Opinion Summaries for the

Welcome to Sullivan|Simon’s summaries of last week’s precedential appellate decisions from the Pennsylvania and New Jersey state courts, as well as the Third Circuit. Click on a case name, and you will be redirected to the court’s opinion.


Commonwealth v. Smith (Criminal Law, Suppression, RRRI)

The Pennsylvania Superior Court ruled that parole agents properly conducted a warrantless search of a parolee’s residence because the 42 Pa.C.S.A. § 9912(d) factors were satisfied. Furthermore, the Court held that defendant was not RRRI eligible because he had a prior terroristic threats conviction. 

Golik v. Erie Ins. Exch. (Civil Law, Stacking)

The Pennsylvania Superior Court dealt with 75 Pa.C.S.A. § 1738, which addresses stacking of UM/UIM coverage. A husband was the first named insured on an automobile insurance policy that also included his wife. He executed a stacking waiver, but the wife did not and she didn’t know about the waiver. She was injured and requested stacking. The Court ruled against her, finding the husband’s waiver binding.

Doe v. The Cheesecake Factory (Civil Law, Arbitration)

The Pennsylvania Superior Court rejected the Cheesecake Factory’s claim that an arbitrator abused his discretion by relinquishing jurisdiction to the trial court. The Superior Court held that the language of the agreement showed that the parties intended to grant the arbitrator the power to exclusively determine arbitrability. The arbitrator used that power to return the case to the courts. Guess this Court prefers Applebees. 

Commonwealth v. Mabus (Criminal Law, Expert Testimony)

The Pennsylvania Superior Court rejected defendant’s novel challenge to his BAC reading in this DUI case. In a motion in limine, defendant called an expert who criticized BAC measurements, in general, because they are not accompanied by a level of uncertainty. According to the expert, every measurement should have a level of uncertainty. And a measurement without an accompanying level of uncertainty is scientifically invalid. The Court ruled the BAC evidence was relevant and admissible under Frye.

Commonwealth v. Sheets (Criminal Law, Attempted Murder)

In a grisly case, the Pennsylvania Superior Court ruled that the Commonwealth presented sufficient evidence to prove two counts of attempted murder against the same victim. Defendant lured the victim into the woods, shot him, and left him for dead. But he didn’t die. So, hours later, defendant came back and tried and failed again to kill him. The Court ruled those acts constituted two counts of attempted murder.

Trust Under Deed of Garrison (Family Law, Trusts)

On remand from the Pennsylvania Supreme Court, the Superior Court dealt with a dispute over agreements to modify inter vivos trusts. The Court ruled that an executor adequately pled undue influence. The Court also ruled that undue influence may be pled generally, but the averments here would have been sufficient even if it must be pled with particularity. 

In the interest of R.R.D. (Family Law, Parental Rights)

The Pennsylvania Superior Court ruled that the County Youth & Family Services failed to prove by clear and convincing evidence that the condition which led to the removal or placement of children — here, inadequate housing — continued to exist, as required by 23 Pa.C.S. § 2511.

O’Leary v. Unemployment Comp. Bd. of Rev. (Administrative Law, Unemployment Compensation)

This marks the second time the Pennsylvania Commonwealth Court reversed an order of the Unemployment Compensation Board in this case. The Court held that absenteeism, taken alone, does not generally amount to willful misconduct and that under 42 P.S. § 802(e). As a result, petitioner’s absence from work was not willful.

N-Jie v. Pa. Dep’t of Transp. (Administrative Law, Taking)

The Pennsylvania Commonwealth Court held that the lower court properly ordered a board of viewers to assess the value of a pedestrian bridge that PennDOT destroyed during highway construction.

Borough of Middletown v. Pa. Pub. Util. Comm’n (Administrative Law, Energy Law)

The Pennsylvania Commonwealth Court ruled that the Public Utility Commission erred when it concluded that petitioner had the right to obtain electric distribution service from a provider based on the provider having the authority to offer services under its current or preexisting certificate of public convenience, or by virtue of the provider’s acquisition of grandfathered or legacy rights when it acquired another electric distribution facility. 

Washington v. Pa. Dep’t of Transp., Bureau of Driver Licensing (Administrative Law, Driver’s License)

The Pennsylvania Commonwealth Court ruled that driver’s criminal conviction for conspiracy to flee or elude police was not a predicate for license suspension under 75 Pa.C.S. § 1532 because that statute does not include inchoate offenses.

Philadelphia v. A Kensington Joint, LLC (Administrative Law, Real Property)

The Pennsylvania Commonwealth Court ruled that the trial court properly granted City officials the right to enter, inspect, and vacate a derelict property, but the court erred by allowing demolition of the building as a remedy to abate violations.

Arrowhead ECD Properties, LLC v. Zoning Hearing Bd. of West Pikeland Twp. (Administrative Law, Zoning)

The Pennsylvania Commonwealth Court held that the Municipalities Planning Code did not authorize a Zoning Hearing Board to review a permit issued pursuant to a mandamus order. Thus, the Board lacked jurisdiction to rule on a landowner’s appeal.


Cardali v. Cardali (Family Law, Alimony)

This case involved divorce, private investigators, and alimony. Ex-husband believed ex-wife was cohabitating with her new beau. If that were true, he could reduce his alimony. His private investigator caught the love birds together. The New Jersey Supreme Court offered its interpretation of the procedural and substantive rules governing the factors under N.J.S.A. 2A:34-23(n) a movant must analyze when seeking a change in circumstances for an alimony adjustment.

State v. O’Donnell (Criminal Law, Bribery)

Only in Jersey: A candidate for mayor of Bayonne accepted a $10,000 bribe to appoint someone as tax counsel upon taking office. But the candidate lost the election, so the person was never appointed. The New Jersey Supreme Court reinstated the candidate’s indictment charging bribery because the law applies to any “person” who accepts an improper benefit — incumbents, candidates who win, and candidates who lose.

State v. Zadroga (Criminal Law, Double Jeopardy)

The New Jersey Supreme Court allowed this long-running saga to drag on. During a death-by-auto and DWI trial, the State realized that it analyzed someone else’s blood by accident. Defendant argued that a retrial, even on the counts unrelated to intoxication, is barred by New Jersey’s Constitution’s Double Jeopardy Clause. The Supreme Court disagreed and allowed the non-DWI charges to proceed.

Conforti v. Cnty. of Ocean (Civil Law, Negligence)

For the first time in more than a year, the New Jersey Supreme Court issued a non-unanimous verdict. Here, the Court affirmed a jury’s verdict finding the County liable for the death of an inmate at the county jail. The Court held that the County was negligent beyond any immunities possibly granted under the Tort Claims Act.

State v. Nieves (Criminal Law, Knock & Announce)

The New Jersey Appellate Division ordered the suppression of evidence, where officers executing a search warrant waited less than five seconds after their knock before they forcibly entered defendant’s residence. Defendant was able to establish with security camera footage that the officers waited less than five seconds and it was 5:00 a.m.

State v. Wade (Criminal Law, Second Amendment)

The New Jersey Appellate Division reversed an order of the trial court that dismissed gun charges against defendants. The Court ruled that defendants had no standing to challenge the constitutionality of New Jersey’s gun permitting regime, and, even if they had standing, their challenges failed on the merits. 

Hardy v. Jackson (Civil Law, Marriage)

True love cannot be thwarted, even by prison. The New Jersey Appellate Division ruled that a municipal clerk had the authority to waive a requirement that couples appear in person to obtain a marriage license. Here, the betrothed were incarcerated in separate prisons and requiring them to show up in person would have violated their civil rights.


United States v. Porat (Criminal Law, Fraud)

The Third Circuit affirmed the jury’s verdict against the former dean of Temple University’s Fox School of Business. Defendant argued that he only deprived students of a U.S. News ranking, and not money, by employing false data to inflate the school’s reputation. But the Court disagreed and distinguished the case from SCOTUS’s recent fraud cases. The Court also held that the Government did not need to prove that Defendant himself financially benefited from his scheme and the Court refused to adopt the Ninth Circuit’s theory of “convergence.”

Wolf v. Aetna Life Ins. Co. (Civil Law, Class Action)

The Third Circuit ruled that Aetna failed to perfect this interlocutory appeal because it did not appeal within fourteen days from the lower court’s order granting class certification. Instead, it filed the appeal fourteen days after the lower court revised its class certification order by rewording the class definition. The Court ruled the tardy appeal would only be allowed if the modification order materially altered the original order. Here, it did not.

Medical Assocs. of Erie v. Zaycosky (Civil Law, Removal, Attorneys’ Fees)

This case began in state court. Defendant removed to federal court, which remanded to state court based on a forum-selection clause in the contract at issue. The Third Circuit was tasked with determining whether the lower court could award attorneys’ fees for the removal litigation. The Third Circuit ruled that, under 28 U.S.C. § 1447(c), the District Court lacked authority to impose attorneys’ fees because the statute allows fee shifting only for remands where the removal failed to meet the statutory requirements or where the court lacks subject matter jurisdiction over the removed case.

Ishmael v. Att’y Gen. (Immigration Law, Visa Waiver Program)

The Third Circuit ruled that petitioner was entitled to a plenary review of his immigration status and not an asylum-only proceeding. He entered the country with a fake passport to qualify for the Visa Waiver Program. Years later, officials moved to reopen his old asylum-only proceeding because he incurred a new arrest. The Court ruled that he is entitled to an unrestricted removal proceeding that will allow him to present his claim for lawful permanent residence to an immigration judge.

Hickey v. Univ. of Pittsburgh (Civil Law, COVID)

The Third Circuit largely permitted claims from former students at the University of Pittsburgh and Temple University to proceed in this consolidated class action. The students sought partial refunds of tuition and fees on the grounds that they received a materially different educational experience than they were promised because the schools shut down in–person education during the COVID pandemic. The Court reversed the trial court’s grant of relief on the schools’ Rule 12(b)(6) motions.

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