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.


Logic Technology Development, LLC v. United States Food and Drug Admin. (Admins Law, Cigarettes)

The Third Circuit affirmed a ruling by the FDA that denied the applications of importers and manufacturers to market menthol-flavored electronic nicotine delivery systems (a/k/a e-cigarettes).


J.C.D. v. A.L.R. (Family Law, Standing)

The Pennsylvania Supreme Court held that an order determining that grandparents did not have standing under 23 Pa.C.S. § 5325(3) to file and pursue an action for partial physical custody of their grandchildren is an interlocutory order and not appealable as of right. As such, the Court affirmed the Superior Court’s opinion that quashed the grandparents’ appeal.

Read Justice Wecht’s concurring opinion here.

Read Justice Todd’s dissenting opinion here.

Commonwealth v. Smith (Criminal Law, Waiver)

The Pennsylvania Superior Court affirmed the lower court’s order granting a motion to suppress. The Court ruled that the Commonwealth failed to preserve various theories for appellate review by failing to include one issue in its statement of errors and tried to raise the inevitable discovery doctrine for the first time in its opening brief. 

Commonwealth v. Griffith (Criminal Law, Theft)

The Pennsylvania Superior Court went a long way to finding the evidence sufficient to prove theft of property lost, mislaid, or delivered by mistake. The defendant and victim got into an altercation during which the victim lost her cell phone. When the victim called the phone, defendant answered and was rude. Victim never got her phone back. Defendant testified that she found the phone where it fell, answered it when the victim called, and then tossed it back where she found it and never thought about it again. The Court held that evidence established defendant’s intent to deprive victim of the property and her failure to take reasonable measures to restore the property.

Read Judge Bender’s dissenting opinion here.

Commonwealth v. Jenkins (Criminal Law, ARD)

The Pennsylvania Superior Court affirmed an order removing defendant from the Accelerated Rehabilitative Disposition Program (ARD). Defendant was stopped for two DUIs within a few months. Shortly after he was charged with the first, he was admitted into ARD, but the Commonwealth had not charged him with the second DUI. Neither the courts nor the prosecutor were aware of the second DUI. The prosecutor moved to remove the defendant from the program once the new arrest came to light. The Court held that the defendant’s failure to disclose his second DUI arrest carried an element of deception by omission which, if allowed to stand, would defeat the spirit and purpose of the ARD program.

Commonwealth v. Papp (Criminal Law, First Amendment)

The Pennsylvania Superior Court affirmed appellant’s conviction for harassment under 18 Pa.C.S. § 2709(a)(7). The Court rejected her claim that the harassment statute violates the First Amendment of the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution on its face and as-applied to the facts of her case. The Court also affirmed the lower court’s refusal to instruct the jury on appellant’s protections under the First Amendment.

Dice v. Chocha-Pipan (Civil Law, Appellate Practice)

The Pennsylvania Superior Court held that all challenges to a sheriff’s sale of a property were waived. The Court reminded litigants that it may neither litigate for the parties nor reverse a lower court order on the basis of a waivable argument that the appellant chose not to make.

R.A. Greig Equip. Co. v. Mark Erie Hospitality, LLC (Civil Law, Mechanics’ Lien)

The Pennsylvania Superior Court ruled that Telehandler and equipment rental payments were not “incorporated into the improvement” to property. As a result, they do not constitute “materials” and are not subject to a mechanics’ lien under 49 P.S. § 1201(7).

Pa. Game Comm’n v. Kapec (Administrative Law, Real Property)

In this quiet title action, the Pennsylvania Commonwealth Court vacated the lower court’s order that granted the public access to a private road that crossed the defendant’s land.

Schindler Elevator Corp. v Dep’t of Labor and Indus. (Administrative Law)

The Pennsylvania Commonwealth Court reversed the Department of Labor and Industry, Elevator Safety Board’s order that compelled an elevator company to install a “physical, manually-operated car blocking device” in each elevator.

Lehigh Cnty. v Lehigh Cnty. Deputy Sheriff’s Ass’n (Administrative Law, Arbitration)

The Pennsylvania Commonwealth Court affirmed an order of the Court of Common Pleas that denied the County’s petition to review and vacate an arbitration award in this employment dispute. Employee was a sheriff’s deputy who was injured in the course of duty. She continued to receive treatment for her injury during work hours once she returned to duty. The county compelled her to use accrued sick and vacation time for those treatments. But the arbitrator found that the Heart and Lung Act forbade that practice.

In re Wilde (Administrative Law, Inheritance Tax)

The Pennsylvania Superior Court reversed an order of the lower court and held that a couple owned their trust with the right of survivorship. Thus, when husband died, wife (and no one else) succeeded to husband’s interest in the trust. The Court concluded that the trust was not subject to tax before wife died because the General Assembly’s “manifest objective” was to “spare a husband and wife from inheritance tax on transfers to each other while imposing tax on others.”

Lewis v. Lehigh Asphalt Paving & Constr. Co. (Workers’ Comp. Appeal Bd.) (Administrative Law, Workers’ Comp.)

The Pennsylvania Commonwealth Court affirmed an order of the Workers’ Compensation Appeal Board that in turn affirmed the Worker’s Compensation Judge’s order denying and dismissing Claimant’s Claim Petition for Compensation Benefits and Penalty Petition filed against his employer. The Court ruled that Employer reasonably (and ultimately successfully) contested the Claim Petition on the basis of the third prong of the test promulgated in Workmen’s Comp. Appeal Bd. (Slaugenhaupt) v. United States Steel Corp., 376 A.2d 271 (Pa. Cmwlth. 1977), thus no relief was due.

Tank Car Corp. of America v. Springfield Twp. (Administrative Law, Eminent Domain)

After a non-jury trial, the Court of Common Pleas awarded condemnee about $500,000 after the County took property for use as a public park. Both sides appealed, with the condemnee arguing that the trial court committed several evidentiary mistakes and that its verdict was against the weight of the evidence. The County claimed that the lower court erred by not accepting its expert appraiser’s testimony of a 20% reduction for environmental stigma. The Pennsylvania Commonwealth Court affirmed, rejecting all appellate claims.

Swoboda v. Pa. Dep’t of State (Office of Open Records) (Administrative Law, Right to Know Law)

The Pennsylvania Commonwealth Court rejected a petition for review of a final determination of the Office of Open Records. The petitioners sought a copy of the Full Voter Export List, otherwise known as the public information list. But petitioners did not utilize the voter services website to obtain the list because the Department requires all requesters to sign an affirmation under penalties of 18 Pa.C.S. § 4904 prior to its release of any records. The Court affirmed the denial and held that a First Amendment claim was waived for failure to raise it below.

East Penn Twp. v. Swartz (Administrative Law, Settlement Agreement)

The Pennsylvania Commonwealth Court affirmed an order of the Court of Common Pleas that denied landowner’s motion to enforce a settlement agreement with a township concerning zoning violation notices issued to landowners. The Court held that the parties did not have a meeting of the minds as to all essential terms of the agreement, and the landowners continued to repudiate a final adjudication in favor of the township.


The New Jersey courts did not issue any precedential opinions this week.

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