1 Tuesday, April 30, 2013 Vol. XXXVI No. 18 pennsylvania Lawweekly Energy and Natural Resources Two Recent Suits Display Scope of Gas Lease Litigation By zack needles Of the Law Weekly Two complaints recently filed in the U.S. District Court for the Western District of Pennsylvania serve as examples of the wide scope of gas lease-related litigation coming out of the state s natural gas plays. In one case, a landowner filed a class action suit against two subsidiaries of Royal Dutch Shell, alleging one of the companies forestalled competitors by holding itself out as the landowner s oil and gas lessee, only to ultimately cancel the lease and renege on an agreement to pay the landowner a nearly $140,000 signing bonus once gas prices dropped. In the other, Texas-based driller Endeavor Energy Resources filed suit against Pittsburgh law firm Gatto & Reitz, alleging the firm has failed to account for or return about $2.7 million Endeavor had placed in the firm s escrow account to be used as a potential bonus payment to landowners in lease negotiations that eventually fell through. The driller further alleged that the firm has also failed to account for or return an additional $200,000 that was to have been deducted from proceeds the driller received in an Ohio land deal and earmarked for bonus payments in a separate Pennsylvania deal. Steve Saunders, a Scranton-based oil and gas lawyer who was not involved in either case, said the amount of lease litigation between landowners and drillers has decreased recently compared to four or five years ago. Saunders said this is at least in part because of the fact that operators have largely staked out their positions in Pennsylvania and the majority of the leases being negotiated now are renewals of existing leases. As for litigation between drillers and their attorneys, Saunders said those types of cases are rare, particularly with regard to the larger operators, which tend to pay their counsel on an hourly basis. Saunders said this type of litigation could, however, pick up if deals in which firms have agreed to work with smaller operators on a contingency-fee basis begin to sour and fee disputes arise. Scan the above QR code with your smartphone to read more stories from our Big Play collection. Signing-Bonus Suit In Walney v. SWEPI, plaintiff Thomas J. Walney filed suit against defendants SWEPI LP and its general partner, Shell Energy Holding Group, in the Venango County Court of Common Pleas on March 5, but the defendants removed the case to the Western District on April 12. On April 15, Walney filed a motion to have the case remanded back to the Venango County trial court, arguing that the defendants motion to remove the case to federal court had been filed more than 30 days after they were served the complaint on March 11 and was therefore invalid. The defendants stated in their notice of removal that they were served with the complaint March 14. Walney s attorney, Joseph E. Altomare of Titusville, Pa., told the Law Weekly See Gas Lease on Page 11 Judiciary Should Task Force Change Power of Attorney Process? BY Ben present Of the Law Weekly For many attorneys who practice estate planning and elder law, the process of assigning a person power of attorney when his or her elder relative has become incapable of making decisions is the cheapest and most practical course of conduct. Unfortunately, the lawyers acknowledged, it's also the one most prone to abuse. According to Raymond J. Falzone Jr., a Delaware County attorney who regularly practices in elder law planning, the only time a person who is granted power of attorney provides an accounting of his or her actions under Pennsylvania rules is if another party intervenes. And, at that point, Falzone said the "horses are already out of the barn." With that in mind, several lawyers agreed that power of attorney should be a key focus of the Pennsylvania Supreme Court's recently formed elder law task force chaired by Justice Debra Todd which comes as the American population, and particularly that of Pennsylvania, is aging at an increasing pace. While attorneys diverged on the point of whether there should be more accountability placed on those with powers of attorney, all were in agreement that educating Pennsylvania's aging population about the process was a good thing. The task force, made up of 38 judges, lawyers and social workers, has been charged with recommending solutions that include court rules, legislation, educational imperatives and other practices, according to a press release earlier this month from the Administrative Office of Pennsylvania Courts. The task force has three subcommittees one examining the qualifications of guardians and attorneys working with the elderly; a second devoted to looking at the monitoring and data collection for guardianship; and a third on elder abuse and power of attorney. According to the release, there are 2 million Pennsylvanians over the age of 65, representing more than 15 percent of the state's population and making Pennsylvania the fourth-oldest state in the country by that standard. Baby boomers, who make up 76 million of the country's population, will surely provide a surge to that population on a state level. "As a society, we have increased concentration on child abuse, but the issue of elder abuse has not kept pace," Todd said in the release. "This task force is the judiciary's attempt to study the issues under its purview and make adjustments now, before the numbers of older Pennsylvanians and the commensurate jump in abuse occurs." According to the release, research funded by the National Institute of Justice found that about 11 percent of people over 60 suffered from some sort See Task Force on Page 11 Inside PLW People in the News... 2 Ethics Forum... 4 Workers Compensation... 5 Verdicts & Settlements... 7 Government Capitol Report... 9 Family Law Lawyer to Lawyer Plus 34 Digests starting on page 15
2 2 Pennsylvania Law Weekly tuesday, April 30, 2013 Cite This Page as 36 PLW 412 CONTENTS PEOPLE IN THE NEWS 4 Ethics Forum Talking to jurors after a trial can be informative if done appropriately, Samuel C. Stretton writes. 5 Workers' Compensation The burden for employers to seek and obtain a suspension of a claimant s workers compensation benefits based upon voluntary withdrawal from the workforce just became complicated, writes Deborah A. Beck. 8 Government While the topic of alcohol privatization has received renewed political traction with Governor Tom Corbett's announcement that he would fulfill a campaign promise to move the state out of the wine and liquor business, HB 790 represents the first detailed account of what such a plan might entail, Alva C. Mather writes. 10 Family Law The use of parenting coordinators did not pass a cost-benefit analysis, writes Sean P. McCusker. Honored David B. White, founding member of Burns White, was one of two individuals named as this year s Distinguished Alumni by Duquesne University School of Law. White White was scheduled to receive the award April 19 at the 61st annual Law Alumni Reunion Dinner. White, who was nominated by his peers, was selected by the university for his distinguished achievements in the legal profession. Edward G. Lanza, an associate at Eckert Seamans Cherin & Mellott, received an Alumni Diversity Award for Leadership in the Legal Profession from the Student Bar Association s diversity committee of Pennsylvania State University Dickinson School of Law. Lanza is the first-ever recipient of the alumni award, presented at the inaugural Diversity Banquet and Awards Ceremony on April 6. Lanza is resident in the firm s Harrisburg office and a member of the firm s diversity committee. Speakers state regulatory compliance and thirdparty reimbursement. Hennessey focuses his practice on health care matters including tax, regulatory, corporate and transactional issues. Additions Felicity Sara Hanks joined Hill Wallack as an associate in the employment and labor practice group. Hanks will concentrate on employment, labor, municipal and school Hanks law, and related litigation. She will work from the firm s Yardley, Pa., office. Hanks represents private and public entities as well as financial institutions, businesses, and individuals in all aspects of labor and employment. Brian Gondek joined Frankel & Kershenbaum as of counsel to the firm. His work at Frankel & Kershenbaum includes assisting families and individuals with their estate planning and probate needs. Gondek will also assist the firm s clientele in any civil matters that may arise, such as contract disputes or real estate transactions. CAPITOL REPORT Corbett's Business Tax Cut Proposal Approved By House Committee Bill Limiting Obamacare Abortion Funding Approved by House PAGE 9 KEY DIGESTS FAMILY LAW...16 In this matter of first impression, this court held unequivocally that absent an exigent circumstance that prevents a petitioner s appearance, due process mandates that a trial court convene an ex parte hearing prior to entering a temporary PFA order, but found that the lack of an ex parte hearing here was not grounds for reversal of the final PFA order. Affirmed. Ferko-Fox v. Fox. CIVIL PROCEDURE...18 Although the court censured appellant attorney s behavior for multiple failures to appear, the court was constrained to reverse because the trial court did not have authority under Pa.R.Civ.P. 218 to impose monetary sanctions. Stewart v. Foxworth. Joseph W. Gramc and Patrick C. Manning of Goehring, Rutter & Boehm addressed the real property section of the Allegheny County Bar Association on tax sales. The presentation reviewed tax sales in Allegheny County, including sheriff s sales and the city of Pittsburgh s treasurer s sales. Gramc works extensively on behalf of municipalities in the collection of municipal claims, taxes and liens. Manning focuses his practice on municipal creditors rights and tax collection matters. Stevens & Lee attorneys Richard J. King and Daniel J. Hennessey presented at the fifth annual Healthcare Financial Management Association s Spring Institute in Philadelphia on April 10. King and Hennessey discussed new payment/reimbursement models, such as ACOs, bundled payment initiatives and value-based purchasing, which have evolved from the health care reform regulations. King concentrates his practice in health law with emphasis on federal and Announcements Robert A. Korn and Karin Corbett, members of the construction law group of Kaplin Stewart Meloff Reiter & Stein in Blue Bell, Pa., are contributing authors of the Pennsylvania Bar Institute s recently published Pennsylvania Construction Law: Project Delivery Methods, Execution, and Completion. They authored the chapter titled Tort Actions Arising on Construction Projects, which focuses on tort claims against the design professional and others involved in the construction process. The Legal won t be asking for official nominations until early June, but it s time to begin thinking about outstanding attorneys under the age of 40 in Pennsylvania to nominate for The Legal s Lawyers on the Fast Track. Keep them in mind, because when The Legal begins accepting nominations, your insight will play a key role in helping highlight the excellent work attorneys are doing across the state. All potential items for People in the News should be addressed to Alexa Woronowicz at The Legal Intelligencer.
3 Cite This Page as 36 PLW 413 tuesday, April 30, 2013 Pennsylvania Law Weekly 3 Insurance Law Third-Party Settlement Triggers UIM Statute of Limitations BY Ben Present Of the Law Weekly The statute of limitations for an underinsured motorist claim in Pennsylvania starts running when the policyholder settles with or gets a judgment against a third-party tortfeasor, the state Superior Court has ruled in an issue of first impression. In so holding, the three-judge panel declined to endorse the theory of plaintiffs Tammy and Joseph Hopkins that the four-year statute of limitations in a UIM claim started to run when Erie Insurance Co. denied their claim for benefits, as opposed to the date of settlement in the tort claim. The court also dismissed claims that Erie acted in bad faith and that, accordingly, the trial court should have exercised its equitable powers in advancing the UIM claims. To Order: The plaintiffs, husband and wife, sought to appoint arbitrators and compel arbitration under their policy, but did not file the requisite paperwork until nearly six years after they settled the underlying tort claim. In a 19-page opinion, the court affirmed a Montgomery County judge, who had dismissed the Hopkinses' petition and denied their Are You Keeping Up With the Times? claim. Rosenthal court further declined to hold The court's decision that the statute runs upon an insurer de- in Hopkins nying a claim. Get The v. Erie Legal Insurance Intelligencer s the instant case, Judge Cheryl Lynn hinged on two prior Allen, writing for the court, said: "Here, Court decisions Rules Forms the applying on Boyle and CD-ROM Rosenthal, we hold Superior Court's that the four-year statute of limitations 1983 decision in on underinsured motorist claims begins Boyle v. State Farm to run when the insured settles with, or Allen Court Rules Mutual Forms Automobile on CD-ROM secures is a an judgment invaluable, against, the underinsured you owner to access or operator. numerous Accordingly, Insurance time-saving and the U.S. Court tool of that Appeals allows for the Third Circuit's analysis in State [the Hopkinses'] underinsured motorist court forms civil, criminal, appellate, and more, Farm Mutual Automobile Insurance v. claims in this case are barred by the Rosenthal as in well as all Pennsylvania statute State of forms. limitations." These forms In Boyle, the court ruled that an Judge Paula Francisco Ott joined are in PDF format and writable Word format, and action to enforce a contract does not Allen. Judge Susan Peikes Gantman concurred surrounding the result. counties. accrue until cover a party's Philadelphia rights under and that nine contract Detailed have "vested," instructions which the court are included. The court also disagreed with the defined in the UM/UIM context as occurring after three events have occurred. First, the insured must be in a motor plaintiffs that the trial court erred by not using its equitable powers to grant their petition to compel arbitration, including vehicle accident; second, the insured not equitably tolling the statute of limitations ext. and 2453 declining to hold that Erie must be injured Call in , that accident; lastly, the insured knows the uninsured status acted in bad faith in invoking a statute of the other Visit driver. of limitations defense. In Rosenthal, the Third Circuit ruled Quoting a 1967 Pennsylvania Supreme that the four-year Scan statute the QR of limitations code to Court the decision, at right Walters v. Ditzler, Allen begins to run when the insured party settles his or her claim or gets an award against an underinsured driver, expanding a Boyle decision that had been constrained to uninsured drivers. The said there was no better evidence of the Hopkinses' own "'supine negligence, lassitude and lack of diligence'" than the 21 months between a March 9, 2009, letter Erie sent to them notifying them that the statute of limitations had expired and the Hopkinses' petition to compel arbitration, filed on December 2, In a third issue, the plaintiffs claimed Erie acted in bad faith when it gave them the impression it was evaluating materials in an effort to settle the UIM claim. Accordingly, the Hopkinses argued, Erie was estopped from asserting a statute of limitations defense. The court, siding with Erie, pointed out the three-and-a-half-year gap between Erie's initial request for records in June 2004 and the plaintiffs' eventual demand package with medical records in January 2008, which Allen noted Erie had asserted was incomplete. "Contrary to [the Hopkinses'] contention, Erie's invocation of the statute of limitations defense was not done in bad faith, but in response to [the plaintiffs'] lack of due diligence in pursuing their claim," Allen said. "The record is devoid of any action by Erie precluding [the Hopkinses] from petitioning for the appointment of arbitrators and for compelling arbitration prior to December 2010." "Despite [plaintiffs] counsel's acknowledgement to Erie on September 5, See UIM on Page 12 Are You Keeping Up With the Times? Get The Legal Intelligencer s Court Rules Forms on CD-ROM Court Rules Forms on CD-ROM is an invaluable, time-saving tool that allows you to access numerous court forms civil, criminal, appellate, and more, as well as all Pennsylvania State forms. These forms are in PDF format and writable Word format, and cover Philadelphia and nine surrounding counties. Detailed instructions are included. To Order: Call , ext Visit Scan the QR code to the at right
4 4 Pennsylvania Law Weekly tuesday, April 30, 2013 Cite This Page as 36 PLW 414 ethics forum questions and answers on professional responsibility Bad prosecutorial behavior should not be condoned. I do a lot of court-appointed criminal defense out of Philadelphia. At times, I see young assistant district attorneys make statements they should not make during closing and opening speeches. What is the responsibility of the District Attorney s Office in the Appellate Division when it is clear the young assistant has acted incorrectly? I normally see briefs attempting to defend these actions to the utmost when, in reality, the Appellate Division is reinforcing the bad conduct at the trial level. Is it ethical for the Appellate Division to do that? Anyone who does criminal defense, particularly court-appointed criminal defense, knows the frustration in Pennsylvania in dealing with the appellate courts and prosecutorial misconduct. No matter what a district attorney says or does, sometimes it seems as if the appellate court either ignores it or bends over backward to justify the conduct. Very few cases are reversed on prosecutorial misconduct, even though a review of arguments often shows statements of personal opinions, misstatements of evidence and inflammatory statements. But the question is not about the appellate courts. It is about the Appellate Divisions and District Attorney s Office. Clearly, all of the lawyers who have the privilege of serving as an assistant district attorney or assistant U.S. attorney have important responsibilities. These responsibilities are more enhanced for the prosecutor. Under the Rules of Professional Conduct, there is a specific rule about special responsibilities of prosecutors found at Rule 3.8. This rule prohibits an assistant district attorney from prosecuting a case he or she knows is not supported by probable cause. There is a requirement that the prosecutor not take advantage of an unrepresented defendant. It requires timely disclosure of all mitigating evidence and requires the prosecutor to not make statements to the press or public that could prejudice the case and also to ensure that the law enforcement personnel don t make similar statements. Comment 1 to Rule 3.8 clearly places the heavy burden of responsibility on a prosecutor: A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Any appellate division of a prosecutorial office should be very careful in its advocacy when trying to justify misconduct by an assistant district attorney during the trial. This issue has been discussed in great detail by the respected ethics professor Monroe Freedman in an article titled The Use of Unethical and Unconstitutional Practices and Policies by Prosecutors Offices, found in the Washington Law Journal, Volume 52, No. 1. Freedman begins the article by pointing out two serious ethical problems. The first is the adoption by chief prosecutors of policy or practices for the office that violate defendants constitutional rights and, second, he notes what he calls the rogue prosecutor, who purposefully adopts unethical and/or unconstitutional tactics, such as concealing exculpatory evidence. He noted when the prosecutor s office seeks to justify the unethical conduct of the rogue prosecutor, that conduct then becomes office policy and encourages similar misconduct. Freedman then notes some offices will have two approaches. The first approach is to disavow the prosecutor s conduct, but then to argue that the defendant is not entitled to any redress. Freedman also criticizes the disciplinary authorities in various states for not taking appropriate disciplinary action. He noted a study that showed there had been just 100 reported cases of professional discipline of federal and state prosecutors during the last century, which would be an average of one disciplinary case per year. Freedman notes the failure of the courts and disciplinary authorities to take remedial action and/or disciplinary action encourages this type of prosecutorial misconduct. Freedman discusses some cases. One case of particular interest is Texas v. Morton, where a man spent 25 years in prison for a murder he did not commit. Morton always said he was innocent. The new district attorney fought Morton s access to DNA for more than five years. When Morton was finally able to get the DNA tested, it demonstrated he was innocent and implicated another man. The person implicated had a long criminal record and lived nearby. It turned out that the District Attorney s Office in the state of Texas had strong evidence about this other man at the trial potentially being the culprit, but never Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa It is one thing for a prosecutor to act badly, but it is far worse when the prosecutor s office tries to justify that conduct or excuse it. By samuel c. stretton Special to the Law Weekly told Morton s lawyer about that, according to Freedman. The prosecutor who hid the evidence of the other person is now a sitting judge in the state of Texas. The new prosecutor, who fought long and hard to prevent the DNA from being given, said he opposed the DNA because the prior DA asked him to do so and they were friends. So far, nothing has been done to the prior district attorney who hid this evidence and misled the defendant s lawyer. Freedman mentions prosecutorial offices that have a win-at-all-costs attitude or policy. Freedman discusses other forms of prosecutorial misconduct that studies reveal. He discusses the use of cooperating witnesses, which is common among prosecuting offices. He notes that many of these people will say anything. He notes some prosecutorial offices refused to have a central index record of jailhouse informants. One prosecutorial office actually had a memo indicating the reason for lack of a central record was to prevent defense counsel from attacking the credibility of these jailhouse or confidential informants. Freedman points out that one of the dirty little secrets is that if you perjure yourself as a prosecution witness, no one is going to prosecute you. One of the examples Freedman notes is the case of Illinois v. Rivera, 777 NE 2nd 360 (Illinois Appellate Court, 2002). In that case, the defendant was convicted on the testimony of an informant and a supposed coerced confession. The victim was an 11-year-old girl. Subsequently, when the DNA showed that the sperm in the victim s vagina was not the defendant s, the prosecutor made an incredible argument that this 11-year-old girl had supposedly been sexually active and, therefore, the exclusion should not exonerate the defendant. Freedman notes other examples where prosecutors have turned on the victim in such an unethical way, and the difficulties with the prejudicial pretrial publicity by prosecutors. He concludes that part of the problem is the failure of both trial and appellate courts to recognize this misconduct and to take the appropriate action or reverse convictions. He also notes the failure of disciplinary authorities to hold the prosecutors accountable. As a number of authorities have concluded, the failure to hold prosecutors accountable has contributed to a culture in too many prosecutorial offices in which prosecutors act as if they are above constitutional and ethical restraints, Freedman writes. The article exposes a problem that is often ignored. This problem is known by any lawyer who practices criminal law regularly and argues in the appellate courts. There is time now for this conduct to change. Disciplinary authorities have to be more vigilant and should investigate reversals or misconduct by prosecutors and take action that will result in loss of license. Only by doing so will prosecutors know they are not above the law. These kinds of actions tarnish the many excellent prosecutors who work in offices and are true public servants, giving long hours of time at very low rates of pay. The appellate courts have to rethink their position. Pennsylvania has been very clear for years that personal opinion is not allowed and inflammatory statements are not allowed. Yelling or screaming at a defendant or pointing at them is not allowed. Sending a message is not allowed, etc. Despite that, the Superior Court s memorandum opinions are replete with examples of this kind of conduct regularly and repeatedly. Everything is justified as rhetorical flair or supposedly responding to the defense argument. Freedman s article is a wake-up call for many. It is one thing for a prosecutor to act badly, but it is far worse when the prosecutor s office tries to justify that conduct or excuse it and, further, when the appellate courts refuse to remedy the situation. Talking to jurors after a trial can be informative if done appropriately. I completed a jury trial recently and, after it was done, found my opponent, who lost a case, speaking to several jurors outside about how wrong their decision was and telling them things that were not introduced as part of the evidence. Clearly, the jurors were upset. Is that ethical conduct? That conduct is wrong and highly unethical. Such conduct is vindictive on the part of someone who is a sore loser. Cases are won in the courtroom based on law and evidence and obviously skills of persuasion. Jurors are the fact-finders and do the best they can with the evidence that is presented. For an advocate to then go outside and suggest to a jury that they made a mistake is a very serious act of misconduct, particularly if the advocate is referring to evidence or information that was not of record and not presented. By doing so, the advocate or lawyer has pretty much ruined the jurors experience. Jurors are people who give their See Ethics on Page 13
5 Cite This Page as 36 PLW 415 tuesday, April 30, 2013 Pennsylvania Law Weekly 5 Commentary Workers Compensation By Deborah A. Beck Special to the Law Weekly Robinson Provides Employers a New Standard to Prove Voluntary Retirement The burden for employers to seek and obtain a suspension of a claimant s workers compensation benefits based upon their voluntary withdrawal from the workforce just became complicated, because the Pennsylvania Supreme Court s decision in City of Pittsburgh and UPMC Benefit Management Services v. Workers Compensation Appeal Board (Robinson), A.3d, 18 WAP 2011 (Pa. March 25, 2013), placed its seal of approval on the totality of the circumstances test previously espoused by a plurality of the Commonwealth Court. An employer that seeks a suspension of benefits based upon a claimant s voluntary withdrawal from the workforce must establish job availability either through job referrals or a labor market survey, unless it can prove that the totality of the circumstances reveals that such return-to-work efforts would be futile. If the employer is able to demonstrate that a claimant has voluntarily withdrawn from the workforce, then the burden shifts to the claimant to show he or she either was seeking employment or a work-related injury forced him or her into retirement. If a claimant is unable to meet his or her burden, the employer does not need to prove job availability. Employers, unfortunately, will be unable to meet the totality of the circumstances test by the claimant s mere receipt of, or application for, a retirement pension, disability pension, Social Security disability benefits or old-age Social Security retirement benefits. A claimant s pension status combined with the lack of job hunting may also no longer be enough to demonstrate that a claimant voluntarily withdrew from the workforce. The fact a claimant has not looked for a job since his or her work injury may also be insufficient. The Supreme Court in Robinson chose not to establish a bright-line standard, opting instead to maintain the totality of the circumstances test, a heightened burden that an employer may have a difficult time meeting. The following limited issue was focused upon by the Supreme Court: Did the Commonwealth Court err by holding that, in a petition to suspend compensation benefits based upon an alleged voluntary withdrawal from the workforce, the employer bears the burden of showing by the totality of Deborah A. Beck is an associate with Margolis Edelstein in its workers compensation department. She has been representing employers and workers compensation insurance carriers for more than 16 years. the circumstances that the claimant has chosen not to return to the workforce? Dorothy Robinson sustained a workrelated injury in 1997 while working for the city of Pittsburgh as a police officer. After this work injury, the employer placed her in a light-duty office position. On October 15, 2001, the claimant sustained additional work-related injuries. After sustaining these injuries, the claimant did not return to the light-duty position and was still not able to return to her pre-injury position as a police officer. The employer did not offer the claimant any other modified duty position after October 15, At the end of 2004, the claimant applied for and received a disability pension because her work-related injury disabled her from performing her pre-injury position as a police officer. On October 30, 2007, the employer obtained a medical opinion that the claimant was able to return to modified-duty work. After forwarding the claimant a notice of ability to return to work, the employer filed a petition to suspend compensation benefits. The employer alleged the claimant was capable of working but voluntarily removed herself from the workforce, as she has not looked for or sought employment in the general labor market. The claimant filed an answer denying the averments contained in the suspension petition and claiming that she remained attached to the workforce and had registered for work with the Pennsylvania Job Center and she was not working because the employer had eliminated her light-duty position. The workers compensation judge (WCJ) concluded that the claimant had not voluntarily removed herself from the workforce and denied the employer s suspension petition. Following the Workers Compensation Appeal Board s (WCAB) affirmation, the employer appealed to the Commonwealth Court of Pennsylvania, which affirmed in an en banc plurality decision. The Commonwealth Court plurality adopted a totality of the circumstances standard and, in applying this standard, concluded that the employer Receipt of a pension is just one fact of many possible probative facts that must be considered in determining whether the claimant has voluntarily withdrawn from the workforce. did not provide sufficient evidence to show that the claimant had intended to retire. Thus, because the claimant failed to retire from the workforce, the plurality concluded that the employer was required to show the availability of suitable work within the claimant s restrictions to sustain its burden, which it did not do. The Supreme Court in Robinson first dispelled the myth that Southeastern Pennsylvania Transportation Authority v. WCAB (Henderson), 669 A.2d 911 (Pa. 1995), and Republic Steel v. WCAB (Petrisek), 640 A.2d 1266 (Pa. 1994), established a presumption that a claimant who separates from employment and receives a pension has voluntarily withdrawn from the workforce. In fact, the Robinson court stated, We do not believe it selfevident, or even logical to presume, from the simple fact that a claimant accepts a pension, a conclusion that the claimant has completely and voluntarily withdrawn from the workforce, or is prohibited from working in any capacity. The court in Robinson did note that the fact that a claimant elects to receive a pension, regardless of type, is not devoid of evidentiary weight, and may well be probative of a claimant s desire to leave the workforce; however, such fact only gives rise to a permissive inference that the claimant is retired. The court cautioned that receipt of a pension is just one fact of many possible probative facts that must be considered in determining whether the claimant has voluntarily withdrawn from the workforce. The Robinson court did point out two practical points that can be taken from Henderson: (1) an unequivocal statement from the claimant that he had no intention of seeking future employment was not required to show that claimant had removed himself from the workforce; and (2) an employer cannot have the prohibitive burden of proving that a claimant has no intention of continuing to work. Regarding the Commonwealth Court s totality of the circumstances test, the Supreme Court stated this was a conclusion consistent with its holding in Henderson and, as such, the Commonwealth Court in Robinson did not establish a new test. In fact, the Supreme Court stated that the totality of the circumstances test was simply another way of saying that the fact-finder must evaluate all of the relevant evidence in determining whether a worker has retired from the workforce. In answering the question posed by the court for review, it was determined that it necessarily follows that, when all of the evidence is in, the employer seeking to suspend benefits ultimately bears the burden of proving that the claimant has voluntarily removed him or herself from the workforce. Taking the entirety of the Supreme Court s decision into consideration, the burden of proof in a suspension of benefits based upon a voluntary withdrawal from the workforce by a claimant is as follows: (1) the claimant s acceptance of a pension entitles the employer only to a permissive inference that the claimant has retired, but such an inference is not, on its own, sufficient evidence to establish that the worker has retired; rather, the inference must be considered in the context of the totality of the circumstances; (2) if the employer produces sufficient evidence to support a finding that the claimant has voluntarily left the workforce, then the burden shifts to the claimant to show that there has been a compensable loss of earning power. If the employer does not present sufficient evidence to show that the claimant has retired, then the employer must proceed as in any other case involving a proposed modification or suspension of benefits and show job availability. According to the Supreme Court, its holding in Robinson will not impose a prohibitive burden on employers, nor does it subject employers to the unreasonable task of proving the claimant s state of mind; the employer retains the ability to present evidence to establish a claimant s retirement status, such as the claimant s receipt of a pension, the claimant s own statements relating to voluntary withdrawal from the workforce and the claimant s efforts or nonefforts to seek employment. As the voluntary retirement standard is largely dependent upon the views of the fact-finder, the WCJ, it may be useful for the parties to request a bifurcation in order for the WCJ to determine if the employer established a voluntary withdrawal from the workforce by the claimant. If so, then the burden would shift See Retirement on Page 13
6 6 Pennsylvania Law Weekly tuesday, April 30, 2013 Cite This Page as 36 PLW 416 Real Property Judge Grants Immunity to City Officials in Demolition Case BY zack needles Of the Law Weekly A federal judge has granted qualified immunity to two Scranton officials who allegedly failed to provide notice to the owner of a commercial property before the property was demolished, reasoning that the law is unclear as to whether the officials had a duty to check public records to determine whether ownership of the property had changed hands at a tax sale during the lengthy gap between the time that the property was scheduled for demolition and the time it was actually demolished. U.S. District Judge Robert D. Mariani of the Middle District of Pennsylvania granted the motion for summary judgment filed by Scranton's former director of public safety and conservation, Michael Mitchell, and Mark Seitzinger, the city's director of licensing, inspections and permits. In Keller v. City of Scranton, according to Mariani, plaintiff David Keller alleged that Mitchell and Seitzinger were negligent in failing to notify him of the impending demolition of condemned property he owned. According to a footnote in Mariani's opinion, the city of Scranton was dismissed as a defendant earlier in the case. But Mariani said that because the defendants had notified Lawrence Solomon Ltd., who owned the property at the time of its condemnation, they believed they had fulfilled their legal obligation. Mariani did note that there was a nearly two-year gap between the time the property was scheduled for demolition and the time it was actually demolished, but said the law is unclear as to whether the defendants had a duty during that period to ensure that the property had not changed hands and, if it had, to send out a second notice to the new owner. "Because the law is unclear as to this point, the defendants could not have been expected to know whether they were required to conduct another record search and send out a second notice, if necessary," Mariani said. In Keller, according to Mariani, Keller bought a piece of property on Cedar Avenue in Scranton at a Lackawanna County tax sale in September The property had been condemned in September 2004, notice of which had been both mailed and posted on the property, Mariani said. In March 2006, the city scheduled the property for demolition and Seitzinger informed Lawrence Solomon Ltd., who owned the property at the time, by mail, according to Mariani. The defendants both testified that standard practice in every condemnation and demolition was to conduct a search in the Lackawanna County Assessor's Office in order to determine ownership of a property, Mariani said. Lawrence Solomon Ltd. was still the owner of the property in February 2008, according to the assessor's office, Mariani said. The city demolished the property in February 2008, according to Mariani. After the demolition, Keller received the deed to the property and recorded it with the county in July 2008, Mariani said. Mariani said oral argument in the case focuses primarily on whether the defendants had made a sufficient effort to determine the owner of the property. "Although this point is not the central issue of the case, the court will address it because of the issue's importance and the likelihood that it will arise again," Mariani said. According to Mariani, the defendants relied on the 1985 state Supreme Court ruling in Tracy v. County of Chester Tax Claim Bureau, in which it held that government bodies are required to make reasonable, but not extraordinary, efforts to find people whose property interests are likely to be significantly affected by a tax sale. Keller, meanwhile, cited the state Supreme Court's 1987 ruling in Pivirotto v. City of Pittsburgh, in which the justices held that the defendant city should have checked with the county tax claim bureau and clerk of judicial records to determine the owner of a property before it condemned and demolished it, according to Mariani. But Mariani said Keller differed from Pivirotto in two key ways. First, Mariani said, the city in Pivirotto had condemned and demolished the property after the plaintiff had bought it at a tax sale, whereas Keller purchased the property after it had been condemned and scheduled for demolition. Second, Mariani said, there was a two-year gap in Keller between the time the property was scheduled for demoli- See Demolition on Page 13 Government Constables Can't Get Government Plates Under Vehicle Code BY Ben Present Of the Law Weekly An elected constable is not a governmental or quasi-governmental official under the state's Vehicle Code, the Commonwealth Court has ruled in an issue of first impression. The ruling is a loss on appeal for Silver Spring Township Constable J. Michael Ward after a unanimous threejudge panel said he should not be exempt from paying a $36 registration fee for two vehicles on which his municipal license plate was correctly revoked. The decision, affirming a Cumberland County judge in Silver Spring Township State Constable Office v. PennDOT, is one of a handful of state court rulings over the years outlining the powers of constables in the state of Pennsylvania. In In re Act 147 of 1990, for example, the Pennsylvania Supreme Court decided in 1990 that a constable is a peace officer and belongs "'analytically to the executive branch of the government,'" Senior Judge James Gardner Colins noted in Silver Spring. In 1997, the state Superior Court in Commonwealth v. Roose vacated a man's DUI conviction because he had been pulled over and arrested by a constable who the court held was not authorized to take such an action. Constables may, however, make arrests if they have a warrant, if there's been a breach of the peace or for any felony that is not under the state's Vehicle Code, Ward's attorney clarified. In an April 18 decision in Silver Spring, the court made clear that constables are not permitted by law to buy a vehicle on behalf of the political subdivision for which they work. "We find that a constable is not a governmental or quasi-governmental entity under the Vehicle Code and, consequently, that a constable is not exempt from paying the $36 vehicle registration fee," Colins said. "Constable Ward contends he is exempt from the fee because his office is part of the political subdivision of Silver Spring Township. There is no question that Silver Spring Township, if it were to purchase and register vehicles for official use, would qualify for the fee exemption and municipal license plates. However, a constable, created by statute, has no authority whatsoever under that statute to act on behalf of the government unit in which he works." Ward had argued the trial court erred by deciding a constable is not part of the Silver Spring Township political subdivision, as the position, in his view, qualifies him for an exemption from the vehicle registration fee and allows for its holder to have a municipal license plate. According to Colins, a Cumberland County judge appointed Ward as constable to Silver Spring Township in November 2008 and he was later elected to that position in November He started a six-year term in In February 2009, Ward purchased a Ford Crown Victoria, the traditional vehicle used for years by police squads and taxi companies around the country, and represented the township constable's office as the buyer on registration papers. On a required form with the Pennsylvania Department of Transportation, Ward identified the purchaser of the vehicle as the "'Silver Spring Township Constables Office,'" Colins said. He further listed his home address and left a line for his office blank, Colins said. According to Colins, a handwritten note on the form (an MV-4ST, according to Colins) specifies a sales tax exemption under "Code 18" (Municipal Authority) and says "'Municipal Tag Free.'" It was unclear whether Ward or PennDOT staffers made those notations. According to Colins, the trial court found that based on information provided by Ward, PennDOT incorrectly issued a municipal government plate for Ward's Crown Victoria. In November 2010, almost a year into his elected term, Ward purchased a 1997 Chevrolet Tahoe and identified the purchaser as the "'Silverspring Twp. Constables Office,'" Colins said. The trial court again found PennDOT erroneously allowed Ward to transfer his government plate to the SUV. In September 2011, PennDOT suspended the registration for the Tahoe, saying the government plate was issued in error. Ward appealed and, testifying for himself before the trial court, said the municipal plates allowed him to acquire various accoutrements to outfit his Tahoe as a service vehicle, like a cage for the backseat, window bars, a computer for the front seat and magnetic stars (signifying law enforcement) for display on the windows. See Plates on Page 13
7 Cite This Page as 36 PLW 417 tuesday, April 30, 2013 Pennsylvania Law Weekly 7 Verdicts&Settlements verdicts and settlements form : Man Settles After Arms Crushed by Baler at Work Hedlund v. Marathon Equipment $7.9 Million Settlement Date of Settlement: April 16. Court and Case No.: C.P. Philadelphia No Mediator: Jerry Roscoe, JAMS. Type of Action: Personal injury. Injuries: Arm and elbow fractures. Plaintiffs Counsel: Daniel J. Mann, Alan Feldman and Edward S. Goldis, Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig, Philadelphia. Defense Counsel: Joseph Goldberg, Weber Gallagher Simpson Stapleton Fires & Newby, Philadelphia, for Marathon; Allen R. Bunker, Comeau & Bunker, Philadelphia, for Tec Serv; John F. Kent, Kent & McBride, Philadelphia, for RAM. Comment: A man whose arms were crushed by a cardboard baler while working at an Acme has reached a combined $7.9 million settlement with the manufacturer, service technician and replacement part provider of the equipment. The trial in Hedlund v. Marathon Equipment was slated to begin in the Philadelphia Court of Common Pleas this June, but after mediation with JAMS's Jerry Roscoe, the three defendants agreed April 16 to share in a settlement with plaintiff Christopher Hedlund. Defendant Marathon Equipment Co. was the manufacturer of the cardboard baler and agreed to contribute $3.7 million to the overall settlement, according to attorneys and communications from both sides of the case. Defendant Tec Serv Inc. was the service technician of the baler and replaced a bar that broke, resulting in the baler crushing Hedlund's arms. It agreed to contribute $3.7 million to the settlement, according to the attorneys. Defendant RAM Hydraulics Inc. provided the refurbished bar that Tec Serv installed. It agreed to a $500,000 settlement. Hedlund's attorney, Daniel J. Mann, said the settlement was a fair number given his client can still live on his own, drive, go to the gym and do most daily activities, albeit with some limitations and difficulty. The initial demand in the case, according to court documents, was $14 million. That fell to $10.5 million after the first round of mediation in March, at which point the defense had offered a combined $5.55 million, according to court papers. Hedlund was a sales associate at the Paoli Acme Markets when he was working in a storage area in the back of the store. As he attempted to remove two pieces of cardboard that were stuck in the baler, a hydraulic cylinder rod that supported the 800-pound steel plate used to compress the cardboard fractured in half, causing the plate to drop on Hedlund's arms, according to his pretrial memorandum. Hedlund argued Marathon poorly designed the baler by not incorporating a stronger design at the connection point where the cylinder meets the plate. He argued Marathon should have incorporated a safety restraint cable that would have caught the plate before it fell on Hedlund's arms. As to Tec Serv, Hedlund argued that the company did not properly install the hydraulic cylinder. He said the Tec Serv technician failed to install two of the four required fastener bolts at their appropriate locations and did not properly tighten the two that were in place. Hedlund further argued in court papers that Tec Serv failed to notice or correct its initial error in subsequent follow-up maintenance calls for the baler. Hedlund argued RAM rebuilt the cylinder, including the installation of the used cylinder rod that ultimately fractured on the day of the accident. He argued RAM knew nothing about the history of the used rod and took no steps to ensure it was not compromised before installing it into the new cylinder and sending it to Tec Serv for installation in the baler, according to court papers. In its pretrial memorandum, Marathon argued the baler was in good condition when it left the company's possession in Marathon argued RAM's use of a "used, fatigued" rod was not proper. It also argued Hedlund shouldn't have stuck his hands into the machine. Marathon was represented by Joseph Goldberg of Weber Gallagher Simpson Stapleton Fires & Newby. He did not return a call for comment. Tec Serv did not outline its position on liability in its pretrial memorandum. A call to the company's attorney, Allen R. Bunker of Comeau & Bunker in Philadelphia, was not returned. In its pretrial memorandum, RAM argued there was no evidence the rod it provided was fatigued at the time it was provided. RAM further argued that the rod failed because of improper installation by Tec Serv, according to the court documents. RAM also argued the baler was designed without a fail safe in the event of a rod failure. RAM was represented by John F. Kent of Kent & McBride in Philadelphia. He did not return a call for comment. According to Mann, Hedlund is now 53 years old and is disabled. Hedlund's doctors said he could develop worsening arthritis from his injuries, requiring increased future medical care. The settlement is a cash settlement that will not include an annuity, according to communications between the parties. Hedlund has also agreed to create a Medicare set-aside to resolve any past or present Medicare liens, according to those communications. Gina Passarella, of the Law Weekly Siding Worker Who Fell From Ladder Agrees to Settlement Huang v. Realen Homes $1.8 Million Settlement Date of Settlement: January 31. Court and Case No.: C.P. Bucks No Judge: Robert J. Mellon. Type of Action: Negligence. Injuries: Skull fractures, deviated septum, optic neuropathy. Plaintiffs Counsel: Jay L. Solnick, Solnick & Levin, Jenkintown, Pa. Defense Counsel: Ronald L. Daugherty and Stewart R. Singer, Salmon, Ricchezza, Singer & Turchi, Philadelphia; Timothy J. Galanaugh, McGivney & Kluger, Philadelphia; James M. Prahler, Margolis Edelstein, Philadelphia; Mark T. Riley, Marshall Dennehey Warner Coleman & Goggin, King of Prussia, Pa. Comment: The parties to a case in which a siding worker fell and hit his head after the roof porch he was working on collapsed have settled for $1.8 million. According to court records, the accident took place on May 4, 2004, when plaintiff Zhe Feng Huang, a Korean immigrant and naturalized citizen, was working on placing siding above the front porch roof on an unfinished house at the "Ridgelea" development in Pottstown, Pa. Huang claimed in court papers that the ladder he was standing on was "braced, supported and secured" by two two-by-fours that were nailed to the porch roof by the siding workers. The porch roof itself was supported by temporary beams that workers for Sunrise Concrete Co., the concrete contractor for the housing development at which Huang was working, had placed after they poured the concrete for the front porch. Before that, Huang asserted in court papers, workers from McKinley See V&S on Page 14
8 8 Pennsylvania Law Weekly tuesday, April 30, 2013 Cite This Page as 36 PLW 418 Commentary government By Alva C. Mather Special to the Law Weekly HB 790 Advances Privatization of Liquor and Wine Sales in Pa. In a historic vote, Pennsylvania s House of Representatives passed HB 790 on March 21, marking the first time since the repeal of prohibition that legislation aimed at the privatization of wine and liquor sales has made its way through the Pennsylvania General Assembly. While the topic of alcohol privatization has received renewed political traction with Governor Tom Corbett s announcement that he would fulfill a campaign promise to move the state out of the wine and liquor business, HB 790 represents the first detailed account of what such a plan might entail. As drafted, HB 790 provides a sweeping overhaul of the current distribution of alcohol within Pennsylvania with a focus on moving the state toward a more integrated system of liquor, wine and beer sales. Among other issues, such integration raises two significant questions: (1) How will the sale of liquor and wine, both at the wholesale and retail level, be integrated with the existing system for beer distribution; and (2) what degree of legal protection should be given to those who pay for and obtain the right to supply liquor and wine to retailers? The focus of this article is HB 790 s attempts to answer these two important questions. Beer, Wine and Liquor Unlike liquor and wine, beer in this state has been sold in most instances through a private, three-tiered system of manufacturers (such as brewers or suppliers), wholesalers and retailers. Presently, the sale of beer together with wine and liquor is explicitly prohibited by statute at both the wholesale and retail level. The dismantling of this segregated system of alcohol distribution is one of the key drivers behind HB 790, as numerous studies and polls have demonstrated consumers preferences for onestop shopping when purchasing alcohol. In moving toward an integrated system, however, important issues must be tackled regarding the rights and business interests of hundreds of Pennsylvania s small businesses that currently distribute beer at either the wholesale or retail level and which, in many instances, have been doing so through family-run companies for the past 80 years. HB 790 Alva C. Mather is a litigator in the Philadelphia office of Hangley Aronchick Segal Pudlin & Schiller. She concentrates her practice on commercial disputes with a particular focus on alcohol law and franchise litigation. She can be reached by at seeks to address the needs of these businesses in a number of ways. First, with regard to beer distributors that represent the retail tier of beer distribution in the state, HB 790 provides that they will have the exclusive right, for the first full year after the legislation is enacted, to purchase one of the 1,200 newly established wine and spirits re- In addition to outlining a vision for consolidating the sale of wine and liquor with beer, HB 790 also provides direction for how these rights, once obtained, will be protected. tail licenses. Beer distributors will also be afforded the sole right to operate facilities that sell beer, wine and liquor, in contrast to other licensees that shall only have the right to sell wine and liquor. Moreover, HB 790 provides significant financial incentives for beer distributors that are not available to other licensees through heavily discounted initial licensee fees and the option, again on an exclusive basis, to finance the license fee over a 48-month period. For example, a beer distributor is only required to pay a $30,000 fee to obtain a wine license in a county of the first or second class, whereas a non-beer distributor must pay $165,000 for the same license. Finally, HB 790 seeks to address the longstanding complaint of beer distributors that under the current law they are only allowed to sell beer in 24-packs or cases. Beer distributors have argued that their inability to sell lesser volumes such as six-packs, 12-packs or growlers puts them at a distinct commercial disadvantage vis-a-vis other retail operators, such as licensed bars or restaurants for customers who do not want to buy an entire case of one particular beer. Under HB 790, beer distributors would be able to sell beer in these smaller quantities. With regard to beer wholesalers, HB 790 provides a somewhat different approach. Presently, beer wholesalers are prohibited from owning beer distributor licenses or any kind of wine or liquor licenses. At the beer retail level, this prohibition maintains the integrity of the three-tiered system. Under HB 790, however, a beer wholesaler has the option of either obtaining a wine and spirits wholesale license or pursuing a wine and spirits retail license. In other words, beer wholesalers can choose whether they want to integrate their existing wholesale operations to include the purchase and resale of wine and liquor or they can pursue the acquisition of a wine and liquor retail license, but not both. If a wholesaler chooses to obtain a wine and spirits retail license, it is afforded the same financial incentives and opportunities as beer distributors namely, the opportunity to buy the retail license at a discounted rate and pay for the license within a 48-month period. However, in so choosing, a beer wholesaler runs the risk that a beer distributor that is currently one of its customers with regard to the sale of beer may now be one of its direct competitors regarding the sale of wine and liquor. While not perfect, HB 790 clearly sets forth a vision for how to move the state forward toward the integrated sale of all alcohol products while at the same time protecting the rights and interests of an important portion of Pennsylvania s business community. Franchise Protections In addition to outlining a vision for consolidating the sale of wine and liquor with beer, HB 790 also provides direction for how these rights, once obtained, will be protected. Presently, the Pennsylvania Liquor Code provides significant protection for beer wholesalers from the unilateral termination of their distribution rights. In particular, the Pennsylvania Malt and Brewed Beverages Act provides that beer wholesalers rights under agreements with manufacturers may not be modified, canceled, terminated or rescinded except for good cause. As a result, Pennsylvania has distinguished itself as one of the leading jurisdictions for the protection of beer wholesalers franchise rights. Because the commonwealth has historically functioned as the state s wine and liquor wholesaler, there has not been any need to determine whether such protections should be mirrored with regard to the distribution of wine and liquor. If, however, Pennsylvania does privatize and license wine and spirits wholesalers, the question becomes what degree of legal protection these wholesalers will be afforded. As currently drafted, HB 790 demonstrates that the state is committed to protecting the franchise rights of wine and spirits wholesalers, albeit on terms that are different than those provided to the state's beer wholesalers. Under HB 790, the Department of General Services is charged with establishing procedures and standards to govern the relationship between wine and spirits wholesale licensees and manufacturers, as well as the terms upon which that relationship may be terminated. However, in establishing such procedures and standards, HB 790 requires that in the event a wine and spirits wholesale licensee does not consent to a proposed termination or transfer of its distribution rights, the manufacturer may only terminate or transfer the rights upon payment of reasonable compensation. While not as protective as the good cause provision for beer wholesalers, the requirement that a manufacturer must pay reasonable compensation when terminating one of its wine or liquor wholesalers recognizes and protects the investments both monetary and in the form of goodwill that wholesalers necessarily bring to the sale of a manufacturer s brand of wine or liquor. Unfortunately, the term reasonable compensation is not defined in HB 790, which may cause problems when disagreements arise between wholesalers and manufacturers as to what constitutes a fair price for the wholesaler s distribution rights. To avoid this issue, other jurisdictions with similar franchise statutes have defined this term to clearly state that reasonable compensation requires more than a simple calculation of lost profits. For example, Michigan requires that a manufacturer pay a terminated wholesaler reasonable compensation for the diminished value of the wholesaler s business, including goodwill. Virginia also requires, as part of reasonable compensation, payment for the goodwill of the wholesaler s business, which is recognized as providing a value over and above the fair market value of the wholesaler s lost profits. Moreover, many other jurisdictions have specified the dispute resolution process a wholesaler and manufacturer must follow when they cannot agree on reasonable compensation. In some See Privatization on Page 14
9 Cite This Page as 36 PLW 419 tuesday, April 30, 2013 Pennsylvania Law Weekly 9 capitol report Following is a listing of legislative action for the week of April 22. Members of the General Assembly were set to return to session April 29. civil unions State Representative Mark Cohen, D-Philadelphia, has introduced legislation in the state House of Representatives that would recognize civil unions. Cohen said in a statement that civil unions represent a middle-of-the-road compromise between constitutionally banning and permitting gay marriages and have been embraced by both advocates for LGBT rights and a growing number of conservatives. Nothing in this bill would require any religion or any clergyman to perform any ceremony uniting people in a civil union, Cohen said. This legislation will merely offer committed gay couples the same legal rights that are bestowed upon married people without the status of marriage. A civil union would be defined as a union between two people of the same sex. It would make all state laws applicable to marriage also applicable to a civil union. The bill also would allow reciprocity for civil unions performed legally in other states and the recognition of same-sex marriage in other states as civil unions in Pennsylvania. HB 1178 has been referred to the state House of Representatives Judiciary Committee. Liquor Privatization The state Senate Law and Justice Committee has scheduled for today a public hearing on the House-approved liquor privatization bill, HB 790. The committee plans at least two other hearings. The chairman of the committee, state Senator Chuck McIlhinney, R-Bucks, is on record as being opposed to privatization. He s introduced a bill to keep the 600 state stores but modernize their operations. Jury Commissioners The state House sent Governor Tom Corbett a measure, SB 808, that would allow smaller counties to abolish the position of jury commissioner. The office of jury commissioner would expire at the completion of the current jury commissioners terms of office. In 2011, similar legislation was signed into law, but the state Supreme Court struck it down because it violated the single subject rule. It contained unrelated language relating to the sale of county personal property. state-related UNIVERSITIES The financial operations of Penn State University and the other three taxpayersupported state-related universities Lincoln University, Temple University and the University of Pittsburgh would be more transparent under legislation approved by the House State Government Committee. The legislation, HB 61, would require the schools to submit to the same Rightto-Know Law requirements currently mandated for the 14 state-owned universities in the Pennsylvania State System of Higher Education. Taxpayers help to fund both our state-owned and our state-related universities, said the sponsor of the bill, state Representative Kerry Benninghoff, R-Centre. There shouldn t be two different levels of transparency and accountability. If the schools are taking taxpayer money, they have a responsibility to submit to public oversight. notarizations The House Judiciary Committee has approved legislation, HB 25, which seeks to update Pennsylvania laws regarding notarizations, acknowledgements and unsworn foreign declarations based upon the recommendations of the Uniform Law Commission, the Pennsylvania Association of Notaries, the American Bar Association, the Property Records Industry Association, the American Society of Notaries and the National Notary Association. The legislation aims to help ensure that notarizations and acknowledgments are taken reliably and professionally, help prevent fraudulent notarization practices and will facilitate electronic commerce, according to a statement from the committee. The committee also approved two other measures: HB 474 would provide that an assault becomes an aggravated assault when the victim is an employee, teacher or staff member at a private residential rehabilitative institution. Aggravated assault carries higher fines and penalties than simple assault. House Resolution 226 calls on the Joint State Government Commission to conduct a study of the mental health system in Pennsylvania, especially as it relates to the treatment of criminal defendants with mental illness. Corbett's Business Tax Cut Proposal Clears House Committee Legislation that seeks to reduce the state s corporate net income (CNI) tax currently at 9.99 percent, the second-highest rate in the nation and raise the cap on the net operating loss provision has cleared the state House of Representatives Finance Committee. Floor action on the legislation, HB 440, is expected in the next few weeks. Governor Tom Corbett asked for the business tax cuts in his February budget address. The committee attached Corbett s language to HB 440, which would close the so-called Delaware loophole. In some instances, the loophole permits corporations to claim earnings in Delaware, which has no corporate income tax, to avoid taxes in Pennsylvania. The bill would require corporations to add back specific transactions to their Pennsylvania taxable income they can now avoid by incorporating in Delaware. For the first couple of years, we think this will be revenue neutral, said Todd Brysiak, who works for state Representative Dave Reed, R-Indiana, the sponsor of the bill. Based on what s happened in other states, we will collect anywhere from $70 million to $90 million more in taxes a year, but then lose about the same because of the reductions. The tax reduction language will reduce the CNI from 9.99 percent to 6.99 percent over 10 years. The bill would also increase the state s net operating loss cap from $3 million to $5 million, allowing certain corporations to reduce their tax liability by offsetting earnings from previous losses. John L. Kennedy, for the Law Weekly Bill Limiting Obamacare Abortion Funding Approved by House Funding for abortions through the health care exchange created under Obamacare would be limited to pregnancies caused by rape or incest and those that threaten the life of the mother under legislation, HB 818, which has been approved by the state House of Representatives. The sponsor of the bill, state Representative Matt Baker, R-Bradford, said a provision in the federal Patient Protection and Affordable Care Act gives states the authority to limit the abortion funding. The president needed votes to get the health care act through Congress, so he signed an executive order giving states the right to opt out of the funding, Baker said. If the Senate approves this, we will be the 21st state to do so. Opponents of the bill claim it will limit the availability of abortion services to those who are paying out of their own pockets to purchase their health insurance. But Baker said the bill is consistent with other state and federal laws that limit public funding for abortions. He added that under HB 818, coverage would be offered for any post-abortion complication, any miscarriage or any complication associated with a miscarriage. In addition, the bill would not prohibit individuals from purchasing abortion coverage for a separate premium they pay for outside the health insurance exchange. Taxpayer-funded abortions have long been limited in Pennsylvania s Medicaid program, except in cases of rape or incest or to avert the death of the mother. HB 818 passed the House by a vote of It now goes to the state Senate for consideration. J.L.K.
10 10 Pennsylvania Law Weekly tuesday, April 30, 2013 Cite This Page as 36 PLW 420 Commentary Family Law By Sean P. McCusker Special to the Law Weekly Supreme Court Rule Abolishes Use of Parent Coordinators Sean P. McCusker is an associate in the family law department at Weber Gallagher Simpson Stapleton Fires & Newby, where he concentrates his practice on the full range of domestic relations matters including support, divorce, custody and equitable distribution. Parent coordinators have just been abolished in Pennsylvania. By an order dated April 23, the Pennsylvania Supreme Court has adopted Rule of the Pennsylvania Rules of Civil Procedure. Rule will become effective May 23, and it states that courts shall not appoint any other individual (excepting masters and hearing officers) to make decisions or recommendations or to alter a custody order in child custody cases. All orders appointing parent coordinators will become vacated on May 23. In retrospect of the Superior Court s recent decision in A.H. v. C.M., 2012 Pa. Super 277 (2012), perhaps this rule could be seen as a natural progression of the diminishment of parent coordinator authority that began with the court s decision in Yates v. Yates, 2008 Pa. Super 296 (2008). Parent coordinators had become increasingly popular in child custody cases over the past five years for trial courts in nearly every county. Family law judges are faced with heavy caseloads, seemingly endless dockets and the bitter vitriol that continuously flows from high-conflict custody matters. As a result, many turned toward parent coordinators as a means to alleviate the burden on the court system and give parents quicker access to decisions on routine matters such as scheduling conflicts. Parent coordinators can be incredibly helpful not just to the courts, but also to attorneys involved in the representation of clients who feel the need to fight over every issue, from how many hours for a visit the other parent should get on the child s first communion, to whether or not their child should cut her bangs. Many attorneys would probably respond that their experience with parent coordinators has been somewhat of a mixed bag. One case in my own practice that comes to mind used to see an emergency petition for special relief filed almost once per month until a parent coordinator was involved by court order. Since the parent coordinator s involvement, the petitions stopped and the matter has been kept out of court for nearly a year. On the other hand, many attorneys have also likely seen the problematic side of parent coordinators. Some cases are simply too high-conflict for the parent coordinator to be effective. In conjunction with the extreme expense that comes with billing both sides for every , telephone conference and meeting (in addition to paying attorneys to keep on top of each development), some parent coordinators have trouble with being properly able to define their roles. The parent coordinator review process, put into place to give the trial court superseding authority over the parent coordinator s decisions, can also be a problem in custody matters. This last issue, the issue of review and superseding authority, was addressed at the end of 2012 by the state Superior Court in A.H. In A.H., the court was tasked with reviewing a trial court s decision to deny the mother de novo review of one of her parent coordinator s decisions. While this appears to be a simple issue with an obvious result, the Superior Court felt that this procedural issue was important enough to merit a published decision. Doubly striking is the fact that A.H. is one of only two published opinions concerning parent coordinators despite their increasingly popular use. Ultimately, the court found it was an error of law for the trial court to deny the mother s request for de novo review, but in analyzing their decision, the Pennsylvania Superior Court reiterated its prior decision in Yates. In Yates, the court previously articulated the boundaries of a parent coordinator s role. The court defined parent coordination as a child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high-conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about children s needs, and with prior approval of the parties and/or the court, making decisions within the scope of the court order or appointment contract. The Yates court further explained parent coordinators can be empowered to decide ancillary matters related to physical and legal custody, provided Why pay a third party to issue a decision when you will end up in court anyway, adding on the additional costs of litigation for the parent coordinator? those decisions do not impact upon core issues. As a side note, in practice, this language is difficult to define for all parties involved. While most involved parties agree ancillary does not give the parent coordinator the authority to switch primary custody, reasonable minds can differ as to whether it is ancillary for a parent coordinator to give a non-recurring extra overnight. It is not hard to imagine that counsel, opposing counsel, the parent and the parent coordinator can arrive at different conclusions. By way of example, imagine parents being at odds over whether or not their parent coordinator should have any involvement in the parties summer vacation schedule. The party affected could feel the parent coordinator should have no say whatsoever and argue vacation time is a core issue. Opposing counsel could argue the vacation time issue is not set firmly in the schedule and is thus ancillary, at least to the timing aspects. Is it ancillary for a parent to be awarded extra time during his or her child s first communion when it falls on the other parent s day? Is it a core issue if both parents are devout Catholics? These were the kinds of seemingly minor issues that could crop up rapidly when utilizing a parent coordinator. Returning to the court s decision in A.H., it is probably not surprising then that the Superior Court felt the need to emphasize procedural oversights for all parent coordinator decisions. Turning to the facts of A.H., the case stemmed from an alleged incident that took place at the parties child s school recital, which I can tell you as a family law attorney is an event that is ripe for all kinds of headache-inducing potential litigation. As a result of the mother s supposed behavior at this recital, the father contacted their parent coordinator to discuss a potential violation of the parties communication policy. As additional background, many parent coordinators first appear to focus on getting the parties to successfully communicate. So it is fairly typical for parent coordinators to implement a communication plan, or to include communication rules as part of the overall parenting plan. In A.H., the parent coordinator met with the parties and found the mother had violated the communication aspects of their parenting plan. The mother, not at all pleased with the parent coordinator s decision, petitioned the trial court for hearing on the matter. The trial court informed the mother she would have four minutes to discuss the issue at an informal conference, rather than giving her a de novo hearing on the matter. The trial court also colorfully told the mother it did not want to see the case back again for some talent show communication, and stated that the mother s further petitions on the subject would be denied without review. The trial court s reasoning in denying the mother a de novo hearing is not particularly clear. The trial court, during the mother s four-minute day in court, heard from the mother s attorney, opposing counsel and the parent coordinator. After this brief conference, the court issued an order denying the mother s petition on the matter and told the mother if she filed any further petitions, the court would deny them without reviewing them. In analyzing the earlier decision in Yates, the Superior Court noted it had previously stated parenting coordinator decisions must be subject to review. The Superior Court reiterated the earlier statement in Yates that the parent coordinator s decisions must be subject to review and that trial courts must not merely substitute the parent coordinator s judgment for its own. In A.H., the court found four minutes of conference was a violation of the protections previously afforded by Yates. The court was careful to reiterate, however, that the actual appointment of a parent coordinator was within the trial court s right, but such an appointment must be subject to de novo review. Furthermore, the court in A.H. pointed out that denial of a de novo hearing in circumstances such as this case constituted a violation of the mother s due process rights. In the same vein, the Superior Court specifically cautioned the trial court that its statements about denying the mother s future petitions indicated an intention to violate the mother s due process rights in the future. The Superior Court then went even further by devoting the remainder of its opinion to quoting the Pennsylvania Code of Judicial Conduct and its requirements of impartiality, diligence and competence. See Coordinator on Page 14
11 Cite This Page as 36 PLW 421 tuesday, April 30, 2013 Pennsylvania Law Weekly 11 Task Force continued from 1 of abuse in The National Center on Elder Abuse at the U.S. Administration on Aging, meanwhile, estimates that, for every one case of elder abuse reported, there are five more that go unreported, Todd noted in the press release. Changes to Power of Attorney Process? Reached for comment, Todd said there was a lot of discussion at initial task force meetings regarding both the guardian and power of attorney process, a possible signal of what the task force will examine as it completes its work over the next year. The high court formed the task force as it became clear there was a need for more structure and monitoring of guardian programs, along with more reporting and judicial review of guardians' reports when they come in, she added. A legal guardian, as opposed to a power of attorney, is appointed only after a "ward" is deemed incapacitated and only after a hearing in court. The alleged ward has due process rights and has the right to an attorney after being alleged to be incapacitated a standard that emerged about 20 years ago, the last time guardian rules were examined, when the standard for guardianship was mental incompetence. Power of attorney, on the other hand, can only be signed over when an individual has not yet been determined to be incapacitated and, accordingly, can assign power of attorney himself or herself. Under Pennsylvania guardianship rules, guardians have to provide more accountability of their actions. They have to file annual reports outlining the current residence of the ward, the ward's health and mental condition, his or her living arrangements and whatever support program he or she has. Guardians also must list the number of visits they make, for how long they visit, and render a yearly opinion as to whether the guardianship should continue. For Falzone, who is not part of the task force, these annual reports serve as a good check and balance to the guardianship program and would do the same for cases in which a relative or friend is assigned power of attorney. The power of attorney process is one that, as long as it's going smoothly, does not traditionally involve court dates. "Why shouldn't the same rules apply to the power of attorney as to the guardianship [program]?" Falzone said. "There's no real court rule." Others viewed the power of attorney process as one in which the primary benefits are the lack of court dates and the lack of reports to fill out. "The beauty of it is court oversight is not mandatory," said Laura E. Stegossi, chair of the trusts, estates and wealth planning group at Weber Gallagher Simpson Stapleton Fires & Newby. "We don't want to turn it into a type of document or instrument where it's coming closer to a guardianship proceeding where annual reports are being filed." The party turning over control can delineate just what powers the person has, she added. Also, it's cheaper. Stegossi said she's heard of power of attorney papers being prepared for as little as $200 at some law practices. Guardianship legal work, on the contrary, often runs in the $4,000 to $5,000 range, she said. Carol Sikov Gross, an attorney at Pittsburgh elder law firm Sikov and Love and a task force member, said the thousands of power of attorney cases she has handled have demonstrated to her that most people do not abuse their powers. For Gross, who is on the elder abuse and powers of attorney subcommittee, the relatives who have been appointed power of attorney are trustworthy. Gross did acknowledge that when somebody games the system, the elder victim is often left with nothing. "When you have abuse, it's always really bad," she said. "Nobody's going to steal a little bit." But the longtime elder-law practitioner said the guardianship route was the more expensive and burdensome process for managing an incapacitated elder party's finances and favored power of attorney when that course of action is feasible. She added that most guardians in Pennsylvania are also doing their jobs properly, yet still often find themselves in court asking for permission to spend their ward's principal, or arguing over a nominal raise in monthly expenditures like a nursing home bill. She hoped to offer a different perspective for an arm of the task force that is mostly made up of people who Gross said only see the bad side of guardian and power of attorney cases when they end up in court. "Most of the people on that subcommittee are DAs and judges," she said. District attorneys often see the negative side of guardian and power of attorney cases in the prosecutions of those who abuse the elderly, Gross said, and judges often decide conflicted cases. But that's not the norm, according to the attorney. Regardless of whether the task force elects to impose court rules or seek legislation for power of attorney assignments, attorneys converged on the notion that educating elderly Pennsylvanians about handing over decision-making should be a goal of the task force. Namely, aging citizens should be aware that, in signing power of attorney papers, they can adjust what powers they are handing over and to what extent they are doing so. "The power of attorney document, it grants broad-ranging powers," Stegossi said. "Essentially, the person you name in the power of attorney [document] can step into your shoes. We really need to educate individuals who are assigning power of attorney." Added Falzone: "This is going to be more and more an issue as the boomers come through the system." Allegheny County District Attorney Stephen A. Zappala Jr., who chairs the elder abuse and powers of attorney subcommittee, did not return a call requesting comment. Pennsylvania Superior Court Judge Paula Francisco Ott, who chairs the guardianship monitoring committee, said her group will examine what has worked in certain regions of the state regarding monitoring guardians and will look to recommend implementing certain practices at a statewide level. In her home county, Chester County, Ott said volunteers have been reviewing guardian reports and red-flagging potential misconduct, usually related to finances. As for power of attorney cases, Ott said they are "just that much harder to monitor because they're created by the person themselves." Philadelphia Court of Common Pleas Judge Joseph D. O'Keefe is heading up the guardianship appointment and qualifications committee. O'Keefe said his subcommittee will look at not only the guardians themselves, but also the attorneys who are representing the alleged wards in court. He said Philadelphia, his home county, has the benefit of organizations like the Philadelphia Corporation for Aging he said "those people are angels, as far as I'm concerned" but other counties don't have those resources. It is those counties that his subcommittee will pay particularly close attention to. "It s really important because none of us are getting younger," O'Keefe said. Ben Present can be contacted at or Follow him on Gas Lease continued from 1 that the class currently consists of about 165 people, with claims totaling about $30 million. According to the complaint, Walney holds a deed to a 42-acre parcel of land in Rockland Township, Pa. In December 2011, the complaint said, SWEPI delivered a lease to Walney along with an offer to pay him a $137,000 signing bonus. The complaint alleges that Walney signed and delivered the lease, along with a lease memorandum, to SWEPI s agent on January 16, SWEPI subsequently issued a time draft to Walney, made payable in the amount of $137,085, according to the complaint. The complaint said SWEPI also delivered Walney a letter instructing him to deposit the time draft in his bank. According to the complaint, the time draft gave SWEPI 90 banking days to conduct a title examination and make payment. It also prohibited Walney from retrieving the lease and other documents until those 90 days passed without payment of the signing bonus. The complaint said SWEPI recorded the lease memorandum in the Venango County Recorder of Deeds office on January 31, 2012, but has failed to pay Walney the signing bonus. Instead, according to the complaint, SWEPI canceled the lease in July Walney alleged breach of contract, seeking payment of the signing bonus plus prejudgment interest from January 16, 2012, as well as any additional costs, according to the complaint. Walney also alleged fraud, pointing to language in the time draft that stated, No liability for payment or otherwise shall be attached to any of the parties hereto, according to the complaint. SWEPI knew the time draft was a worthless medium of payment as to which it could at its sole discretion claim to have no payment liability, the complaint said. SWEPI nevertheless intentionally utilized the worthless draft as a means of procuring delivery of the executed lease and lease memorandum in recordable form before ever first actually paying the signing bonus. The complaint further alleged that SWEPI fraudulently withheld from Walney that it had recorded the lease memorandum in the Recorder of Deeds office on January 31, Walney alleged in the complaint that he did not discover this until SWEPI sent him a lease cancellation letter July 23, At the time of the execution of the lease by plaintiff, SWEPI had been engaged in a highly competitive race among major and independent gas producers to secure for their respective accounts as much leasehold acreage as possible in the Marcellus Shale, Utica Shale and Tully Limestone regions of Pennsylvania, the complaint said, alleging that SWEPI recorded the lease memorandum so that it could hold itself out as Walney s lessee in order to keep competitors away. By the time SWEPI canceled the lease, the complaint alleged, natural gas prices had become severely depressed and Walney has since not been approached by anyone else interested in leasing his land. In addition to seeking payment of the bonus, prejudgment interest and costs, Walney also sought punitive damages, alleging in the complaint that SWEPI s conduct was intentional and malicious, and carried out with reckless disregard of injury to plaintiff. The complaint also included claims of disparagement of title and promissory estoppel. SWEPI, in its answer to the complaint filed April 19, argued that Walney s reliance on the time draft was not reasonable and that the time draft did not constitute a valid contract. SWEPI further argued in its answer to the complaint that it had properly surrendered the lease and, therefore, was not liable for any rentals or obligations that had not yet come due, including the alleged signing bonus. See Gas Lease on Page 12
12 12 Pennsylvania Law Weekly tuesday, April 30, 2013 Cite This Page as 36 PLW 422 Gas Lease continued from 11 Counsel for SWEPI, Jeremy A. Mercer of Fulbright & Jaworski in Canonsburg, Pa., could not be reached for comment. Saunders said plaintiffs have a difficult burden of proof when claiming that one driller s actions cost them the opportunity to enter into a lease agreement with another driller. In that type of case, it s likely a plaintiff would have to depose other gas operators doing business nearby to determine whether they had been interested in the plaintiff s property but had passed it over when they saw that an executed lease had already been recorded. In addition, Saunders said he suspects many drillers are uncomfortable testifying against competitors with whom they may have a need to do business in the future. Firm Sued In Endeavor Energy Resources v. Gatto & Reitz, according to Endeavor Energy Resources April 15 complaint, the Texas-based driller began working with Marcellus Mineral Group LLC to acquire oil and gas leases in the Marcellus and Utica shale plays in Gatto & Reitz, a firm that focuses on oil and gas lease agreement work, among other areas related to natural resources, represented both Endeavor and MMG, according to the complaint. At some point in 2010, MMG entered into negotiations with a family in Fayette County, Pa., in an attempt to acquire oil and gas leases for Endeavor on the family s 1,081-acre property, the complaint said. Endeavor agreed to pay the family a signing bonus of $2,500 per acre, according to the complaint. Endeavor put about $2.7 million into Gatto & Reitz s escrow account for use as bonus payments to the family, but negotiations between Endeavor and the landowners eventually broke down, the complaint said. However, when Endeavor requested that Gatto & Reitz return the $2.7 million the company had placed in escrow, the firm refused, according to the complaint. MMG then asked Endeavor to keep the money in Gatto & Reitz s escrow account to be used as bonus payments for other landowners in the future, the complaint said. Endeavor eventually entered into an oral contract to acquire a lease from Pennsylvania-based Ridec Inc., thereafter agreeing to pay Ridec a bonus payment in excess of the $2.7 million already in Gatto & Reitz s escrow account, according to the complaint. The balance of the bonus payment about $200,000 was to be deducted from what were referred to as the Ohio deal proceeds, according to the complaint. The complaint alleged that Endeavor s counsel had instructed Gatto & Reitz not to disperse the funds until Endeavor received a finalized copy of the Ridec lease, containing all the agreed-upon revisions. But according to the complaint, Gatto & Reitz has failed to return or account for both the $2.7 million that had been placed in its escrow account and the $200,000 that was to be deducted from the Ohio deal proceeds. Upon information and belief, Gatto & Reitz have distributed or otherwise have dispensed with the escrow funds despite the fact that the conditions have not been met and despite an explicit instruction by Endeavor not to distribute or dispense with the funds, the complaint alleged. Endeavor alleged in the complaint breach of contract, breach of fiduciary duty, conversion, fraud, civil conspiracy and accounting, demanding a judgment of at least $2.7 million, plus punitive damages, prejudgment and post-judgment interest, attorney fees and costs. Counsel for Endeavor, Denise Pentino of Dinsmore & Shohl in Wheeling, W.Va., could not be reached for comment at press time. Gatto & Reitz principal Bradley Reitz declined to comment on the case. Zack Needles can be contacted at or Follow him on UIM continued from , that 'we gotta get moving on this,' [the Hopkinses] remained idle until their incomplete submission of records in 2008," she added. The judge, saying the Hopkinses' "failure to act is longstanding," noted the plaintiffs waited until only six days before the statute of limitations expired for the tort claim against the tortfeasor. The factual history of the case, according to the trial court's rendition of the case, appears to show that the Hopkinses' attorney failed to respond to certain requests by Erie in eventually failing to file in the four-year window under the statute of limitations for UIM claims. Marc A. Weinberg of Saffren & Weinberg in Jenkintown, Pa., represented the Hopkinses and did not return a call requesting comment. According to the opinion, the underlying accident in the case took place in 1999, when Tammy Hopkins was struck by an underinsured driver. The Hopkinses settled with the third-party tortfeasor on June 11, Around that time, the Hopkinses indicated to Erie they wanted to pursue UIM arbitration. According to Allen, who was citing the trial court, the Hopkinses spoke with an Erie claims adjustor named Megan Rooney. The trial court said it was not until January 8, 2008, though, that the plaintiffs sent a demand letter and medical records to Erie. Erie asked the Hopkinses to send medical records and authorizations in February Then, on March 9, 2009, a lawyer for Erie sent the plaintiffs' attorney a letter stating that the statute of limitations had run on their UIM claim and that Erie was going to close its file. On December 2, months later the plaintiffs filed a petition for appointment of arbitrators and to compel arbitration. Five days later, a judge denied the petition and dismissed their claim. They appealed within a month. The judge ordered them to file a concise statement of matters complained of on appeal by December 30, According to the trial court's recounting of the facts, they did so on January 18, Scott B. Cooper, a Harrisburg personal attorney with SchmidtKramer and president of the Pennsylvania Association for Justice, said the opinion serves as a helpful guide to policyholders' attorneys as to how to preserve a UIM claim with the statute looming. Cooper said there are three courses of action that, under the facts in Hopkins, would have ensured the plaintiffs did not blow the statute: get an agreement in writing from Erie that even though the statute is running they would close the case, file a writ of summons, or, if the case is subject to arbitration, file a motion to compel arbitration. "If I don't get something in writing, I file a writ on them," Cooper said. "The safest thing is to file a writ." Ben Present can be contacted at or Follow him on (Copies of the 19-page opinion in Hopkins v. Erie Insurance, PICS No , are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at PICS to order or for information.) pennsylvania bulletin Below is the table of contents of the last issue of the Pennsylvania Bulletin, the official gazette of the Commonwealth. The Bulletin contains notices, regulations and other documents filed with the Legislative Reference Bureau, and supplements to the Pennsylvania Code. Courts are required to take judicial notice of the contents of the Bulletin. Contents PENNSYLVANIA BULLETIN, VOL. 43, NO. 16, April 20, For the full online version of The Legal Intelligencer
13 Cite This Page as 36 PLW 423 tuesday, April 30, 2013 Pennsylvania Law Weekly 13 Ethics continued from Employment Space Closes: May 24 Ads Due: May 28 Retirement continued from 5 time, without charge beyond the $9 a day, and try to give a fair and just verdict, whether it is a civil award or a criminal finding of guilty not guilty. Anyone who Labor & has tried jury trials regularly develops good faith in the jury system, although there are at times some aberrations. Spoiling that process and suggesting to people that their decision was wrong undermines the ability of these Special people Section to be chosen again or to be fair jurors. It also prevents them from having a good view of the legal system. There Publish are consequences Date: June for doing 4 this. Rule of Professional Conduct 3.5(c) prohibits a lawyer from communicating with a juror or prospective juror after the discharge of the jury if the communication is prohibited by law or court order, if the juror has made known to the lawyer a desire not to communicate or if the communication involves misrepresentation, coercion, duress or harassment. Many local courts, such as the U.S. District Court for the Eastern District of Pennsylvania, have local rules prohibiting contact with jurors after the case unless the court gives approval. Talking to jurors after a case can be an educational process if done properly. It is good for the jurors and good for the lawyers. If the lawyer For advertising approaches the discussions with an opportunities, eye for constructive please criticism contact an account the employer manager: to prove job availability. As it stands, without the presumption that a claimant has voluntarily removed Lana Ehrlich (LAW FIRMS) him or herself from the workforce by or collecting a pension, whether it be a regular retirement pension or a disability to the Topics claimant Include: to prove he or she did not voluntarily withdraw from the workforce; if not, then the burden stays with Current Trends in Whistleblower Claims The FLSA and Smartphone Overtime Employment Law Takeaways From the Lackawanna Dan County Krause Tax Claim Bureau," Demolition Penn State Scandal Mariani said, but added or in a footnote continued from 6 Representing Municipal Employers in that it was "fortunate for defendants that tion Employment and the actual Discrimination demolition. Cases this case does not turn on whether their According Avoiding Age to Discrimination Mariani, Pivirotto Claims is efforts to inform those with ownership Jayne Overturf silent Attempting as to whether to Work the While defendants Applying for interests by resorting to or searches only Keller Social had Security a duty to Disability determine whether at the Lackawanna County Assessor's the The property Oncoming had changed Effective hands Date after of PPACA it Office are sufficient under Pivirotto." had already sent notice of condemnation "Going forward, the court urges defendants and Terri the H. city Oppenheimer of Scranton to and demolition to the previous owner. "Given Bonus the distribution two-year to gap Corporate between Counsel abide by the strictures of or Pivirotto when the and time labor the property & employment was scheduled attorneys. sending notices of condemnation and for demolition and the time of its actual demolition, should defendants have checked the publicly available records to determine whether there had been demolition and avail themselves of the publicly accessible records to locate persons with ownership interests in properties," Mariani said in the footnote. any intervening ownership changes? But Mariani said Mitchell and Under Pivirotto's general holding, the court will assume there was such a requirement in that instance to check the publicly available records, including the Seitzinger were still entitled to qualified immunity. "Because defendants sent the required notice to the actual owner, Lawrence as opposed to trying to vindicate his or her cause, the discussions can be rather rewarding and helpful professionally. Every lawyer who wants to talk to a jury after trial should ask for court approval. But in talking, 2013 there cannot be harassment, coercion duress. That comes if the lawyer says, You made a mistake, or tells the jury Labor & of the defendant s prior record. Present counsel has actually seen a juror cry when told that by an assistant district attorney after the verdict was in. That was serious misconduct. Comment Special 3 to Section Rule 3.5 notes as follows: The lawyer may not engage in improper conduct Publish during the Date: communication. June 4 Improper conduct is berating a juror, Employment Space Closes: May 24 Ads Due: May 28 showing him or her evidence that the lawyer believes should have been admitted or telling him or her how wrong their verdict is. Proper conduct is to ask the jurors how they weighed certain evidence, ask what the lawyer could have done to have helped them or ask them if there is anything the lawyer did that they found annoying, etc. Constructive criticism can be very helpful to a lawyer and, at times, can be humbling, but at the same time very useful. The question clearly demonstrates bad conduct by a lawyer, which could result in disciplinary action or potentially a court sanction. Talking with jurors is a dying skill after a case For is done. advertising But, done properly, it can be very rewarding. opportunities, please contact an account the case. The manager: employer must face the daunting question as to how it can meet the murky totality of circumstances pension, Social Security disability benefits or old-age Social Security retirement benefits, proving that a claimant has voluntarily Topics withdrawn Include: from the workforce standard. Lana Ehrlich (LAW FIRMS) or has become more dependent upon the Current Trends in Whistleblower Claims views of the specific WCJ adjudicating The FLSA and Smartphone Overtime Solomon Employment Ltd., at Law the Takeaways time the From prop-therty Counsel Dan for Keller, Krause Richard C. Frank Penn was State condemned Scandal and scheduled of Jim Thorpe, Pa., could or not be reached for Representing demolition, they Municipal believed Employers they ful-ifilled at press time. Employment their minimum Discrimination duties under Cases the Counsel for the defendants, James J. law," Avoiding Mariani Age said. Discrimination "However, given Claims the Scanlon of Ridley, Chuff, Kosierowski & Jayne Overturf delay Attempting between March to Work 2006 While and Applying February for Scanlon in Scranton, said or the city was 2008, Social it is Security unclear Disability whether the law requires municipalities to conduct another "It was the city's opinion from the "very pleased" with Mariani's ruling. The Oncoming Effective Date of PPACA record search to determine whether outset that the its employees acted reasonably in their Terri obligations H. Oppenheimer to determine there have been any intervening changes in property Bonus distribution ownership. Because to Corporate the law Counsel the true owner of the property or and at all is unclear and labor as to & employment this point, the attorneys. defendants times satisfied the law," Scanlon said. could not have been expected to know whether they were required to conduct another record search and send out a second notice, if necessary." Mariani also denied Keller's claim for punitive damages against Mitchell and Seitzinger, finding no evidence that either official acted willfully or Zack Needles can be contacted at or Follow him on (Copies of the 11-page opinion in Keller v. City of Scranton, PICS No , are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at PICS to maliciously. order or for information.) Plates continued from 6 He said all of the gear came out of his fees, which are paid through the individual cases he works on and not taxpayer dollars. Ward argued that because he had used the gear, and therefore the plates, in several acts as constable, the court was equitably estopped from revoking the registration. The trial court rejected that argument. On appeal, Ward also argued that the PennDOT fee was a constitutionally protected "emolument" of the office manager: and, as he argued before the trial court, that PennDOT was equitably estopped from requesting a registration or revoking his 2013 Labor & Employment Special Section For advertising opportunities, please contact an account license plate because he had justifiably relied on the department's issuance of the plate. But the panel rejected that argument because the trial court had found that, given Ward's testimony, he would have purchased the equipment for his vehicle either way, as he characterized it as necessary for carrying out his job, municipal government plate or not. Reached for comment, Ward's attorney said the case was not about the $36; rather, he took the appeal to clarify where constables fit into their local Lana Ehrlich (LAW FIRMS) governments or For Philip M. Intrieri, of Intrieri & Associates in Harrisburg, who also represents the Capital-Area Constables Association in Pennsylvania, that question was out of the court system's jurisdiction. "It's the people who create government," said Intrieri. "Not our courts, and not PennDOT." Intrieri, who added he and his client have not yet decided whether to appeal the decision, said the Commonwealth Court did not go as far as the lower court, which he said Publish effectively Date: removed the constable from government June 4 altogether. "I think it's a well-written opinion and it was not unexpected," Intrieri Dan Krause Jayne Overturf said. "Our main problem with the lower or or court's opinion was the inference that constables were not part of government at all. Clearly, the lower court's ruling on that point went too far." He said the Commonwealth Court decision, in contrast, simply barred constables from acting on behalf of the governing structure of their political subdivision for the purposes of the vehicle code. Ben Present can be contacted at or Follow him on Space Closes: Ads Due: (Copies of the 12-page opinion in Silver Spring Township State Constable May 24 May 28 Office v. PennDOT, PICS No , are available from Pennsylvania Law Weekly. Please call the Pennsylvania Terri H. Oppenheimer Instant Case Service at PICS to or order or for information.) 2013 Labor & Employment Special Section Publish Date: June 4 Space Closes: May 24 Ads Due: May 28 For advertising opportunities, please contact an account manager: Lana Ehrlich (LAW FIRMS) or Dan Krause or Jayne Overturf or Terri H. Oppenheimer or
14 14 Pennsylvania Law Weekly tuesday, April 30, 2013 Cite This Page as 36 PLW 424 V&S continued from 7 Contractors, the framing contractor for the housing development, had installed the front porch roof. Those temporary beams seemed to be the center of the plaintiff's liability claims. Jay Solnick, Huang's attorney, said a Sunrise representative testified at a deposition that Sunrise would never condone its concrete workers doing the type of carpentry work associated with placing temporary support beams. However, Solnick said the evidence showed that a subcontractor hired by Sunrise, for which Sunrise was responsible, did that on every house in the development. "They admitted their own lack of qualifications for performing that work," Solnick said. Huang did not sue the subcontractor. According to Huang's attorney, Sunrise contributed $1.25 million, which included $250,000 from an excess carrier. McKinley Contractors, which had previously settled in a joint tort release, added $300,000. Realen Homes, the builder and developer behind the Ridgelea project, contributed $150,000 to the settlement. Exteriors Inc., an additional defendant and siding contractor for which Huang's employer, Gary's Siding Inc., was a subcontractor, added another $100,000 to the settlement. The accident took place at about 4 p.m., Huang said, when the porch roof collapsed, he fell 12 feet and landed on the concrete porch and then onto the dirt ground, striking his head on impact. He claimed a slew of head injuries, including skull fractures, a deviated septum, headaches, subarachnoid hemorrhage, facial bruises, back and neck injuries and optic neuropathy resulting in permanent vision deficiencies. According to Huang's mediation memorandum, the contractors tasked with building the homes in the development used the same mechanisms and procedures throughout the project, and the division of responsibilities remained the same throughout, as well. First, McKinley would frame the house, including placing the porch roof, and brace it with temporary support beams. Then Sunrise would come in, remove McKinley's temporary supports and pour the concrete for the porch. Sunrise workers would then rebrace the porch to the actual porch with temporary beams after they poured the concrete. Then, according to the plaintiff's memo, the siding workers would come in and finish their work on the porch roof. Among other things, Huang claimed Realen Homes was negligent in its supervision of the project, that Sunrise was not fit for the carpentry work it did when it rebraced the porch roof onto the concrete porch, and that McKinley should have known Sunrise was not fit for carpentry work and adjusted the protocol. In short, the plaintiff's theory of liability seemed to revolve around the temporary beams placed by Sunrise after its workers poured the porch concrete. Sunrise, in a pretrial memorandum, pegged liability on Realen, arguing the builder improperly directed it to move the wooden supports for the porch and further created a dangerous condition by failing to assure the porch supports were in the right position. McKinley, denying liability for Huang's injuries, pointed to the report of a Realen expert who said the cause of the accident was the temporary support beams, which the expert further said Huang and the siding team should have checked for structural stability and waited for McKinley to install permanent posts before finishing up the siding work. Realen pointed at the other contractors and Huang's action in denying its own liability and, based on a mediation statement, appeared prepared to assert a defense that it was a statutory employer and, therefore, protected from liability. None of the attorneys for the defendants returned calls requesting comment. Solnick added that some challenges facing his client, had the case gone to trial as scheduled a week after the January 31 settlement, were that Huang does not speak English, his physical appearance does not reflect his injuries and there were concerns about comparative negligence. However, Solnick added he had evidence the defendants knew Huang and the siding workers were bracing the ladders with two-by-fours nailed to the porch roof and only claimed ignorance after Huang got hurt. Ben Present, of the Law Weekly Privatization continued from 8 instances, the matter is directed to the courts of that jurisdiction, but the growing trend has been to direct these valuation disputes to arbitration. While not suitable for every dispute, arbitration presents a good alternative for wholesalers and suppliers that want to move toward a quick resolution before adjudicators with experience valuing franchise rights and their associated goodwill, while at the same time minimizing the amount of time and money that would be required to navigate through the judicial system. Given the significant value at stake in such terminations often in the millions of dollars these factors should be considered and explicitly spelled out either in future iterations of HB 790 or through regulation. Coordinator continued from 10 The end result of the A.H. decision was a reversal of the trial court s order, an order for remand and de novo hearing and a directive that the trial court s order specifically state a de novo hearing was required on the record and that it outline the parent coordinator s decision in a manner consistent with Yates. While the mother won when all was said and done, the time involved in the process and the need to take something as trivial, per the trial court, as some talent show communication all the way to the Superior Court raises important questions about the efficacy of implementing parent coordinators in the first place. While not every issue ends up in the Superior Court a grand total of two have in the past five years merited published opinions attorneys and judges must surely have been thinking twice after A.H. about the point of having a third party decide issues that by law are subject to a de novo court hearing. Why pay a third party to issue a decision when you will end up in court anyway, adding on the additional costs of litigation for the parent coordinator? Why have a third party decide an issue at all when the judge is required to take a fresh look and issue his or her own decision? If issues even as small as some talent show communication are subject to the mandate of review, why would any client ever be willing to accept and abide by a parent coordinator s decision with which they disagree? The matter of time spent on parent coordination and litigation was also (prior to rule ) a topic for serious consideration. In A.H., the incident regarding the school recital occurred in February The parties received a decision from the Superior Court in December 2012 and the trial court was given 30 further days to schedule a de novo hearing and no specific direction as to when an order was required. That time amounts to nearly one year of litigation for two attorneys and all of the attendant costs over a communication issue that occurred at a school play that probably lasted less than one hour. While not every case is high-conflict, and not every client is likely to appeal every decision of his or her parent coordinator, attorneys, judges and clients alike must surely have asked themselves whether the continued use of parent coordinators passed a cost-benefit analysis in the wake of A.H. Now, with the passage of rule , these questions have been rendered moot Montgomery County Court Rules Published by The Legal Intelligencer, Montgomery County Court Rules provides you with the most current and comprehensive coverage of newly adopted, amended and rescinded rules in the county, along with editor s notes and comments. Rules are provided for Civil and Family, Criminal, Juvenile and Orphans divisions followed by an index for each section, an extensive directory of court officials and staff, and forms for each section with a companion writable CD ROM. To Order: Call x2453 Visit
15 CITE THIS PAGE AS 36 PLW 425 TUESDAY, APRIL 30, 2013 PENNSYLVANIA LAW WEEKLY 15 PENNSYLVANIA Lawweekly I N D E X BY COURT PAGE NO. Superior Court Commonwealth Court w w w. t h e l e g a l i n t e l l i g e n c e r. c o m DIGESTS OF RECENT OPINIONS THE MANY COURTS WE COVER Our lawyer-editors at The Pennsylvania Law Weekly receive and review the most recent cases from the appellate-level state courts and the federal courts in Pennsylvania. To save you time weeding through nonessential cases, we report only the significant ones. Listed below are many of the courts that we cover: U.S. Supreme Court (Pa. and 3rd Circuit cases only) U.S. Court of Appeals for the 3rd Circuit (Pa. District Court Cases) U.S. District Court (all Pa. districts) Pa. Supreme Court Call PICS (7427) or go to webform.jsp Enter your five-digit PICS Account Number, or follow the simple instructions for your one-time registration. 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Courts of Common Pleas U.S. District Court-Eastern U.S. District Court-Middle BY TOPIC PAGE NO. Civil Procedure... 19, 23 Contracts Criminal Law Criminal Procedure Education Law , 20 Election & Political Law Family Law... 17, 21 Government Insurance Law... 17, 21 Land Use & Planning Legal Profession Motor Vehicles... 18, 21 Products Liability Real Property Torts Unemployment Compensation Workers Compensation YOU CAN NOW DOWNLOAD THE PLW DIGESTS AS A PDF! SIMPLY LOG ONTO THELEGALINTELLIGENCER.COM. CALL FOR MORE DETAILS. SUPERIOR COURT CRIMINAL LAW Megan s Law Sex Offender Registration Wilgus I & II Residence Registration Requirement Homelessness Commonwealth v. Heckman, PICS Case No (Pa. Super. April 15, 2013) Stevens, P.J.; Lazarus, J., dissenting (13 pages). The trial court improperly granted appellee s habeas corpus motion where the commonwealth established a prima facie case that appellee failed to comply with Megan s Law sex offender registration requirements when he became homeless and failed to notify the state police that he was no longer living in the residence that he last reported. Reversed. On Dec. 4, 2009, appellee Craig Matthew Heckman was arrested and charged with failure to comply with sex offender registration requirements in violation of 4915(a)(1) of the Crimes Code. Appellee subsequently filed a motion for habeas corpus relief and requested expedited disposition of the motion, citing Commonwealth v. Wilgus, 972 A.2d 1183 (Pa. Super. 2009) (Wilgus I), in which this court held that defendant s homeless existence precluded him from having a residence to register within the meaning of Megan s Law. In January 2010, the trial court granted appellee s motion, citing Wilgus I as controlling authority. On appeal, this court affirmed. After the commonwealth filed a petition for allowance of appeal, the Pennsylvania Supreme Court reversed this court s decision in Wilgus I in Commonwealth v. Wilgus, 40 A.3d 1201 (Pa. 2012) (Wilgus II), finding that Megan s Law requires all sex offenders to inform the Pennsylvania State Police of their current and intended residences and to notify the state police within 48 hours of any change of residence. The Supreme Court specifically held that Megan s Law contains no exception for homeless offenders and that the Superior Court was incorrect in reading such an exception into the statute. As a result, the Supreme Court vacated the trial court s order in this case and remanded to this court for reconsideration in light of Wilgus II. Here, this court found that the commonwealth presented a prima facie case that appellee failed to properly register a change in his residence. As in Wilgus II, appellee was a convicted sex offender who initially registered an address with the state police for Megan s Law purposes but later became homeless. The parties agreed that appellee intended to live at the home of his friend and employer Barry Possinger upon release from prison and properly reported that address to the state police. After Possinger asked appellee to leave the residence, appellee claimed that he began to live in his vehicle, which was only occasionally parked overnight near Possinger s property. The evidence supported a reasonable inference that appellee violated his registration requirements when he failed to notify the state police that he was no longer living in the residence that he last reported. The court concluded that the trial court erred in granting appellee s habeas corpus motion because the commonwealth met its burden of establishing a prima facie case that appellee failed to comply with registration requirements. In dissent, Judge Lazarus opined that the evidence presented by the commonwealth did not prove that appellee violated of Megan s Law. Unlike the majority, he found that there were significant factual distinctions between Wilgus II and the instant case that compelled the court to affirm the trial court s order and that the relevant statutory provisions and the remedial purpose behind the registration requirements supported his opinion. Basic Sentencing Matrix Weapons Used Matrix Sentencing Guidelines Aggravated Range Commonwealth v. Hill, PICS Case No (Pa. Super. April 10, 2013) Stevens, P.J. (15 pages). The sentencing court appeared to have mistaken and misapplied the Sentencing Guidelines when it sentenced appellant outside the aggravated range and did not note an intentional deviation from the Sentencing Guidelines on the record. Vacated. In June 2011, appellant Kalee Hill fired a gun at a vehicle in Philadelphia. Raymond Erwin and Mimine Hein, who was nine months pregnant, were struck by stray bullets and were both seriously injured. Appellant pled guilty to three counts of aggravated assault and one count of persons not to possess a firearm and was sentenced to an aggregate of term of 35 to 70 years imprisonment. He also received a consecutive sentence of four to eight years imprisonment for a probation violation (VOP). After the court denied appellant s motion for reconsideration of sentence, he appealed. On appeal, this court initially noted that appellant s guilty plea did not bar his challenges to the discretionary aspects of his sentence because there was no agreement as to the sentence appellant would receive. Appellant contended that the sentencing court sentenced him outside of the sentencing guidelines, rendering the sentence unreasonable, the sentence was manifestly excessive in light of the criminal conduct at issue and it was inconsistent with protection of the public and his rehabilitative needs. The court found that appellant s sentence was outside the aggravated range of the sentencing guidelines, though the aggregate sentence did not exceed the statutory maximums.
16 16 PENNSYLVANIA LAW WEEKLY TUESDAY, APRIL 30, 2013 CITE THIS PAGE AS 36 PLW 426 The sentencing transcript revealed that the trial court failed to clarify whether the trial court deemed appellant s prior record score was four or five. In either case, its sentence exceeded the aggravated range. Furthermore, the trial court did not specify anywhere in the record that it understood the suggested sentencing range and intended to deviate therefrom. The court was troubled by the fact that the sentencing court maintained in its Pa.R.A.P. 1925(a) opinion that while appellant s sentence was within the statutory maximum, it was also well within the Sentencing Guideline recommendations. In reaching that conclusion, the sentencing court misinterpreted the numbers in the sentencing guidelines as representing years rather than months. The court also found it significant that the trial court seemed to reference the basic sentencing matrix, though the weapons used matrix applied to the aggravated assault convictions. In addition, the sentencing court treated all of the aggravated assault convictions as having the same offense gravity score, though at sentencing, the commonwealth stated that the two pertaining to the victims who were shot had a higher offense gravity score than the one arising from the shots fired at the man in the vehicle. It was unclear from the record that the sentencing court understood the applicable standard for aggravated ranges of the sentencing guidelines or the deviation therefrom prior to sentencing appellant. Therefore, the trial court did not properly place its reasons for deviation on the record. Accordingly, the court was constrained to remand the matter for resentencing. Appellant s second claim concerned failure of the trial court to obtain a complete mental health evaluation prior to sentencing. However, appellant did not provide authority for the proposition that a substantial question is raised where a complete mental health evaluation is not considered prior to sentencing. See companion digest for Commonwealth v. Hill, PICS Case No (Pa. Super. April 10, 2013) Stevens, P.J. (10 pages). Parole Violation Illegal Sentence Gagnon Hearing Mental Health Evaluation Commonwealth v. Hill, PICS Case No (Pa. Super. April 10, 2013) Stevens, P.J. (10 pages). Because there was confusion in the record as to whether appellant was on probation at time of sentencing, appellant may have been illegally sentenced for a parole violation. Vacated. In June 2011, appellant Kalee Hill fired a gun at a vehicle in Philadelphia. Raymond Erwin and Mimine Hein, who was nine months pregnant, were struck by stray bullets and were both seriously injured. Appellant pled guilty to three counts of aggravated assault and one count of persons not to possess a firearm and was sentenced to an aggregate of term of 35 to 70 years imprisonment. He also received a consecutive sentence of four to eight years imprisonment for a probation violation (VOP). After the court denied appellant s motion for reconsideration of sentence, he appealed. Appellant first argued the sentencing court had no standing to conduct a Gagnon hearing where appellant s probation had been previously terminated and therefore, the sentence was illegal and had to be vacated. This court found on appeal that the entire portion of the sentencing proceeding devoted to appellant s alleged probation violation was made up of two sentences. First, the court referred to Case Number 36, is the VOP, I will be sentencing on that on the PWIB [sic]. Thereafter, the sentencing court provided [s] entence on the VOP, PWID would be 4 to 8 years. The court noted that the trial court s Pa.R.A.P. 1925(a) opinion did little to clarify appellant s probationary status. While the sentencing court stated therein that it revoked appellant s parole, it did not specifically indicate whether it was revoking probation or parole on the record at the time of sentencing. The court noted that the commonwealth also expressed confusion in its brief regarding two related docket entries. As the commonwealth s own uncertain explanation for the Jan. 11, 2011 docket entry acknowledged, based upon the record, the court could not discern for certain whether the trial court illegally sentenced appellant to a four to eight year prison term for a probation violation. As such, the court was constrained to vacate and remand. Appellant s second claim concerned discretionary aspects of his sentence. Appellant argued in his petition for reconsideration of sentence that the mental health evaluation was not sufficient for sentencing. However, appellant s appellate brief did not contain the requisite concise statement. As such, he was not in technical compliance with the requirements to challenge the discretionary aspects of a sentence. Moreover, appellant s claim concerned the failure of the trial court to obtain a complete mental health evaluation prior to sentencing, but appellant did not provide authority for the proposition that a substantial question is raised where a complete mental health evaluation is not considered prior to sentencing. Appellant received a mental health evaluation, which concluded that appellant was competent for trial and suffered no mental illness and corroborated appellant s own acknowledgment on the record. See companion digest for Commonwealth v. Hill, PICS Case No (Pa. Super. April 10, 2013) Stevens, P.J. (15 pages). PCRA Habeas Corpus Illegality of Sentence Element of Offense Statutory Maximum Attempted Homicide Commonwealth v. Taylor, PICS Case No (Pa. Super. April 19, 2013) Bowes, J. (11 pages). Because appellant claimed that his sentence exceeded the statutory maximum and because his writ of habeas corpus was filed after his judgment of sentence became final, it had to be treated as a PCRA petition; because appellant did not allege any exceptions to the PCRA time bar, his petition was untimely filed. Affirmed. A jury found appellant Thomas Duane Taylor guilty of attempted homicide, aggravated assault and persons not to possess a firearm after he shot his girlfriend in the head with a 0.22 caliber rifle. The trial court sentenced appellant to 18 to 36 years imprisonment in September 2005 on the attempted homicide charge and imposed a concurrent sentence of one-and-one-half to three years for persons not to possess a firearm. Appellant appealed. Although appellant failed to include a statement of questions raised, this court gleaned on appeal that appellant asserted he was sentenced illegally. Specifically, appellant contended that the presentence report incorrectly indicated he was convicted of attempted murder causing serious bodily injury when he was actually convicted of the lesser offense of general attempted murder. He alleged his sentence of 18 to 36 years was therefore illegal. The court initially noted that a finding of serious bodily injury increases the maximum sentence, is an element of the offense and must be proved beyond a reasonable doubt. The court also noted that appellant was correct that the pre-sentence report indicated appellant was convicted of attempted homicide causing serious bodily injury. Thus, if the jury did not determine that appellant caused serious bodily injury, then appellant s sentence exceeded the statutory maximum of 10 to 20 years. The court decided that appellant s writ of habeas corpus was to be treated as a PCRA petition because the law is well-settled that the PCRA is intended to be the sole means of achieving post-conviction relief. Unless the statute could not provide a potential remedy, it subsumes the writ of habeas corpus. Thus, a defendant cannot escape the PCRA time bar by titling his petition or motion as a writ of habeas corpus. Further, all motions or petitions filed after judgment of sentence becomes final will be treated as a PCRA petition. The court found that because appellant claimed that his sentence exceeded the statutory maximum, the habeas corpus motion had to be treated as a PCRA petition. Because appellant did not allege any exceptions to the PCRA time bar, his petition was untimely filed. The court acknowledged that because the trial court did not treat appellant s writ of habeas corpus as a PCRA petition, it did not give appellant notice of its intent to dismiss or afford appellant the opportunity to amend. However, appellant did not challenge those actions on appeal, constituting waiver. The court concluded that a court s decision to deny an untimely petition absent directing an amendment did not warrant reversal where the claim was record-based and the issue did not fall within a timeliness exception. Because the trial court did not have jurisdiction to reach the petition s merits, this court affirmed. CRIMINAL PROCEDURE First-Degree Murder Due Process Frye Miranda Warrants Right to Counsel Commonwealth v. Harrell, PICS Case No (Pa. Super. April 12, 2013) Ford Elliott, J.; Donohue, J., dissenting (64 pages). Appellant s numerous assertions of trial court error on his appeal from the judgment of sentence following his conviction of two counts of first-degree murder and related offenses ultimately failed. Affirmed. On Feb. 14, 2011, appellant received consecutive life sentences on two counts of firstdegree murder for the shooting deaths of David Moore and Crystal Gordon. Appellant was also sentenced to six to 12 years imprisonment for firearms not to be carried without a license. In his first issue on appeal, appellant argued that his due process rights were violated by failure to record his interrogation and confession, depriving him of an opportunity to establish that his confession was involuntary and the product of police coercion. In a previous decision, this court determined that the Pennsylvania Constitution does not require contemporaneous recording of statements. Appellant next contended that the trial court should have allowed his proposed expert, Dr. Richard Ofshe, to testify regarding the phenomenon of false confessions. However, the trial court denied appellant s motion to admit that testimony on the basis that it failed to meet the Frye standard for admissibility. The trial court opined that the issue of false confessions was not beyond the ken of the average layperson. The trial court properly precluded Dr. Ofhse s testimony. Appellant argued that the trial court erred in directing him to turn over verbatim or substantially verbatim statements of defense witnesses. However, the trial court did not grant the commonwealth blanket discovery, nor did it tacitly approve a reciprocal discovery right. Rather, the trial court directed that on crossexamination, the commonwealth had to elicit from each witness whether he provided the defense with a statement. The order applied only to statements signed, adopted or otherwise shown to be substantially verbatim statements. That was in accordance with established law. Appellant next claimed that the trial court erred in denying his motion to suppress his inculpatory statements to police, asserting he did not knowingly, intelligently and voluntarily waive his constitutional right to remain silent. However, the court determined that appellant knowingly and voluntarily waived his Miranda rights and gave a voluntary confession. Appellant next argued that the initial search of his home was unconstitutional because it was a warrantless search and there were no exigent circumstances. He also argued that the search warrants were insufficient and were tainted by illegality of the initial warrantless search. The court disagreed. Officers arrested appellant on the front porch of his residence, but did not recover the weapon used to kill the two victims. A female, described as frantic, exited the residence and informed officers that there were children inside. Officers did not know at the time if there was anyone else involved in the shooting, if the murder weapon was inside the house or if the children were in danger. The officers were justified in performing a protective sweep of the residence. Additionally, based on the record, the affidavit of probable cause was sufficient for a search warrant to issue. Appellant s argument that his constitutional right to counsel was violated when he was not provided counsel at the photographic lineup also failed. That right is triggered by arrest of the accused. Because appellant was not formally charged with the murders until several months later, he did not have a right to counsel at the photographic lineup. In dissent, Judge Donohue concluded that the trial court abused its discretion in denying appellant s motion in limine to permit the expert testimony. Suppression Reasonable Suspicion Investigatory Detention Frisk Terry Felony Narcotics Transaction Commonwealth v. Clemens, PICS Case No (Pa. Super. April 15, 2013) Olson, J. (17 pages). Because police officer s verbal order for appellant to stand up and turn around did not constitute a frisk, appellant s appeal from his judgment of sentence necessarily failed. Affirmed. On June 27, 2009, police officer Ivan Centeno was on patrol with his partner, police officer Clifford Gilliam, Jr., in a very high crime and very violent residential area. Centeno observed what he believed was a hand-to-hand drug transaction based upon his training and experience. Officers approached appellant Brandon Clemens and found he could not provide any identification. Centeno asked appellant to stand up and turn around so that he could pat him down for officer safety. As soon as appellant spread his legs, before Centeno laid a hand on him, a clear plastic sandwich bag containing smaller packets fell from appellant s pants. A search incident to arrest revealed that appellant possessed $328 in balled up dollar bills. The commonwealth charged appellant with possession of a controlled substance and possession of a controlled substance with intent to deliver. Appellant s motion to suppress, asserting that police did not have reasonable suspicion to subject him to an investigatory detention and that police did not have justification to frisk him, was denied. The suppression court concluded that Centeno had reasonable suspicion to believe that appellant had just engaged in a felony drug transaction based on his observations and experience, which justified the investigatory detention. The totality of the circumstances supported Centeno s suspicion that appellant might have possessed a weapon. Thus, the suppression court concluded that both the detention and the frisk were justified. Appellant was found guilty of both charges and sentenced. On appeal, this court agreed with appellant that when Centeno told appellant to stand up
17 CITE THIS PAGE AS 36 PLW 427 TUESDAY, APRIL 30, 2013 PENNSYLVANIA LAW WEEKLY 17 and turn around so that he could pat appellant down for officer safety, Centeno subjected appellant to an investigatory detention. The court observed that the record clearly supported the suppression court s conclusion that at the time of the investigative detention, Centeno had reasonable suspicion to believe that appellant had just sold narcotics. The court further agreed with the suppression court that an objectively reasonable police officer would have reasonably suspected criminal activity was afoot. Given the specific and articulable facts, the court agreed that an objectively reasonable police officer would have reasonably suspected that appellant sold narcotics. The court agreed that the investigatory detention was properly supported by reasonable suspicion and appellant s claim to the contrary failed. The court next determined that appellant s claim that Centeno subjected appellant to a frisk also failed. Appellant assumed that a Terry frisk commenced when Centeno ordered him to stand up and turn around in preparation for the frisk. However, the bag of narcotics fell from appellant s pants and into Centeno s plain view before Centeno ever placed a hand on appellant s person. Moreover, Centeno testified that as soon as he saw the bag of narcotics, he intended to and did arrest appellant. Given those facts, at the time Centeno first touched appellant, he had both probable cause and intent to arrest appellant and was therefore entitled to perform a valid search incident to appellant s arrest. FAMILY LAW PFA Protection from Abuse Act Ex Parte Hearing Exception to Mootness Doctrine Ferko-Fox v. Fox, PICS Case No (Pa. Super. April 17, 2013) Per Curiam; Ott, J., dissenting (26 pages). In this matter of first impression, this court held unequivocally that absent an exigent circumstance that prevents a petitioner s appearance, due process mandates that a trial court convene an ex parte hearing prior to entering a temporary PFA order, but found that the lack of an ex parte hearing here was not grounds for reversal of the final PFA order. Affirmed. Appellee wife Donna L. Ferko-Fox was granted a temporary protection from abuse order on March 22, 2011, which evicted appellant husband Jonathan P. Fox from the marital home, prohibited him from abusing wife, having contact with wife and stalking or harassing wife s mother. Husband s June 2011 petition for access to the premises to remove property was denied, except for directing husband to employ a moving company to remove his personal belongings. Wife s final protection from abuse order issued on Nov. 23, Husband appealed. This court agreed with husband s due process challenge to the propriety of the trial court s temporary PFA order. Husband contended that 6107(b) of the Protection from Abuse Act mandated that a trial court conduct an ex parte hearing before issuing a temporary PFA and that a simple review of a verified petition is inappropriate. Although that issue was moot because the trial court entered a final PFA order, the court found this case fell within an exception to the mootness doctrine. The court noted it was thus proper to confront the pertinent issue even though its ruling had no effect on the trial court s temporary PFA order. The court also noted this was a case of first impression and that existing case law addressing due process rights under the PFA Act did not confront the precise issue here, nor did it stand for the proposition that an ex parte hearing is necessary before entering a temporary PFA order. The court found that the trial court s stated practice did not comply with 6107(b) because it reduced the procedural safeguards and increased the risk of an erroneous deprivation of a respondent s liberty. The court noted there are aspects of the truth-determining process that cannot be gleaned from the four corners of a PFA petition. The court concluded that Lancaster County s informal practice failed to provide parties to a PFA petition the procedural safeguards required to ensure justice. Accordingly, the court held unequivocally that absent an exigent circumstance that prevents a petitioner s appearance, due process mandates that a trial court convene an ex parte hearing prior to entering a temporary PFA order pursuant to 6107(b). However, because a final PFA order was entered here following a full adversarial proceeding, the lack of an ex parte hearing was not grounds for reversal of the final PFA order. In dissent, Judge Ott opined that violation of respondent s due process rights was not caused by grant of an ex parte temporary order but rather by the exceptional delay between the filing of the petition and the hearing, which should have been cause for concern rather than the original procedure used to grant the temporary order. INSURANCE LAW Motor Vehicle Accident Breach of Contract Arbitration Statute of Limitations UIM/UM Coverage Equitable Relief Hopkins v. Erie Insurance Company, PICS Case No (Pa. Super. April 19, 2013) Allen, J.; Gantman, J., concurring (19 pages). The trial court properly denied appellants petition to appoint arbitrators and to compel arbitration because appellants failed to ensure that their petition was filed in a timely fashion and the record did not support equitable relief. Affirmed. On Jan. 11, 1999, appellant Tammy Hopkins sustained personal injuries when her vehicle was struck by an underinsured motorist. Her injuries were the result of negligence of the underinsured tortfeasor. Hopkins insurance coverage through Erie Insurance Company included underinsured motorist coverage. Appellants Joseph and Tammy Hopkins filed a complaint but later settled the underlying claim against the tortfeasor and submitted correspondence to Erie. They also informed Erie that they intended to pursue underinsured motorist (UIM) arbitration. In March 2009, prior counsel for Erie informed appellants counsel that the statute of limitations had run on appellants claim and that Erie was going to close the file. In December 2010, the trial court denied appellants petition for appointment of arbitrators and to compel arbitration. The controversy before this court on appeal was whether the trial court properly denied appellants petition based on expiration of the four-year statute of limitations applicable to contracts. The court disagreed with appellants contention that the trial court incorrectly calculated the statute of limitations because, they contended, the cause of action on the contract did not accrue until the contract was breached, which did not occur until Erie denied the claim on March 9, The court agreed with the trial court that there is no precedent under Pennsylvania law establishing when the statute of limitations for a UIM claim begins to run. After analyzing relevant case law, the court held that the four-year statute of limitations on UIM claims begins to run when the insured settles with or secures judgment against the UIM owner or operator. Accordingly, based on the date appellants settled with the tortfeasor, appellants UIM claims were barred by the statute of limitations. The court affirmed the trial court s order denying appellants petition due to expiration of the statute of limitations. Appellants remaining issues challenged the trial court s failure to exercise its equitable powers to grant appellants petition. The court observed there is no better example of Appellants own supine negligence, lassitude and lack of diligence than the 21 months that elapsed between Erie s March 9, 2009 notification to appellants of expiration of the statute of limitations and the date they filed their petition on Dec. 2, Accordingly, the trial court properly declined to equitably toll the statute of limitations. Moreover, Erie invoked the statute of limitations defense not in bad faith, but in response to appellants lack of due diligence in pursuing their claim. In fact, appellants failure to act was longstanding and extended back to the underlying claim against the tortfeasor, which was filed only six days before expiration of the statute of limitations. LEGAL PROFESSION Attorney Contempt Civil & Criminal Sanctions Failure to Appear Continuance Rule Hearing Stewart v. Foxworth, PICS Case No (Pa. Super. April 19, 2013) Wecht, J. (8 pages). Although the court censured appellant attorney s behavior for multiple failures to appear, the court was constrained to reverse because the trial court did not have authority under Pa.R.Civ.P. 218 to impose monetary sanctions. After multiple failures to appear at court hearings and multiple continuances, the trial court assessed against appellant attorney John J. Martucci, Jr., attorney for plaintiff in the underlying action, a series of sanctions totalling $1,300. On appeal, appellant raised the single issue of whether the trial court abused its discretion in ordering cumulative sanctions against him. Appellant argued that the court s March 22, 2013 order imposing a $1,000 sanction found him in civil contempt, which was erroneous because there was no showing that his failure to appear was willful or done with wrongful intent. This court noted that although no specific finding of contempt was made, appellant s belief was supported by the record insofar as appellant failed to appear at a rule returnable hearing and a rule to show cause is part of the five-step civil contempt process. However, the trial court failed to proceed through the proper steps necessary to find appellant in civil contempt of its prior order. Instead, it focused on appellant s failure to appear. Also, sanctions for an attorney s failure to appear have long been considered matters of criminal contempt. The court observed that the trial court did not indicate any finding of contempt or identify whether such adjudication was civil or criminal. Instead, it relied on Pa.R.Civ.P. 218 to sanction appellant, but that rule does not contemplate imposing monetary sanctions against an attorney for failure to appear. Moreover, none of the cases cited by the trial court supported such a sanction. The court explained it did not in any way condone appellant s behavior. On the contrary, we censure it and share the trial court s exasperation. However, the court was constrained to reverse. The trial court would have acted within its authority if it had entered a nonsuit or non pros under Rule 218, but it had no authority under Rule 218 to sanction appellant with a monetary fine. Had the trial court made a specific finding of criminal contempt, that would also have failed because such adjudication generally will not stand. Alternatively, the trial court could have properly pursued the appropriate procedure for finding appellant in civil contempt for violating the court s order. The trial court could have awarded defendant s counsel fees if it found appellant s conduct was dilatory, obdurate or vexatious. But the trial court s imposition of a monetary sanction under Rule 218 was improper and had to be reversed. The trial court then had discretion to initiate contempt proceedings on remand. COMMONWEALTH COURT EDUCATION LAW School District Employee Benefit Health Trust ERISA Trust Agreement Exclusive Benefit Rule Disgorgement of Surplus Dallas Sch. Dist. v. Northeast Pa. Sch. Dist. (Health) Trust, PICS Case No (Pa. Commw. April 17, 2013). Brobson, J. (30 pages). Because the trust was not made up of separately segregated accounts for each member school district, the school districts could not prevail on their claim that the exclusive benefit rule required the trust to carve out a portion of the surplus for the exclusive benefit of the withdrawing school districts employees. Trial court order reversed. Appellees Dallas School District and Pittston Area School District, among others, brought this civil action against appellant Northeast Pennsylvania School Districts (Health) Trust to compel an accounting and disgorgement of funds from the trust to be deposited into new trusts for the exclusive benefit of the school districts employees and their beneficiaries and dependents. The trust counterclaimed that the school districts breached the trust agreement by refusing to pay certain amounts to the trust upon their withdrawal from the trust. The trial court ruled the school districts were entitled as a matter of law to disgorgement of millions of dollars from the trust to fund separate trust accounts for the school districts employees. The trial court also awarded the school districts their attorney fees. On appeal, the trust challenged those decisions. The school districts cross-appealed, contending the trial court erred in failing to require the trust to reimburse them for costs incurred to obtain their own accounting. This court found it was clear that the school districts became dissatisfied with the manner by which the trustees administered the trust, specifically with: 1) how the trustees chose to calculate each member school district s mandatory contributions; and 2) how the trustees chose to use or allocate surplus funds. Also, the school districts and their employees unions apparently represented the minority view in the board of trustees. However, rather than lodge their challenges while members of the trust, the school districts chose to withdraw from the trust and demand that a portion of the accumulated surplus in the trust fund was to be placed into constructive trusts for each withdrawing school district to establish a new single employer health plan for its employees. The trial erroneously accepted the school districts foundational premise that the trust was an aggregate of segregated single employer welfare plans and not a multiple employer pooled plan. This court concluded that the trust settlors intended to create a single trust fund for the benefit of all participants and beneficiaries, as
18 18 PENNSYLVANIA LAW WEEKLY TUESDAY, APRIL 30, 2013 CITE THIS PAGE AS 36 PLW 428 was evident throughout the trust agreement. The absence of segregated funds and separate reporting for each member school district supported that conclusion. The trust agreement required all assets to be included in a single fund. Moreover, whether the trust was able to or even did maintain records of each member school district s contributions and claims experience did not prove the existence of separate, segregated funds for each employer. Rather, maintaining such premium and loss history records was part and parcel of the insurance business. Because the court concluded that the trust was not made up of separately segregated accounts for each member school district, the school districts could not prevail on their claim that the exclusive benefit rule, as either expressly set forth in 6.6 of the trust agreement or as incorporated from ERISA by 6.1 of the trust agreement, required the trust fund to carve out a portion of the surplus for the exclusive benefit of the withdrawing school districts employees. GOVERNMENT RTKL OOR Noncriminal Investigation Exemption Unsworn Statement Written Request Coulter v. DPW, PICS Case No (Pa. Commw. April 18, 2013) McCullough, J. (11 pages). OOR properly determined that petitioner requested documents that fell within the noncriminal investigation exemption when petitioner requested records from the Department of Public Welfare related to an investigation of her daughter s foster care placement. Affirmed. On Oct. 8, 2011, petitioner Jean Coulter requested from respondent Department of Public Welfare records related to alleged impropriety on the part of Butler County Children and Youth Services (CYS) in the foster care placement of petitioner s daughter after petitioner s parental rights were terminated. By letter dated Nov. 21, 2011, DPW responded that it interpreted her request to be for records regarding an investigation that DPW completed in response to petitioner s complaint about her daughter and CYS. That investigation resulted in DPW issuing a licensing inspection summary and CYS submitting proposed plans for correction that DPW deemed acceptable. DPW provided requester with the names of the investigators, but denied her request for notes and internal correspondence related to the investigation, explaining that those documents did not exist. DPW also denied the request for correspondence with [CYS] during the investigations and the various versions of the reports produced as a result of the investigations[,] stating that portion of the request sought noncriminal investigative records, which were exempt from disclosure under 708(b)(17)(ii) of the Right-to-Know Law. Petitioner filed an appeal to the Office of Open Records, which invited the parties to supplement the record. DPW submitted a position statement and an affidavit from its open records officer and an unsworn statement from its western regional director for the Bureau of Children and Family Services, Elaine Bobick. Relying on Bobick s statement, OOR found that DPW carried its burden of proving that it conducted a noncriminal investigation. OOR further concluded that the request explicitly sought reports and correspondence generated from the investigation and was therefore facially exempt under 708(b)(17) of the RTKL. On appeal, petitioner argued that OOR erred in finding that DPW met its burden of proving the requested records were exempt because Bobick s unsworn statement did not meet the requirements of an affidavit. It was not signed or verified under penalty of perjury and Bobick lacked personal knowledge regarding the investigation. This court found that petitioner did not contest DPW s interpretation of her request on appeal to the OOR, thereby waiving the issue. As a result, petitioner could not raise it before this court. The court observed that petitioner sought DPW s correspondence and the various versions of the reports produced as a result of the investigations. By its very terms, 705(b)(17) exempts correspondence and reports related to a noncriminal investigation and that language clearly encompassed the documents that petitioner sought. DPW carried its burden of proof by showing that petitioner sought documents that fell within the plain language of the noncriminal investigation exemption. The court noted there was no need to address petitioner s arguments concerning sufficiency or evidentiary value of Bobick s unsworn statement. Finally, this court denied as moot DPW s application to supplement the record. MOTOR VEHICLES Notice of Suspension Vehicle Registration Fee Constable Governmental or Quasi-Governmental Entity Municipal Plate Equitable Estoppel Ward v. PennDOT, PICS Case No (Pa. Commw. April 18, 2013) Colins, S.J. (12 pages). In this issue of first impression, a constable is not a governmental or quasi-governmental entity under the Vehicle Code and therefore is not exempt from paying the $36 vehicle registration fee. Trial court order affirmed. On Feb. 9, 2009, appellant, Constable Michael J. Ward, purchased a Ford Crown Victoria. To complete his vehicle registration, appellant filled out a DOT Form MV-4ST identifying the purchaser of the vehicle as Silver Spring Township Constables Office, thereby registering the vehicle in that name. He listed his home address and signed the form in his own name, without identifying his office. A handwritten notation on the form claimed a sales tax exemption under code 18 and stated Municipal Tag Free. There was no finding regarding whether Ward or DOT personnel made those handwritten notes. Based on that information, DOT erroneously issued a Municipal Government (MG) plate to Ward for use on the Ford Crown Victoria and did not collect the $36 registration fee. Appellant later purchased a Chevrolet Tahoe to replace the Crown Victoria and transferred the tag to the Tahoe. On Sept. 13, 2011, DOT indefinitely suspended the Tahoe s registration and indicated that its municipal registration was issued in error. On appeal, the trial court denied Ward s appeal of DOT s vehicle registration suspension, reasoning that the office of constable did not meet any of the registration fee exemptions under 1901 of the Vehicle Code, that DOT issued the MG license plate in error, and also rejected Ward s equitable estoppel argument. On appeal, this court found that a constable is not a governmental or quasi-governmental entity under 1901 of the Vehicle Code and therefore is not exempt from paying the $36 vehicle registration fee. The General Assembly did not grant a constable authority to act on behalf of the government unit in which he works. The court noted that Ward purchased the Tahoe to discharge his duties as constable on his own, without express authorization or permission from the township. He determined, on his own, that the vehicle was necessary for his job. He had no authority to register a vehicle on behalf of the political subdivision in which he worked. As a result, he was not eligible for a registration fee exemption for governmental and quasi-governmental entities. The court noted that constables lack a standardized uniform that would signal a higher authority to the public. The court further observed that not only is a constable not authorized by statute to purchase a vehicle on behalf of a political subdivision, courts have recognized significant public safety issues where a constable has attempted to overreach his statutorily granted authority and take actions akin to those reserved for highly trained police officers. The trial court specifically rejected Ward s argument that he purchased certain equipment for his vehicle relying on the fact that he would have an MG plate. Given Ward s testimony that he considered the equipment necessary to perform his duties, he would have purchased the equipment anyway, even if DOT never issued him an MG plate and even if DOT requested the $36 registration from the beginning. Suspension Operating Privileges Required Financial Responsibility MVFRL Disorderly Conduct Summary Conviction Pangallo v. PennDOT, PICS Case No (Pa. Commw. April 18, 2013) Pellegrini, P.J. (8 pages). Appellant failed to prove that his vehicle was insured at the time it was driven. Trial court order reversed; license suspension reinstated. On Feb. 5, 2012, appellee Josh Paul Pangallo was stopped after he drove his offroad dirt bike across State Route 36 in Jefferson County, Pa. He was charged with violating 1786(f) of the Motor Vehicle Financial Responsibility Law (MVFRL). Appellee pled guilty to the violation and was convicted by a magisterial district judge. After receiving a report of the conviction, appellant Pennsylvania Department of Transportation Bureau of Driver Licensing imposed a three-month suspension of appellee s operating privileges. Appellee appealed his suspension. Before appearing for the license suspension appeal hearing, appellee successfully appealed the summary conviction for violating 1786(f) and instead pled guilty to two counts of disorderly conduct. At the license suspension hearing, appellee admitted that his vehicle was not insured or titled and that he drove it on the date in question. Appellant s counsel questioned appellee and then introduced his certified driving record into evidence. Counsel informed the court that appellee s conviction for violating 1786(f) had been overturned, but explained that suspension was still warranted because this was not a conviction-based suspension. [It was] an insurance based suspension. In its opinion, the trial court explained that it was not aware that appellee s summary appeal had been successful until the parties raised the issue at the hearing. The trial court explained that it would disregard the remainder of [appellee s] testimony, because [appellant] was not permitted to collaterally attack the trial judge s verdict at the license suspension hearing. The trial court sustained appellee s appeal and appellant appealed. On appeal, this court held that appellee s testimony, elicited during appellant s case-inchief, was not introduced to collaterally attack the finding of not guilty in the criminal proceedings and established that appellee was without insurance and operated the vehicle during the period in question. The court held that because the proffered testimony did not attack the not guilty finding, it should not have been precluded and was a substantial basis to support the suspension of appellee s license under 1786(d) of the MVFRL. Because appellant met its initial burden, the burden shifted to appellee to prove that the vehicle was insured at the time it was driven. Because appellee failed to meet that burden, his license appeal should have been denied. UNEMPLOYMENT COMPENSATION Benefit Eligibility Voluntarily Quit Willful Misconduct Substantial Change Sua Sponte Turgeon v. Unemployment Comp. Board of Review, PICS Case No (Pa. Commw. April 18, 2013) Friedman, S.J. (9 pages). UCBR improperly applied 402(b) because the referee previously decided petitioner s eligibility under 402(e); petitioner was prejudiced when the UCBR decided her eligibility under a different section than the one used by the referee without providing notice to petitioner. Vacated. Pro se petitioner Renee J. Turgeon worked for P&G Mehoopany Employees Federal Credit Union from April 2004 until August In October 2010, petitioner came under a physician s care for stress and anxiety. In March 2011, petitioner informed employer that she suffered from stress and anxiety, but did not tell employer that her condition was work-related. In April 2011, employer promoted petitioner to the position of vice president of lending. Employer extended petitioner s probationary period due to her poor work performance. Petitioner s supervisor asked her if she wanted to continue working as vice president of lending. Petitioner indicated that she did not and asked if she could work as assistant vice president of lending. She was told the only position available was as a part-time loan officer. Petitioner refused the part-time position because it involved a substantial change in the terms of her employment. Petitioner later left work on medical leave. Employer discharged her by letter. Petitioner s physician did not release her to return to work until after she was discharged. The local service center granted petitioner s claim for unemployment benefits, finding that she was not discharged for willful misconduct under 402(e). The referee reversed, finding that employer terminated petitioner due to her unapproved leave of absence. Petitioner appealed to respondent Unemployment Compensation Board of Review, which decided the case under 402(b), finding that petitioner had voluntarily quit. On appeal, petitioner asserted that UCBR improperly applied 402(b) because the referee previously decided petitioner s eligibility under 402(e). This court observed that UCBR raised the issue of voluntarily quitting sua sponte, without notice to the parties that it would consider additional issues. The court noted that employer had the burden of proving that petitioner was discharged for willful misconduct under 402(e), rather than having a burden of proving that petitioner voluntarily quit under 402(b). The court determined that petitioner was prejudiced when the referee and UCBR decided her eligibility under different sections of the law that carried different burdens of proof without providing notice. Because petitioner would have been prejudiced by having to assume the burden of proof on the voluntary quit issue under 402(b), UCBR s regulation precluded it from considering that issue. WORKERS COMPENSATION SWIF Downcoded CPT Code De Novo Collateral Estoppel Strict Compliance Witkin v. Bureau of Worker s Comp. Fee Review Hearing Office, PICS Case No (Pa. Commw. April. 17, 2013) McCullough, J. (7 pages). The hearing officer improperly concluded that petitioner s fee review application was barred by collateral estoppel where the hearing officer did not conduct a hearing or address
19 CITE THIS PAGE AS 36 PLW 429 TUESDAY, APRIL 30, 2013 PENNSYLVANIA LAW WEEKLY 19 whether SWIF strictly complied with of the regulations. Reversed. On June 11, 2010 petitioner Evelyn Witkin, M.D., performed therapeutic magnetic resonance treatments (TMR) on a worker s compensation patient. Petitioner submitted invoices for payment to the State Workers Insurance Fund (SWIF), for which she billed $3,298 per TMR treatment under CPT Code SWIF downcoded the procedure to CPT Code and paid petitioner $26.24 per TMR treatment. Petitioner filed two fee review applications, disputing the amount that she was paid. Respondent Medical Fee Review Section of the Bureau of Worker s Compensation held that SWIF had properly reimbursed petitioner for the TMR treatment she performed on the patient. Petitioner appealed the decision. The bureau assigned the two applications to a hearing officer in a consolidated appeal. The hearing officer conducted a de novo review to determine whether petitioner used the proper CPT code when billing for the TMR treatment. Without holding a hearing, the hearing officer issued a decision dismissing and denying the fee review applications, holding that the issue in the fee review applications was identical to an issue that had already been fully adjudicated. Petitioner appealed the hearing officer s decision regarding the fee review application to this court. By letter, SWIF advised this court that it did not oppose petitioner s request to reverse the hearing officer s decision and remand the matter for a full trial on the merits. Respondent did not file a brief, stating that it was a disinterested party in the matter. On appeal, petitioner argued that the hearing officer failed to make an actual finding of collateral estoppel and merely stated that the appropriate CPT code issue had already been decided. Petitioner also argued that the hearing officer erred in dismissing her fee review application because SWIF did not prove that it strictly adhered to the downcoding procedures mandated by of the regulations. On appeal, this court held that the hearing officer improperly concluded that petitioner s fee review application was barred by collateral estoppel where the hearing officer did not conduct a hearing or address whether SWIF strictly complied with of the regulations. A prior determination of the proper CPT code for TMR treatment was immaterial until the issue of whether SWIF strictly complied with the regulations was decided. Nor was a prior determination of the proper CPT code for TMR treatment dispositive of the case. The hearing officer s reliance on prior hearing officer determinations that the proper CPT coding for TMR treatment is to determine that petitioner is collaterally estopped from re-litigating the issue was misplaced. Those prior determinations were not binding on this court or, in fact, on the administrative agency. The court held that a hearing had to be held to determine whether SWIF strictly complied with of the regulations and whether the proper CPT code was used. COURTS OF COMMON PLEAS CIVIL PROCEDURE Class Actions Certification Sheriff Sale Excess Proceeds Disposition of Abandoned & Unclaimed Property Act In re Sheriff s Excess Proceeds Litig., PICS Case No (C.P. Philadelphia March 12, 2013) Glazer, J. (11 pages). The court denied plaintiffs motion for class certification, finding that the Legislature chose to make the sheriff s office and the treasurer of the commonwealth the entities responsible for reuniting plaintiffs with the funds sought here, i.e., excess proceeds from sheriff sales. Motion for class certification denied. Plaintiff Joseph O Hara and his company, Finn Land Corp., purported to represent two classes of persons aggrieved by the sheriff s office of Philadelphia County s handling of excess proceeds from the sale of foreclosed properties. Plaintiffs brought two consolidated class actions in response to a 2010 audit report by the controller of the city of Philadelphia and a subsequent forensic audit of the sheriff s office by an outside accounting firm. Both audits demonstrated that for many years, the sheriff s office failed to distribute millions of dollars in excess proceeds from foreclosure sales of real property to the former owners of such property. Plaintiffs asserted claims against the sheriff for excess proceeds and interest on such proceeds based on theories of unjust enrichment, equitable conversion, fraudulent concealment, mandamus and violation of the Pennsylvania Constitution. The treasurer of the commonwealth of Pennsylvania intervened in those actions. The treasurer s interest in the actions arose under Pennsylvania s Disposition of Abandoned and Unclaimed Property Act (DAUPA). Here, the court considered plaintiffs motion for class certification, which the sheriff and the treasurer opposed. They asserted that the plaintiffs claims should be asserted, if at all, individually in another forum under DAUPA and the Pennsylvania Rules of Civil Procedure. The court noted that the Pennsylvania Rules of Civil Procedure govern the sheriff sale of foreclosed properties and the disbursement of proceeds from such sales. The rules provide a remedy for individual property owners who believe the proceeds from the sale of their property are not being properly disbursed. A property owner may file exceptions to the sheriff s proposed schedule of distribution, which are heard by the court that entered the judgment upon which the execution is based. If the property owner fails to file such exceptions and the sheriff fails to disburse the excess proceeds, the property owner may claim them from the sheriff. If the excess proceeds are not disbursed by the sheriff within five years, they are transferred to the treasurer pursuant to DAUPA. A property owner may file a claim for such proceeds and file an appeal in the Commonwealth Court if such a claim is denied or not addressed. As such, there was no need for property owners to litigate claims for such proceeds in a class action before the trial court, the court observed. Each plaintiff had the right to seek funds due from the sheriff and the trial court under the Pennsylvania Rules of Civil Procedure and from the treasurer and the Commonwealth Court. Accordingly, the court denied class certification. Medical Malpractice Preliminary Objections Jurisdiction Venue Rationally Related Minimum Contacts Nees v. Anderson, PICS Case No (C.P. Philadelphia April. 10, 2013) Robinson, J. (11 pages). In this medical malpractice action, defendant physician had sufficient minimum contacts with Pennsylvania to create jurisdiction in the forum state and render venue proper within the city of Philadelphia where the hospital with which he was affiliated was located. Defendant s preliminary objections overruled. Plaintiff Justina Nees brought this case following the death of Michael Fisher, 15. When Fisher was four years old, he came under the care of defendant Terry Anderson, M.D., for a heart murmur. Although defendant s office was located in New Jersey and he only saw patients in New Jersey, he was employed by Children s Hospital of Philadelphia. Defendant s office in New Jersey was a CHOP Specialty Care Center. Defendant diagnosed Fisher with a congenital heart defect and informed him that his condition could necessitate surgery at some point. Fisher saw defendant annually and underwent various tests under defendant s care. Plaintiff alleged that although tests revealed cardiac abnormalities, defendant negligently failed to place any restrictions on Fisher's athletic activity. While Fisher was playing roller hockey in September 2010, he collapsed and died. Before the court for review were defendant's preliminary objections challenging jurisdiction, the constitutionality of the 2011 amendment to Pa.R.C.P. 1006(a) and venue. Defendant claimed that he should not be subject to jurisdiction in Pennsylvania because the injury and treatment in this case occurred in New Jersey and he neither lived nor practiced medicine in Pennsylvania. The court found that defendant had sufficient minimum contacts to satisfy jurisdiction. While treating Fisher, defendant was part of a Pennsylvania-based network of health care services. Defendant had purposeful, extensive, and significant contact with Pennsylvania. The CHOP billing system was located in Pennsylvania. All of Fisher s health insurance billing was done from Pennsylvania and his bill payments were received in Pennsylvania. MOST WANTED OPINIONS Defendant was also affiliated with a Pennsylvania Hospital. The court observed that it was not a substantial burden on defendant to expect him to come to court in Pennsylvania because he practiced medicine in the Philadelphia suburbs. Because defendant worked as a CHOP physician, the question of his liability was closely tied to the hospital's liability. Thus, the state had a clear interest in adjudicating the dispute. The most efficient resolution of the controversy, which would remain in Pennsylvania even if defendant were dismissed, was to hold one trial in Pennsylvania against defendant and CHOP. Plaintiff s interest in obtaining convenient relief was similarly best achieved in Pennsylvania and plaintiff s ability to obtain relief would be impaired if plaintiff was not permitted to sue defendant in the same state as defendant s employer. Next, the court found that the 2011 amendment to Pa.R.Civ.P. 1006(a.1) was rationally related to a legitimate state goal. Because it did not arbitrarily discriminate against out-of-state healthcare providers, it survived constitutional scrutiny. Thus, the court declined to declare the amendment unconstitutional. Finally, the court declined to interpret Pa.R.Civ.P. 1006(c) such that cases involving vicarious liability could not be venued together, even where cases involving joint liability The following are the opinions that were most frequently requested from the Pennsylvania Instant Case Service during the past week. Every opinion published in the Pennsylvania Law Weekly can be obtained by calling PICS. Joanne Molettiere v. Brittany Square CVS, Inc. PICS No (Pa. Super. April 1, 2013) Ford Elliott, J. (22 pages). In this slip and fall personal injury suit, the trial court erred in finding that ice and snow removal subcontractor Cenova was responsible for indemnifying CVS against its own negligence where the indemnification provision had to be construed against CVS because it was ambiguous at best and where CVS was actively negligent, while Cenova was at most passively negligent. Reversed. Diane Schecker v. Village Supermarket, Inc. PICS No (C.P. Monroe Feb. 13, 2013) Harlacher Sibum, J. (10 pages). Plaintiff presented no evidence that ice on which she allegedly slipped accumulated in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger; notice to defendant could not be inferred from employees presence near the dangerous condition at the time of the incident. Defendant s motion for summary judgment granted. Amanda Banaszewski v. Corbo Landscaping Co. PICS No (C.P. Philadelphia Jan. 28, 2013) Tereshko, J. (8 pages). Because venue could not be laid against any of the defendants in Philadelphia, the court transferred the matter to Montgomery County, Pa., in this personal injury suit in which a brush chipper struck plaintiff s vehicle. Kenneth Pisieczko v. Children s Hospital of Philadelphia PICS No (C.P. Philadelphia Dec. 6, 2012) Tereshko, J. (6 pages). In this personal injury suit, private interest factors in favor of forum non conveniens transfer outweighed public interest factors. The court dismissed the case to allow plaintiffs to refile in New Jersey. David J. Kimble v. Peter A. Drobach Co. PICS No (C.P. Lackawanna Jan. 15, 2013) Minora, J. (8 pages). The court could not rule on the issue of indemnification among defendants because the issue was not ripe where there was no judicial determination of liability against either defendant in this work-related personal injury suit in which plaintiff was injured while operating a leased JLG Model 1044C Lull, industrial equipment also known as a telehandler. Motion for summary judgment on counterclaim denied.
20 20 PENNSYLVANIA LAW WEEKLY TUESDAY, APRIL 30, 2013 CITE THIS PAGE AS 36 PLW 430 could. The court determined that it was clear that the appropriate definition of joint liability in this context was the generic one, which subsumes the concept of vicarious liability." Social Media Discovery Facebook Right to Privacy Privilege Relevance Overly Broad & Unduly Invasive Brogan v. Rosenn, Jenkins & Greenwald, LLP (C.P. Lackawanna April 22, 2013) Nealon, J. (22 pages). In this issue of first impression arising from a title insurance dispute, where plaintiffs sought to compel a deponent to produce her Facebook name, username and password to discover her private Facebook information, plaintiffs discovery demand failed because it was irrelevant and overly broad and unduly invasive. Denied. Plaintiffs Thomas and Wendy Brogan commenced this action against their former counsel, defendant attorney David E. Chuff and Rosenn, Jenkins & Greenwald, LLP, and multiple other defendants. Plaintiffs purchased a property which, allegedly unbeknownst to them, was encumbered by a utility easement for a 42-inch water main passing through the property. They alleged that Pennsylvania Gas & Water Company held a duly recorded easement prohibiting any structures within 30 feet of the easement, causing plaintiffs to have to construct their sewer and water lines at least eight feet below the PG&W water main. Chuff, Rosenn and defendant title searcher Anthony J. Popeck allegedly negligently failed to discover the recorded easement. Plaintiffs claimed legal malpractice, negligent supervision, negligence, breach of contract, bad faith liability and negligent misrepresentation. Here, plaintiffs filed a motion to compel discovery of the Facebook name, username and password of Rebecca Brown Breault, a paralegal in the claims department of defendant Conestoga Title Insurance Company. Conestoga s director of claims and recovery, Gregory L. Amand, had testified that he communicated with Breault about his deposition subpoena on Faceboook. Greault allegedly suggested to Amand via Facebook that he should contact Conestoga s counsel in advance of the deposition to discuss plaintiffs title insurance claim, which Conestoga had denied. The court explained that a party may obtain discovery of private Facebook posts, photographs and communications only if the electronically stored information is relevant. However, plaintiffs did not establish that Breault published information on the publicly viewable portion of her Facebook account that refuted the veracity of her assertions in this case. Plaintiffs relevance argument was predicated on the faulty premise that Amand and Breault could only exchange Facebook messages if they accepted each other as Facebook friends. Because plaintiffs could not show that Breault s private Facebook information was relevant, they were not entitled to the information. Plaintiffs demand was also overly broad and unduly invasive. If plaintiffs were to obtain Breault s Facebook name, username and password, they would have an unrestricted license to peruse Breault s entire Facebook account and view highly sensitive and potentially confidential communications that had no relevance to this lawsuit, including comments by third parties such as Breault s Facebook friends. Trial Administration Change of Venue Alleged Judicial Bias Imputed Bias Scranton Laminated Label, Inc. v. Florimonte, PICS Case No (C.P. Lackawanna April 4, 2013) Nealon, J. (34 pages). There was no legitimate basis in law or in fact for a post-trial change of venue in this matter away from the bench of the civil court of Lackawanna County based on unfounded claims of transferred judicial bias. Motion for change of venue denied. Plaintiff Edmund J. Carr was the owner and operator of plaintiff Scranton Laminated Label Inc. (SLLI). Defendant Carolyn J. Florimonte was employed by SLLI but was terminated on April 18, In April 2010, plaintiff filed this action against defendant, seeking compensatory and punitive damages for alleged wrongful use of civil proceedings against plaintiffs based upon defendant s litigious actions after her termination. A jury found defendant liable for wrongful use of civil proceedings and awarded plaintiffs $45,000 in compensatory and punitive damages. Here, the trial court considered defendant s motion for post-trial relief. Defendant labeled part of her request for relief as a motion for change of venue in which she pursued an alternative request for transfer of her case away from the bench of the civil court of Lackawanna County. As the court explained, defendant had nine pro se lawsuits dismissed by four Lackawanna County judges, including two who were elected Lackawanna County jurists and two who presided in the county by designation. Defendant relied upon the apparent fact that the office of Judge Terrence R. Nealon, who heard the pending motion, was situated directly across the hall from the office of Judge Robert A. Mazzoni, who sat in some of defendant s prior cases. Defendant argued that a post-trial change of venue was warranted due to a transferred possibility of bias from Judge Mazzoni to Judge Nealon. Defendant did not cite a single case or rule to support her novel request. The court assumed, for the sake of argument, that defendant had properly preserved the issue, but denied her request for a change of venue as frivolous. In two of defendant s nine pro se matters, the Commonwealth Court had found that the trial transcripts failed to reveal any bias on the part of Judge Mazzoni. Court records confirmed that Judge Mazzoni decided defendant s cases on their merits, or lack thereof, and his impartial and unbiased rulings were affirmed on appeal, the court observed. Moreover, even if such a purported bias had been demonstrated in defendant s earlier suits, there was no authority for imputing such alleged bias to a judge based upon the proximity of that judge s office to another judge s office. As such, the court found no legitimate basis in law or in fact for a post-trial change of venue away from the bench of the civil court of Lackawanna County based on unfounded claims of transferred judicial bias. Accordingly, the court denied defendant s request. CONTRACTS Formation Parent-Child Relationship Home Care Services Express Contract Gwin v. Gwin, PICS Case No (C.P. Lawrence March 18, 2013) Cox, J. (9 pages). Where defendant son failed to adequately aver that his deceased mother had agreed to pay for certain home care services rendered during her lifetime, there was no basis in Pennsylvania law for defendant to recover any expenses he may have incurred. Preliminary objections sustained. Plaintiff John D. Gwinn and defendant Barry E. Gwin were the sons of decedent Ellen Mae Gwin. In February 2012, plaintiff was appointed executor of decedent s estate. Defendant had received several loans from decedent during her lifetime. On Nov. 2, 2003, decedent loaned defendant $30,000. On Feb. 4, 2009, defendant and decedent entered into a loan repayment agreement by which defendant agreed to make monthly repayments of $500 on the loan and accrued interest, making the total amount owed $44,000. In 2008, decedent loaned defendant an additional $10,000. In August 2012, plaintiff, as executor of the decedent s estate, brought this action alleging that defendant owed $2,500 on the 2008 loan and the entire $44,000 debt set forth in the loan repayment agreement. Defendant filed an answer and counterclaim. In his counterclaim, defendant alleged that he had provided decedent with substantial services for a period of 26 years at decedent s insistence. Defendant sought reimbursement in the amount of $48,260 for those services. Here, the trial court considered plaintiff s preliminary objections to defendant s counterclaim. He asserted that defendant failed to state a claim for breach of contract because he failed to allege facts establishing that there was an express contract in which decedent agreed to pay for the alleged services. There is no recovery for services provided by a child to a parent in the absence of an express contract to pay for those services, the court noted. It is apparent that the wellestablished law in Pennsylvania does not favor implying a contract in a situation where a parent cares for a child or a child cares for a parent. Rather, the law implies that the services were performed gratuitously without clear evidence of an intention on behalf of the parent or child to pay for such services, the court explained. Here, the court found that defendant failed to adequately aver that decedent agreed to pay for services rendered during her lifetime. Absent such allegations, there was no basis in Pennsylvania law for defendant to recover any expenses he may have incurred. As such, the court sustained plaintiff s first preliminary objection. Plaintiff also argued that defendant s counterclaim lacked specificity because it failed to specify the dates, times and values of the alleged services provided to decedent. The court agreed that defendant s counterclaim lacked the requisite specificity because it merely set forth an allegation that defendant provided decedent with substantial services, food and sustenance. The counterclaim also averred that decedent requested such services during her lifetime. However, the counterclaim did not establish a valid contract between defendant and decedent. As such, the court sustained plaintiff s second preliminary objection, but granted defendant leave to amend his counterclaim. EDUCATION LAW School District Employee Salary & Benefits Claim Jurisdiction Legal Insufficiency Public School Code Dotterer v. School Dist. of the C ity of Allegheny, PICS Case No (C.P. Lehigh April 17, 2013) Johnson, J. (5 pages). To prevent circumvention of the Public School Code and as a matter of public policy, the court was precluded from exercising jurisdiction over the issue of previous salary and benefits owed to a school district employee who was demoted and then retired, but had not exhausted the process established under the code. Plaintiff James Dotterer, a former assistant principal, brought a claim after retirement against defendants School District of the City of Allentown and the school board for previous salary and benefits owed. Before this court for consideration was joint defendants preliminary objections and motion to dismiss, seeking demurrer for lack of jurisdiction and in the alternative for legal insufficiency. The issue presented was whether a former assistant principal can bring a claim after retirement against his former school district and school board for previous salary and benefits owed in the Court of Common Pleas. The defense argued that under the Public School Code, there is an administrative process to handle such issues and it would be improper to allow plaintiff to circumvent that statutory procedure. Plaintiff argued that the school board was dilatory in holding a hearing on his demotion and he was forced to seek an alternative remedy. The court initially found that the issue of dilatoriness was irrelevant to proving subject matter jurisdiction. The court explained the proper procedure was for plaintiff to demand a demotion hearing with the school board and then, depending on the outcome, appeal to the secretary if necessary. Furthermore, plaintiff s argument was unconvincing because the scheduled demotion hearing was postponed because plaintiff s counsel and the school district solicitor were negotiating a settlement. Although there was no explanation for why the hearing was continued for over a year, that fact was irrelevant. Plaintiff was still employed that entire year and could have appealed to the secretary at any time. Nothing in case law or in evidence required a hearing to be held within a certain period of time or that if the process took too long, plaintiff was entitled to circumvent the process by filing an action in the Court of Common Pleas. Plaintiff next argued that he retired before the demotion hearing took place and that defendants submitted case law held that only current employees were subject to the statutory process. The court found that plaintiff s argument was incorrect. Plaintiff did not follow the proper statutory procedure. Moreover, as a matter of public policy, it would undermine the integrity of the Public School Code to allow issues arising under it to be brought in a manner that is not permitted by the code every time a school district employee retires. Allowing the case to proceed here would create a precedent that every school district employee in Pennsylvania who is demoted after age 55 may immediately retire and then circumvent the code, to which they subjected themselves when they accepted employment and by which they have been governed and protected for their entire career. The court determined that it was precluded from exercising jurisdiction over the issue of previous salary and benefits owed to a professional school district employee as defined by the code. ELECTION & POLITICAL LAW Home Rule Charter & Optional Plans Law Government Study Commissions Ballot Referenda Elected Officers Reasonable Reliance In re Objection to Nomination Paper of Marie Schumacher, PICS Case No (C.P. Lackawanna March 22, 2013) Nealon, J. (25 pages) Nomination papers filed by 39 candidates for election to a government study commission were flawed because they did not include acceptance by candidate oaths, but the court granted the candidates leave to file the proper oaths, nunc pro tunc, and overruled remaining objections to the papers. Proponents of a government study commission referendum obtained signatures in support of a referendum for a municipal primary election ballot to elect a government study commission to investigate and recommend an optional form of government to replace Lackawanna County s existing home rule charter form of government. The court granted the proponents petition seeking to confirm and validate their referendum question and ordered