaintiff had standing as the real party in interest to enforce the mortgage. Plaintiff's motion for summary judgment granted.

Feudale v. Aqua Pa., Inc., PICS Case No. 15-1213 (Pa. Commw. July 22, 2015) Brobson, J. (12 pages).

A cause of action seeking to bar replacement of a waterline through a state forest was improper where petitioner failed to exhaust administrative remedies by appealing the issuance of the relocation permit to the Environmental Hearing Board. Dismissed.

Dep't of Corrections v. Maulsby, PICS Case No. 15-1211 (Pa. Commw. July 23, 2015) McGinley, J. (15 pages).

The Office of Open Records, under the doctrine of collateral estoppel, could order the release of an unredacted copy of a contract where the OOR had previously ordered the release of an unredacted copy of the same contract in a prior proceeding. Determination of the OOR vacated.

Commonwealth v. Jones, PICS Case No. 15-1205 (Pa. Super. July 24, 2015) Jenkins, J. (10 pages).

Since driving under the influence of marijuana is treated differently under the Vehicle Code from driving under the influence of alcohol, the Superior Court rejected defendant's claim that uncorroborated police testimony regarding the odor of marijuana was an insufficient basis to request blood testing under 75 Pa.C.S. §1547. Affirmed.

Hueitt v. Phila. Media Holdings, LLC, PICS Case No. 15-1128 (Pa. Super July 14, 2015) (memorandum) Fitzgerald, J. (16 pages).

Summary judgment was improper where there was a material issue of fact as to whether a newspaper company foresaw a peculiar risk created by its subcontractors selling newspapers on the roadway. Summary judgment reversed

Commonwealth v. Laird, PICS Case No. 15-1206 (Pa. July 20, 2015) Saylor,C.J. (66 pages).

The record in this capital punishment case did not suggest that pretrial publicity was extreme or that the community must be deemed to have been saturated with it and, therefore, defendant's assertion that prejudice should be presumed could not be supported. Affirmed.

Commonwealth v. Staton, PICS Case No. 15-1207 (Pa. July 20, 2015) Baer, J.; Saylor, C.J., and Todd, Madame J., concurring (31 pages).

While noting a legal distinction between the waiver of right to counsel and the forfeiture of that right, the Pennsylvania Supreme Court found that defendant's violent attack on defense counsel in open court constituted a forfeiture of his right to counsel. Denial of post-conviction relief affirmed.

Walters v. Buck Hill Falls Co., PICS Case No. 15-1223 (C.P. Monroe June 8, 2015) Williamson, J. (8 pages).

The unit owners' association was a necessary party in a declaratory judgment action against the owner of the common areas in the community.

In re Petition to Submit Ballot Question to Concord Twp. Voters, PICS Case No. 15-1179 (Pa. July 20, 2015) Stevens, J.; Saylor, C.J., dissenting (23 pages).

Submission of a second to first class township ballot question was not limited to within 90 days of the first general or municipal election after the ascertainment of population density requirements, where the plain language of the statute provided both population density and petition signature requirements. Order of the Commonwealth Court reversed.

In re Penn Treaty, PICS Case No. 15-1181 (Pa. July 20, 2015) per curiam, Todd, J. (concurring and dissenting) (32 pages).

Commonwealth Court applied the wrong standard of deference to commissioner's decision seeking to convert a rehabilitation proceeding to a liquidation under §518(a) of the Insurance Department Act but court declined to impede the lower court's review of the rehabilitation plan it had ordered filed. Affirmed.

Stann v. Olander Prop. Mgmt. Co., Inc. PICS Case No. 15-1199 (E.D. Pa. July 24, 2015) Pratter, J. (18 pages).

Plaintiffs' claims of fraud, conspiracy to commit fraud and breach of fiduciary duty against her mother and brother for not disclosing that she owned a share of the family business were barred by the applicable two-year statute of limitations. Motion for summary judgment granted and complaint dismissed.

United States v. One Palmetto State Armory PA-15 Machine Gun Receiver/Frame, PICS Case No. 15-1200 (E.D. Pa. July 22, 2015) Dalzell, J. (51 pages).

Because plaintiff had no legitimate claim of entitlement in the machine gun he made or an approved application to make one, later revoked, his due process violation claim failed under the Second Amendment. Motion to dismiss granted and denied in part and complaint dismissed.

Office of Disciplinary Counsel v. Lawless, PICS Case No. 15-1224 (Pa. June 25, 2015) per curiam (10 pages).

Because respondent violated the terms of his disciplinary probation, the stay on his suspension was lifted and he was suspended for a period of one year and one day.

Neducsin v. Caplan, PICS Case No. 15-1215 (Pa. Super. July 23, 2015) Gantman, P.J. (20 pages).

Trial court properly denied appellant's challenge to confession of judgment because the confession of judgment clause was in writing, prominently placed, valid, explicit and unambiguous and appellant presented no valid defenses where he was clearly in default when he drew down the line of credit, lied about it and used some of the money for an improper purpose. Affirmed.

Gardner v. Bruder, PICS Case No. 15-1176 (Pa. Super. July 10, 2015) (memorandum) Bowes, J. (25 pages).

Construction company was liable for the costs of completing a project under the scope of a change order where appellant performed the work without explaining additional costs. Judgment affirmed in part and reversed in part.

Commonwealth v. Best, PICS Case No. 15-1169 (Pa. Super. July 16, 2015) Ford Elliott, J. (31 pages).

The Superior Court found the evidence sufficient to support defendant's convictions for driving under the influence and related offenses, and admonished defense counsel that multiple assigned errors on appeal creates a presumption that there are no issues of merit for review. Affirmed.

Commonwealth v. Widmer, PICS Case No. 15-1175 (Pa. Super. July 20, 2015) Lazarus, J. (10 pages).

Inculpatory statements made during plea negotiations were admissible where the defendant agreed to waive his right against admissibility in exchange for the plea agreement, and agreed that the statements would be used against him at trial if he chose not to go through with the agreement. Judgment of sentence affirmed.

Commonwealth v. Caple, PICS Case No. 15-1204 (Pa. Super. July 24, 2015) Shogan, J. (22 pages).

There was no authority for the trial court to issue an alternative sentence to be imposed upon defendant on direct appeal should the initial sentence for his drug-related offenses be deemed illegal under Alleyne v. U.S. Vacated and remanded.

Cohen v. Dryden, PICS Case No. 15-1202 (Pa. Super. July 22, 2015) (memorandum) Lazarus, J. (11 pages).

The trial court correctly found that plaintiff could not have recovered in a medical malpractice action against his employer under the dual capacity doctrine and, therefore, that plaintiff was not entitled to a greater award of damages in this legal malpractice suit. Affirmed.

PA Energy Vision LLC v. S. Avis Realty, Inc., PICS Case No. 15-1184 (Pa. Super. July 20, 2015) Stabile, J. (16 pages).

Trial court erred in finding that general partnership had established a right to use a railroad crossing because partnership failed to prove legal entitlement to use the crossing and trial court's reliance on a nebulous "equitable right" was error. Reversed.

Medina v. Pa. Bd. of Probation and Parole, PICS Case No. 15-1132 (Pa. Commw. July 16, 2015) Simpson, J. (27 pages).

Because the conditions in a community correction facility were not so restrictive on appellant as to be equivalent to incarceration, the parole board did not err in determining that appellant should not get credit for time served in the facility. Order of the board affirmed.

John Spearly Constr., Inc. v. Penns Valley Area Sch. Dist., PICS Case No. 15-1214 (Pa. Commw. July 24, 2015) Simpson, J. (31 pages).

Trial court properly found that school district actively interfered with contractor's completion of a building project and properly awarded delay damages, because the "no damages for delay" clause in the contract was not enforceable as written. Affirmed.

Connelly v. Steel Valley Educ. Ass'n, PICS Case No. 15-1216 (Pa. Commw. July 28, 2015) Leavitt, J. (17 pages).

Trial court properly sustained union's demurrer where furloughed teachers sued union, alleging that union acted in bad faith in withdrawing teachers' grievance in order to gain favorable treatment from school district in negotiations over a new CBA. Affirmed.

Metro Bank v. Bd. of Comm'rs of Manheim Twp., PICS Case No. 15-1133 (Pa. Commw. July 9, 2015) Colins, J. (14 pages).

A municipality properly imposed a transportation impact fee based solely on the number of calculated peak-hour trips, and was not required to exclude pass-by trips where such exclusion only applied to the calculation of an impact fee not imposed in this case. Order of the trial court affirmed.

Gelvin v. Workers' Comp. Appeal Bd., PICS Case No. 15-1177 (Pa. Commw. July 13, 2015) McCullough, J. (14 pages).

Employer was entitled to an offset of benefits based on claimant's receipt of disability pension, where employer had satisfied its statutory obligation to provide claimant with a form to report receipt of benefits every six months and within 30 days of receiving disability pension payments. Order of the WCAB affirmed.

In re Appeal of Yu from the Del. Cnty. Bd. of Assessment, PICS Case No. 15-1178 (Pa Commw. July 21, 2015) Bronson, J. (17 pages).

A tax assessment appeal board lacked authority to issue a revised decision after its initial assessment had been appealed to the trial court, and therefore the trial court erred in permitting taxpayer to withdraw her appeal based on the revised decision. Order of the trial court reversed.

Radogna v. Wright, PICS Case No. 15-1226 (C.P. Northampton June 4, 2015) Beltrami, J. (9 pages).

A mechanics' lien claim and the default judgment were stricken because the complaint to obtain judgment was untimely, the complaint had not been served by the sheriff, and the default judgment had been discharged by the sheriff's sale of the property. Petitioner's motion to strike granted.

Citimortgage Inc. v. Bethlehem Area Sch. Dist., PICS Case No. 15-1230 (C.P. Northampton May 22, 21015) Beltrami, J. (10 pages).

Because the mortgage held by plaintiff had not been recorded, it was not a lien on the property at the time of the sheriff's sale and plaintiff could not redeem the property. Plaintiff's motions for summary judgment and to redeem denied.

Karkalas v. Martin, PICS Case No. 15-1229 (C.P. Chester June 16, 2015) Tunnell, J. (8 pages).

In this automobile negligence action, plaintiff's treating physicians were not permitted to testify concerning causation because their reports lacked the requisite degree of certainty. Defendants' motion in limine granted.

Sigman v. Bochetto & Lentz, P.C., PICS Case No. 15-1228 (C.P. Philadelphia June 12, 2015) Glazer, J. (10 pages).

Res judicata barred defendant's counterclaim for attorney fees incurred in investigating and reporting plaintiff-attorney's unethical conduct where the claims against defendant-firm had been referred to arbitration and the arbitrator had denied those fees. Plaintiff's motion for judgment on the pleadings granted.

Patel v. Dave, PICS Case No. 15-1225 (C.P. Monroe March 4, 2015) Williamson, J. (14 pages).

Because the property deed was not recorded, the terms of the agreement of sale did not merge into the mortgage and note, allowing an action for breach of contract.

Binswanger of Pa. Inc. v. TSG Real Estate LLC, PICS Case No. 15-1191 (C.P. Philadelphia June 10, 2015) McInerney, J. (9 pages).

Where an agreement of sale was conditional and thus was not a completed sale, exchange or transaction at the time of its execution, the sale was completed after expiration of the broker's agreement's carve-out period and the broker was entitled to a commission. Plaintiff's motion for summary judgment granted in part.

In re Estate of McCarthy, PICS Case No. 15-1227 (C.P. Lawrence June 3, 2015) Hodge, J. (6 pages).

Because the issue was solely whether the township, which was paying workers' compensation benefits to the widow of the deceased police officer, had a right of subrogation against the UIM benefits paid to decedent's estate, exclusive jurisdiction lay with the workers' compensation authorities. Plaintiff-executor's motion to strike the township's claim denied.

Commonwealth v. Blystone, PICS Case No. 15-1173 (Pa. July 20, 2015) Todd, M.J.; Saylor, C.J., dissenting; Eakin, J., concurring (13 pages).

Any error by the trial court in denying defendant's motion for limited courtroom closure and temporary sealing of transcripts was fully remediable after final judgment; therefore, the subject order was not appealable as a collateral order under Pa.R.App.P. 313(b). Appeal quashed.

In re Vencil, PICS Case No. 15-1182 (Pa. Super. July 21, 2015) Mundy, J. (25 pages).

Trial court erred in denying appellant's petition to expunge records of her involuntary commitment. Reversed.

Circle Bolt and Nut Co., Inc. v. Keystone Helicopter Corp., PICS Case No. 15-1169 (Pa. Super. July 17, 2015) (memorandum) Strassburger, J. (17 pages).

As the trial court properly determined, the record at bar did not support a finding that the course of performance between the parties operated to modify their original vendor-managed inventory agreement. Affirmed.

Commonwealth v. Taylor, PICS Case No. 15-1180 (Pa. Super. July 20, 2015) Stabile, J. (11 pages).

The trial court denied appellant's pretrial motion to dismiss a charge under §6105 of the Pennsylvania Uniform Firearms Act on double jeopardy grounds but trial court failed to comply with Rule 587(B)(3) through (6) raising questions of appellate jurisdiction. Remanded.

Commonwealth v. Yong, PICS Case No. 15-1125 (Pa. Super. July 16, 2015) Wecht, J. (26 pages).

In the absence of authority from the U.S. or Pennsylvania Supreme Courts, the Superior Court refused to expand the collective knowledge doctrine beyond the situation where a police officer who possesses probable cause instructs a fellow officer to act. Reversed.

Hallman v. EQT Prod. Co., PICS Case No. 15-1092 (Pa. Super. July 7, 2015) (memorandum) Bowes, J. (12 pages).

An appeal nunc pro tunc was properly denied by the court where appellants failed to overcome the presumption that notice of the trial court's order granting appellees' preliminary objections was mailed to counsel for appellants and appellants did not demonstrate that their failure to appeal was thwarted by circumstances other than the negligence of appellants.

Evankavitch v. Green Tree Serv., PICS Case No. 15-1198 (3d Cir. July 13, 2015) Krause, J. (25 pages).

A debt collector that alleged it contacted a next-door neighbor to obtain information about a debtor's location possessed the burden to prove it did so under an exception to the federal Fair Debt Collection Practices Act. Judgment to consumer for debt collector's violation of the act affirmed.

Constitution Party of Pa. v. Cortes, PICS Case No. 15-1197 (E.D. Pa. July 23, 2015) Stengel, J. (41 pages).

Pennsylvania's elections laws that regulate access to election ballots are not narrowly tailored to advance the state's compelling interest in keeping frivolous candidates off the ballot, and they are unconstitutional as applied to plaintiffs. Plaintiffs' motion for summary judgment granted in part.

Cogswell v. Wright Med. Tech., PICS Case No. 15-1196 (W.D. Pa. July 16, 2015) Bissoon, J. (12 pages).

Strict liability was barred in a case that alleged a manufacturing defect in connection with medical devices. Defendant's motion to dismiss granted in part.

Reilly v. Lanzerotti, PICS Case No. 15-1150 (C.P. Monroe May 20, 2015) Williamson, J. (4 pages).

Defendant's privacy rights were outweighed by the relevant information that may be gleaned through the release of his unredacted cell phone records to plaintiff.

Alexander Nissan Inc. v. Maritz LLC, PICS Case No. 15-1148 (C.P. Lycoming May 29, 2015) Gray, J. (9 pages).

In this action alleging wrongful disclosure of plaintiff-auto dealer's customer list, entrusting confidential proprietary information alone was deemed insufficient to establish a fiduciary relationship and plaintiff failed to make out a prima facie case for intentional interference with its dealer agreement with Nissan but did present a colorable claim for declaratory judgment. Defendants' preliminary objections sustained in part, overruled in part.

Opielski v. Teeling, PICS Case No. 15-1094 (Pa. Super. July 8, 2015) (memorandum) Panella, J. (24 pages).

Trial court did not err in molding the verdict in a suit arising from disputes among shareholder/officers and directors of a company because the shareholders' agreement signed by the parties clearly covered the issues relating to valuation of the company shares and the interest due and trial court's jury instructions were not confusing or misleading. Affirmed.

Greenville Surgical Assoc., P.C. v. Arreola, PICS Case No. 15-1091 (Pa. Super. July 8, 2015) (memorandum) Donohue, J. (57 pages).

A physician was not required to indemnify his group practice for debt payments to his hospital where the physician had generated revenues in excess of debt obligations to be used to pay said obligations, and the practice instead used the funds for other purposes. Judgment reversed.

Commonwealth v. Rogal, PICS Case No. 15-1086 (Pa. Super. July 7, 2015) Ott, J. (25 pages).

The Superior Court rejected defendant's challenge to the sufficiency of evidence where evidence presented indirectly linked defendant, a dentist, to racketeering activity wherein he and his daughter used an improper billing code to collect higher payments from insurance companies. Affirmed.

Fisher v. Powell, PICS Case No. 15-1088 (Pa. Super. July 7, 2015) (memorandum) Shogan, J. (11 pages).

Appellant had breached an oil and gas lease whose terms required drilling of two wells that produced in marketable quantities, where appellant failed to open a second producing well within the time period prescribed by the lease. Order of the trial court affirmed.

Gongloff Contracting, L.L.C. v. L. Robert Kimball & Assocs., PICS Case No. 15-1090 (Pa. Super. July 8, 2015) Shogan, J. (21 pages).

An architect could be liable for economic loss by a contractor based on a theory of negligent misrepresentation where such misrepresentation occurred with the architect's designs that the architect knew would be used or relied upon by third. Order of the trial court reversed.

Coalition for Affordable Util. Serv. v. Pa. Pub. Util. Comm'n, PICS Case No. 15-1124 (Pa. Commw. July 14, 2015) Brobson, J. (44 pages).

The Pennsylvania Public Utility Commission had authority to impose, or approve, certain customer assistance program rules that would limit a participating customer's ability to choose an electric generation supplier and remain eligible for benefits under the program. Affirmed in part; reversed in part.

U.S. v. Allergan, Inc., PICS Case No. 15-1044 (E.D. Pa. July 2, 2015) Kearney, J. (11 pages).

Defendant's "substantial" disagreement with the district court's order denying in part its motion to dismiss claimed violations of the Anti-Kickback Statute and False Claims Act, did not warrant piecemeal litigation through an interlocutory appeal. Certification for interlocutory review denied.

Freeth v. Zurich Am. Ins., PICS Case No. 15-1158 (E.D. Pa. July 15, 2015) McHugh, J. (15 pages).

An insurer that does not comply with technical requirements for lowering the limits of uninsured-motorist coverage may be required to provide UM coverage equivalent to the bodily injury liability limits. Plaintiff's motion for summary judgment on claim that UM coverage was $1 million granted.

Ingram v. Vanguard Group, PICS Case No. 15-1159 (E.D. Pa. July 17, 2015) Slomsky, J. (37 pages).

Allegations that a company harassed, threatened and retaliated, when managers refused to write up and "manage out" workers who were African-American, female or older; that a manager told an African-American worker to "get off the back of the bus"; and that a manager said, "I need more boys on my team" when a worker informed the manager that she was pregnant, were sufficient to allege a hostile-work environment claim. Motion to dismiss denied.

Marino v. Pilot Travel Ctrs., LLC, PICS Case No. 15-1117 (E.D. Pa. July 6, 2015) Leeson, J. (9 pages).

Pennsylvania's rescue doctrine did not provide a causal connection between the alleged negligence of defendants and the injury to plaintiff father, created by his volunteering to donate a kidney to a kidney bank to reduce the wait time on the kidney transplant list for his son, a plaintiff whose renal failure was allegedly caused by defendants' conduct. Rescue doctrine claims and derivative loss of consortium claims dismissed.

U.S. v. Endo Pharm., PICS Case No. 15-1119 (E.D. Pa. July 15, 2015) Kelly, J. (10 pages).

A relator who helps the government prosecute a qui tam action can be entitled to 15 to 25 percent of the government's recovery, and the amount depends on the extent of the relator's contributions. Relator who allegedly initiated the qui tam action, secretly recorded key conversations and helped the government locate documents and witnesses, made contributions that were "extraordinary" and was entitled to 24 percent.

Doe v. Old Forge Borough, PICS Case No. 15-1116 (M.D. Pa. July 1, 2015) Mariani, J. (34 pages).

Allegations that a final municipal policymaker or decision-maker knew, or should have known, about inappropriate sexual conduct of municipal firefighters toward a minor plaintiff and a prior pattern of similar conduct and failed to take appropriate action can be sufficient to allege a §1983 claim. Motion to dismiss §1983 count alleging that municipal officials failed to adequately train and supervise firefighters denied.

W. Pittston Borough v. LIW Inv., Inc., PICS Case No. 15-1065 (Pa. Commw. June 19, 2015) Covey, J. (14 pages).

Trial court properly found company president in contempt and ordered his incarceration for company's failure to comply with trial court's orders regarding hazardous conditions of property owned by company and orders regarding documentation as to the financial status of the company. Affirmed.

Nationwide Mut. Ins. Co. v. Rainone, PICS Case No. 15-1107 (C.P. Philadelphia April 24, 2015) McInerney, J. (11 pages).

In this declaratory judgment action seeking an order that plaintiff-insurer had no duty to defend its insureds in the underlying action, the court found that plaintiff's alleged injuries were removed from coverage under the policy's employer's liability, abuse and molestation, and employee practices clauses and plaintiff thus had no duty to defend. Plaintiff's motion for summary judgment granted.

Sears v. Wolf, PICS Case No. 15-1028 (Pa. June 19, 2015) Saylor, C.J. (26 pages).

Commonwealth Court erred in allowing suits based on the redirection of tobacco settlement monies from health care programs to other fiscal needs of the commonwealth and in finding Acts 46 and 26 unconstitutional because plaintiff/appellees lacked standing to pursue relief. Reversed.

Oehrle v. Goldsmith, PICS Case No. 15-1062 (Pa. Super. June 26, 2015) (memorandum) Platt, J. (12 pages).

Trial court properly denied appellants' petition to open or strike a confessed judgment arising from appellants' failure to make the payments agreed to in a settlement agreement that resolved litigation over attorney fees which was secured by a second mortgage that contained a confession of judgment clause because the agreement was not a consumer credit transaction and appellants offered no meritorious defense. Affirmed.

Commonwealth v. Riggle, PICS Case No. 15-1085 (Pa. Super. July 7, 2015) Bowes, J. (21 pages).

The U.S. Supreme Court's holding in Alleyne v. U.S. was not entitled to retroactive effect in this Post-Conviction Relief Act setting since the new rule set forth in Alleyne was not substantive and did not constitute a watershed procedural rule. Affirmed.

Ayman W. v. Magy W., PICS Case No. 15-1082 (Pa. Super. July 6, 2015) (memorandum) Wecht, J. (24 pages).

The trial court did not err or abuse its discretion in awarding wife a lengthy period of spousal support where wife was unable to support herself due to her lack of work experience and intellectual disability in addition to her child-care obligations. Affirmed in part.

In the Interest of K.A.P., Jr., PICS Case No. 15-1055 (Pa. Super. July 2, 2015) (memorandum) Lazarus, J. (10 pages).

Father's repeated incarceration supported the trial court's determination that father was incapable of performing parental duties, despite father's contact with child and inquiries on child's life. Order of the trial court affirmed.

In the Interest of M.A.M., PICS Case No. 15-1054 Pa. Super. June 30, 2015) (memorandum) Ott, J. (9 pages).

The evidence was sufficient to support a minor's adjudication for arson under Pa.C.S. §3301(a)(1)(i) where it established the minor's reckless disregard for the safety of his parents when he set a fire on the front porch of their home. Affirmed.

U.S. v. Fountain, PICS Case No. 15-1118 (3rd Cir. July 10, 2015) Krause, J. (24 pages).

Sufficient evidence supported a conviction for Hobbs Act extortion under color of official right where a rational juror could conclude that a witness paid appellant, an IRS official, $400 with the understanding that appellant would use her position to help the witness obtain a cash refund and appellant knew the witness paid her for that reason. Judgment affirmed.

Constand v. Cosby, PICS Case No. 15-1115 (E.D. Pa. July 6, 2015) Robreno, J. (25 pages).

A litigant can prevent public access to discovery documents, if the litigant establishes "good cause" exists to protect the party from annoyance, embarrassment, oppression or undue burden or expense, pursuant to F.R.C.P. 26(c). Defendant's request to continue seal on deposition excerpts and counsel's briefs, or to only disclose redacted portions of documents, denied.

Robinson v. Laneko Eng'g Co., PICS Case No. 15-1076 (E.D. Pa. June 30, 2015) Pappert, J. (8 pages).

Plaintiff lacked statutory standing to sue for pension benefits purportedly owed to his deceased father and, as he was not an attorney, plaintiff could not sue in a representative capacity on his mother's behalf as a surviving spouse under the plan or in her capacity as administrator of her late husband's estate. Complaint dismissed for lack of subject matter jurisdiction.

Banks v. City of York, PICS Case No. 15-1114 (M.D. Pa. July 7, 2015) Kane, J. (22 pages).

A complaint that lacks factual allegations to substantiate a claim that a municipality possessed a policy or custom that permitted excessive use of force may not adequately allege a §1983 claim. Section 1983 claim alleging inappropriate use of a Taser on a 16-year-old high school student dismissed in part.

Detweiler v. Commonwealth, PICS Case No. 15-1104 (C.P. Monroe May 22, 2015) Williamson, J. (8 pages).

The contents of a travel advisory were not sufficient to establish the element of actual written notice required to satisfy the pothole exception to sovereign immunity.

Commonwealth v. Villaneuva, PICS Case No. 15-1103 (C.P. Lycoming June 24, 2015) Lovecchio, J. (19 pages).

Appellant's conviction for robbery should be affirmed where his prior conviction was properly admitted to establish his connection to a co-conspirator.

Lopez v. Pa. Dep't of Corr. Comm'r, PICS Case No. 15-1057 (Pa. Commw. June 26, 2015) McCullough, J. (19 pages).

Because prisoner alleged actual physical and psychological harm resulting from constant cell illumination, prisoner had stated a sufficient claim for cruel and unusual punishment in violation of the Eighth Amendment. Preliminary objections sustained in part and overruled in part.

Alla v. Unemployment Comp. Bd. of Review, PICS Case No. 15-1050 (Pa. Commw. June 25, 2015) McCullough, J. (11 pages).

An appeal referee did not err in finding that a payout of accrued vacation and sick leave constituted wages for unemployment purposes and that claimant failed to satisfy his burden of establishing that he was financially eligible for unemployment benefits. Affirmed.

Rolland v. Senn, PICS Case No. 15-1063 (Pa. Super. July 2, 2015) (memorandum) Lazarus, J. (26 pages).

Trial court properly granted a new trial in case in which plaintiff lost a leg in a construction accident because trial court properly determined that it erred in not granting a mistrial. Affirmed.

Mountainside Holdings, LLC v. Am. Dynasty Surplus Lines Ins. Co. PICS Case No. 15-1061 (Pa. Super. June 25, 2015) (memorandum) Allen, J. (22 pages).

Trial court properly sustained insurers' preliminary objections in the nature of a demurer to appellants' claim for intentional interference with contractual relations and properly granted summary judgment in favor of insurers on the bad faith and breach of contract claims because appellants' claims against insurers arising from denial of coverage under an excess insurance policy were time barred. Affirmed.

Ciechoski v. Ca'Dieux, PICS Case No. 15-1084 (Pa. Super. July 8, 2015) (memorandum) Ott, J. (12 pages).

The trial court did not err in finding that there was no authority for the proposition that §1303.512 of the Medical Care Availability and Reduction of Error Act governed expert qualifications for testimony regarding claims of nursing negligence. Affirmed.

Bair v. Charney, PICS Case No. 15-1109 (C.P. Lycoming May 21, 2015) Gray, J. (14 pages).

In this dispute regarding the extent of an easement, the court found that plaintiffs alleged sufficient facts to support their claims of trespass, conversion, conspiracy, negligence, and breach of contract, and rejected defendants' demurrers to the claims for an injunction and punitive damages. Defendants' preliminary objections overruled in part.

McClure v. Brann, PICS Case No. 15-1058 (Pa. Super. June 30, 2015) (memorandum) Musmanno, J. (12 pages).

A legal malpractice claim arising from incorrect advice of the transfer of mineral rights was barred by the doctrine of collateral estoppel where the issue of whether the transfer was knowingly and willfully made had been previously litigated in a prior divorce proceeding. Order of the trial court affirmed.

Commonwealth v. Kea, PICS Case No. 15-1105 (C.P. Berks March 18, 2015) Yatron, P.J. (4 pages).

Defendant's motion to suppress was denied where the search of his residence was properly authorized based on a confidential source's tip that was corroborated by two controlled buys.

Senick v. Presby, PICS Case No. 15-1106 (C.P. Northampton May 28, 2015) Beltrami, J. (10 pages).

The contents of a cease and desist letter did not provide support for plaintiff's claims of slander, harassment, fraud, mental cruelty and libel.

Kane v. Workers' Comp. Appeal Bd., PICS Case No. 15-1056 (Pa. Commw. June 25, 2015) Brobson, J. (20 pages).

Where claimant had two totally disabling injuries and had been receiving compensation for one injury, once the paid injury had resolved itself, claimant was permitted to petition to receive benefits for the unresolved injury within the three-year statute of limitations. Order of the WCAB reversed.

Commonwealth v. Dunn, PICS Case No. 15-1110 (C.P. Berks April 22, 2015) Yatron, P.J. (6 pages).

In this appeal from a conviction of simple assault and harassment, the court, as fact-finder, found the testimony supporting appellant's claim of self-defense to be entirely unbelievable and that of the victim and his mother to be credible and accurate and that appellant did not act in defense of another. Appeal should be denied.

In the Interest of E.L., III, PICS Case No. 15-1053 (Pa. Super. July 2, 2015) (memorandum) Lazarus, J. (25 pages).

The trial court erred in terminating father's parental rights where there was no clear and convincing evidence that the cause of father's incapacity, i.e. incarceration, could not, or would not, be remedied. Reversed.

Samar v. Grady, PICS Case No. 15-1102 (C.P. Lehigh June 3, 2015 ) Reichley, J. (12 pages).

A preliminary injunction was granted requiring petitioner's neighbor to abate the lighting conditions in his yard about which petitioner complained.

Schadt v. City of Bethlehem Zoning Hearing Bd., PICS Case No. 15-1064 (Pa. Commw. June 26, 2015) Leavitt, J. (11 pages).

Trial court properly upheld zoning board's finding that applicant failed to establish the unnecessary hardship required for a variance to convert her residential home to a commercial use. Affirmed.

Chambersburg Area Sch. Dist. v. Chambersburg Area Ed. Ass'n, PICS Case No. 15-1083 (Pa. Commw. July 8, 2015) Brobson, J. (18 pages).

An arbitration award finding that collective bargaining agreement protections applied to claimant both as a teacher and as a basketball coach was rationally derived. Affirmed.

In re Estate of Miller, PICS Case No. 15-1108 (C.P. Chester June 3, 2015) Tunnell, J. (13 pages).

Looking to the terms of decedent's will, the court determined that respondent was given a personal right to occupy the property at issue. Executrix's petition to sell the property denied.

Sears v. Wolf, PICS Case No. 15-1028 (Pa. June 19, 2015) Saylor, C.J. (26 pages).

Commonwealth Court erred in allowing suits based on the redirection of tobacco settlement monies from health care programs to other fiscal needs of the commonwealth and in finding Acts 46 and 26 unconstitutional because plaintiff/appellees lacked standing to pursue relief. Reversed.

Commonwealth v. Cooley, PICS Case No. 15-0976 (Pa. June 15, 2015) Eakin, J.; Stevens, J., dissenting (16 pages).

Where defendant was subjected to a custodial interrogation while reporting to a parole office, his parole agent's failure to administer Miranda warnings violated defendant's Fifth Amendment rights and, therefore, his statements to the agent should have been suppressed. Judgment of sentence vacated.

M.C. and E.K. Lees, Inc. v. Capenos, PICS Case No. 15-1059 (Pa. Commw. July 2, 2015) McGinley, J. (18 pages).

Because appellee had filed a civil complaint challenging a notice of tax sale rather than challenging the sale through the statutory process, appellants' failure to file post-trial motions resulted in waiver of their issues on appeal. Motion to quash appeal granted.

Giddings v. Elmore, PICS Case No. 15-1016 (Pa. Super. June 11, 2015) (memorandum) Lazarus, J. (7 pages).

The trial court was not precluded from addressing plaintiff's motion for costs and fees associated with discovery in aid of execution of summary judgment in his favor while defendant's appeal was pending because plaintiff's motion for reimbursement was a matter ancillary to the appeal. Appeal quashed.

Sinclair v. Levin, PICS Case No. 15-1025 (Pa. Super. June 9, 2015) (memorandum) Gantman, P. J. (17 pages).

The trial court properly ordered principal and interest payments based on a promissory note and subsequent repayment agreement between appellee, decedent and decedent's estate because estate waived its issues on appeal by filing an untimely statement of errors. Affirmed.

Morgante v. Morgante, PICS Case No. 15-1060 (Pa. Super. June 26, 2015) Shogan, J. (24 pages).

The trial court's order directing husband to pay a percentage of his military retirement pay to satisfy wife's equitable portion of the value of the retirement would not impact his disability pay, which could not be equitably distributed. Order of the trial court affirmed.

Rutyna v. Schweers, PICS Case No. 15-1024 (Pa. Super. June 10, 2015) (memorandum) Olson, J. (18 pages).

Trial court erred in granting summary judgment for appellee attorney in legal malpractice case arising from a medical malpractice action because trial court erred in disregarding the opinion in appellants' legal malpractice expert report. Vacated.

Umphred v. VP Auto Sales & Salvage, Inc., PICS Case No. 15-1027 (Pa. Super. June 24, 2015) (memorandum) Strassburger, J. (22 pages).

The trial court properly granted a preliminary injunction in favor of homeowners because evidence showed that the noise of neighboring recycling company caused property owners to suffer stress and decreased property values and the business operation was unlicensed and unpermitted. Affirmed.

Tuomi v. Extendicare, Inc. PICS Case No. 15-1026 ( Pa. Super. June 18, 2015) Bowes, J. (10 pages.)

Trial court properly held that wrongful death claimants who were non-signatories to arbitration agreement with nursing home facility could not be compelled to arbitrate in wrongful death and survival actions brought against nursing home facility and assisted living facility for death of elderly resident from pressure sores and infections and properly held that Pa.R.Civ.P.213(e) required the consolidation of the wrongful death and survival actions. Affirmed.

U.S. v. Lowe, PICS Case No. 15-1077 (3rd Cir. July 2, 2015) McKee, C.J. (17 pages).

The Fourth Amendment limits law enforcement's power to seize individuals to situations where their suspicion of criminal activity is specific, individualized and reasonable. Denial of suppression motion reversed.

Rehdrick v. Option One Mortg. Corp., PICS Case No. 15-1033 (E.D. Pa. June 22, 2015) Baylson, J. (11 pages).

A disciplinary referral containing no factual finding of misconduct did not constitute a sanction or reprimand and, balanced against the public right of access to civil judicial proceedings, no good cause was shown for sealing the relevant documents from the public record. Motion to seal denied.

Hosler v. Jay Fulkroad and Son, PICS Case No. 15-1075 (M.D. Pa. June 23, 2015) Carlson, J. (39 pages).

An employer who violates the Family and Medical Leave Act can be ordered to pay liquidated damages equal to the sum of lost wages and benefits awarded.

Gadley v. Ellis, PICS Case No. 15-1073 (W.D. Pa. June 26, 2015) Gibson, J. (12 pages).

When ruling on a motion to intervene, a court may consider the timeliness of the motion and whether the proposed intervenor has interests that are not adequately represented by another litigant.

Powelton Village Civic Ass'n v. Zoning Bd. of Adjustment, PICS Case No. 15-1078 (C.P. Philadelphia May 14, 2015) Padilla, J. (10 pages).

In this appeal from the zoning board's decision granting an application to install wireless antennae and an equipment shed, the court found that where the record reflected appellant's failure to comply with scheduling orders, it had not abused its discretion in quashing the appeal. Appellant's appeal should be dismissed.

Purpura v. Barton Heights Veterinary Hosp., PICS Case No. 15-1071 (C.P. Monroe April 30, 2015) Zulick, J. (10 pages).

In this veterinary malpractice action, plaintiffs' failure to allege intentional, reckless or malicious acts precluded punitive damages, a disputed issue of fact precluded dismissal pursuant to the statute of limitations, and there was no cause of action for the animal's pain and suffering or the loss of companionship. Defendants' preliminary objections denied in part and sustained in part.

Scott v. Zoning Bd. of Adjustment, PICS Case No. 15-1070 (C.P. Philadelphia May 18, 2015) Wright Padilla, J. (22 pages).

In this appeal from the grant of variances, the record was not incomplete, making trial de novo unnecessary, the applicant satisfied the criteria for a use variance, the drive-aisle width variance was de minimis, the hardship was not self-imposed and there was no denial of procedural due process. The court's decision should be affirmed.

Dittman v. UPMC, PICS Case No. 15-1069 (C.P. Allegheny May 28, 2015) Wettick, J. (14 pages).

No affirmative duty of care exists that would allow plaintiffs in data breach actions to recover damages recognized in common law negligence actions.

Kreitzer v. DeMatteo, PICS Case No. 15-1068 (C.P. Lawrence June 5, 2015) PIccione, J. (16 pages).

Plaintiff failed to plead with sufficient specificity her false light invasion of privacy and emotional distress claims based on website content allegedly published by defendant.

Duffey v. Workers' Comp. Appeal Bd., PICS Case No. 15-1052 (Pa. Commw. June 26, 2015) Cohn Jubelirer, J. (15 pages).

An impairment rating evaluation that considers a claimant's work injury as defined in a notice of compensation payable and exists at the time of the evaluation is valid, notwithstanding a subsequent expansion of the scope of the work-related injury. Affirmed.

Paolucci v. Unemployment Comp. Bd. of Review, PICS Case No. 15-1023 (Pa. Commw. June 19, 2015) Leavitt, J. (37 pages).

A workers' compensation claimant's failure to return to work did not constitute willful misconduct rendering her ineligible for unemployment benefits where employer did not inquire as to the status of claimant's ability to return to work or offer her an alternative position within her capabilities, thereby requiring her to return to work. Adjudication of the Board reversed.

Leach v. Commonwealth, PICS Case No. 15-1051 (Pa. Commw. June 25, 2015) Simpson, J. (43 pages).

Petitioners correctly argued that Act 192 violated both the single subject and original purpose provisions of the Pennsylvania Constitution where the law began as a bill setting penalties for the theft of secondary metals, but was passed with unrelated legislation granting rights of standing to gun membership organizations and regulating mental health records. Petitioners' motion for summary judgment granted.

Brink v. Mallick, PICS Case No. 15-1067 (C.P. Lackawanna June 5, 2015) Nealon, J. (13 pages).

In this psychiatric malpractice action, the hospital defendants established that the sentinel event report created after a patient's suicide constituted protected peer review material under the PRPA.

Moranko v. Downs Racing LP, PICS Case No. 15-1022 (Pa. Super. June 10, 2015) Panella, J. (24 pages).

Because a bailment was created when a vehicle is given over to valet services, the valet service was not liable for resulting injuries when returning the vehicle to a visibly intoxicated driver. Summary judgment affirmed.

Nadrowski v. Velazquez, PICS Case No. 15-1034 (C.P. Monroe April 7, 2015) Harlacher Sibum, J. (7 pages).

Plaintiff, injured while a passenger in an automobile, lacked standing to file suit against the tortfeasor's insurers since she did not allege that she had third-party beneficiary status or that the insureds were insolvent. Defendant-insurers' motion for summary judgment granted.

Clipper Pipe & Serv., Inc. v. Ohio Cas. Ins. Co., PICS Case No. 15-0974 (Pa. June 15, 2015) Saylor, C.J. (10 pages).

Upon accepting a certified question from the Third Circuit, the Pennsylvania Supreme Court determined that the Contractor and Subcontractor Payment Act does not apply to a construction project where the owner is a government entity. Certified question answered.

Commonwealth v. Carrasquillo, PICS Case No. 15-0975 (Pa. June 15, 2015) Saylor, C.J.; Stevens, J., concurring (18 pages).

The court clarified that a common pleas court need not accept a bare assertion of innocence as a fair and just reason for withdrawal of a guilty plea, thereby rejecting a bright-line rule prohibiting trial courts from assessing the credibility of an "assertion of innocence." Reversed and remanded.

Commonwealth v. Martz, PICS Case No. 15-1014 (Pa. Super. June 24, 2015) Shogan, J. (17 pages).

The trial court did not err in allowing defendant to assert the common law infancy defense because it remains applicable in criminal proceedings where a defendant is being prosecuted for conduct committed before the age of 14 years. Reversed and remanded.

Commonwealth v. Diego, PICS Case No. 15-1013 (Pa. Super. June 23, 2015) Bender, J. (22 pages).

In this case of first impression, the Superior Court held that an iPad is an electronic, mechanical or other device that does not fall within the telephone exception under Pennsylvania's Wiretapping and Electronic Surveillance Control Act. Reversed and remanded.

Lucas v. Daum, PICS Case No. 15-1019 (Pa. Super. June 15, 2015) (memorandum) Bowes, J. (22 pages).

Because both husband's and wife's pensions had vested, it was error for the master to value the parties' contributions to their pensions rather than use the present value of the defined benefit portions. Order of the trial court reversed.

N.T. v. F.F., PICS Case No. 15-0983 (Pa. Super. June 15, 2015) Strassburger, J. (12 pages).

The hiring of a private investigator in Pennsylvania to locate a party for service in child custody action was insufficient contact with Pennsylvania to support personal jurisdiction, where the minimal contacts were unrelated to the present cause of action. Order of the trial court reversed.

Hansler v. Lehigh Valley Hosp. Network, PICS Case No. 15-1030 (3d Cir. June 22, 2015) Fuentes, J. (25 pages).

Upon receipt of a medical leave certification that is vague, ambiguous or nonresponsive, an employer is required to: (1) inform the employee that the certification is insufficient; (2) state in writing what additional information is required; and (3) provide the employee the opportunity to cure the certification within seven days. Reversed and remanded.

Marsden v. Shirakawa, PICS Case No. 15-1031 (E.D. Pa. June 23, 2015) Kearney, J. (26 pages).

An employee who admitted that the employer's discipline steps were not based on his age and raised the specter of age-based discipline after refusing to prepare a required personal improvement plan, provided sufficient evidence of genuine issues of material fact in his claim for retaliation. Motion for summary judgment granted and denied in part.

M.D. v. Ski Shawnee, PICS Case No. 15-1032 (M.D. Pa. June 23, 2015) Munley, J. (20 pages).

A 9-year-old, novice skier who lacks knowledge about the risks associated with snowmaking machines may not assume the risk of collision with one. Ski resort's motion for summary judgment, based on its claim that the skier assumed the risk of injury and it did not owe a duty, denied.

Pocono Cmty. Theater v. Monroe Cnty. Bd. of Assessment Appeals, PICS Case No. 15-1041 (C.P. Monroe April 7, 2015) Zulick, J. (8 pages).

On plaintiff-theater's motion for post-trial relief, the court reaffirmed its findings that plaintiff did not qualify for a property tax exemption because it did not satisfy the fourth prong of the HUP test, an examination of the statutory test was therefore unnecessary, and plaintiff was not denied equal protection. Plaintiff's motion for post-trial relief denied.

DeSimone v. Kessler, PICS Case No. 15-1037 (C.P. Lackawanna June 11, 2015) Minora, J. (20 pages).

Despite the ambiguity of the original grant, under the terms of the agreement, plaintiffs had an easement to use defendants' driveway to access a right-of-way described in the contract.

Bailey v. Pham, PICS Case No. 15-1038 (C.P. Philadelphia June 15, 2015) Massiah-Jackson, J. (7 pages).

The jury appropriately assessed the evidence to arrive at the determination that defendant was causally liable for plaintiff's injuries but that those injuries were not compensable.

Huyett v. Doug's Family Pharmacy, PICS Case No. 15-0619 (Pa. Super. June 18, 2015) (memorandum) Fitzgerald, J. (14 pages).

The trial court abused its discretion where it rejected a jury's credibility determination and concluded that the verdict for plaintiff was not supported by the evidence and, therefore, denied plaintiff's request for attorney fees pursuant to the fee shifting provision of the Human Relations Act. Vacated and remanded.

Milstein v. Tower at Oak Hill Condo. Ass'n, PICS Case No. 15-1021 (Pa. Super. June 18, 2015) (memorandum) Ott, J. (15 pages).

The trial court did not err in refusing to strike a discontinuance of an injunctive relief claim that appellant claimed such discontinuance would cause it the loss of its insured defense. Order of the trial court affirmed.

Malinchak v. Peterson, PICS Case No. 15-1035 (C.P. Lawrence May 12, 2015) Hodge, J. (21 pages).

Concluding that any benefit to mother's relocating would be outweighed by the detriment to the child's relationship with her father, and that equal custody was not advisable given father's extensive commitment to his college education, the court denied mother's petition to relocate and father's motion to modify custody.

In re Sale of Real Estate by Lackawanna Cnty. Tax Claim Bur., PICS Case No. 15-1039 (C.P. Lackawanna June 11, 2015) Minora, J. (13 pages).

Plaintiff was not entitled to set aside a subordination agreement where plaintiff failed to show there was no consideration for the agreement and failed to show its president did not have authority to bind plaintiff to the agreement.

Hutchings v. Nat'l Conference of Evangelical Congregational Church, PICS Case No. 15-1036 (C.P. Monroe April 23, 2015) Zulick, J. (8 pages).

In this action arising out of the alleged sexual assault of a camper by a counselor and others, the organizational defendants' preliminary objection to the vicarious liability claim was sustained because plaintiff conceded that the individual defendants' actions were outside the scope of their employment. Defendants' preliminary objections granted in part and denied in part.

Callowhill Neighborhood Assoc. v. City of Phila. Zoning Bd. of Adjustment, PICS Case No. 15-0973 (Pa. Commw. June 17, 2015) Cohn Jubelirer, J. (39 pages).

A 2007 consent order that resolved litigation between the City of Philadelphia and a billboard owner, finding the owner's existing billboard was lawful, was binding upon neighbors who objected in this zoning proceeding to a permit allowing a sign face and format change. Affirmed.

Mason v. Progressive Direct Ins. Co., PICS Case No. 15-1020 (Pa. Super. June 5, 2015) (memorandum) Panella, J. (8 pages).

Collateral estoppel barred a claim for underinsured motorist coverage against insured's own auto insurance provider arising out of an underlying motor vehicle accident, where insured had previously litigated her underlying tort claims against the tortfeasor and received satisfaction of judgment. Summary judgment affirmed.

Donaldson v. Butler Cnty., PICS Case No. 15-1018 (Pa. Commw. June 23, 2015) Covey, J. (30 page).

The ADR panel improperly affirmed the discharge of appellant for failure to follow county procedures in the implementation of protective services for older adults at imminent risk. Order of the trial court reversed.

Dowling v. Pa. Psychiatric Inst., PICS Case No. 15-0980 (Pa. Super. June 8, 2015) (memorandum) Bowes, J. (27 pages).

A promise by a search firm, acting as agent for defendant corporation, that plaintiff's submission of his résumé for consideration for CEO would be kept confidential to the search committee, created a valid confidentiality agreement that was breached. Order of the trial court reversed.

Donaldson v. Amerikohl Mining, Inc., PICS Case No. 15-0979 (Pa. Super. June 9, 2015) (memorandum) Fitzgerald, J. (7 pages).

The trial court erred in ruling that blasting was not a continuous tort as a matter of law by failing to conduct any analysis of the facts of the case, where a determination of whether an injury to property constituted a permanent change or continuous trespass required the analysis of multiple factors. Order of the trial court vacated.

Commonwealth v. Hvizda, PICS Case No. 15-0978 (Pa. June 15, 2015) Saylor, C.J.; Stevens, J., concurring (8 pages).

While pre-sentence withdrawals of guilty pleas should be liberally accepted in the interest of protecting defendants' rights to trial, a bare assertion of innocence was not, in and of itself, a sufficient reason for a court to grant a withdrawal of a guilty plea. Order of the Superior Court reversed; matter remanded for reinstatement of the judgment of sentence.

Commonwealth v. Sodomsky, PICS Case No. 15-0943 (Pa. Super. June 5, 2015) Musmanno, J. (26 pages).

The court ruled that a police search of computer files following computer technicians observing child pornography while working on the computer violated defendant's Fourth Amendment rights against warrantless search, distinguishing the digital data stored on the computer from the computer itself. Order of the trial court affirmed.

Commonwealth v. Tyson, PICS Case No. 15-0944 (Pa. Super. June 10, 2015) Gantman, P.J. (35 pages).

Appellant's prior rape conviction was admissible under the common plan or scheme and absence of mistake exceptions in order to refute appellant's contention that he believed he had engaged in consensual intercourse with the victim. Order reversed; case remanded.

In re Involuntary Termination of Parental Rights to L.A.M., PICS Case No. 15-0901 (Pa. Super. June 3, 2015) (memorandum) Strassburger, J. (13 pages).

The court ruled that involuntary termination of mother's parental rights was proper where evidence existed of continued drug abuse by mother, who had also moved to North Carolina and had since made little effort to maintain contact with children. Decrees affirmed.

K.T. v. L.S. F/K/A L.R., PICS Case No. 15-0982 (Pa. Super. June 17, 2015) Gantman, P.J. (84 pages).

The trial court's failure to engage in thoughtful analysis of each of the statutory factors regarding an award of partial physical custody/visitation to grandparents necessitated a reversal of the trial court's decision to deny partial physical custody to grandparents. Order of the trial court reversed.

Yocabet v. UPMC Presbyterian, PICS Case No. 15-0988 (Pa. Super. June 5, 2015) Bowes, J. (39 pages).

In this medical malpractice suit, the trial court erred in holding that facility's executive vice-president's presentation to the facility's board of directors was not a discussion with legal counsel and was not subject to attorney-client privilege or peer review privilege. Affirmed in part, reversed in part and remanded for in camera review of the board meeting material for the asserted privileges.

U.S. v. Mastronardo, PICS Case No. 15-1007 (E.D. Pa. June 17, 2015) DuBois, J. (5 pages).

It would be an abuse of the court's discretion to deny the government's motion to dismiss an indictment against the least culpable of three family members charged with aggravated structuring, when the government provided an appropriate explanation and the reasons advanced for moving to dismiss were not contrary to the public interest. Motion to dismiss indictment granted, without prejudice.

Brown v. Am. Home Prod., PICS Case No. 15-1004 (E.D. Pa. June 17, 2015) Bartle, J. (13 pages).

When medical experts provide conflicting medical opinions in a products liability case, a court can rely on the opinion of a technical advisor. Plaintiff in a nationwide class-action case established a "reasonable medical basis" for his request for Matrix A-1, Level II compensation for valvular heart disease in the amount of approximately $248,516.

Lee v. AMR Corp., PICS Case No. 15-1006 (E.D. Pa. June 18, 2015) Buckwater, J. (10 pages).

Jurisdiction was vested in the district court as Article 19 of the Montreal Convention governed the claims of a plaintiff found to have suffered a "delay" in travel when defendant airline mistakenly denied her a boarding pass to Belize. Motion for remand order denied.

Boyington v. Percheron Field Servs., PICS Case No. 15-1003 (W.D. Pa. June 15, 2015) Gibson, J. (8 pages).

To obtain conditional certification of a collective action under the federal Fair Labor Standards Act, a plaintiff must make a modest factual showing and produce some evidence of a factual nexus between the manner in which the alleged company policy on payment of overtime affected the plaintiff and the manner in which the policy affected other, similarly situated, workers. Motion granted.

Drone Tech. v. Parrot, PICS Case No. 15-1005 (W.D. Pa. June 12, 2015) Schwab, J. (24 pages).

A court can award attorney fees to a successful party for litigating an "exceptional" case, pursuant to 35 U.S.C. §285. Defendants' "flagrant refusal" to comply with court orders and "dilatory and unreasonable conduct" merited a conclusion that the case was "exceptional."

Office of Disciplinary Counsel v. Perkel, PICS Case No. 15-0991 (Pa. May 27, 2015) per curiam (31 pages).

The Disciplinary Board recommended that Benjamin Hart Perkel be suspended on consent from the Bar of the Commonwealth for a period of two years retroactive to June 12, 2014.

Estate of Peters, PICS Case No. 15-0981 (Pa. Super. June 17, 2015) (memorandum) Bowes, J. (24 pages).

Fees charged by co-executrices were not excessive, where the orphans' court found that the executrices performed extensive work in accounting and liquidating decedent's extensive estate which included many unique assets. Order of the trial court affirmed.

Kirkpatrick v. Bureau of Prof'l and Occupational Affairs, PICS Case No. 15-0948 (Pa. Commw. June 10, 2015) Cohn Jubelirer, J. (16 pages).

State Board of Barber Examiners erred in revoking licensee's barber and barber management licensees for unethical conduct pursuant to §9(a)(5) of the Barber License Law after licensee pleaded nolo contendere to a charge of indecent assault because the commonwealth presented no evidence to show that the allegations to which licensee pled were related to his profession. Reversed.

Rohner v. Atkinson, PICS Case No. 15-0986 (Pa. Commw. June 10, 2015) Leavitt, J. (13 pages).

Trial court erred in dismissing zoning officer's whistleblower complaint in which he alleged he was fired for issuing negative reports on a construction project and refusing to issue a certificate of compliance, but the trial court correctly held that appellant was an at-will employee and not covered by a public policy exception to at-will employment. Affirmed in part and reversed in part.

Commonwealth v. Cicci, PICS Case No. 15-0941 (Pa. Commw. June 5, 2015) Friedman, J. (8 pages).

The court ruled that a borough was not required to impose a lien for unpaid assessments, but was also authorized to institute summary proceedings to recover unpaid assessments. Order of the trial court affirmed.

Belleville v. David Cutler Grp., PICS Case No. 15-0938 (Pa. Commw. June 10, 2015) Brobson, J. (32 pages).

The trial court did not err in holding that the plaintiff homeowners' claims challenging amendments to a planned community declaration were not time-barred by §5219(b) of the UPCA. Affirmed in part.

Village at Palmerton Assisted Living v. Workers' Comp. Appeal Bd., PICS Case No. 15-0987 (Pa. Commw. June 12, 2015) Cohn Jubelirer, J. (24 pages).

Workers' Compensation Appeals Board erred in holding that, pursuant to §306(a.2)(1), an employer's timely request for a claimant to submit to an IRE required the filing of form LIBC-766, receipt of the bureau's designation of an IRE physician and the filing of form LIBC-765 within the 60 day window. Reversed.

Quest Diagnostics Venture, LLC v. Commonwealth, PICS Case No. 15-0984 (Pa. Commw. June 9, 2015) Leadbetter, J. (15 pages).

The Board of Finance and Revenue properly affirmed the Board of Appeals' dismissal of petition for a franchise tax refund as untimely because petitioner filed the refund petition more than three years after the date on which petitioner paid the tax. Affirmed.

Bost-Pearson v. SEPTA, PICS Case No. 15-0985 (Pa. Commw. June 5, 2015) Leadbetter, J. (9 pages).

The trial court properly held that appellant, injured when the bus she was riding swerved to avoid prospective passengers at a bus stop, did not present evidence to satisfy the "jerk and jolt" doctrine because she presented no evidence of the unusual nature of the jolt or jerk or that any other passenger was affected. Affirmed.

Achilles Med. P.C. v. Carter, PICS Case No. 15-1001 (C.P. Monroe April 17, 2015) Williamson, J. (6 pages).

In this breach of contract action, the court exercised its discretion and permitted defendant to file an amended answer after finding that she was pro se, had complied with the spirit of attempting to amend and conform with the rules of court, and the amendment would not cause undue prejudice, but it ordered her to include the verification required by Pa.R.Civ.P. 1024. Plaintiff's preliminary objections dismissed as moot.

Trexler v. McDonald's Corp., PICS Case No. 15-0906 (Pa. Super. June 3, 2015) Stabile, J. (15 pages).

Trial court did not err in sustaining appellee's preliminary objections challenging service of process in a slip and fall that occurred in a McDonald's because appellants served the complaint on the manager, and not the franchise operator, of the restaurant. Affirmed.

Commonwealth v. Scaggs, PICS Case No. 15-0999 (C.P. Lawrence May 13, 2015) Motto, P.J. (12 pages).

Because defendant was not a juvenile at the time of her offense, Miller v. Alabama did not permit her to by-pass the one-year time limit to file a post-conviction relief petition and her petition was untimely. Defendant's motion for post-conviction relief denied.

Commonwealth v. Large, PICS Case No. 15-1000 (C.P. Lehigh April 20, 2015) Steinberg, J. (13 pages).

Under the totality of the circumstances, defendant's covert recording of his conversation with the director of nursing services and other employees did not violate the Wiretapping and Electronic Surveillance Control Act because there was no reasonable expectation of privacy. Plaintiff's petition for writ of habeas corpus granted.

Commonwealth v. Ostrander, PICS Case No. 15-0992 (C.P. Berks May 18, 2015) Yatron, J. (5 pages).

There was sufficient evidence for the jury to conclude beyond a reasonable doubt that appellant committed the crime of resisting arrest when he refused to descend from a fire escape, causing officers to climb the fire escape and apprehend him.

DeHoyos v. Geico Gen. Ins. Co., PICS Case No. 15-0997 (C.P. Monroe April 20, 2015) Williamson, J. (7 pages).

Because the $450,000 plaintiff received from the tortfeasor pursuant to the parties' high-low agreement was less than the tortfeasor's policy limits, there was no legal basis for her claim for UIM benefits from defendant, her auto insurer. Defendant's motion for partial judgment on the pleadings granted.

Meckel v. Lehigh Valley Health Network, PICS Case No. 15-0995 (C.P. Lehigh April 23, 2015) Reichley, J. (7 pages).

Summary judgment was granted to defendants in this premises liability action where there was no genuine issue of material fact that plaintiff did not look behind her while walking backward out of defendants' office suite.

Oltsmann v. Erie Ins. Co., PICS Case No. 15-0954 (C.P. Monroe April 10, 2015) Williamson, J. (7 pages).

Plaintiff's motion to enforce settlement was denied where the emails offered in support of his contention that a settlement was reached indicated there was no meeting of the minds as to its terms.

Linde v. Linde, PICS Case No. 15-0949 (Pa. Super. June 9, 2015) Olson, J. (34 pages).

Trial court properly ordered that resolutions taken at a special shareholders' meeting, of which appellant shareholder/director was not informed, were properly ratified at a subsequent properly noticed shareholder's meeting because the actions taken at the improperly noticed special shareholder's meeting were voidable, not void. Affirmed.

Balmoral Homeowners Maint. Corp. v. Pasquarello, PICS Case No. 15-0935 (Pa. Super. June 5, 2015) (memorandum) Olson, J. (10 pages).

The trial court did not err in sustaining defendants' preliminary objections and transferring this case where plaintiff sought to recover damages incurred in attempting to fulfill obligations under the parties' settlement agreement which contained a venue selection clause providing for further litigation in Delaware County. Affirmed.

Commonwealth v. Hankerson, PICS Case No. 15-0940 (Pa. Super. June 8, 2015) Donohue, J. (11 pages).

A mandatory minimum enhancement based on the jury's finding that appellant possessed a firearm during the commission of the offense was impermissible, due to the authorizing statute having been found unconstitutional. Judgment of sentence vacated; case remanded for resentencing.

Deaver v. Lemon, PICS Case No. 15-0896 (Pa. Super. May 22, 2015) (memorandum) Shogan, J. (11 pages).

The trial court erred in finding that wife had established an oral trust and that this trust was not marital property where the evidence indicated that wife had access to and control over the oral trust funds, which she had placed in the trust. Reversed and remanded.

In the Interest of C.M.H., PICS Case No. 15-0900 (Pa. Super. May 27, 2015) (memorandum) Bowes, J. (14 pages).

Father's inability or unwillingness to remedy his incapacity to parent child following his incarceration, combined with the lack of bond between father and child and the strong bond between child and her foster parents supported the determination to involuntarily terminate father's parental rights. Decree affirmed.

Wolfe v. Allstate Prop. & Cas. Ins. Co. PICS Case No. 15-0967 (3rd Cir. June 12, 2015) Rendell, J. (25 pages).

An insurer has no duty to consider the potential for a jury verdict for punitive damages when negotiating a settlement and punitive damages awarded against an insured in a personal injury suit are not recoverable in a later breach of contract or bad faith suit against the insurer. Judgment vacated.

L.B. Foster v. Barnhart, PICS Case No. 15-0965 (3d Cir. June 11, 2015) Rendell, J. (5 pages).

Participation in a company sales incentive plan can provide adequate consideration for signing a contract not to compete. Judgment of district court affirmed.

Speaking Truth to Power v. U.S. Nat'l Nuclear Sec. Admin., PICS Case No. 15-0966 (E.D. Pa. June 10, 2015) Bartle, J. (9 pages).

Plaintiff's request to amend its Freedom of Information Act complaint to add additional governmental agencies as defendants was denied as futile, because the proposed claims would fail to survive a motion to dismiss. Motion to amend complaint denied.

Collinson v. City of Phila., PICS Case No. 15-0964 (E.D. Pa. June 9, 2015) Jones, J. (14 pages).

A police officer can be legally responsible as a bystander, if the officer refuses to intervene to prevent another officer's use of excessive force. Allegations of "bystander liability" against officers who allegedly did not observe police officer's fight with a civilian dismissed.

Chung v. Wyndham Vacation Resorts, PICS Case No. 15-0963 (M.D. Pa. June 15, 2015) Mariani, J. (8 pages).

A court can approve a settlement that is fair and reasonable considering the significant risk of proving liability, if the suit proceeds to trial. Collective action settlement in the amount of $180,000 approved in a Fair Labor Standards Act case.

Fitness Essentials, LLC v. Nill, PICS Case No. 15-0898 (Pa. Super. June 2, 2015) (memorandum) Lazarus, J. (14 pages).

A non-compete clause in an independent contractor agreement was enforceable, finding that appellant contractor knowingly and willingly entered into independent contractor agreements with restrictive covenants and held that an independent contractor relationship was sufficiently analogous to an employment relationship. Order of the trial court affirmed.

Gordon v. Herman, PICS Case No. 15-0946 (Pa. Super. June 9, 2015) (memorandum) Fitzgerald, J. (17 pages).

Trial court did not abuse its discretion in entering a default judgment on the issue of liability as a discovery sanction in a legal malpractice case and did not err in awarding damages for the attorney's failure to follow instructions for the allocation of interest and principal in a shareholder's agreement resulting in appellees' inability to claim interest deductions on tax forms. Affirmed.

B.B. v. Dep't of Public Welfare, PICS Case No. 15-0937 (Pa. Commw. June 10, 2015) Friedman, J. (8 pages).

The Secretary of the Department of Public Welfare abused her discretion when she adopted the Bureau of Hearings and Appeals' determination that petitioner's counsel was required to submit, in addition to his own testimony, additional evidence to verify he had a medical emergency that prohibited him from timely filing an appeal for petitioner. Reversed.

Arneson v. Wolf, PICS Case No. 15-0934 (Pa. Commw. June 10, 2015) McCullough, J. (76 pages).

The executive director of the Office of Open Records was meant to be independent from the executive branch and, therefore, insulated from the state governor's constitutional power to remove an appointee at-will. Petition for summary relief granted.

Gibraltar Rock, Inc. v. New Hanover Twp., PICS Case No. 15-0945 (Pa. Commw. June 5, 2015) McCullough, J. (14 pages).

Trial court properly granted declaratory relief in favor of appellee and properly held that township's storm water management ordinance was preempted by the Pennsylvania Noncoal Surface Mining Conservation and Reclamation Act because the SMO regulated "surface mining" as defined in the Noncoal Act and was thus, preempted. Affirmed.

City of Phila. v. Perfetti, PICS Case No. 15-0939 (Pa. Commw. June 8, 2015) Simpson, J. (21 pages).

A property owner was not entitled to a pre-deprivation hearing for the imposition of a municipal lien for nonpayment of utilities where payment for municipal services constituted a compelling governmental interest. Order of the trial court affirmed.

Barnabei v. Chadds Ford Twp. Zoning Hearing Bd., PICS Case No. 15-0936 (Pa. Commw. June 10, 2015) Brobson, J. (14 pages).

Petitioners were prohibited from operating a catering business out of their home because the operation of such a business was not an accessory use customarily incidental to use as a residence; therefore, they could not rent out their property and give greater property rights to a commercial tenant. Affirmed.

Hutto v. Phila. Parking Auth., PICS Case No. 15-0947 (Pa. Commw. June 9, 2015) Leavitt, J. (11 pages).

Trial court relied on competent evidence to find that bike rider, struck by tow truck owned and operated by the Philadelphia Parking Authority, suffered permanent injury and was entitled to damages for pain and suffering. Affirmed.

Santiago v. Abuiso, PICS Case No. 15-0953 (C.P. Monroe April 16, 2015) Williamson, J. (8 pages).

Improper service of the writ of summons did not toll the statute of limitations in this motor vehicle negligence case.

Rosenthal v. Bane, PICS Case No. 15-0916 (C.P. Allegheny May 18, 2015) Hertzberg, J. (6 pages).

Defendant failed to produce a prima facie case to support striking or opening judgment after he had failed to challenge an arbitration award within 30 days.

Brown v. Phila., PICS Case No. 15-0956 (C.P. Philadelphia May 12, 2015) Keogh, J. (3 pages).

There was no cause to set aside a sheriff s sale based on the sheriff's delay in deeding the property to the purchaser.

Conestoga Bank v. Tioga Inv., LLC, PICS Case No. 15-0917 (C.P. Philadelphia May 12, 2015) Glazer, J. (6 pages).

The bank timely filed its petition to establish the fair market value of real property acquired through a sheriff's auction within six months after delivery of the corrective deed.

Commonwealth v. Young, PICS Case No. 15-0958 (C.P. Lycoming May 12, 2015) Gray, J. (4 pages).

The commonwealth's interest in protecting the health and welfare of its citizens and maintaining order and safety in its prisons outweighed an inmate's diminished right to refuse medical treatment. Plaintiffs' motion for permanent injunction authorizing involuntary administration of renal dialysis granted.

Commonwealth v. Corliss, PICS Case No. 15-0960 (C.P. Monroe April 16, 2015) Williamson, J. (14 pages).

On pro se defendant's amended petition for habeas corpus, the court concluded that Megan's Law IV was applicable to defendant, even though he was not serving a sentence and was not on probation or parole when it was enacted. Petition for writ of habeas corpus denied.

Robinson v. Wolters Kluwer Health Inc., PICS Case No. 15-0962 (C.P. Philadelphia May 1, 2015) Bernstein, J. (17 pages).

In this products liability action alleging that plaintiff's birth defects were caused by Zoloft taken by her mother during pregnancy, the issues defendants raised regarding plaintiff's expert's methodology at the Frye hearing were appropriate for cross-examination but preclusion was not warranted. Defendants' motion to preclude denied.

Pocono Farms Country Club Ass'n, Inc. v. Lewandowski, PICS Case No. 15-0957 (C.P. Monroe May 6, 2015) Williamson, J. (9 pages).

Defendant homeowner had to pay his ratable share of costs for services pursuant to the bylaws, rules and regulations of plaintiff homeowners' association.

Warner v. Lycoming Cnty. Tax Claim Bureau, PICS Case No. 15-0959 (C.P. Lycoming May 5, 2015) Gray, J. (4 pages).

Because the property owner reasonably and justifiably relied on the statement of the Tax Claim Bureau's employee that he had until Sept. 24, 2014, to pay the tax delinquency and tendered payment of the delinquency prior to that date, the tax sale, which occurred prior to that date, had to be set aside. Property owner's timely objections to the upset tax sale granted.

Smith v. Sanofi Pasteur, Inc., PICS Case No. 15-0955 (C.P. Monroe April 28, 2015) Williamson, J. (5 pages)

Summary judgment was inappropriate in this personal injury case where genuine issues of material fact remained as to whether a defect existed in defendant's equipment and if so, whether the defect was a substantial factor in causing plaintiff's injury.

Estate of Sipos, PICS Case No. 15-0961 (C.P. Philadelphia March 9, 2015) Herron, J. (10 pages).

The beneficiary designation in the deceased's IRA was not changed by his will as there was no demonstration that he had made reasonable efforts to comply with the policy terms governing change of beneficiary. Request for order directing the proceeds to be turned over in accordance with the will denied.

Campisi v. Campisi, PICS Case No. 15-0894 (Pa. Super. May 28, 2015) (memorandum) Shogan, J. (18 pages).

The trial court did not err in admitting a notary register into evidence through the testimony of an attorney since the attorney's testimony regarding the regular business activity of notarizing legal documents provided sufficient information to justify a presumption of trustworthiness. Affirmed.

Healey v. Wells Fargo N.A., PICS Case No. 15-0920 (C.P. Lackawanna May 12, 2015) Nealon, J. (10 pages).

Because two of defendant's out-of-state employees were corporate officers and another was a managing agent by virtue of his title and functions relating to this litigation and a related administrative appeal, they could be deposed without a subpoena pursuant to Rule 4007.1. Defendant's appeal denied; plaintiffs' motion to compel depositions granted.

Orman v. Mortg. I.T., PICS Case No. 15-0905 (Pa. Super. June 2, 2015) Mundy, J. (10 pages).

Trial court correctly held that husband who had signed a mortgage was an indispensable party to an action to quiet title and reform the mortgage but trial court erred in entering judgment in the case because the court lacked jurisdiction to enter judgment in favor of any party due to the lack of an indispensable party. Vacated and remanded.

Calabrese v. Zeager, PICS Case No. 15-0893 (Pa. Super. June 1, 2015) (memorandum) Jenkins, J. (17 pages).

The law of the case doctrine barred consideration of defendant's notice argument where the court had considered and decided the notice argument on a prior appeal. Affirmed in part; reversed in part.

U.S. Bank, N.A. v. Pautenis, PICS Case No. 15-0907 (Pa. Super. May 29, 2015) Donohue, J. (34 pages).

In mortgage foreclosure action, trial court erred in concluding that bank's post-trial motion was untimely but the verdict in favor of homeowner was correct because trial court correctly refused to take judicial notice of bank's acquisition of the mortgage. Reversed in part and affirmed in part.

Commonwealth v. Caldwell, PICS Case No. 15-0895 (Pa. Super. May 29, 2015) Jenkins, J. (25 pages).

Defendant's challenge to the imposition of his consecutive sentences as unduly excessive, together with his claim that the trial court failed to consider his rehabilitative needs, presented a substantial question but his claims on appeal lacked merit. Affirmed.

In re K.L., PICS Case No. 15-0902 (Pa. Super. June 2, 2015) (memorandum) Fitzgerald, J. (11 pages).

The court ruled that a gun gesture by a juvenile constituted a terroristic threat where juvenile's teacher previously instructed him to refrain from the gesture, despite juvenile's lack of verbal threat or violent history, where ability to carry out a threat or belief that the threat would be carried out was not an element of the offense. Dispositional order affirmed.

Babb v. Geisinger Clinic, PICS Case No. 15-0892 (Pa. Super. June 3, 2015) (memorandum) Stabile, J. (38 pages).

Plaintiff was prohibited by the doctrine of res judicata from re-litigating his conspiracy claims where a federal court of competent jurisdiction already entered a final judgment resolving the issues of conspiratorial conduct and improper motives by defendants in terminating plaintiff. Affirmed in part.

Streamline Bus. Serv. LLC v. Vidible, Inc. PICS Case No.15-0927 (E.D. Pa. June 2, 2015) Baylson, J. (13 pages).

Given the general rule that a shareholder or parent corporation is not personally liable for corporate or subsidiary obligations, insufficient facts were pled to show AOL Inc. was liable for the pre-acquisition conduct of a subsidiary to state a claim against it. Motion to dismiss granted and denied in part.

Ruff v. Long, PICS Case No. 15-0926 (E.D.Pa. June 1, 2015) Kearney, J. (13 pages).

An off-duty, plainclothed police sergeant who went to a police station where he was unknown to surrender guns as part of an amnesty program was not sufficiently imbued with elements of communication to be deemed expressive conduct for a First Amendment retaliation claim. Motion for partial summary judgment granted.

Ford v. Lehigh Valley Rest. Grp. Inc., PICS Case No. 15-0886 (C.P. Lackawanna April 24, 2015) Nealon, J. (27 pages).

In this action alleging that defendant had improperly included ineligible employees in a tip pooling arrangement in violation of the Minimum Wage Act, the court found that the degree of direct customer interaction and service was relevant in deciding whether an employee was entitled to participate in a tip pool. Defendant's preliminary objections overruled.

Forty Seven Hundred L.P. v. David Whitnack Distrib. Inc., PICS Case No. 15-0884 (C.P. Philadelphia May 15, 2015) McInerney, J. (8 pages) .

The order imposing monetary sanctions for failure to comply with a discovery order was interlocutory and not immediately appealable. Plaintiff's appeal should be quashed.

Commonwealth v. Bland, PICS Case No. 15-0866 (Pa. May 26, 2015) Saylor, C.J.; Baer, J. (concurring), Todd, J. (dissenting) (38 pages).

Superior Court erred in suppressing appellee's confession to a murder made six days after he signed a written invocation of his Miranda rights and after he was given Miranda warnings by the interrogating officer because an invocation of the Miranda-based right to counsel had to be made upon or after actual or imminent commencement of in-custody interrogation. Reversed.

Sch. Dist. of Phila. v. Workers' Compensation Appeal Bd., PICS Case No. 15-0862 (Pa. May 216, 2015) Baer, J. (23 pages).

An injured employee was not entitled to a written notice of ability to return to work before being offered alternative employment where the employee had not yet filed a claim petition or received benefits, and the employer in this case had not conceded the existence of a work-related injury. Order of the Commonwealth Court affirmed.

TeleTracking Techs., Inc. v. Gori, PICS Case No. 15-0864 (Pa. Super. May 28, 2015) (memorandum) Lazarus, J. (18 pages).

Appellee minority shareholders were permitted to consummate the sale of their stock to a bona fide third-party offeror after the 120-day period for exercise of appellant corporation's right of first refusal, where the inability to consummate the transaction was the result of appellant's intentional engagement in protracted and fruitless litigation. Order of the trial court affirmed.

Smith v. Costulas, PICS Case No. 15-0863 (Pa. Super. May 27, 2015) (memorandum) Allen, J. (16 pages).

Appellants had waived their issues for their deliberate failure to have a complete certified records of lower court proceedings transmitted to the court, thereby hampering their ability to conduct meaningful review. Judgment affirmed.

Santander Bank, N.A. v. Law Offices of Kenneth M. Kapner, P.C., PICS Case No. 15-0861 (Pa. Super. May 28, 2015) (memorandum) Fitzgerald, J. (18 pages).

A confession of judgment and warrant of attorney in a promissory note/guarantee was enforceable after the execution of a modification agreement where the court held that the MA's inclusion of all other unmodified terms from the note/guarantee was legally sufficient to bind borrower. Order affirmed in part and reversed in part.

BOKF, N.A. v. First Nat'l Bank of Pa., PICS Case No. 15-0855 (Pa. Super. May 27, 2015) (memorandum) Fitzgerald, J. (16 pages).

Plaintiff lender could not proceed with an equitable subrogation claim against defendant where plaintiff was not substituting another entity, but simply sought to substitute itself, and where plaintiff did not establish all four criteria for an equitable subrogation claim. Affirmed.

Sesay v. Attorney Gen. of U.S., PICS Case No. 15-0874 (3rd Cir. May 26, 2015) Krause, J. (18 pages).

Addressing a first impression issue, the Third Circuit ruled that, absent a waiver from the Executive Branch, the INA precludes asylum or withholding of removal for any alien who provided material support to a terrorist group, voluntarily or involuntarily. Petition for review denied.

Bonkowski v. Oberg Indus., PICS Case No. 15-0871 (3d Cir. May 22, 2015) Cowen, J. (57 pages).

The Third Circuit adopted a clear, "bright-line" calendar test that, for purposes of the Family and Medical Leave Act, a stay in a hospital overnight takes place if a patient stays at the hospital for a substantial period of time, from one calendar day to the next calendar day, as measured by the times of admission and discharge. Affirmed.

Office of Disciplinary Counsel v. Henderson, PICS Case No. 15-0885 (Pa. Feb. 12, 2015) per curiam (14 pages).

Although respondent's conduct in knowingly conspiring to commit, committing and concealing bankruptcy fraud supported his disbarment, his cooperation with law enforcement and disciplinary authorities was sufficient mitigation to permit a step-down to a five-year suspension, retroactive to the date of his emergency temporary suspension. Respondent attorney suspended on consent for five years, retroactive to Aug. 9, 2012.

Office of Disciplinary Counsel v. Rowlands, PICS Case No. 15-0880 (Pa. Jan. 30, 2015) per curiam (10 pages).

Respondent was admitted to practice law in Pennsylvania in 1963. Respondent maintained an attorney-client relationship with Fern Knoll Cemetery Association from 1994 until 2011. During his representation, respondent had sole access to Fern Knoll's bank accounts. Respondent took regular, substantial loans from Fern Knoll without their knowledge. No written documentation or loan agreements were created, no collateral was offered, no interest rate was paid and no repayment terms were agreed upon.

Commonwealth v. Selenski, PICS Case No. 15-0867 (Pa. Super. May 27, 2015) Donohue, J. (7 pages).

Trial court relied on then existing ban in precluding expert testimony on human memory, perception and the accuracy of eyewitness testimony in criminal case, but Pennsylvania Supreme Court had overturned that ban. Remanded for proceedings consistent with the new Supreme Court rule.

Morgan v. Morgan, PICS Case No. 15-0858 (Pa. Super. May 28, 2015) Stabile, J. (12 pages).

The Superior Court awarded mother attorney fees where it found that father's appeal was wholly frivolous and included motions raising issues that had already been resolved. Affirmed and remanded for calculation of attorney fees.

A.L.-S. v. B.S., PICS Case No. 15-0865 (Pa. Super. May 27, 2015) Lazarus, J. (18 pages).

Trial court erred in interpreting the Uniform Child Custody Jurisdiction Enforcement Act and in refusing to accept jurisdiction of a child custody matter, where the original custody order was made by an Ohio court but both parents and the children subsequently moved to Pennsylvania because the trial court misconstrued the "home state" rule. Reversed and remanded.

DeFrancesco v. Lehigh Valley Health Network, Inc., PICS Case No. 15-0868 (Pa. Super. May 26, 2015) Fitzgerald, J. (24 pages).

Trial court did not err in entering judgment for defendant doctors and hospital in a medical malpractice action after the jury found defendants were not negligent in failing to diagnose decedent's aortic dissection because trial court did not abuse its discretion in denying a request to strike a potential juror. Affirmed.

Mott Cemetery Ass'n v. Kalinowski, PICS Case No. 15-0859 (Pa. Super. May 27, 2015) (memorandum) Stabile, J. (8 pages).

The court ruled that a cemetery association could, pursuant to deed, acquire additional acreage where the trial court found that the only restriction on the association was that the land be used for cemetery purposes. Judgment affirmed.

In re Estate of Dixon, PICS Case No. 15-0529 (Pa. Super. May 28, 2015) (memorandum) Stabile, J. (4 pages).

While Pa.R.App.P. 342 provides that an order confirming an account is appealable as of right, the order on appeal here was not final within the meaning of the rule where it anticipated confirmation after a slightly revised account. Appeal quashed.

Kyler v. Myers, PICS Case No. 15-0869 (Pa. Super. May 26, 2015) (memorandum) Bender, J. (6 pages).

Trial court properly enjoined appellant from hindering and obstructing appellee's use of a private alley because the evidence of record showed that appellant had no ownership interest in the alley. Affirmed.

Faulk v. Phila. Clerk of Courts, PICS Case No. 15-0854 (Pa. Commw. May 28, 2015) Simpson, J. (10 pages).

In the interest of internal consistency among the provisions of the RTKL and to avoid an absurd result, the Commonwealth Court properly construed §1301(a) of the law to trigger review by a Chapter 13 court only after an appeal to an appeals officer under §1102. Affirmed.

Bagwell v. Pa. Office of Attorney Gen., PICS Case No. 15-0860 (Pa. Commw. May 27, 2015) Friedman, J. (7 pages).

Records of an attorney's non-criminal investigation were exempt from disclosure under the Right-to-Know Law because said records were privileged under the attorney work product doctrine. Determination of the OAG affirmed.

Duke Energy Fayette II, LLC v. Fayette Cnty. Bd. of Assessment Appeals, PICS Case No. 15-0856 (Pa. Commw. May 28, 2015) Covey, J. (12 pages).

The trial court erred in determining that it was reasonable to reassess petitioner's premises after the expiration of the premises' Keystone Opportunity Zone status rather than when improvements to the property were made and that the subject reassessment did not constitute a "spot assessment." Reversed and remanded.

Orwig v. PennDOT, PICS Case No. 15-0877 (C.P. Lycoming April 28, 2015) McCoy, J. (4 pages).

Appellee would be prejudiced by a driver's license suspension imposed 10 years after the underlying conviction where the delay was attributable to the Department of Transportation.

AW v. CW, PICS Case No. 15-0887 (C.P. Lycoming May 15, 2015) Reynolds McCoy, J. (5 pages).

Considering factors relevant to the children's best interest, including the need for stability and continuity, the court determined that the children should continue to attend school in the district in which defendant-father resided. Plaintiff's petition for special relief to change their school district denied.

Hamilton v. Redev. Auth. of Lawrence Cnty., PICS Case No. 15-0876 (C.P. Lawrence April 20, 2015) Piccione, J. (17 pages).

Plaintiff could not compel the commonwealth to allocate money to enable the Redevelopment Authority of Lawrence County to satisfy a money judgment entered against it.

Braverman v. Estate of Daniels, PICS Case No. 15-0888 (C.P. Philadelphia March 30, 2015) Dembe, J. (14 pages).

Finding that the deceased member of plaintiff-law firm converted company funds for his personal benefit and obtained unjust enrichment, and that defendants failed to present evidence to support their counterclaims, the court granted plaintiffs' motions for summary judgment.

Sutch v. Roxborough Mem. Hosp., PICS Case No. 15-0879 (C.P. Philadelphia May 15, 2015) Massiah-Jackson, J. (31 pages).

All motions for post-trial relief were denied in this twice-tried medical malpractice case resulting in a verdict for plaintiff.

In re Beal, PICS Case No. 15-0878 (C.P. Philadelphia May 4, 2015) Herron, J. (9 pages)

Decedent's widow, who had filed for divorce, lacked standing to challenge decedent's will because she failed to preserve her claim.

U.S. v. Edwards, PICS Case No. 15-0875 (E.D. Pa. May 29, 2015) Rufe, J. (8 pages).

In a first impression opinion following the Supreme Court's 2013 decision in Florida v. Jardines, the warrantless search of trash by police was found impermissible if it occurred on the curtilage of a home. Motion to suppress evidence was denied.

Cestra v. Mylan Inc., PICS Case No. 15-0873 (E.D. Pa., May 22, 2015) Conti, J. (7 pages).

Ruling on an apparent issue of first impression, the district court found that the antiretaliation provisions of the False Claim Act applied to an employer that allegedly discharged a worker after it discovered that the worker was a whistleblower in a qui tam action against a former employer.

Brooks v. Valley Day Sch., PICS Case No. 15-0872 (E.D. Pa. May 28, 2015) Buckwalter, J. (10 pages).

Discharging an employee who makes a legitimate request for FMLA leave may constitute interference with the employee's FMLA rights and retaliation against the employee. Motion to dismiss FMLA claims of employee who indicated that he might require another medical leave denied.

Monaco v. Temple Univ., PICS Case No. 15-0829 (Pa. Super. May 22, 2015) (memorandum) Fitzgerald, J. (33 pages).

The trial court did not err in allowing plaintiff to elicit from defendant's housekeeping employee testimony regarding certain anti-slip strips on steps other than those where plaintiff fell because the witness was allowed to testify as to the facts he observed. Affirmed.

Warrior Whitetails LLC v. Drotleff, PICS Case No. 15-0839 (C.P. Lawrence April 13, 2015) Motto, P.J. (14 pages).

In this action to recover the value of, and lost breeding fees from, a deer which ran into a fence and broke its neck after being spooked by defendant's trespassing dog, the court found that there was at least circumstantial evidence that the dog was the cause of the death and that dismissal of the action was not appropriate under the doctrine of spoliation. Defendant's motion for summary judgment denied.

Commonwealth v. K.M.-F., PICS Case No. 15-0828 (Pa. Super. May 22, 2015) per curiam (12 pages).

The juvenile court fully complied with Pa.R.App.P. Rule 1770 upon the filing of a petition for review and did not abuse its discretion in issuing an order for petitioner's out-of-home placement after his delinquency adjudication. Affirmed.

Horn v. Schappert, PICS Case No. 15-0818 (Pa. Super. May 13, 2015) (memorandum) Olson, J. (10 pages).

The court ruled that an indemnification and hold harmless provision of an escrow agreement did not insulate escrow agents from liability for their ordinary negligence, where the provision failed to explicitly stipulate that agents were to be indemnified from their negligence. Judgment affirmed.