This Week's Cases

Zampogna v. Law Enforcement Health Benefits, Inc., PICS Case No. 16-1500 (Pa. Nov. 22, 2016) Baer, J. (28 pages).

A nonprofit corporation organized and selected by a police officers' union to administer medical benefits to its members could use corporate assets to endorse a candidate for union office that the corporation believed would be best for the members served by the corporation. Order of the Commonwealth Court reversed.

Rost v. Ford Motor Co., PICS Case No. 16-1489 (Pa. Nov. 22, 2016) Donohue, J.; Saylor, C.J. (dissenting) (45 pages).

In asbestos litigation, plaintiff's medical expert's testimony that each exposure to asbestos cumulatively contributed to the total dose and in turn increased the likelihood of disease did not constitute an impermissible "each and every breath" theory of substantial-factor causation. Judgment affirmed.

Dollar Bank, F.S.B. v. Hawkins, PICS Case No. 16-1479 (Pa. Super. Nov. 15, 2016) (memorandum) Stabile, J. (4 pages).

Motion for judgment on the pleadings for a writ of revival was proper where defendant failed to assert one of the three valid defenses to a writ of revival. Judgment affirmed.

Commonwealth v. Jonathan Nelson Smith, PICS Case No. 16-1476 (Pa. Super. Nov. 29, 2016) Bowes, J. (14 pages)

The court affirmed judgment of sentence and appellant challenged the trial court's refusal to impose the deadly weapons enhancement in hit and run accident arguing appellant had no intention to use the automobile as a deadly weapon.

Commonwealth v. Ato Lloyd, PICS Case No. 16-1475 (Pa. Super. Nov. 29, 2016) Bowes, J. (8 pages).

The court affirmed judgment of sentence of 11 to 23 months' incarceration plus two years' probation imposed following his convictions for robbery and resisting arrest asserting the evidence was sufficient to support the conviction and resulting punishment.

Mikulsky v. Northtec, LLC, PICS Case No. 16-1483 (Pa. Super. Nov. 14, 2016) (memorandum) Ford Elliott, J. (14 pages).

The court properly granted summary judgment on an employee's personal injury action for a fall that occurred on employer's premises while employee was not on duty but at an employer-sponsored event, where employee settled her workers' compensation claim with employer and therefore was judicially estopped from asserting in the later personal injury action that she was not injured in the course and scope of her employment. Summary judgment affirmed.

Mundy v. Mundy, PICS Case No. 16-1484 (Pa. Super. Nov. 18, 2016) Bowes, J. (20 pages).

The trial court erred, when calculating the marital equity in a home which was originally a nonmarital assert, in using the purchase price of the home rather from the purchasing spouse's equity at the time of marriage as a baseline for calculating marital equity. Order of the trial court vacated in part and affirmed in part.

Pops PCE TT, LP v. R&R Rest. Grp., LLC, PICS Case No. 16-1485 (Pa. Super. Nov. 18, 2016) (memorandum) Strassburger, J. (22 pages).

The trial court erred in denying a petition to open a confessed judgment for monetary damages on a breached lease based on res judicata and collateral estoppel the judgment entered by a MDJ was for possession of the premises only. Order of the trial court reversed.

412 N. Front Street Assoc., LP v. Spector Gadon & Rosen, P.C., PICS Case No. 16-1472 (Pa. Super. Nov. 29, 2016) Stevens, J. (28 pages).

The court affirmed the lower court sustaining appellee's preliminary objections and dismissing with prejudice appellants' negligence and contract-based legal malpractice claims.

Rosario v. Northwood Manor, LLC, PICS Case No. 16-1488 (Pa. Super. Nov. 17, 2016) (memorandum) Ott, J. (13 pages).

A petition to strike and/or open default judgment was properly denied where petitioner could not show a fatal defect on the record with regard to service of notice of default, because notice was mailed to an address of record for petitioner. Order of the trial court affirmed.

Whitmoyer v. Workers' Comp. Appeal Bd., PICS Case No. 16-1473 (Pa. Commw. Dec. 1, 2016) Simpson, J. (42 pages).

In a workers' compensation action involving an employer's subrogation rights, the court concluded the term "compensation" in ยง319 of the Workers' Compensation Act encompassed medical expenses in addition to indemnity benefits and affirmed the lower court.

J.P. v. Dep't of Human Serv., PICS Case No. 16-1481 (Pa. Commw. Nov. 21, 2016) Covey, J. (8 pages).

An administrative appeal was incorrectly denied where appellant had no notice or right to appear in an underlying adjudication providing the basis for the appeal denial, thereby suffering a denial of due process. Order of the DHS Bureau of Hearings and Appeals reversed.

EDF Renewable Energy v. Foster Twp. Zoning Hearing Bd., PICS Case No. 16-1480 (Pa. Commw. Nov. 22, 2016) Wojick, J. (17 pages).

The failure to submit a detailed site plan in a special exception application for a proposed wind farm was fatal to the application because the zoning hearing board was not able to determine the location of all existing and proposed structures. Order of the trial court affirmed.

SPTR, Inc. v. City of Philadelphia, PICS Case No. 16-1497 (Pa. Commw. Nov. 21, 2016) Wojcik, J. (22 pages).

Operators of a pop-up beer garden were entitled to a preliminary injunction enabling its continued operation during the pendency of the use permit application process, where city was unable to demonstrate that operators were unlikely to prevail on merits. Order of the trial court affirmed.

Pa. State Police v. Kim, PICS Case No. 16-1486 (Pa. Commw. Nov. 17, 2016) Simpson, J. (11 pages).

A private surveillance video obtained by the state police pursuant to a criminal investigation was exempt from disclosure pursuant to the Criminal History Record Information Act and the criminal investigative exemption of the Right-to-Know Law. Final determination of the OOR reversed.

City of Williamsport Bureau of Codes v. DeRaffele, PICS Case No. 16-1748 (C.P. Lycoming) Lovecchio, J. (11 pages).

A municipality properly adopted a copyrighted internationally-recognized property maintenance code where it had adopted a previous version of the code by ordinance, and state law provided that any national or international standard code adopted by reference encompassed subsequent changes to the code.

Marchese v. PennDOT, PICS Case No. 16-1496 (C.P. Lycoming Nov. 10, 2016) McCoy, J. (7 pages).

Civil penalties arising from the refusal of a blood test following an arrest for DUI, in violation of the Implied Consent Law, was constitutional, where there was no criminal consequence for refusing a blood test.

Cable Line, Inc. v. Comcast Cable Commc'n of Pa., Inc., PICS Case No. 16-1491 (C.P. Philadelphia Oct. 26, 2016) Djerassi, J. (7 pages).

A defendant seeking summary judgment was not entitled to strike plaintiffs' voluntary discontinuance where defendant would not prevail on summary judgment or other dispositive motion.

Aable Prop. Mgmt., Inc. v. Robinson, PICS Case No. 16-1490 (C.P. Philadelphia Nov. 22, 2016) Djerassi, J. (9 pages).

Although the parties to a loan agreement selected New Jersey as the governing law for the agreement, New Jersey law did not permit the filing of a warrant of attorney included in an instrument for payment of money.

Commonwealth v. Martin, PICS Case No. 16-1501 (C.P. Lycoming Nov. 2016) Lovecchio, J. (18 pages).

A witness's prior recorded statements entered evidence where witness was deemed unavailable because, when he appeared under subpoena, he testified to not remembering the subject matter of the case.

Maple Leaf Vill. v. Hatala, PICS Case No. 16-1495 (CP Lackawanna Nov. 29, 2016) Nealon, J. (9 pages).

Plaintiff stated a viable claim for trespass to property where it alleged that defendants' construction activity on their neighboring parcel caused boulders to become dislodged from a rockface on the property border and roll into plaintiff's property, causing damage.

City Centre Philadelphia, Pa., L.P. v. Da Chang Rest., Inc., PICS Case No. 16-1499 (C.P. Philadelphia Nov. 7, 2016) McInerny, J. (5 pages).

Tenant's inability to read or speak English did not render a warrant of attorney in its lease unconscionable where there was no evidence that tenant was denied legal counsel or that landlord coerced it into signing the lease.

United Parcel Serv. v. Salmon, Ricchezza, Singer & Turchi, LLP, PICS Case No. 16-1498 (CP Philadelphia Aug. 22, 2016) Glazer, J. (11 pages).

Plaintiffs were ordered to produce documents stemming from defendant's legal representation of plaintiffs in an underlying personal injury action, as plaintiffs' assertion of attorney-client privilege could not act to shield documents relating to issues that plaintiffs themselves had placed into controversy.

Gior G.P., Inc. v. Waterfront Sq. Reef, LLC, PICS Case No. 16-1493 (CP Philadelphia Nov. 7, 2016) McInerney, J. (24 pages).

Parking licenses in the garage of a condominium complex were special declarant rights because they were not shared in common with the condominium members, and thus declarants' rights in the licenses terminated upon a sheriff's sale after foreclosure.

Little League Baseball, Inc. v. Beck, PICS Case No. 16-1494 (C.P. Lycoming Nov. 9, 2016) Gray, J. (9 pages).

Property owners did not obtain ownership by prescriptive easement on land immediately adjacent their property where they had failed to exert open, notorious and hostile possession of the land for 21 years.

Romero v. Allstate Ins. Co., PICS Case No. 16-1487 (E.D. Pa. Nov. 22, 2016) Kearney, J. (28 pages).

The court granted the employer's motion for summary judgment on a fiduciary duty claim, a pension cut-back claim and a time-barred cut-back claim from one insurance agent, but required the remaining issues be resolved by a fact finder.

Comcast Cable Commc'ns, LLC v. Sprint Commc'ns Co., LP, PICS Case No. 16-1474 (E.D. Pa. Nov. 21, 2016) DuBois, J. (21 pages).

In this patent infringement action, the court noted that there may be more than one reliable method for estimating a reasonably royalty and motions to exclude expert testimony were denied.

Landau v. Viridian Energy PA, LLC, PICS Case No. 16-1477 (E.D. Pa. Nov. 30, 2016) McHugh, J. (34 pages)

In this class action involving deregulation of retail electricity, the court granted in part defendant's motion to dismiss the complaint but denied defendant's request to strike plaintiff's class allegations.

McGuire v. Russo, PICS Case No. 16-1482 (Pa. Super. Nov. 22, 2016) (memorandum) Ford Elliott, J. (15 pages).

Appellant's legal malpractice claim regarding her settlement of underlying employment discrimination litigation failed where she alleged, not that her attorneys failed to properly plead all her claims or exhaust all her administrative remedies, but that she was now dissatisfied with her settlement and believed that more competent counsel would have been able to get her a "better deal," thus her claim was barred as being an attack on the adequacy of her settlement. Order of the trial court affirmed.