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 29. Click on a case name, and you will be redirected to the court’s entire opinion.


Commonwealth v. Forrester-Westad

The Pennsylvania Superior Court affirmed the trial court’s order permitting the defendant to withdraw his guilty plea and quashing the criminal information. The defendant stole a truck in Snyder Co. He drove to Luzerne Co., where police pulled him over, and he admitted to the crime. The police departments in both counties were aware of the defendant’s actions. In February 2020, the defendant was charged in Snyder Co. with receiving stolen property and theft by unlawful taking. In May 2020, he pled guilty to receiving stolen property in Luzerne Co. and was sentenced the same day. Thereafter, in Snyder Co., the defendant bench-warranted and was caught months later. In January 2021, the defendant pleaded guilty to the charges in Snyder Co. Before the imposition of the sentence, the defendant filed a motion to withdraw the guilty plea and quash the criminal information. He sought to withdraw his guilty plea based on 18 Pa.C.S. § 110, alleging that “the offense he pleaded guilty to in Luzerne Co. is of the same course of conduct and criminal episode as he is now being prosecuted for in Snyder Co.” The trial court granted the motion, and the Commonwealth appealed. The Superior Court affirmed the order granting the motion to withdraw the guilty plea, determining that the trial court failed to conduct a waiver-of-counsel colloquy. Furthermore, the Superior Court ruled that the trial court was correct to quash the criminal information because the defendant satisfied the four-part test of Commonwealth v. Fithian, 961 A.2d 66, 72 (Pa. 2008), and Section 110 barred the prosecution of the theft charges in Snyder Co.

#CriminalLaw, #MotionToWithdrawPlea, #MotionToQuash

Commonwealth v. Bullian

The Pennsylvania Superior Court reversed the trial court’s order that dismissed a simple assault charge. The Commonwealth charged the defendant with simple assault, a second-degree misdemeanor, and the summary offense of harassmentfor punching his live-in girlfriend multiple times in the head,
throwing her to the floor, and slamming her head into a wall.

Wolf v. Martellas Pharmacy

The Pennsylvania Commonwealth Court affirmed the Workers’Compensatiom Appeal Board Order reversing the decision of a Workers’ Compensation Judge that denied Martellas Pharmacy’s Petition to Terminate Benefits and reduced the amount of unreasonable contest attorney’s fees the WCJ had awarded. On appeal, Claimant argued unsuccessfully that the Board erred in 1.) determining that the testimony of Employer’s medical expert could legally support the termination of Claimant’s benefits, and 2.) making a corresponding reduction in the awarded unreasonable contest attorney’s fees.

#EmployentLaw, #Workers’Comp

Eastern Steel Constructors, Inc. v. Intern’l Fidelity Ins. Co.

In this suretyship action, the Pennsylvania Superior Court was confronted with two issues: 1.) Whether a surety, who had notice of and an opportunity to participate in arbitration proceedings against its principal, is bound by an arbitration award rendered against the principal and, 2.) Whether a surety is subject to the bad faith statute, 42 Pa.C.S. § 8731. Following the prime contractor Ionadi Corporation’s failure to pay Eastern for work Eastern performed under a subcontract, Eastern sought to recover the outstanding payments from International Fidelity Ins. Co. (“IFIC”), Ionadi’s surety. Eastern secured an arbitration award against Ionadi that was subsequently confirmed and reduced to a judgment. Thereafter, Eastern unsuccessfully attempted to collect the judgment from IFIC. Eastern filed suit, and a jury returned a verdict in favor of Eastern. The Superior Court affirmed in part and reversed in part, ruling that IFIC, as surety, was bound by the arbitration award but not subject to a bad faith action under Section 8731.

#CivilLaw, #InsuranceDispute

Wolfe v. Martellas Pharmacy

In this workers’ compensation case, Claimant petitioned the Pennsylvania Commonwealth Court for review of the Workers’ Compensation Appeal Board’s order that reversed the decision of a Workers’ Compensation Judge that had denied Employer’s Petition to Terminate Benefits and reduced the unreasonable contest attorney’s fees the WCJ had awarded. On appeal, Claimant argued that the Board erred in determining the testimony of Employer’s medical expert could legally support the termination of Claimant’s benefits, and in making a corresponding reduction in the awarded unreasonable contest attorney’s fees. The Commonwealth Court disagreed with Claimant’s arguments and affirmed.

#AdministrativeLaw, #Woerkers’Comp

In re Nomination Paper of Caroline Avery and In re Nomination Paper of Brittany Kosin

In these single-judge opinions, the Pennsylvania Commonwealth Court granted petitions to set aside Ms. Avery’s and Kosin’s nomination papers. Objectors sought dismissal of the nomination papers to run as the Libertarian Party candidate for Representative. Objectors argued that the candidates had previously filed papers in the Republican primary for the same office. Thus, the candidates were barred from running under Section 976(e) of the Pennsylvania Election Code. The Court ruled that “pursuant to Section 976(e), a candidate who had previously filed nomination petitions for candidacy in the primary, and who did not request an administrative withdrawal pursuant to Section 914, is precluded from filing nomination papers to appear on the general election ballot for the same position.”

#AdministrativeLaw, #ElectionLaw


The judges in the New Jersey appellate courts did not issue any precedential opinions, as they were probably enjoying a week at the beach.


United States v. Brown

The defendant appealed his mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”) on the theory that his Pennsylvania marijuana convictions may no longer serve as ACCA predicate offenses following the federal decriminalization of hemp. The Third Circuit held “that, absent contrary statutory language, we look to federal law in effect at the time of commission of the federal offense when employing the categorical approach in the ACCA context.” The Court then affirmed the defendant’s sentence because the state schedule matched the federal schedule in effect when he committed the federal offense triggering the ACCA enhancement.

#CriminalLaw, #Sentencing, #ACCA, #CategoricalApproach

United States v. Shields

This case raised two questions concerning resentencing under the First Step Act: 1.) Whether a district court, short of recalculating the benchmark Guidelines range, is required to consider a defendant’s arguments regarding intervening developments in law or changes in the defendant’s circumstances (answered in the affirmative); 2.) The second question related to the procedures adopted at resentencing, including whether the district judge, at least when different from the original sentencing judge, is required to hold an in-person hearing or, in any case, must allow a defendant a reasonable
opportunity to file a sentencing memorandum before resentencing (answered in the negative). The defendant was convicted of two drug offenses in 2008. After Congress passed the First Step Act, he sought relief when he became eligible for resentencing in 2018. The District Court found that the defendant qualified for resentencing, denied his request for a full resentencing hearing, and reduced his sentence. The Court also declined to consider “whether under current law the defendant would be considered a career offender” because it believed that “the First Step Act does not permit the court to consider other statutory or sentencing guideline amendments enacted since the date the defendant committed his or her offense.” The defendant appealed and argued that the District Court erred by refusing to consider whether he qualified as a career offender and declining to rule on his objections to drug weight and firearm enhancements. He also argued that the Court erred in denying him a resentencing hearing. The Third Circuit reversed, determining that the Court erred in finding that it had no discretion to consider these arguments. However, “neither the original sentencing judge nor a judge to whom the case has been reassigned is required to hold an in-person resentencing hearing on a First Step Act motion.”

#CriminalLaw, #FirstStepAct, #ReSentencing

United States v. Norton

The Third Circuit affirmed the defendant’s judgment of sentence for sex offenses. The defendant, a 38-year-old woman from Connecticut, communicated with a fourteen-year-old boy living in Pennsylvania. These communications became overtly sexual and drove from Connecticut to Pennsylvania to meet the minor. The Government charged the defendant with attempted enticement of a minor, in violation of 18 U.S.C. § 2422(b), and travel to engage in illicit sexual conduct with a minor, in violation of 18 U.S.C. § 2423(b). A jury found her guilty, and the District Court sentenced her to 168 months in prison, followed by twenty years of supervised release. The Court also imposed a special assessment of $5,000 under the Justice for Victims of Trafficking Act of 2015, 18 U.S.C. § 3014 (“JVTA”). The defendant appealed, arguing that the District Court based it on inaccurate information and thus violated her due process rights. She also asserted that the District Court erred when it imposed the $5,000 JVTA assessment because she is indigent. The Third Circuit was not persuaded and affirmed.

#CriminalLaw, #Sentencing, #DueProcess, #Costs

LabMD, Inc. v. Boback

In these consolidated appeals involving allegations of fraud and defamation, the Third Circuit ruled that the District Court erred in granting summary judgment because the Court’s prohibition on expert testimony was unwarranted. LabMd filed two suits after learning that Tiversa, a cybersecurity company, illegally accessed LabMD’s files and fabricated evidence about a leak. The District Court dismissed all of the claims, except for a defamation claim that was subsequently defeated on summary judgment. The Court limited the scope of discovery on the defamation claim, including a prohibition on the discovery or
use of expert testimony. It then imposed severe sanctions when, in its view, LabMD and its counsel breached those limits. In addition to awarding fees and costs to the defendants, the Court struck almost all of LabMD’s testimonial evidence and revoked its counsel’s pro hac vice admission. When LabMD’s replacement counsel later tried to withdraw, the Court denied the request, and when LabMD failed to pay the monetary sanctions, the Court held it in contempt. The second lawsuit proceeded in somewhat the same timeframe as the first and asserted similar claims for fraud. The District Court dismissed that case in its entirety. LabMD appealed the decisions in both cases. In the first case, the Third Circuit held that the District Court erred when it granted summary judgment. Also, the District Court abused its discretion in imposing sanctions and erred in denying the motion to withdraw. The Third Circuit affirmed the District Court’s rulings in the second case.

#CivilLaw, #SummaeyJudgment, #Sanctions, #Defamation

Great Lakes Ins. SE v. Raiders Retreat Realty

In this admiralty case, the Third Circuit held that the framework of The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972), extended to the choice-of-law provision at issue. Raiders Retreat Realty’s yacht, which Great Lakes Insurance SE (“GLI”) insured, ran aground. Raiders submitted a claim, and GLI denied it because the yacht’s fire-extinguishing equipment had not been timely recertified or inspected notwithstanding that the vessel’s damage was not caused by fire. GLI sued first, seeking in federal court a declaratory judgment that Raiders’ alleged failure to recertify or inspect its fire-suppression equipment rendered the policy void from its inception. Raiders responded with five counterclaims, including three extra-contractual counterclaims arising under Pennsylvania law for breach of fiduciary duty, insurance bad faith, and violation of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law. The District Court dismissed the claims based on Pennsylvania law, concluding that the policy’s choice-of-law provision mandated the application of New York law and thus precluded Raiders’ Pennsylvania law-based counterclaims. The Third Circuit determined that it had jurisdiction for this interlocutory review and reversed, ruling that the District Court needed to consider whether Pennsylvania has a strong public policy that would be thwarted by applying New York law.

#AdmiraltyCase, #InsuranceDispute, #MaritimeInsurance, #ChoiceOfLaw

Frein v. Pa. State Police

The Third Circuit ruled that the Constitution required the Pennsylvania State Police to pay just compensation and return guns to a murderer’s parents. After Michael Frein assassinated a Pennsylvania State Trooper and injured another, troopers seized his parents’ guns. The government never used the guns as evidence. And eight years after the crime, once the son lost his last direct appeal, the troopers refused to return them, though they did not claim that the parents or the guns were involved in the crime. The parents sued the state police, its troopers, the Pike County District Attorney, and its prosecutors under 42 U.S.C. § 1983. The parents claimed that the government violated the Fifth Amendment’s Takings Clause and the Second Amendment by keeping the guns after the criminal case ended. The District Court dismissed the suit for failure to state a claim. The Third Circuit reversed, deciding that the parents had a takings claim because their “property was seized by public officials (police) to help public prosecutors enforce state law at a public trial. So their claim checks all the Fifth Amendment boxes.” Furthermore, because they lawfully owned the guns, they also had a Second Amendment claim.

#CriminalLaw, #ReturnOfProperty, #Guns, #FifthAmendment, #SecondAmendment

PPG Indus. Inc. v. Jiangsu Tie Mao Glass Co.

“Eighty percent of success is showing up,” Woody Allen. The Third Circuit affirmed the District Court’s default judgment award to PPG Industries. By failing to appear in this lawsuit until practically the end, Jiangsu Tie Mao Glass Co. Ltd. (“TMG”) effectively conceded the allegations of PPG’s complaint: TMG got a former PPG employee to turn over valuable trade secrets belonging to PPG. Then, with those misappropriated trade secrets, TMG took steps to compete with PPG in a particular product line. When the misappropriation came to light and PPG sued TMG, the latter watched from overseas rather than litigate. As a consequence, PPG asked the District Court to enter default judgment and award damages in the amount that TMG was unjustly enriched. Only then did TMG decide it was worth coming to court. The District Court granted PPG’s motion. The Third Circuit affirmed, ruling that TMG’s “protestations were and are too little and much too late.”

#CivilLaw, #DefaultJudgment

Duncan v. Governor of the Virgin Islands

In this putative class action, the Third Circuit reversed the District Court’s ruling that the plaintiff lacked standing. The plaintiff brought a class-action lawsuit against the Government of the Virgin Islands and its high-ranking officials, seeking to end what she described as the Territory’s practice of delaying income tax refund checks for most taxpayers but expediting refunds for certain favored taxpayers and government employees. This interlocutory appeal of the District Court’s denial of class certification hinged primarily on the legal effect of one fact: the plaintiff’s receipt of a refund check from the Territory during the pendency of her lawsuit. The District Court held that the refund check called into question the plaintiff’s standing to press certain claims and made all of her claims atypical of the claims of the putative class. The District Court also held that the plaintiff failed to meet her burden of proving that she was an adequate representative of the class. The Third Circuit disagreed with the District Court’s conclusion that the mid-litigation refund check deprived the plaintiff of standing and rendered all of her claims atypical. And, in evaluating whether the plaintiff was an adequate representative, the District Court applied a legal standard inconsistent with Third Circuit precedent.

#CivilLaw, #ClassAction, #Standing

Zirpoli v. Midland Funding, LLC

In this dispute involving the “mind-bending issue of arbitration about arbitration,” the Third Circuit ruled that the District Court erred in not granting the motion to compel and refusing to refer the dispute to an arbitrator. OneMain Financial Group contracted with Zirpoli. The contract included a clause that delegated any question of arbitrability to arbitrators. OneMain then assigned the contract to Midland Funding LLC. Litigation between Midland and Zirpoli ensued, and Midland filed a motion to compel arbitration. Zirpoli opposed that motion, arguing that Midland cannot compel arbitration because
OneMain’s assignment to Midland is void under Pennsylvania law. The District Court denied the motion. The Third Circuit reversed, holding that the parties “clearly and unmistakably expressed an agreement to arbitrate the issue of arbitrability.”

#CivilLaw, #Arbitration

Clemens v. ExecuPharm, Inc.

The Third Circuit issued a crucial ruling on standing and what makes an injury cognizable in this data breach case. After a company’s data was hacked, a former employee’s confidential information wound up on the dark web. She sued the company, claiming that she “sustained a variety of injuries— primarily the risk of identity theft and fraud—in addition to the investment of time and money to mitigate potential harm.” The Third Circuit reversed the District Court’s order that had granted the company’s motion to dismiss under Rule 12(b)(6). On appeal, the issue dealt with injury, and more specifically, the first two prongs of the oft-cited Lujan standard were at issue: (1) an injury in fact, and (2) causation. The Court found that the employee satisfied the injury-in-fact prong because she suffered a substantial risk that harm will occur sufficient to establish imminent injury. And the Court ruled that she also adequately pled that the injury was traceable to her former employer. Thus, the Court reversed the District Court’s order and remanded for the case to proceed.

#CivilLaw, #Standing, #Injury

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