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. Delamarter (Criminal Law, Sufficiency)

The Pennsylvania Superior Court held that the commission of a DUI with children in the vehicle is – by itself – insufficient evidence to establish endangering the welfare of a child or recklessly endangering another person. But here, the Court noted three additional factors that supported the EWOC conviction and affirmed.

Read Judge McCaffery’s dissenting opinion here.

Commonwealth v. McLean (Criminal Law, Suppression)

The Pennsylvania Superior Court affirmed the trial court’s order denying suppression of DNA evidence. Defendant was suspected of having sex with a minor and in a separate Family Court proceeding he was ordered to submit his DNA for a paternity test. He refused to comply, was held in contempt, and jailed by the Family Court judge. While incarcerated, his DNA was taken.

Taylor v. Smith (Family Law, Custody)

The Pennsylvania Superior Court affirmed an order of the trial court that awarded a biological father and another man acting as father in loco parentis shared legal and physical custody of a child. The Court held that the lower court properly balanced the 23 Pa.C.S.A. § 5328(a) factors.

Peifer v. Colerain Twp. Zoning Hearing Bd. (Administrative Law, Zoning)

The Pennsylvania Commonwealth Court held that a municipal water authority was allowed to appeal an interlocutory order denying intervention into a zoning dispute over duck doodoo. On the merits, the Court ruled that the water authority had the right to intervene.

Clark v. Keystone Lawn Spray (Workers’ Comp. Appeal Bd.) (Administrative Law, Workers’ Comp)

The Pennsylvania Commonwealth Court gave a laudable overview of collateral estoppel and res judicata before holding that the former precluded relief for the petitioner. Res judicata bars an action, claim or part of a claim that has already been raised (or should have been raised) in a prior action. Collateral estoppel prohibits parties from litigating an issue decided in a prior action.

Schmukler v. Pa. Pub. Util. Comm’n (Administrative Law, Smart Meter)

The Pennsylvania Commonwealth Court again shot down a petitioner who sought to avoid having a smart electric meter installed in his home. Here, petitioner alleged that smart meters are a health hazard and cause fires.

Pa. Pub. Util. Comm’n v. Nase (Administrative Law, Open Public Records Request)

The Pennsylvania Commonwealth Court ordered records disclosed pursuant to an Open Public Records Act request. The Court ruled that the information sought was not notes and working papers, and the procedural deliberations exception did not apply. 

Bat Conservation Mgmt., Inc. v. Unemployment Compensation Bd. of Rev. (Administrative Law, Unemployment)

The Pennsylvania Commonwealth Court vacated the Unemployment Compensation Board of Review’s order reversing a referee’s decision and finding claimant eligible for UC benefits under Section 402(e) of the UC Law. The Court held that claimant was raising a retaliation claim, not a disparate treatment claim, and that the Board applied the wrong analysis.


S.B.B. v. L.B.B. (Family Law, First Amendment)

The New Jersey Appellate Division lept into a substantial First Amendment and religious liberty case presented under the guise of a final restraining order and divorce proceedings. A divorcing orthodox Jewish husband received an FRO after alleging that his wife created hostility in their community because the husband refused to allow a religious divorce. The Appellate Division held that the wife’s communications were protected by the First Amendment. 


Rogers v. Superintendent Greene SCI (Criminal Law, Ineffective Assistance)

The Third Circuit granted petitioner’s 2254 petition and found that his trial counsel was ineffective. At trial, outside the presence of the jury, the judge admonished a witness that he was perjuring himself. The Third Circuit held that the attorney should have objected to the Court’s behavior.

PIM Brands, Inc. v. Haribo of America Inc. (Trademark Law, Delicious)

Finally an important matter worth litigating: sour candy. The Third Circuit made the world a bit more delicious by holding that the watermelon-wedge shape of a candy is trade dress and functional. Thus, it was unprotectable and both brands can make more delicious sour candy for the world to enjoy. Hallelujah!!!! 

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