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 entire opinion.


Commonwealth v. Rosario (Criminal Law, Probation)

The Pennsylvania Supreme Court put an end to anticipatory revocation of probation. The Court held that Section 9771 of the Sentencing Code forbids the practice of revoking a term of probation before it begins. 

Read Justice Mundy’s dissenting opinion here.

Commonwealth v. Armolt (Criminal Law, Juvenile Law)

The Pennsylvania Supreme Court confronted the complicated issue of what court has jurisdiction over an adult defendant who committed crimes when he was a juvenile: The Criminal Division or the Juvenile Division? Unfortunately, the highly fractured court only complicated the issue, though it affirmed the defendant’s convictions in adult court.

Read Justice Todd’s concurring opinion here.

Read Justice Wecht’s concurring opinion here.

Commonwealth v. Koger (County Parole Revocation, Statutory Interpretation)

Defendant argued that the trial court erred when it revoked his county parole because the court did not review the terms and conditions with him. The Pennsylvania Supreme Court held “that sentencing courts are authorized to delegate to county probation officers the responsibility of communicating to defendants the conditions of their parole, and to do so post-sentencing.”

Read Justice Donahue’s concurring opinion here.

Commonwealth v. McCready (PCRA, Layered Ineffectiveness)

Appellant asserted that the lower court should have held an evidentiary hearing on his claim of PCRA counsel’s ineffectiveness for failing to adequately develop the record on the issue of trial counsel’s ineffectiveness. The Pennsylvania Superior Court ruled that since appellant could not show that trial counsel was ineffective, there was no need for an evidentiary hearing on PCRA counsel’s alleged ineffectiveness.

Commonwealth v. Barkman (Criminal Law, Weight/Sufficiency)

The Pennsylvania Superior Court affirmed a husband and wife’s convictions for endangering the welfare of their children. This opinion is a clinic on how not to handle weight and sufficiency claims on appeal. The Court also rejected a novel but meritless allegation of prosecutorial misconduct.

Alpini v. Workers’ Comp. App. Bd. (Tinicum Twp.) (Administrative Law, Workers’ Comp.)

The Pennsylvania Supreme Court ruled that a workers’ compensation claimant’s Dram Shop Act claim arose out of the maintenance or use of a motor vehicle. Therefore, the Court held that Section 1730 of the Motor Vehicle Financial Responsibility Law precluded Employer from subrogating against claimant’s third-party settlement of such claims.

Read Justice Dougherty’s concurring opinion here.

Read Justice Wecht’s dissenting opinion here.

Aita v. NCB Mgmt. Servs., Inc. (Civil Law, Employment Law)

The Pennsylvania Superior Court ruled that a claim for liquidated damages can be maintained separate and apart from whether there is still an outstanding claim for unpaid wages under Wage Payment and Collection Law. Here, the employer paid the wages before the commencement of the suit. But that was no defense.

Read Judge Bowes’s dissenting opinion here.

Budai v. Country Fair, Inc. (Civil Law, Standing)

The Pennsylvania Superior Court ruled that the federal Fair and Accurate Credit Transactions Act does not confer “statutory standing” in Pennsylvania courts. Instead, a party invoking the Act must satisfy Pennsylvania’s traditional three-part standing doctrine. Here, the Court ruled that the parties failed to satisfy the test.

Rouse v. Rosenberg (Civil Law, Emotional Distress Resulting from Interference with a Dead Body)

The Pennsylvania Superior Court ruled that a person does not intentionally withhold a missing murder victim’s body where they allegedly acted as accessories after the fact but are not alleged to have helped hide the body or even know its location. Thus, the trial court correctly sustained defendant’s preliminary objections and dismissed the suit.

Brown v. Oil City (Civil Law, Contractor’s Liability)

The Pennsylvania Supreme Court held that “Section 385 of the Restatement (Second) of Torts imposes liability on a contractor to a third party whenever the contractor, during the course of his work for a possessor of land, creates a dangerous condition on the land that injures the third party, even though, at the time of the injury, the contractor was no longer in possession of the land, and the possessor was aware of the dangerous condition.”

Read Justice Mundy’s dissent here.

South Bethlehem Assoc., LP v. Zoning Hearing Bd of Bethlehem Twp. (Zoning, Standing)

A local zoning board granted a request for variances to build a hotel. Appellant, who owned a competing hotel and opposed the variances, was permitted to appear before the board, cross-examine witnesses, and provide oral argument. The Pennsylvania Supreme Court held that Appellant lacked standing to appeal, as its only interest affected by the zoning board’s ruling was the desire to suppress competition in the open market.

Read Justice Donohue’s dissent here.

Cardinal Midstream II, LLC v. Energy Transfer, LP (Civil Law, Privileged Work Product)

The Pennsylvania Superior Court ruled that because defendant’s engineering reports were produced by experts retained in response to government directives, the reports were not privileged work product under Pennsylvania Rule of Civil Procedure 4003.5(a)(3), which governs discovery of expert testimony.

In re Petitions to Open Ballot Box (Administrative Law, Election Law)

The Pennsylvania Commonwealth Court rejected dozens of petitions seeking to open ballot boxes. The Court ruled that the petitioners did not file separate petitions for each election district where they sought relief, and they did not offer prima facie evidence of fraud or error.

In re Recount of Berks Cnty General Election of November 8, 2022 (Administrative Law, Election Law)

In these consolidated appeals, the Pennsylvania Commonwealth Court affirmed the lower court’s order dismissing recount petitions filed by various Republicans. The Court held that petitioners did not file separate petitions for each election district where they sought relief, and they did not offer prima facie evidence of fraud or error.

Niki D’Atria Enters., Inc. v. Dep’t of Transp. (Administrative Law, Eminent Domain)

The Pennsylvania Commonwealth Court affirmed a jury’s award of $3 million to a salvage yard operator in this eminent domain action. The Court ruled that the jury improperly considered lost profits, and the trial court erred in not giving a charge on that point. But the Court found both errors harmless and affirmed.

Rose Tree Media School District v. Unemployment Comp. Bd of Rev. (Unemployment Law)

In this dispute over a bus driver’s unemployment benefits, the Pennsylvania Commonwealth Court ruled that “Claimant is not entitled to UC benefits for the summer months for which the UCBR properly found he was disqualified because he received reasonable assurance of employment under” Section 402.1(5) of the UC Law.


State v. Harrell (Criminal Law, Confrontation Clause, Tender Years’ Exception)

A child victim’s allegations were memorialized in a video-recorded statement to the police. But before the trial, the victim told the prosecutor she could not remember most of the events she detailed in her video statement. The New Jersey Appellate Division ruled that the trial court erred when it redacted from the video those parts the victim could not remember because there was no violation of the Confrontation Clause.

Pace v. Hamilton Cove (Civil Law, Class Action, Arbitration)

The New Jersey Appellate Division ruled that a residential lease agreement’s waiver of the tenant’s right to file a class action is unenforceable absent a mandatory arbitration agreement. The Court reasoned that New Jersey public policy favors class actions


United States v. Harris (Criminal Law, ACCA)

The Third Circuit held that a Pennsylvania conviction for first-degree aggravated assault does not require physical force and is thus not a predicate offense within the context of the Armed Career Criminal Act.

United States v. Jenkins (Criminal Law, ACCA)

The Third Circuit held that second-degree aggravated assault of a protected individual in violation of 18 Pa. Cons. Stat. § 2702(a)(3) is not a “violent felony” under the Armed Career Criminal Act.

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