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.


United States v. Packer (Right to Allocute, Plan Error Review)

Don’t forget to object! At the hearing on revocation of supervised release, defendant did not object when the district court sentenced him without first allowing allocution. Because there was no objection, the Third Circuit utilized plain error review–a heightened standard of review–and affirmed.

PG Publishing Co., Inc. v. Nat’l Labor Rel. Bd (Employment Law)

“Never pick a fight with anyone who buys ink by the barrel and paper by the ton.” PG fired two paper handlers during the negotiations with their union for a successor to a collective bargaining agreement. The NLRB found that PG engaged in an unfair labor practice. The Third Circuit reversed. The parties’ arguments implicated two principles identified in the Supreme Court’s decisions under the National Labor Relations Act.

Pesikan v. Att’y Gen. (Immigration Law, Offense Involving a “Controlled Substance”)

The Third Circuit ruled that a 2018 Pennsylvania conviction for driving under the influence of marijuana was not an offense involving a “controlled substance,” as defined in the federal Controlled Substances Act. The Court held that “because the identity of the specific controlled substance is not an element of the Pennsylvania DUI statute, the state statute of conviction is indivisible and cannot serve as the basis for Pesikan’s removal under the INA.”

Dzielak v. Whirlpool Corp. (Contract Law, Class Action, Breach-of-Warranty)

In this class action that began in 2012, plaintiffs made claims concerning the allegedly wrongful display of the Energy Star logo on the three models of washing machines that did not meet Energy Star standards under the July 2010 Program guidance. The Third Circuit affirmed the district court’s grant of summary judgment. The Court rejected the plaintiffs’ two claims: First, that the district court erred in dismissing their breach-of-express-warranty claims; second, genuine disputes of material fact prevent summary judgment on their claims for breaches of express warranty and violations of the state consumer-protection statutes.


Commonwealth v. McGee (PCRA, Timeliness)

Defendant filed a PCRA petition decades after his conviction, asserting that the sentencing order contained a “patent and obvious error” that warranted relief. The PCRA court agreed and granted relief. The Pennsylvania Supreme Court disagreed and reversed, ruling that there was no “patent and obvious error.” Instead, defendant’s untimely claim implicated his sentence’s legality. 

Commonwealth v. Watkins (Criminal Law, Search & Seizure)

May the police use a License Plate Reader (LPR) to track someone’s movements? The Pennsylvania Superior Court ruled that using an LPR is not a search because “the purpose of a license plate attached to a vehicle is to provide information, and such license plate is in plain view when the vehicle is operated on the roadways.”

Commonwealth v. Ochoa (Criminal Law, Search & Seizure)

The Pennsylvania Superior Court vacated the trial court’s order that denied defendant’s suppression motion. The Court ruled that the police unlawfully subjected him to a second investigative detention when they continued questioning him and did not return his keys after he passed field sobriety tests.

Commonwealth v. Lowe (Criminal Law, Sentencing)

The Pennsylvania Superior Court ruled that the trial court imposed an illegal sentence because the court “lacked statutory authority to declare that Appellant was eligible for parole after serving only 60 months of his 87-month minimum sentence.” 

Commonwealth v. Torres (Criminal Law, Juveniles)

The Commonwealth tried the defendant as an adult for his actions as a juvenile. The Pennsylvania Superior Court affirmed, ruling that though he committed the crimes when he was under 18, Juvenile Court is not the proper venue to try adult defendants, regardless of when the offenses allegedly occurred.

Chappell v. Powell (Civil Law, Service of Process)

In this appeal involving service of process, the Pennsylvania Superior Court concluded that “the trial court erred as a matter of law in granting Powell’s preliminary objections where: (1) the court explicitly gave Chappell 45 days to either effectuate proper service on Powell or move for alternative service; (2) Chappell moved for alternative service within 45 days of the court’s order; (3) the court granted Chappell permission to alternatively serve Erie, Powell’s insurer, within 10 days; and (4) Chappell served Erie one day later.

Stop Blight Inc. v. Dinardo (Civil Law, Abandoned and Blighted Property Conservatorship Act)

The Pennsylvania Superior Court analyzed the Abandoned and Blighted Property Conservatorship Act and affirmed the trial court’s order. The Court determined that the trial court correctly sustained the preliminary objections of United States Financial Enterprises and dismissed SBI’s conservatorship action, which had been filed pursuant to the Abandoned and Blighted Property Conservatorship Act concerning a property owned by defendant.

In re Sletten Family Trust (Civil Law, Trusts & Estates)

This matter concerned whether mortgage payments made by from Trust funds were valid Trust obligations. The Pennsylvania Superior Court affirmed the lower court’s substantive rulings on the objections to the Second Account of the Trust, denied the Sletten Children’s request for sanctions, and remanded for a recalculation of the amount remaining for distribution.

Johnson, Jr. v. Toll Brothers, Inc. (Civil Law, Summary Judgment)

The Johnsons sued, alleging various defects in the newly built home. The Pennsylvania Superior Court affirmed the trial court’s order that granted summary judgment in favor of Andersen Windows, Inc. and dismissed the Johnsons’ claims against that party on the grounds that the economic loss doctrine, the gist of the action doctrine, and the statute of limitations procedurally bar them. 

In re D.J.K. (Juvenile Law, Rape Shield Statute)

The Pennsylvania Superior Court ruled that the trial court correctly granted the Commonwealth’s motion in limine under the Rape Shield Statute. The victim’s allegations of sexual assault against an unrelated individual “in no way exculpated Appellant for his crimes, nor did it provide a basis to infer that the victim had a bias or motive to fabricate allegations in this matter.

Estate of Hogarty v. Jeffers Farms, Inc. (Civil Law, Summary Judgment)

This case involved a dispute over stock certificates from a family-owned tree-farming business. The Pennsylvania Superior Court affirmed the trial court’s order that (1) granted defendants’ motion for summary judgment based upon a finding that the statute of limitations and laches barred plaintiffs’ claims and (2) denied as moot plaintiffs’ motion for partial summary judgment.

Godlove, Sr. v. Humes (Insurance Law, Preliminary Objections)

The issue in this appeal “was whether it was legally and procedurally permissible for Appellants, as the injured parties in a related civil action, to institute this declaratory judgment action against the alleged tortfeasors’ insurance carrier.” The Pennsylvania Superior Court ruled that the trial court erred when it dismissed Appellants’ declaratory action. The Court determined “that there was no issue of non-justiciability.” 

In re Estate of Rush (Civil Law, Return of Property)

The Pennsylvania Superior Court affirmed the dismissal of a petition seeking the return of real estate. The Court ruled that counsel waived the appeals’ claims for failing to file a 1925(b) statement. And even if counsel had not waived the issues, they were meritless. 

In re Estate of Kittler (Civil Law, Trusts & Estates)

The Pennsylvania Superior Court affirmed the lower court’s denying a petition for citation sur appeal from the register’s decree refusing to probate a will. Appellant challenged the orphans’ court’s interpretation of Probate Code Section 2502. The Court (reluctantly) ruled that the electronic signature on a will was invalid because “Neither our General Assembly nor our Supreme Court have approved the use of DocVerify, or any other software, in executing a valid will.”

B.K.P. v. J.R.B. (Family Law, Protection from Abuse)

The Pennsylvania Superior Court ruled that the evidence was sufficient for the trial court to grant a P.F.A.

Weeks v. Dep’t Human Svs. (Administrative Law, Lawmaking Process)

The Pennsylvania Supreme Court determined that the lawmaking that culminated in the passage of Act 12 of 2019, which enacted changes to the Pennsylvania Human Services Code, satisfied the requirements of Article III of the Pennsylvania Constitution.

In re Petition for Objections and Exceptions to Upset Sale (Administrative Law, Tax Sale)

The Pennsylvania Commonwealth Court vacated the trial court’s order granting the intervention of the tax sale’s successful bidder. The trial court erred because it did not address whether extraordinary cause existed for the untimely intervention petition.


Zimmerman v. Diviney (New Jersey Public Adjuster’s Licensing Act, Administrative Law)

In these consolidated appeals, the administrative agency determined that appellants violated the New Jersey Public Adjuster’s Licensing Act. The New Jersey Appellate Division The Court held, “Except for the commissioner’s misinterpretation of N.J.A.C. 11:1-37.13(b)(5)(i) and (ii), [the’ regulations at issue here regarding public adjuster contracts otherwise flow logically from the legislative authority granted to the commissioner to protect consumers.”

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