Opinion Summaries for the

Below are summaries of the precedential appellate decisions from Pennsylvania, New Jersey, and the Third Circuit for the week of September 5. Click on a case name, and you will be redirected to the court’s entire opinion.


Commonwealth v. Krock

The Pennsylvania Superior Court affirmed the dismissal of the defendant’s PCRA petition. The defendant drove drunk with his girlfriend and her three children as passengers when he hit another vehicle and flipped his pickup truck, injuring the children and killing their mother. A jury convicted him of reckless endangerment, endangering the welfare of a child (“EWOC”), and DUI. The defendant filed a PCRA petition alleging trial counsel’s ineffectiveness for failing to challenge the sufficiency of the evidence of his EWOC conviction, specifically, the “duty” element of the statute. He argued that the mere fact that he was driving the vehicle in which the three children were injured did not make him a “supervisor of the welfare of a child” for purposes of EWOC. The trial court dismissed the petition. The Superior Court interpreted the EWOC statute and determined that it covers a broad range of conduct to safeguard the welfare and security of children. The Court ruled that “the fact that the children’s now-deceased mother was an occupant of the vehicle did not relieve the defendant, as the operator of the truck, of his duty to supervise the welfare of her children. When an adult is driving a vehicle in which a child is a passenger, common sense dictates that the driver is supervising that child and, thus, has a duty of care towards those young passengers.”

CriminalLaw, PCRA

Commonwealth v. Boyer

The Pennsylvania Superior Court dealt with a saga involving a rogue cop, a grand jury investigation, and indirect criminal contempt. The defendant is a former Philadelphia Police Officer. He was fired after he “mishandled” $6,000 during an arrest. An investigating grand jury was convened and served him with a witness subpoena. At an initial hearing, the judge presiding over the grand jury administered the oath to the defendant and ordered him to keep everything about the proceedings secret. He didn’t. Instead, he used his “newspages” to share confidential information. He was charged with indirect criminal contempt, but the trial court meted no punishment. The defendant appealed, and the Superior Court affirmed. The defendant raised numerous challenges, ranging from notice to jurisdiction. The Court found each argument meritless.

CriminalLaw, Contempt

In re Trust Under Agreement of Wells

The Superior Court of Pennsylvania dealt with an issue of first impression in this appeal where the Virginia Military Institute sought to terminate the trust of a wealthy bank magnate from Oil City, Pennsylvania (the author of this summary is tickled pink that there is an actual city named Oil City). The bank magnate died, and VMI has received the trust’s net income for years. But the trustee’s expenses amount to nearly 30 percent of the income, and VMI argued that such a cost is out of proportion to the intended benefits of the Trust to its beneficiary, and the trust should therefore be terminated. VMI sought termination of the trust pursuant to the Charitable Trust Termination Statute, which governs judicial termination of charitable trusts. The Superior Court affirmed the order of the Orphans’ Court, which denied VMI’s request. Both courts agreed that the language and circumstances surrounding the establishment of the trust leave no doubt about the settlor’s intent, and there is nothing further to analyze. The settlor intended to create an irrevocable trust, and the Superior Court ruled that it would not go against that wish.

FamilyLaw, Trusts&Estates

Jones v. Erie Ins. Exchange

In this underinsured motorist automobile insurance action, the Pennsylvania Superior Court held that a contractual exclusion contained in the Joneses’ personal automobile insurance policy issued by Erie Insurance Exchange violated Pennsylvania’s Motor Vehicle Financial Responsibility Law.

Civil Law, Insurance Dispute

Online Merchants Guild v. Hassell

The Pennsylvania Commonwealth Court ruled that Pennsylvania’s Department of Revenue failed to provide sufficient evidence to prove that non-Pennsylvania merchants in Amazon’s Fulfilment by Amazon program must remit Pennsylvania sales tax or pay personal income tax on goods sold in the state.

AdministrativeLaw, TaxLaw


State v. Alvarez

The New Jersey Appellate Division sidestepped a critical question about whether a criminal defendant’s immigration lawyer’s deficient performance can qualify as ineffective assistance of counsel. Instead, in this PCR matter, the Court ruled that the defendant failed to prove prejudice. The ruling was based on State v. Taccetta, which held that a criminal defendant cannot plead guilty while protesting his innocence — essentially foreclosing nolo contendere pleas. Here, the defendant insisted that he did not commit the crimes. Thus, the Court reasoned that he could not claim he would have taken a plea if his immigration attorney had given him better advice.

CriminalLaw, Immigration

State v. Chau

The New Jersey Appellate Division vacated the order dismissing the defendant’s PCR petition. The Court ruled that the “defendant established excusable neglect for failing to file a timely PCR petition in accordance with State v. DiFrisco.” Moreover, the Court found that there was a reasonable probability that if the defendant’s factual assertions that he pleaded guilty to receiving stolen property, not because he was guilty but because he got erroneous advice about the immigration consequences of risking trial and a jail term, were found to be accurate, enforcement of the time bar would result in a fundamental injustice. Finally, the Court ordered the lower court to consider the defendant’s Slater motion.

Criminal Law, PCR


United States v. Norwood

The Third Circuit ruled that the Mandatory Victims Restitution Act of 1996 (“MVRA”) violates the ex post facto clause of the Constitution insomuch as it enlarges the amount of time that defendants are subjected to restitution obligations when the defendants were sentenced before the MVRA’s enactment.

CriminalLaw, Restitution

Barney v. Adm’r NJ State Prisons

The Third Circuit affirmed the denial of the defendant’s habeas corpus petition alleging ineffective assistance of counsel. The appeal presented two issues: Did the trial court deny the defendant the right to represent himself? And did his lawyer perform deficiently by not securing that right? The Court held that the state court did not unreasonably deny his request to represent himself. And because the defendant did not prove that trial counsel’s actions prejudiced him, the ineffective assistance claim failed.

Criminal Law, Habeas

Lopez v. Att’y Gen.

The Third Circuit denied this petition for review that dealt with the intersection of the Nicaraguan Adjustment and Central American Relief Act (“NACARA”) and the Immigration and Nationality Act (“INA”). The petitioner tried to avoid deportation but could not do so under the NACARA due to his drug convictions. He requested a waiver of NACARA’s requirements under Section 212(h) of the INA, which applies to applications for the adjustment of status. “But § 212(h) is inapplicable because an application for NACARA cancellation of removal is not an application for adjustment of status under the best reading of the INA.”

Immigration, Removal

In re Peralta

The Third Circuit affirmed an order of the District Court, ruling that a house was not part of a debtor’s bankruptcy estate because a seller had already received a judgment of possession to evict. Instead of a traditional mortgage, the debtor entered into an installment contract with the owner. But he defaulted. The owner went to court and got a judgment for possession. The debtor then filed for Chapter 13 bankruptcy to save the home. But the courts ruled that the debtor no longer had a legal or equitable interest in the property when he filed for bankruptcy. He lost any interest in the home when the seller received the judgment for possession.

CivilLaw, Contracts

Perrone v. Johnson & Johnson

In this class action alleging ERISA violations, the Third Circuit affirmed the order granting the defendant’s motion to dismiss. The Court ruled that the plaintiffs did not satisfy the test outlined in Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409, 428 (2014), where the Supreme Court held that a plaintiff seeking to bring such a claim must plausibly allege “an alternative action that the defendant could have taken that would have been consistent with the securities laws,” and, further, “that a prudent fiduciary in the same circumstances would not have viewed [the proposed alternative action] as more likely to harm the fund than to help it.”

Civil Law, Class Action

Gelis v. BMW of N. Am.

In this class action, the Third Circuit vacated the District Court’s counsel fees award. The Third Circuit ruled that the District Court’s calculation of the “lodestar” (essentially a multiplication of the hours counsel reasonably billed on a case by a reasonable hourly rate) was based on an insufficient record.

Class Action, Counsel Fees

In re Maxus Energy Corp.

In this bankruptcy case, the Third Circuit affirmed the Bankruptcy Court’s denial of a disqualification motion because the law firm timely screened the conflicted attorney, as required by the Model Rules of Professional Conduct.

Bankruptcy, Conflict of Interest

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