Opinion Summaries for the

Below are summaries of the precedential appellate decisions from Pennsylvania, New Jersey, and the Third Circuit for the week of August 1st. Click on a case name, and you will be redirected to the court’s entire opinion.


Commonwealth v. Young

If you work in appellate law in PA, read this summary! This case is a remand from the Pennsylvania Supreme Court’s decision partially overruling Walker by holding that failure to file separate notices of appeal at each docket number implicated by the appealed-from order did not necessarily require quashal. In this case, the Pennsylvania Superior Court held that “when there is a Walker defect in an appeal to which Rule 902 applies, the default position is that we deem it appropriate to allow the correction and only stray from the Rule’s preference for good cause. In the absence of a showing of actual prejudice to an appellee resulting from the lack of separate notices of appeal at each docket, bad faith by an appellant, or other circumstances that render clemency inappropriate, a party filing an appeal as of right will as a matter of course be permitted to correct a Walker violation pursuant to Rule 902.”

Read Judge Bowes’s concurring opinion here. Read Judge Lazarus’s concurring opinion here.

#CriminalLaw, #Walker

McLinko v. Dept. of State

In a 98-page opinion, the Pennsylvania Supreme Court reversed the Commonwealth Court’s order and ruled that the Pennsylvania law mandating mail-in voting was legal. Act 77 affected significant amendments to the Pennsylvania Election Code, establishing state-wide, universal mail-in voting. The issue in this appeal was “whether the General Assembly overstepped its bounds and violated our Constitution when it enacted legislation that allows for universal mail-in voting.” The Supreme Court found no restriction in the PA Constitution on the General Assembly’s ability to create universal mail-in voting.

Reach Justice Wecht’s concurring opinion here. Read Justice Mundy’s dissenting opinion here. Read Justice Brobson’s dissenting opinion here.

#ElectionLaw, #StatutoryInterpretation

Pa. Envtl. Def. Found. v. Pa.

The Pennsylvania Supreme Court dealt with the Pennsylvania Environmental Defense Foundation’s challenge to the use of proceeds from oil and gas leasing on the forest and parklands as violative of the Environmental Rights Amendment to the Pennsylvania Constitution. This was the third such challenge by the Foundation, and it specifically challenged provisions of the General Appropriations Act of 2017 and 2018, as well as the 2017 Fiscal Code amendments. The Supreme Court held that the Foundation failed to demonstrate that the challenged provisions violate the Pennsylvania Constitution.

Read Justice Donohue’s concurring opinion here. Read Justice Mundy’s concurring opinion here. Read Justice Dougherty’s concurring and dissenting opinion here. And read Justice Wecht’s concurring and dissenting opinion here.

#AdministrativeLaw, #EnvironmentalLaw

Koch v. Progressive Direct Ins. Co.

The Pennsylvania Superior Court heard an appeal that started as a dispute over a purported underinsured motorist waiver but detoured into the appealability of declaratory judgments. The plaintiffs sued their insurer after a fatal motorcycle accident where the at-fault party was an underinsured motorist. The insurer claimed that the plaintiffs waived UIM coverage. The plaintiffs’ complaint sounded in breach of contract but also requested that the trial court determine the availability of UIM coverage. On cross-motions for summary judgment on that specific request, the trial court granted the plaintiffs’ motion, denied the insurer’s motion, and determined that UIM was available to the plaintiffs. The insurer appealed. The Superior Court analyzed the appealability of that order based on Pennsylvania Manufacturers’ Assoc. Ins. Co. v. Johnson Matthey, Inc. The Court held that the appeal was permissible because the lower court specifically ordered the maximum-allowable award under the UIM policy, so there were no legal theories on which the insurer could prevail. On the merits, the Court reversed and ordered that judgment be entered in favor of the insurer. The Court held that the plaintiffs executed a valid waiver of UIM benefits and that a later phone call discussing uninsured motorist coverage did not impact the waiver.

#CivilLaw, #PersonalInjury, #UIM, #InsuranceDispute, #Interlocutory

Long v. Long

The Pennsylvania Superior Court dealt with a dispute over a marriage settlement agreement (“MSA”) and alimony. A couple entered into an MSA that was then reduced to a divorce decree. In the MSA, the parties agreed that the husband would make payments to the wife of $1,800 until their youngest child graduated high school and the wife had custody of the children. But the wife remarried, and the husband gained partial custody of one child. He moved to reduce the payment. The Superior Court highlighted the distinction between alimony awards and alimony agreements. Here, the payment was an agreement, and the Court held that the agreement obligated the husband to continue the payment even if the Court would have modified the payment if it were an award.

#FamilyLaw, #Divorce, #Alimony

Mertis v. Oh

In this medical malpractice case, the Pennsylvania Superior Court reversed the trial court’s order that denied the plaintiff’s motion to disqualify the law firm representing the defendant. The case involved Pa. R. Civ. Pro. 4003.6, which deals with how information can be obtained from a treating physician. The plaintiff filed a complaint against the defendant, claiming she suffered an injury during a nerve block procedure. The defendant retained the Scanlon Howley firm. The plaintiff subpoenaed Dr. Kim, the plaintiff’s treating physician, who was not a party, to appear at a discovery deposition. Dr. Kim retained an attorney from Scanlon Howley to represent him. The plaintiff filed a motion for sanctions to disqualify defense counsel from representing the defendant and preclude further ex parte communications with the plaintiff’s treating physician. The trial court denied the motion. The Superior Court reversed and ruled that “to allow Scanlon Howley to represent the plaintiff’s treating physician in deposition testimony, while at the same time representing the defendant, is the same as having ex parte communication,” which Rule 4003.6 forbids.

#CivilLaw, #MedMal, #ExParte

Massaro v. McDonald’s Corp.

The Pennsylvania Superior Court dealt with the adverse effects, not of the digestive variety, of a visit to McDonald’s. The plaintiff claimed he was harassed and assaulted by a deranged third party while mentoring a student in a McDonald’s restaurant. He claimed that his requests for help from the restaurant’s staff had gone unheeded for about an hour. The trial court granted summary judgment for the burger juggernaut because it believed the restaurant did not owe the plaintiff a duty of care because the plaintiff “had assumed the risk of a violent assault in and around McDonald’s.” The Superior Court reversed. It cited the Restatement (Second) in holding that McDonald’s owed a duty of care to its patron. And the Court then came close to explicitly chastising the lower court based on dubious public policy rationales that the plaintiff assumed the risk.

#CivilLaw, #Negligence, #PersonalInjury, #Torts, #DutyOfCare

DiDomizio v. Jefferson Pulmonary Assoc. and Asthma Allergy and Pulmonary Assoc.

The Pennsylvania Superior Court vacated the trial court’s order that granted the defendants’ summary judgment motion. The plaintiff filed a medical malpractice action. The defendants moved for summary judgment, arguing that the statute of limitations barred the claims. The trial court agreed and granted the motion. The Superior Court reversed, ruling that “given the lengthy history of attempted contradictory diagnosis and treatment, the date of accrual [for inquiry notice purposes] could not be determined as matter of law by the court and a jury would decide when she knew of an injury redressable by a lawsuit.” Accordingly, the Court concluded that the trial court erred in granting the motion for summary judgment.

#CivilLaw, #MedMal, #StatueOfLimitations, #SummaryJudgment

D’Happart v. First Commonwealth Bank

In this bankruptcy and repossession action, the Pennsylvania Superior Court affirmed the trial court’s order sustaining First Commonwealth Bank’s (“FCB”) preliminary objections and dismissing the D’Happarts’ complaint with prejudice. The D’Happarts filed a class action complaint on behalf of themselves and other persons similarly situated, alleging breach of contract and four other claims. FCB filed preliminary objections, which the trial court sustained, dismissing the complaint. The plaintiffs argued seven issues on appeal: 1. the trial court relied upon FCB’s unverified allegations of facts outside of the record and, thus, ran afoul of the well-rooted principle that, for preliminary objections in the nature of a demurrer, courts must constrain the scope of review to the pleadings; 2. FCB’s pre-sale notice did not meet the requirements of the UCC, and FCB is not entitled to a ‘safe harbor’ defense because it did not use the UCC’s ‘safe harbor’ form; 3. the trial court erred by determining that FCB had not been required to issue any post-sale notice to since it did not make any attempt to collect a deficiency; 4. the UCC provides the remedy for FCB’s violations of the Motor Vehicle Sales Finance Act; 5. Plaintiffs claimed they fully pleaded claims under the UCC for FCB’s breach of contract and its conversion of their property; 6. The gist of action doctrine does not preclude any of Plaintiffs’ causes of action; and 7. The trial court erred by dismissing Plaintiffs’ complaint without permitting them an opportunity to amend. The Superior Court ruled that none of the claims warranted relief.

#CivilLaw, #PrelimiaryObjections, #Bankruptcy

Cao v. Pa. State Police

The Pennsylvania Commonwealth Court granted the State Police’s (PSP) Application for Summary Relief and dismissed Huu Cao’s Amended Petition for Review. Mr. Cao filed an Amended Petition for Review challenging his lifetime registration obligation under SORNA II as unconstitutional on numerous grounds. PSP asked the Commonwealth Court to dismiss Mr. Cao’s Amended Petition for Review in light of the Supreme Court’s ruling in Commonwealth v. Lacombe, which held that retroactive application of Subchapter I of SORNA II is nonpunitive and does not violate the constitutional prohibition against ex post facto laws. The Court agreed, ruling that Lacombe and T.S. v. Pennsylvania State Police were dispositive of Mr. Cao’s ex post facto claim, as those decisions also involved the application of Subchapter I of SORNA II.

#AdministrativeLaw, #SORNA

Wexford Science and Technology, LLC v. Pittsburgh Zoning Bd. of Adjustment

The Pennsylvania Commonwealth Court affirmed an order of the Court of Common Pleas that granted the zoning appeal of Wexford Science and Technology, LLC, paving the way for the construction of a 13-story office building. Intervenors appealed and argued that the trial court erred in holding that the adjacent hotel’s height determined the proposed building’s permitted height. The intervenors also argued that the trial court lacked jurisdiction over Developer’s claim for a 20% increase in that permitted height by virtue of its sustainable building design. The Court disagreed with both arguments.

#AdministrativeLaw, #Zoning

Ralph Martin Constr. v. Castaneda-Escobar

The Pennsylvania Commonwealth Court vacated the trial court’s order that required Employer to contribute towards Claimant’s purchase of a one-story home that required modifications. Claimant, employed in construction, fell off a roof, rendering him a paraplegic. Employer accepted liability for the injury. Claimant bought a home for $230,000, for which he incurred closing costs of $4,158. The house accommodated Claimant’s needs; however, the shower in the master bathroom had to be modified to provide wheelchair accessibility. Employer reimbursed Claimant for the money Claimant spent to modify this bathroom. Employer then filed a Petition to Review Medical Treatment and/or Billing (Medical Review Petition). Employer asserted that Claimant’s purchase of the house was not a reimbursable medical expense under Section 306(f.1)(1)(ii) of the Workers’ Compensation Act. The Workers’ Compensation Judge concluded that Employer was not liable to reimburse Claimant for his purchase of the house. However, the WCJ held Employer responsible for the closing costs. Both Claimant and Employer appealed to the Board. The Board reversed the WCJ’s decision and ordered Employer to contribute towards the house’s purchase. The Commonwealth Court reversed and held that Section 306(f.1)(1)(ii) of the Act did not authorize the Board to order Employer to pay Claimant $113,817.17 for home modifications never done or to contribute to the purchase of a new home. The Court affirmed the Board’s holding that Employer was not liable for Claimant’s closing costs, which the Board found untethered to the obligation in Section 306(f.1)(1)(ii) of the Act to provide an injured claimant with orthopedic appliances. Moreover, because Claimant did not prevail on a disputed issue, Claimant was not entitled to reimbursement of his litigation costs.

#AdministrativeLaw, #Unemployment, #Costs

In re Petition of Jackson

The Pennsylvania Commonwealth Court affirmed an order of the Court of Common Pleas that denied the Jackson Township’s petition to sell land dedicated to recreational use. The Township argued that the trial court erred by raising equitable estoppel sua sponte; misapplying the doctrine of equitable estoppel; and misapplying the Donated Property Act to its petition. The Court held that the defense of equitable estoppel did not need to be raised in a pleading because the Rules of Civil Procedure do not apply to actions under the Donated Property Act. The Court then held that the lower court properly applied the substantive analysis of equitable estoppel and the Donated Property Act.

#AdministrativeLaw, #LandUse

Ursinus College v. Prevailing Wage Appeals Bd.

Ursinus College petitioned the Pennsylvania Commonwealth Court to review an order from the Prevailing Wage Appeals Board. The Board concluded that the construction project undertaken by Ursinus was “public work” under Section 2(5) of the Pennsylvania Prevailing Wage Act because it was “paid for in whole or in part out of the funds of a public body.” The dispute was initiated by a union, which filed a grievance alleging that the project was a public work subject to the Prevailing Wage Act. The public body here, the Montgomery County Higher Education and Health Authority, issued bonds to finance the project. The Commonwealth Court reversed because the Authority’s role was limited to providing a financing vehicle by issuing bonds to assist in the construction of a private project, in which the Authority did not disburse or hold project funds, assigned all funds to the trustee, and bore no risks or obligations for the bonds.



State v. Tucker

The New Jersey Appellate Division ruled that the Supreme Court’s decision in State v. Cain applies to grand jury proceedings. In Cain, the Supreme Court held that expert witnesses in drug cases “may not opine on the defendant’s state of mind.” Here, the defendant claimed that the State’s witness did exactly that during the grand jury proceeding and that Cain should apply to grand jury proceedings just as it does at trial. The Appellate Division agreed. At the grand jury proceeding, the State’s witness testified that the “defendant possessed the suspected cocaine, heroin and marijuana with the intent to distribute it.” The Court held that “expert testimony regarding an accused’s state of mind will likely infringe on the grand jury’s independent decision-making function by improperly influencing its ultimate determination. Moreover, such testimony would adversely affect the fairness and integrity of a grand jury proceeding, much like it would a jury trial.” As a result, the Court dismissed each count of the indictment that contained “intent to distribute” as an element.

#CriminalLaw, #MotionToDismiss, #GrandJury

East Bay Drywall, LLC v. Dep’t of Labor and Workforce Dev.

The New Jersey Supreme Court revisited the ABC Test used to determine whether workers are properly classified as employees or independent contractors under the Unemployment Compensation Law. This case resulted from a routine audit on a drywall installer by the Department of Labor and Workforce Development. The drywall installer worked as a subcontractor to residential home builders. The drywall installer would contact potential workers — whom it alleged to be subcontractors — to determine who was available once home builders accepted its bids. The workers were free to accept or decline, and some workers left mid-installation if they found a better job. The three-element ABC Test is set forth in N.J.S.A. 43:21-19(i)(6). Prong C broadly asks whether a worker can maintain a business independent of and apart from the employer. The Supreme Court ruled that Plaintiff did not supply sufficient information to satisfy its prong C burden before the Administrative Law Judge. As such, the Court ordered that the workers were employees.

#AdministrativeLaw, #EmploymentLaw

State v. F.E.D.

The New Jersey Supreme Court considered what showing is required under the Compassionate Release Statute for a court to order the release of an inmate not otherwise eligible for parole based on the inmate’s suffering from “a permanent physical incapacity.” F.E.D. filed a petition for compassionate release. The trial court observed that the attesting physicians had found a diminished ability in instrumental activities of daily living but not an inability to perform activities of basic daily living. The court accordingly found that F.E.D. had not presented clear and convincing evidence that he suffered from a “permanent physical incapacity.” The Supreme Court ruled that the Compassionate Release Statute does not require that an inmate prove that he is unable to perform any activity of basic daily living to establish a “permanent physical incapacity.” Instead, the statute requires clear and convincing evidence that the inmate’s condition renders him permanently unable to perform two or more basic daily living activities, necessitating twenty-four-hour care. The Compassionate Release Statute’s mandate that the inmate’s condition causes him “permanently physically incapable of committing a crime” requires an individualized assessment of the inmate’s risk of recidivism focused on his capability, if released, of committing an offense similar to any crime of which he was convicted. If the inmate proves that he suffers from a “permanent physical incapacity” and the court, therefore, considers whether his release on conditions “would not pose a threat to public safety,” the court’s inquiry is not restricted to potential offenses related to the inmate’s criminal history but entails a thorough analysis of any risk to the public posed by the inmate and the impact of his release conditions on that risk. The Court then assessed F.E.D.’s proofs under the statutory standard and ruled that he did not present clear and convincing evidence that his medical condition gave rise to permanent physical incapacity.

#CriminalLaw, #CompassionateRelease

Berta v. NJ Parole Bd.

The New Jersey Appellate Division reversed and remanded for the Parole Board to reconsider its decision to deny parole. Berta, who was seventy years old when the final agency decision was rendered, is serving a life term for the murder of his girlfriend. The Board’s decision to deny parole a second time relied principally on three supposedly negative circumstances:  (1) Berta was incarcerated for multiple offenses; (2) he has a “serious” and “persistent” history of institutional disciplinary infractions; and (3) his continued denial of guilt constitutes “insufficient problem resolution.” The Court concluded “that the Board improperly relied on the first purportedly negative circumstance. Berta’s jury trial convictions for murder and possessing a firearm for an unlawful purpose were merged at the sentencing hearing. Thus, he was not committed to state prison based on multiple offenses. As to Berta’s record of institutional infractions, we believe the Board was unreasonable in characterizing Berta’s infraction history as persistent given that he has been infraction free for nearly twenty years. Even affording due deference to the Board’s expertise, we do not believe Berta’s overall infraction history can reasonably be interpreted to suggest a likelihood of reoffending.”

#CriminalLaw, #Parole


United States v. Noble

The Third Circuit affirmed the defendant’s conviction for possession of child pornography. The defendant argued that the District Court erred in determining that he waived and forfeited his right to proceed pro se and in appointing counsel. The Third Circuit ruled that the defendant’s refusal to speak at hearings was an obstructionist tactic. The District Court was exceedingly patient in its attempted accommodation and carefully considered the issues. It did not err by appointing counsel after ten months of obstruction. Defendants forfeit their right to self-representation when they impede proceedings in such a manner. The Third Circuit also found no merit in the defendant’s arguments that: the District Court erred when it denied counsel’s motion to withdraw from representation and the defendant’s motion to substitute counsel; the District Court abused its discretion by admitting into evidence the defendant’s 2016 Delaware state court child pornography conviction; the District Court erred by admitting the defendant’s prior statement against self-interest; the District Court erred in finding the defendant competent to stand trial; the District Court plainly erred by sustaining the Government’s objection to part of the defendant’s testimony; and the District Court abused its discretion in denying the defendant’s motion for a mistrial.

#CriminalLaw, #6thAmendment

United States v. Xue

The Third Circuit weighed in on a sentencing dispute over the amount of loss under U.S.S.G. § 2B1.1 after two defendants pled guilty to conspiracy to steal trade secrets, in violation of 18 U.S.C. § 1832(a)(5). The District Court refused to apply an enhancement based on the intended loss amount, finding that the Government failed to establish the defendants purposely sought to inflict financial harm. The parties agreed that the victim did not suffer any actual loss, but the Government contended that the defendants intended to cause a loss. The Third Circuit pointed out that the commentary to the sentencing guidelines limits the definition of intended loss to “the pecuniary harm that the defendant purposely sought to inflict.” And here, the Court ruled that the Government failed to establish that the defendants had the required mental state for the enhancement based on intended loss. The Court then rejected various challenges to the District Court’s intended-loss analysis raised by the Government.

#CriminalLaw, #Sentencing, #USSG

United States v. Shah

The Third Circuit affirmed the defendant’s conviction and sentence for health care fraud. The defendant argued that the District Court erred when it denied his motions to disqualify the United States Attorney’s Office for a continuance and a judgment of acquittal. The Third Circuit disagreed. Also, the Court held that the defendant’s sentence was procedurally and substantively reasonable.

#CriminalLaw, #Sentencing

Mabe v. OptumRx

It took the Third Circuit seventeen pages just to list the hundreds of pharmacies that filed suit against a pharmacy benefits manager they alleged breached contracts and duties of good faith and fair dealing. The pharmacy benefits manager moved to compel arbitration based on agreements found in various contracts covering almost all of the pharmacies. The pharmacies countered that the arbitration agreements were unconscionable, and the District Court agreed. The Third Circuit reversed. The Court held that, under Guidotti v. Legal Helpers Debt Resolution, LLC, the District Court should have allowed discovery limited to the question of arbitrability. Furthermore, the  District Court then should have provided the pharmacy benefits manager an opportunity to renew its motion because it concluded the pharmacies brought forth sufficient facts to place the arbitration agreements in question.

#CivilLaw, #Arbitration

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