Case Summaries Hon. Debra M. Todd
Commonwealth
of Pennsylvania, Supreme Court, Middle District
Case Summaries
Case Name: In re: Adoption of A.P. 784 MDA 2006 (Pa.Super. 2007)
Issue: Relative to granting a petition to involuntarily terminate Mother’s parental rights to her two girls that was filed by the Cumberland County Children and Youth Services, the Mother appealed. The Court considered five issues, including (1) whether there was sufficient evidence to support to the termination of Mother’s parental rights; (2) whether the trial court abused its discretion in reopening the record to allow for a bonding assessment; (3) whether the trial court abused its discretion in refusing to allow the children to testify; (4) whether the trial court abused its discretion in qualifying the children’s therapist as an expert; and (5) whether the Juvenile Act 42 Pa.C.S.A. § 6301 et seq. was unconstitutional.
Decision of Court: The Court found that the trial court properly granted the Children and Youth Service’s petition to terminate Mother’s parental rights to her children. The Court affirmed.
Position of Judge: Authored opinion.
Case Name: Universal Underwriters Ins. Co. v. A. Richard Kacin, Inc., 2007 WL 64591 (Pa.Super. 2007)
Issue: The issue presented concerned two matters, specifically (1) whether the Workers’ Compensation Appeal Board properly granted a rehearing to allow a claimant to defend a termination petition, although the record had been closed after claimant previously failed to appear and (2) whether and under what circumstances workers’ compensation benefits may be terminated based upon a claimant’s involuntary discharge from employment. Appellant/ Employer argued that the Board exceeded its authority pursuant to Sections 423, 425, and 426 of the Act by granting a rehearing, after the WCJ terminated Claimant’s benefits from the first injury sustained.
Decision of Court: The Court held that a claimant who has established a partial disability arising from work-related injuries should generally continue to receive benefits because of lost earning capacity, even if subsequently terminated, because the loss of capacity remains extant. Also, if the employer can sufficiently establish that alternative, suitable work existed, but factors relative to claimant’s discharge, such as lack of good faith, precluded the opportunity, then claimant may be ineligible to receive total disability benefits. Thus, the Court held that claimant must continue to receive post-discharge partial disability benefits because the residual disability arising from such work-related injury impacts ongoing work capacity. Since the WCJ specifically found claimant bore no responsibility for her discharge and the Appellant did not produce evidence other suitable work existed, the Court upheld the total disability award granted. The Court reversed the portion of the Commonwealth Court’s decision endorsing the Board’s grant of rehearing, but affirmed otherwise. The case was remanded for further proceedings consistent with the opinion.
Position of Judge: Authored opinion.
Case Name: QBE Ins. Corp. v. M & S Landis Corp., 2007 WL 60995 (Pa.Super. 2007)
Issue: In the underlying matter, the estate of decedent commenced wrongful death and survival action against Appellants alleging decedent was smothered to death when forcibly evicted by Appellants from nightclub. Consequently, Appellants sought defense and indemnification from QBE pursuant to the commercial general liability policy. In declaratory judgment action, QBE sought judgment that it had no duty to indemnify or defend Appellants because the policy excluded conduct from which underlying claims arise. The trial court entered summary judgment against Appellants. Appellants presented issues concerning whether the trial court erred by finding that the conduct giving rise to the underlying action satisfied the definitions within the policy so as to exclude coverage.
Decision: The Court found that QBE had an obligation to defend Appellants in the underlying action and conditioned the determination concerning indemnification on the facts developed during trial. Thus, it reversed and remanded for entry of summary judgment in favor of Appellants on claim for declaratory judgment that QBE had a duty to defend Appellants.
Position: Authored Opinion
Case Name: DeSantis v. Prothero, 2007 WL 49705 (Pa.Super. 2007)
Issue: Asserting federal preemption precluded Appellant’s claim of inter vivos gift of legal or equitable ownership of bonds, Appellant sought review of whether an inter vivos gift of equitable ownership in savings bond was permissible relative to decedent’s estate.
Decision: The Court held that the trial court properly granted Appellee’s motion for judgment on the pleadings finding that the savings bond was property of the estate of Appellee under federal law and no inter vivos transfer of bonds would be recognizable. Affirmed.
Position: Authored Opinion
Case Name: Marino v. Fava, 915 A.2d 121 (Pa.Super. 2006)
Issue: Based on Appellee’s allegedly false statements to the police and health officials to have his uncle involuntarily committed to a psychiatric institution, Appellant filed a pro se complaint in arbitration for harassment, defamation, and slander. Appellant’s claims were dismissed and summary judgment granted in favor of Appellee based on conclusion that statements made in application to commit Appellant were privileged. Appellant challenged the order on other grounds claiming the Mental Health Procedures Act was inapplicable to Appelle and in the alternative, his willful misconduct or gross negligence barred immunity.
Decision: The Court agreed that Appellee’s statements relating to involuntary commitment of Appellant were absolutely privileged and did not serve as grounds for a defamation action. Affirmed order.
Position of Judge: Authored opinion.
Case Name: Gojmerac v. Naughton, 2006 WL 3628058 (Pa.Super. 2006)
Issue: Relative to negligence action arising from a motor vehicle accident, Appellants challenged the Berks County Court of Common Pleas entry of summary judgment in favor of Appellees, administratrix of estate. The issue presented was whether the statute of limitations in tort action for negligence was tolled where plaintiff, having already filed a writ of summons, gave written notice of claim immediately before statute of limitations expired, after learning defendant died without service of complaint.
Decision of Court: The Court affirmed the trial court’s order because the statute of limitations for Appellants’ claim had expired. After finding Appellants’ claim was void for failure to file prior to defendant’s death, it ruled that Appellants were not creditors and 20 Pa.C.S.A. §3384 was inapplicable to permit written notification to personal representative of estate to toll statute of limitations. Instead, Appellants should have filed a new action against estate, which they failed to do within statute of limitations.
Position of Judge: Authored opinion.
Case Name: Company Image Knitware, Ltd. v. Mothers Work, Inc., 909 A.2d 324 (Pa.Super. 2006)
Issue: In breach of contract action commenced by Appellees’, a Mexican maternity clothing manufacturer, against Appellants, a Pennsylvania maternity garment company, Appellants sought review of a non-jury trial award to Appellees for damages arising from claims of breach of oral contract, promissory estoppel, and quasi-contract. On appeal, Appellants presented five issues, namely the sufficiency of evidence to establish the existence of an oral contract, the application of the Statute of Frauds exception to specially manufactured goods, the sufficiency of evidence showing the outstanding amounts, the existence of sufficient evidence for purchase costs without documentation, and damages for promissory estoppel or quantum merit claims awarded without enforceable oral contracts.
Decision of Court: Affirming the trial court’s decision, the Court held that (1) sufficient evidence was demonstrated to establish an enforceable contract between the parties existed; (2) the oral contract was within the Statute of Frauds exception for specially manufactured goods; (3) sufficient evidence existed to show the outstanding amounts owed, (4) sufficient evidence existed to find awards for unused fabrics and (5) damages for lost profits were not permitted.
Position of Judge: Authored opinion.
Case Name: McSorley v. Deger, 905 A.2d 524 (Pa.Super. 2006)
Issue: Following the development of a chronic condition after a surgical procedure, Appellant instituted a medical malpractice action claiming battery, negligence, lack of informed consent, and vicarious liability. The trial court, in a jury trial for the negligence and battery claims, found in favor of the doctor and hospital. It denied Appellant/plaintiff’s post-trial motions. Appellants presented four issues on appeal, including (1) whether the lower court erred in denying motion for directed verdict against Appellees, Russell and General Surgery Associates; (2) whether the lower court erred in dismissing the action against other Appellees on motions for summary judgment; (3) whether the lower court erred in its jury instruction concerning informed consent and (4) whether the lower court erred in refusing to allow Appellant to cross-examine Appellee Russell about the scope of the consent.
Decision of Court: The Court affirmed the judgment on all counts. Specifically, it held that (1) the motion for directed verdict was properly rejected based on the jury’s finding the doctor did not exceed the scope of informed consent without evidence it was erroneous as a matter of law; (2) summary judgment on the negligence and vicarious liability claims was appropriately granted because Appellant failed to establish a lack of informed consent and battery through expert testimony as required; (3) the trial court did not erroneously charge jury on informed consent; and (4) Appellant waived claim of error based the court’s ruling against cross-examination of doctor’s understanding of informed consent by failing to assign as error the permitted scope of the cross-examination
Position of Judge: Authored opinion.
Case Name: Beck-Hummel v. Ski Shawnee, Inc., 902 A.2d 1266 (Pa.Super. 2006)
Issue: After sustaining injuries while snow-tubing at a ski resort, Appellants/claimants instituted claim alleging negligence and loss of consortium. The trial court granted the motion for summary judgment in favor of the ski resort because it defended based on the exculpatory language on the ticket. On appeal, the issues raised were (1) whether genuine issues of material fact existed about a release from liability where claimants did not read language nor were instructed to read it and (2) based on the assumption that parties formed a contract pursuant to exculpatory language, whether the language was ambiguous about alleged negligent design of snow tubing park.
Decision of Court: Since the parties stipulated that neither the purchaser nor the user read the ticket and the language of the ticket was not conspicuous as to provide notice, the Court found the disclaimer unenforceable. The Court entered an order entering summary judgment was and the matter was remanded for further proceedings.
Position: Authored Opinion
Case Name: City of Coatesville v. Jarvis, 902 A.2d 1249 (Pa.Super. 2006)
Issue: The City/ Appellant instituted action against Appellees, an attorney and his client alleging malicious prosecution pursuant to the “Dragonetti Act” based on Appellees’ preliminary objections in a separate condemnation proceeding. Granting Appellees’ motion for appeal, the Court addressed whether wrongfully filed condemnation proceedings served as the basis for a wrongful use of civil proceedings claim where filing party preliminary objections does not have an interest or standing in preliminary objections.
Decision of Court: The Court concluded that filing preliminary objections in a condemnation proceeding did not constitute a “procurement, initiation, or continuation” of the proceeding as the Dragnoetti Act defined. Thus, the Court affirmed the trial court’s order granting Appellant’s motion for judgment on the pleadings.
Position of Judge: Authored opinion.
Case Name: Jaskula v. Essex Ins. Co., 900 A.2d 931 (Pa.Super. 2006)
Issue: In a declaratory judgment action, Essex Insurance Company appealed an order denying its motion for summary judgment and granting the cross-motion for summary judgment of Appellees. During the course of employment, Appellees’ employees inadvertently cut an oil line and caused an oil spill, which the DEP ordered be remedied. After a third party clean-up, Appellee submitted the bill seeking coverage under its commercial general liability insurance policy with Essex. However, Essex denied coverage citing policy exclusions precluding coverage and subsequently, Jaskula filed the action.
Decision of Court: The Court held that the policy unambiguously precluded coverage and reversed the trial court’s order thereby remanding for entry of judgment in favor of Essex.
Position of Judge: Authored opinion.
Case Name: Kisak v. Wheeling Park Com'n, 898 A.2d 1083 (Pa.Super. 2006)
Issue: The Court reviewed the opinion dismissing the complaint seeking recovery for injuries sustained while playing miniature golf on Appellee’s property in West Virginia because of improper venue. The issue on appeal was whether the trial court erred when it ruled that the Allegheny Court of Common Pleas did not have venue over Appellees.
Decision of Court: The Court affirmed the trial court’s order dismissing the complaint for lack of venue and concluded that defendant’s advertising activities were insufficient to sustain venue.
Position of Judge: Authored opinion.
Case Name: Colaizzi v. Beck, 895 A.2d 36 (Pa.Super. 2006)
Issue: In a consolidated appeal, Appellant challenged two orders entered by Allegheny County Court of Common Pleas sustaining Appellees’ preliminary objections and dismissing Appellant’s complaint with prejudice. Appellant sought relief for common law fraud and violation of Unfair Trade Practices and Consumer Protection Law against real estate agents upon learning that the property purchased was adjacent to a group home for mentally-challenged adults. Appellant alleged that the existence of the group home was a condition and material fact that should have been disclosed.
Decision of Court: Affirmed the trial court’s order sustaining Appellees’ preliminary objections and dismissing the complaint with prejudice. The court found that Appellant did not inform Appellees about opposition to purchasing property adjacent to a home for mentally-challenged adults was not such as fact the type that would have affected title to or use and enjoyment of the property.
Position of Judge: Authored opinion.
Case Name: Donegal Mut. Ins. Co. v. Baumhammers, 893 A.2d 797 (Pa.Super. 2006)
Issue: In a consolidated declaratory judgment action, the issue on appeal was whether two insurers, Donegal Mutual and USAA, have a duty to defend or indemnify their insureds relative to insured’s son going on a shooting spree, killing five people and seriously injuring another. The trial court held that Donegal was obligated to defend and if necessary, indemnify parents because the alleged negligence of parents constituted an occurrence under the policy and each shooting was a separate occurrence. The court also reviewed whether USAA policy about whether it had an enforceable exclusion precluding coverage for those events. After he was convicted by a jury of first-degree murder for each of the five victims who died and aggravated assault for the shooting of the wounded victim, separate wrongful death and survival actions, which were later consolidated were initiated, sought relief for the parents’ (insureds) negligence. In the declaratory judgment actions, the two insurance companies sought rulings that the homeowner’s and umbrella policies did not provide coverage for those events.
Decision of Court: Affirmed order. The Court held that the Donegal policy provides coverage for the insureds’ son’s conduct and has a duty to defend and indemnify, but the USAA policy precludes coverage for intentional and criminal acts.
Position of Judge: Todd, J. Filed a concurring and dissenting opinion in which Ford-Eliot, J. joined and Orie Melvin, J. concurred in result.
Case Name: Allstate Ins. Co. v. DeMichele, 888 A.2d 834 (Pa.Super. 2005)
Issue: In a declaratory judgment action, Allstate appealed the order granting summary judgment in favor of administrator of the estate of decedent. The issue was whether stipulations that DeMichele signed and dated a UM rejection form that tracked the language of Section 1731 of the MVFRL and Allstate’s inability to produce an “Important Notice” pursuant to Section 1791 signed by DeMichele precuded Allstate from enforcing the Section 1731 rejection. Named insured on the policy sought recovery arising from a motor vehicle accident in which insured’s son died, he sought UM benefits for Allstate’s failure to produce notice relating to Section 1791, despite waiver of UM coverage under 1731.
Decision of Court: The Court held the trial court erred in granting summary judgment for failure of Allstate to produce notice as no remedy exists. Instead, it found that rejection of UM benefits and lack of premiums payments precluded coverage for death of the son as it would otherwise contravene the cost containment goals of MVFRL. Additionally, the Court found that without a legal remedy for failure to provide notice, courts were incapable of creating a remedy for violating Section 1731.The Court reversed and remanded for entry of summary judgment in favor of Allstate.
Position of Judge: Authored opinion.
Case Name: Scalfaro v. Rudloff, 884 A.2d 904 (Pa.Super. 2005)
Issue: The Court reviewed whether the Bucks County Court of Common Pleas properly voided the deed transferring property from Appellant’s father to Appellant and his brother and ordering the distribution of the estate in accordance with a trust created during the father’s marriage to Appellant’s mother. Appellant presented the issue of whether a surviving trustee under a Declaration of Trust which was by its express terms revocable, was denied the power to revoke the trust after the death of one trustee, despite a trust provision that in the event of the death of one trustee, survivor shall continue as the sole trustee.
Decision of Court: The court concluded that the father had the right to grant to Appellant and his brother the property, and that grant extinguished the Trust and any property rights of Appellee. It held that the trial court erred in voiding the deed and ordered the distribution of the father’s estate in accordance with the trust. Reversed.
Position of Judge: Authored opinion.
Case Name: Universal Health Services, Inc. v. Pennsylvania Property and Cas. Ins. Guar. Ass'n, 884 A.2d 889 (Pa.Super. 2005)
Issue: Appellants sought review of an order denying Pennsylvania Property Casulty Insurance Guaranty Association, a state pooled risk fund, motion for summary judgment and entry of summary judgment in favor of Appellee. The issue presented was whether claims made under a reporting tail endorsement to a claims-made policy, first reported more than 30 days after an insurer’s insolvency, are obligations of PPCIGA. The action arose following the liquidation of PHICO Insurance Company relative to UHS’s policy with PHICO for professional liability concerning the operation of its medical facilities. Appellant also asked whether the insurance commissioner’s decision to allow the claim was binding.
Decision of Court: The Court held PHICO was obligated to cover claims reported during the reporting tail endorsement to UHS’s claims-made policy. that it is undisputed that the acts giving rise to the claims occurred prior to or within 30days of PHICO’s insolvency. The Court affirmed the order entering summary judgment in favor of UHS.
Position of Judge: Authored opinion.
Case Name: Sackett v. Nationwide Mut. Ins. Co., 880 A.2d 1243 (Pa.Super. 2005)
Issue: In a declaratory judgment action, Appellants challenged the summary judgment motion granted in favor of Nationwide, arising from a car accident in which Appellant was severely injured as a passenger in a car. Appellant settled his claim with the driver of the car in which he was a passenger and the car which collided with them. Subsequently, he sought underinsured motorist benefits under his policy with Nationwide. When he purchased the policy he insured two vehicles with UIM limits of $100,000 per person, he rejected stacked limits of UIM and uninsured coverage with respect to those two vehicles. Further, when Apppellant added a third vehicle to the sme policy at which time no new stacking waiver was provided or executed at that time and Nationwide issued unstacked UIM coverage to the third vehicle as well. Appellant filed a declaratory judgment action arguing that Nationwide had a duty to offer a Section 1738 waiver of stacking form each time a vehicle was added to the policy and none was provided relative to the third vehicle. Appellants argued that pursuant to Section 1738(a) the UIM coverage for the third vehicle should have been stacked or in the alterative coverage up to the amount for the third vehicle plus one other car. Nationwide contended that it did not have a duty to offer additional waivers when new vehicles were added and the waiver executed when the policy was purchased applied to all the vehicles, thus allowing for unstacked UIM coverage.
Decision of Court: The Court agreed with the trial court’s ruling that Nationwide was not required to obtain a new rejection of stacked UIM coverage when the vehicle was added to the policy. The trial court’s entry of summary judgment in favor of Nationwide was affirmed.
Position of Judge: Authored opinion.
Case Name: O'Hare v. UPMC Health Plan, Inc., 869 A.2d 976 (Pa.Super. 2005)
Issue: In a declaratory judgment action, UPMC Health Plan appealed the Allegheny County Court of Common Pleas order holding that UPMC had no right to recover overpayments of approximately $1.8 million which it paid to Appellees for generic prescription drugs. After UPMC discovered it reimbursed pharmacy for generic prescription drugs at brand name rates for approximately one year, resulting in a total overpayment of $9 million. Although most pharmacies agreed to return the overpayments, a group of 103 pharmacies refused to return the overpayment amounting to about $1.8 million and filed an action asserting that UPMC had no contractual, legal, or equitable basis for recovery of overpayments. The trial court ruled in favor of Appellees concluding that under the Agreement, UPMC had no right to recovery.
Decision of Court: The Court found that the trial court erred in finding that under the Agreement UPMC was not entitled to relief and reversed. The Court remanded for a determination as to the amount of overpayment to which UPMC was entitled.
Position of Judge: Authored opinion.
Case Name: Caro v. Glah, 867 A.2d 531 (Pa.Super. 2004)
Issue: Appellant challenged the Bedford County Court of Common Pleas order granting summary judgment in favor of Appellee, Glah, M.D. arising from a medical malpractice action. Following the trial court’s entry of summary judgment in favor of Appellee on the grounds that Appellant’s action was untimely, the Court was presented with three issues on appeal, including (1) whether Appellant’s claims were timely filed under the statute of limitations period as extended by the Discovery Rule; (2) whether Appellant was required to exercise reasonable diligence in filing a claim following discovery of the cause and fact of the injury without regard to the statute of limitations period; and (3) whether the Discovery Rule was appropriate before the fact and cause of the injury were known.
Decision of Court: The Court held that the statute of limitations did not begin to run until a doctor diagnosed the knee injury and Appellant had two years from the date of that medical visit to institute an action. Thus, it held that the trial court committed an error of law in granting summary judgment to Apppelle on the ground that Appellant’s action was untimely filed. The trial court’s order was reversed and remanded for further proceedings.
Position of Judge: Authored opinion.
Cerniga v. Mon Valley Speed Boat Club, 862 A.2d 1272 (Pa. Super. 2004)
Issue: In an action brought by landowners to eject the boat corporation from property on the basis of adverse possession, Appellant, Boat Club, presented issues alleging the trial court erred by (1) failing to perform the analysis of deed and chain title from the common ancestor; (2) finding that even if the deed did not include a description of the property, it did not accrue to defendant’s benefit; and (3) in finding that claimant’s riparian rights as a basis upon which to enter verdict for claimants as no evidence in the record supported this claim. Appellants sought review of the Allegheny Court of Common Pleas order directing that the Boat Club be evicted and adverse possession be granted to Appellees, as well as review of Appellees’ motion to quash and/ or dismiss the appeal.
Decision: The Court held that by failing to file post-trial motions to the trial court’s new order, which contained new findings of fact and conclusions of law, the Boat Club frustrated the purpose of Rule 227.1 and deprived the trial court of an opportunity to correct any errors in its new ruling. Thus, the Court concluded that the Boat Club was required under Rule 227.1 to file post-trial motions to the trial court’s order and by failing to do so, failed to preserve any issues for appellate review.
Position: Authored opinion.
Case Name: Kohl v. PNC Bank Nat. Ass'n, 863 A.2d 23 (Pa.Super. 2004)
Issue: Following judgment on the verdict after a non-jury trial in the ejectment and breach of lease action, the issue presented was whether litigation which impairs a tenant’s possessory interest in a leasehold, brought in bad faith by a landlord, constituted a breach of the implied covenant of quiet enjoyment in the lease.
Decision of Court: The Court concluded that while such litigation may have constituted a breach of the covenant, in the case at bar there was insufficient evidence to support a finding of bad faith. The Court affirmed in part, reversed in part, and remanded.
Position of Judge: Authored opinion.
Case Name: Ash v. Continental Ins. Co., 861 A.2d 979 (Pa.Super. 2004)
Issue: Pursuant to its initial complaint seeking damages for breach of contract against its insurance carrier, Appellants sought review of the trial court’s entry of summary judgment in favor of Appellee/ Continental Insurance Company and denial of motion for leave to amend the complaint. The action arose from Appellees denial of Appellant’s claim for property damages by fire based on its allegations of concealment or fraud. The trial court entered an order granting Appellee’s motion for summary finding that the one-year statute of limitations provided by the contract had expired and Appellant’s bad faith claim was barred by the two-year statute of limitations for tort actions. Although conceding the breach of contract claim was barred by the statute of limitations set forth in the policy, Appellants argued that their bad faith claims were subject to a six-year statute of limitations not two-years as applied by the trial court when entering summary judgment.
Decision of Court: The Court held that the a bad faith action under Section 8371 was subject to a two year statute of limitations and therefore, affirmed the trial court’s s order granting summary judgment in favor of Appellees.
Position of Judge: Authored opinion.
Case Name: Morningstar v. Hallett, 858 A.2d 125 (Pa.Super. 2004)
Issue: After parties contracted through a written sales agreement for a horse, the seller, Morningstar, instituted an action for breach of contract against Appellant for refusal to pay after Appellee delivered the horse. However, Appellant raised issues of fraud, misrepresentation, unfair trade practices, and mutual mistake in her counterclaim relating to the age and condition of the horse. Following the trial court’s order granting summary judgment in favor of plaintiff Morningstar for failure to establish a prima facie case and awarding counsel fees, Appellant raised four issues for review, including (1) whether Appellee provided sufficient proof for claims of fraud, misrepresentation, unfair trade practices, and mistake; (2) whether Appellee’s expert witness should have been permitted to provide testimony and evidence; (3) whether summary judgment was improper where proof of performance contractually required was supported by only Appellee’s testimony; and (4) whether material issues of facts existed that precluded summary judgment.
Decision of Court: The Court held that the trial court erred in granting summary judgment in favor of Morningstar and reversed the order granting summary judgment. Also, the Court reversed the trial court’s order precluding Appellant from presenting counterclaims of fraud, misrepresentation, deceptive trade practices, and mutual mistake. The Court found that the sales agreement created an express warranty about the horse and “as is” clause did not preclude Appellant’s counterclaims, as well as finding the veterinarian’s testimony based on examining the horse relevant to counterclaims.
Position of Judge: Authored opinion.
Case Name: D'Alterio v. New Jersey Transit Rail Operations, Inc., 845 A.2d 850 (Pa.Super. 2004)
Issue: Appellant challenged the Philadelphia County Court of Common Pleas order dismissing his action against New Jersey Transit Rail Operations on the grounds of forum non conveniens. Appellant, a New Jersey resident who was injured during the course of his employment as a machinist for a New Jersey corporation that does business in Philadelphia, though injured while working in New Jersey. Appellant filed suit against NJ Transit in Philadelphia, New Jersey Transit answered, the parties engaged in discovery, and after the arbitration hearing the panel found in favor of Appellant and awarded him $40,000. Although the case was scheduled for trial, the judged issued sua sponte a Rule to Show Cause why Appellant’s action should not be dismissed on the grounds of forum noncoveniens. A hearing was conducted following which the trial judge issued an order dismissing Appellant’s case on that ground. On appeal, Appellant argued that the trial judge abused his discretion in dismissing sua sponte Appellant’s complaint on the basis of forum nonconveniens without weighing all applicable public and private factors involved in the case.
Decision of Court: The Court reversed the trial court’s order and remanded for further proceedings consistent with the opinion. The Court concluded that the trial court abused its discretion in holding that the public and private factors supported a dismissal of Appellant’s case on the ground of forum non conveniens and in dismissing Appellant’s case sua sponte.
Position of Judge: Authored opinion.
Case Name: Ovitsky v. Capital City Economic Development Corp., 846 A.2d 124 (Pa.Super. 2004)
Issue: Appellant brought negligence action against Ramada Inn alleging that the assault and injury were due to the hotel’s failure to provide sufficient security, specifically relating to self-locking doors and access to the premises. After Ramada’s motion for sanctions for failure to produce an expert report was granted, Appellant was precluded from introducing expert testimony at trial. The trial court granted Appellee’s motion for summary judgment asserting that Appellant could not prove a prima facie case of negligence without expert testimony. Appellant challenged the ruling asserting that it was within the common experience of lay jurors to determine whether Appellee breached a duty to him to provide adequate security.
Decision of Court: The Court held that the trial court erred in ruling that Appellant could not, absent expert testimony, prove his negligence action against Appellee and therefore, concluded that the trial court erred in granting summary judgment on this basis in favor of Appellee. The Court reversed and remanded for entry of judgment consistent with the opinion.
Position of Judge: Authored opinion.
Case Name: M.A. v. Brabender, 839 A.2d 1133 (Pa.Super. 2003)
Issue: Appellant filed action claiming Appelles, Bradender and his law firm, committed legal malpractice in their representation. The Court reviewed the Erie County Court of Common Pleas order granting Appellees’ motion for summary judgment on the pleadings because the statute of limitations had expired. The issue presented was whether under Pennsylvania law and the due process clause of the United States and Pennsylvania constitutions, the cause of action for a legal malpractice claim accrued two years after his criminal cause of action rather than two years after the legal relationship of client and attorney terminated.
Decision of Court: While recognizing that the malpractice claim did not arise until after Appellant was granted habeus corpus relief, the Court held that a criminal legal malpractice action begins to run on the date of sentencing or no later than the termination date of the attorney-client relationship. Since Appellant instituted the action over five years after the statute of limitations period began to run, after the two-year statute of limitations period for negligence claims, and after the four-year statute of limitations period for contractual claims, the Court held that Appellant’s malpractice claim was untimely. The Court affirmed the trial court’s entry of judgment.
Position of Judge: Authored opinion.
Case Name: Kane v. State Farm Fire and Cas. Co., 841 A.2d 1038 (Pa.Super. 2003)
Issue: In a class action brought by Appellants, who were homeowner’s insurance policy-holders, Appellants sought review of the order entered in the Berks County Court of Common Pleas sustaining the preliminary objections in the nature of demurrer filed by the Appellee, insurers. Based on disputes over the meaning of “actual cash value” relative to the replacement cost policies, Appellants asserted that they have not received full indemnification under their insurance policies with Appellees for their partial losses because Appellees deducted depreciation from the actual cost to repair or replace the damaged portion of the buildings.
Decision
of Court: The
Court stated, “we conclude that the trial
court properly dismissed the breach of contract claims against each of the
Appellees, except for Erie, and accordingly affirm the order as to those
Appellees. For the same reasons, we conclude the trial court properly dismissed
Appellants' related claims under the UTPCPL, again, except as against Erie, and
accordingly affirm the order as to those Appellees. We conclude, however, that
the trial court erred in dismissing the breach of contract claim against Erie,
and reverse the order below in that regard. Given that the trial court
dismissed the UTPCPL claim against Erie based on an erroneous conclusion that
the underlying breach of contract claims were meritless, we remand for the
trial court to reconsider the UTPCPL claim against Erie in light of this
opinion. Appellants have not challenged the dismissal of their bad faith claims
against Appellees, and thus we do not disturb the trial court's determination
in that respect.”
Position of Judge: Authored opinion.
Case Name: In re Termination of C.W.S.M., 839 A.2d 398 (Pa.Super. 2003)
Issue: The mother appealed the Northampton County Court of Common Pleas order which terminated her parental rights to her son and to her daughter. The issues presented included (1) whether the trial court erred in finding the termination of parental rights were in the children’s best interests; (2) whether the trial court erred in finding that Appellant failed to perform parental duties for a period of six months prior to the filing of the Termination Petition; (3) whether the trial court erred in finding that Appellant had not taken the appropriate steps to remedy the circumstances that led to the removal of the children.
Decision of Court: The Court agreed with the mother’s argument that CYF failed to meet its burden of proving by clear and convincing evidence that termination of her parental rights would best suit the children’s interests. Specifically, the mother asserted that the record was devoid of evidence to support a conclusion that termination of her parental rights was in the children’s best interest, that the record was silent as to the effect termination would have on the children, and the only inquiry regarding the children was about how they were doing in their foster care placement. Thus, the Court remanded to allow the parties to present testimony regarding the emotional bonds between the mother and the children and the effect of a termination of parental rights would have on the children, after which the trial court was instructed to conduct an analysis regarding these issues as well as all other factors bearing upon the termination of the mother’s parental rights.
Position of Judge: Authored opinion.
Case Name: In
re Termination of C.W.S.M., 839 A.2d 410 (Pa.Super. 2003)
Issue: The father appealed the Northampton County Court of Common Pleas order that terminated his parental rights to his son and daughter. The issues presented included (1) whether the trial court erred in finding the termination of parental rights were in the children’s best interests; (2) whether the trial court erred in finding that Appellant failed to perform parental duties for a period of six months prior to the filing of the Termination Petition; (3) whether the trial court erred in finding that Appellant had not taken the appropriate steps to remedy the circumstances that led to the removal of the children.
Decision of Court: Reversed and remanded. The Court agreed with the father’s argument that CYF failed to meet its burden of proving by clear and convincing evidence that termination of his parental rights would best suit the children’s interests. Specifically, the father asserted that the record was devoid of evidence to support a conclusion that termination of his parental rights was in the children’s best interest, that the record was silent as to the effect termination would have on the children, and the only inquiry regarding the children was about how they were doing in their foster care placement. Thus, the Court remanded to allow the parties to present testimony regarding the emotional bonds between the father and the children and the effect of a termination of parental rights would have on the children, after which the trial court was instructed to conduct an analysis regarding these issues as well as all other factors bearing upon the termination of the father’s parental rights.
Position of Judge: Authored opinion.
Case Name: Cargitlada
v. Binks Mfg. Co.,
837 A.2d 547 (Pa.Super. 2003)
Issue: Appellant challenged the Philadelphia County Court of Common Pleas order granting Appellee’s motion to strike and removing ITW as a party to the action. Appellant filed a products liability action against the manufacturers of the commercial spray-paint gun that caused the injury and amputation of his fingers due to its faulty safety switch. Initially, Appellant filed a products liability action against Binks and Binks Sames Company, though in its answer and new matter it indicated that both entities were presently known as ITW Industrial Fishing. ITW filed a motion to strike the judgment alleging that it had not been notified of the judgment and should not be bound by the judgment. The trial court granted ITW’s motion to strike. The issues presented on appeal were (1) whether the trial court erred when it vacated its prior order permitting plaintiff to correct the caption and granted defendant’s motion to strike the judgment and (2) whether the trial court erred when it concluded that Pennsylvania’s Successor Liability Law was inapplicable.
Decision of Court: The Court reversed and remanded. It held that the trial court erred in granting ITW’s motion to strike the judgment. Since the allegation of facts outside the record, which could have arguably supported a petition to open, the Court remanded for further proceedings and for consideration by the trial court of the merits of ITW’s petition to be viewed as a petition to open the judgment.
Position of Judge: Authored opinion.
Case Name: Moran v. Moran, 839 A.2d 1091 (Pa.Super. 2003)
Issue: Issue: In divorce proceeding, parties sought review of whether the equitable distribution order requiring that vacation home and alimony was not permitted because wife admitted to cohabitation before entry of divorce decree and distribution of marital property. The trial court ordered immediate sale of vacation home despite master’s recommendations without providing sufficient explanation.
Decision: The Court held that the trial court abused its discretion in ordering immediate sale of house thereby vacating that portion of the order and remanded for entry of new order consistent with opinion with respect to a final order of credit owed to husband, but upheld portion of opinion finding based on evidence that wife’s cohabitation with another person precluded alimony.
Position: Authored Opinion
Case Name: AK Steel Corp. v. Viacom, Inc., 835 A.2d 820 (Pa.Super. 2003)
Issue: In a declaratory action, plaintiff AK Steel sought review of the common pleas court entry of judgment in favor of Viacom ruling that an agreement for the sale of property at an industrial site where environmental contamination was subsequently discovered was assignable to only an entity that succeeded to substantially all of the assets of the purchaser and without a party’s intent to purchase susbtantially all of the assets rendered the agreement unassignable. Following conveyance of property, party sought indemnification and remediation under agreement based on rights and obligations of predecessor against purchaser.
Decision: Affirmed. The sale agreement was not assignable against the successor corporation for the preexisting environmental conditions of the property.
Position of Judge: Authored opinion.
Case Name: Liebner v. Simcox, 834 A.2d 606 (Pa.Super. 2003)
Issue: Mother appealed a custody order granting mother’s former boyfriend visitation with her son based on relationship with him. Following trial, the trial court awarded mother sole legal and physical custody and granted Appellee visitation rights. Appellant challenged whether Appellee met his burden of standing in loco parentis, his standing in light of changed circumstances, visitation provision as contrary to child’s best interests, and infringement on constitutional right of privacy.
Decision: The Court held that Appellee had in loco parentis standing permitted visitation rights with child and order was in the child’s best interest. Affirmed.
Position: Authored opinion.
Case Name: Boucher v. Pennsylvania Hosp., 831 A.2d 623 (Pa.Super. 2003)
Issue: Parents filed a negligent action against Pennsylvania Hospital for causing or failing to prevent traumatic injury to their baby based on a res ipsa loquitor theory. Following a jury verdict for the Hospital, Appellants filed a post-trial motion seeking a new trial, which was denied. Appellant presented the issues: (1) whether a new trial should be granted because of error in disallowing the cross-examination of the defendant-appellee’s expert doctor regarding review of his medical report; (2) whether a new trial was warranted because at least two jurors responded falsely to the trial court’s inquiry regarding misconduct and their receipt of extraneous information; and (3) whether a new trial was warranted for an erroneous res ipsa loquitor jury charge that prejudiced the appellant’s claim on the ultimate issue of the case.
Decision of Court: The Court held that the trial court abused its discretion in not allowing Appellants to cross-examine the medical expert regarding the medical report and was not a harmless error. Thus, the Court concluded that Appellants were entitled to a new trial, reversed. The Court held that Appellants waived any arguments regarding potential jury misconduct, so no error was found on the part of the court.
Position of Judge: Authored opinion.
Case Name: K.B. II, K.B. and B.B. v. C.B.F 833 A.2d 767 (Pa.Super. 2003)
Issue: C.B.F., the biological mother of K.M.N. III, child, appealed the order entered April 25, 2002 in the court of common pleas of Armstrong County awarding full custody of child to child’s paternal grandparents, B.B. and K.B. Following the denial of post-trial motions for reconsideration, Mother appealed asking the Court to consider whether the trial court erred by (1) finding the paternal grandparents met their burden of proof required for granting them primary physical custody of their minor grandchild; (2) finding the minor child’s best interests to award custody to the paternal grandparents; and (3) improperly delaying the rendering its decision thereby making most of the facts relied upon in rendering its decision moot on the date of the final order.
Decision of Court: The Court reversed and remanded. The Court concluded that the findings of the trial court did not justify a change in physical custody under Section 5313(b) thereby reversing and remanding for further proceedings consistent with the opinion.
Position of Judge: Authored opinion.
Case Name: Prestige Bank v. Investment Properties Group, Inc., 825 A.2d 698 (Pa.Super. 2003)
Issue: Relative to a dispute over the ownership of household effects of Thomas Iarrapino, III, the trial court determined that the Trust was a mere attempt to protect property from potential claimants, thereby vacating and setting aside the Trust providing that Prestige Bank could execute upon the “trust corpus” at any time. After the trial court denied post-trial motions, the Trust filed an appeal raising two questions for consideration, including (1) whether the trust was valid and enforceable, thereby exempting the property from attachment and (2) whether the goods claim of the trust should have been sustained.
Decision of Court: Based on the trial court’s factual findings as set forth in the record, the Court found that the trial court did not err in vacating the Trust and permitting Prestige Bank to execute against his personal property. Thus, the Court affirmed the judgment entered in favor of Prestige Bank.
Position of Judge: Authored opinion.
Case Name: Keystone Technology Group, Inc. v. Kerr Group, Inc., 824 A.2d 1223 (Pa.Super. 2003)
Issue: Issue: Although Appellant agreed to a commercial real estate sales agreement for commercial real estate from Appellee, the sale never finalized for various reasons. Thus, Appellant filed a complaint in equity and lis pendens requesting specific performance of the sales agreement and an injunction barring Appellee from selling or otherwise encumbering the land. The trial court filed an order denying Appellant’s motion for stay of proceedings pending arbitration and its motion for protective order from discovery pending arbitration. Appellant requested review of (1) whether there was an enforceable arbitration agreement between the parties and (2) if a valid arbitration agreement exists, then must they arbitrate the matter claiming the trial court was not a substitute judicial forum that waived the right to arbitrate.
Decision of Court: The Court found that the trial court record did not have substantial evidence to rule upon whether the conditions precedent to the enforceability of a contract existed. The Court vacated the trial court order and remanded for an evidentiary hearing to determine whether the conditions precedent were satisfied.
Position of Judge: Authored opinion.
Case Name: Liberty Property Trust v. Day-Timers, Inc., 815 A.2d 1045 (Pa.Super. 2003)
Issue: In a lease dispute, Liberty Property Trust appealed the judgment entered against it and in favor of Day-Timers, Inc., lessee. Following trial, the trial court concluded that the unexecuted modification to the lease, which implicitly waived the no-oral modifications clause, was enforceable and entered judgment in favor of Day-Timers. Before Liberty’s post-trial motion was ruled on, the prothonotary entered judgment against Liberty and its appeal filed. On appeal, Liberty asked whether (1) evidence concerning an alleged oral modification of the Lease be admitted and considered where such oral modification was prohibited by the express terms of the lease; (2) whether the tenant and landlord’s predecessor in title intended to waive the no oral modification clause contained in the lease; (3) whether the alleged oral modification violated the Statute of Frauds; (4) whether the tenant was estopped from asserting the oral modification failed to disclose the alleged modification; (5) whether the asserted oral modification of the lease was enforceable; and (6) whether the appeal was timely filed.
Decision of Court: The Court found that the trial court abused its discretion in concluding that Day-Timers was not equitably estopped from asserting an oral modification of the lease where it clearly denied the existence of such modification in the estoppel certificate, where Liberty had insufficient notice of the existence of the modification, and where Liberty relied on Day-Timers representations. Accordingly, the trial court erred in granting judgment to Day-Timers, vacated the judgment, and remanded for proceedings consistent with the opinion.
Position of Judge: Authored opinion.
Case Name: Yoder v. American Travellers Life Ins. Co., 814 A.2d 229 (Pa.Super. 2002)
Issue: Appellants, executors of the estate of Jean Yoder, sought review of the grant of summary judgment to American Travellers Life Insurance Company pursuant to a long-term nursing home insurance policy. When decedent sought coverage upon entering a nursing home without prior hospital stay, the insurance coverage was denied based on an exclusion requiring a three day hospital stay within thirty days prior to entry in a nursing home. In turn, Yoder filed an action alleging bad faith and unfair trade practices seeking declaratory judgment. The trial court granted Insurers’ motion for judgment on the pleadings for the unfair trade practices count and later granted Insurer’s motion for summary judgment on the remaining counts, finding P.L. 1129 No. 148 (the Act) prohibiting institutionalization exclusions inapplicable because it was enacted following the issuance of the policy. Thus, it held the exclusion was enforceable. Appellant argued that the trial court erred by finding the Act was inapplicable to her policy and annual renewals of the policy constituted new contracts to which the Act applied. Secondly, Appellant asserted that the trial court erred by rejecting her bad faith claim concerning Insurers’ duty of good faith and fair dealing required to inform her of changes in the law.
Decision of Court: On the first issue presented, the Court rejected Appellant’s argument that the Act applied to her policy and affirmed the trial court’s determination that the prior institutionalization exclusion in the policy was enforceable and its denial of her claim for declaratory relief for that reason. The Court did not addressed Appellant’s second issue concerning bad faith since she failed to included it in her concise statement of matters complained of on appeal filed pursuant to Rule 1925 of the Pennsylvania Rules of Appellate Procedure, thus waiving it. The Court affirmed the trial court’s order entering summary judgment against Appellant.
Position of Judge: Authored opinion.
Case Name: Citizens' Ambulance Service Inc. v. Gateway Health Plan, 806 A.2d 443 (Pa.Super. 2002)
Issue: Citizens, a not-for-profit corporation for emergency and ambulatory services, initiated the action seeking payment for emergency and non-ambulatory services provided to medical assistance recipients enrolled in Gateway as set forth in its agreement with the Department of Public Welfare because Gateway reimbursed Citizens at a lower reimbursement rate set by the DPW rather than the charges billed at rates consistent with rates charged to the general public. In its complaint, Citizens sought recovery for breach of contract under third-party beneficiary theory under two of Gateway’s contractual agreements and resulting unjust enrichment. The trial court sustained Gateway’s preliminary objections that the court lacked subject matter jurisdiction because Citizens failed to exhaust its administrative remedies prior to instituting the action. The issue presented on appeal by Citizens was whether there was an administrative remedy available to Appellant that it was required to exhaust before filing the action. Specifically, Appellants argued that the trial court erred in holding that an adequate administrative remedy existed which it was required to exhaust because DPW lacked jurisdiction over private parties’ disputes and had not power to award the requested relief.
Decision of Court: The Court affirmed the trial court’s holding that an adequate administrative remedy existed that needed to be exhausted first and DPW did not have jurisdiction over the dispute.
Position of Judge: Authored opinion.
Case Name: Abbott v. Schnader, Harrison, Segal & Lewis, LLP, 805 A.2d 547 (Pa.Super. 2002)
Issue: In a breach of contract action, Schnader, Harrison, Segal & Lewis, LLP( Schander) appealed the trial court’s order denying its motion for summary judgment and granting the motion for summary judgment filed by Appellees Frank H. Abbott and Vincent P. Haley. In a case of first impression, the question presented on appeal was whether active partners could amend a provision of a partnership agreement providing for income to retired partners, substantially reducing that income, without consent of the retired partners.
Decision of Court: The Court affirmed the trial court’s order granting summary judgment to Appellees. The Court concluded that the amendment was ineffective to reduce Appellees’ retirement benefits once they had retired.
Position of Judge: Authored opinion.
Case Name: Extraco Mortg. v. Williams, 805 A.2d 543 (Pa.Super. 2002)
Issue: Appellant, Fulton Bank, a junior lienholder on a property, which was sold at a sheriff’s sale following a foreclosure action, sought review of the trial court’s order denying its exceptions to a sheriff’s schedule of proposed distributions. Specifically, Appellant asked whether the mortgage company, Extraco, waived any entitlement for recovery from the sheriff’s sale proceeds for voluntary advances of the mortgage, namely back taxes and hazard insurance premiums on the property, rather than seeking recovery in the mortgage foreclosure action and even recovery of voluntary advances was appropriate, recovery was subordinate to Fulton Bank’s claim.
Decision of Court: Affirming the trial court’s conclusion, the Court found that the sheriff’s distribution was justifiable and equitable under the circumstances, even though Extraco did not amend its complaint in the foreclosure action to assert additional damages relating to taxes and hazard insurance premiums, since there was no evidence to support that it suffered any harm as a result.
Position of Judge: Authored opinion.
Case Name: Mrozek v. Eiter, 805 A.2d 535 (Pa.Super. 2002)
Issue: Arising from an action against Appellant, Eiter, by his former employers, individually and as partners, seeking to enforce a noncompete clause in the employment agreement, Appellant sought review of the judgment requiring him to pay counsel fees incurred by his former employers. The issue presented was whether a counsel fees provision within a noncompete clause can be enforced in equity where the covenant as initially drafted was allegedly breached, but where the covenant reformed in equity was not breached. After Appellant left Appellees’ employment to work for a competitor, the business owned by Appellees sought to enforce the noncompete covenant barring working for a competitor for two years within a 100-mile radius of its office and enjoin Appellant from working there, alleging intentional interference with contract. Holding the covenant was overbroad, the trial court dissolved its prior temporary injunction, but enjoined Appellant from contacting or developing any relationship with his former employer’s customers and reduced the covenant term from two years by enjoining Appellant for nine months, as well as dismissing the intentional interference with contract claim. On Appellant’s first appeal, the Court affirmed the decision to reform the noncompete covenant by barring only customer solicitation, but remanded for entry of a modified injunction term for two years under the covenant rather than the trial court’s nine month term. Following review on remand, Appellant sought review of the trial court’s award of counsel fees pursuant to the covenant and denial of post-trial motions, arguing that there was never a finding Appellant breached the agreement.
Decision of Court: Holding the counsel fees provision was unenforceable, the Court reversed. Concluding that the trial court never found Appellant breached the original covenant before it was reformed, the Court held it was inequitable to award counsel fees for breach of the reformed covenant and reversed the trial court’s judgment.
Position of Judge: Authored opinion.
Case Name: PECO Energy Co. v. Philadelphia Suburban Water Co., 802 A.2d 666 (Pa.Super. 2002)
Issue: Following entry of an order overruling Appellant’s preliminary objections to venue in Philadelphia County, Appellant presented to this Court and the trial court judge responded by filing an opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure in support of the order Appellant, Philadelphia Suburban Water Co., presented issues for review concerning the trial court’s abuse of discretion by overruling its preliminary objections relating to venue in Philadelphia County relating (1) its finding that it regularly conducts business there based on misapplying Pa.R.C.P. 2179 and controlling case law; (2) the fact Appellant was subject to jurisdiction and regulatory control of the Public Utilities Commission and it was not authorized to conduct business under applicable certificates of public convenience and tariffs pursuant to 66 Pa.C.S.A. § 102, 501, and 1101; and (3) where the issue of whether Appellant conducts business there was preempted and determined by 66 Pa.C.S.A. § 102 et seq.
Decision of Court: The Court found that Appellant had insufficient contacts with Philadelphia County to establish venue there. Thus, it found that the trial court abused its discretion in overruling Appellant’s preliminary objections to venue thereby reversing and remanding for entry of order consistent with the opinion.
Position of Judge: Authored opinion.
Case Name: Ettinger v. Triangle-Pacific Corp., 799 A.2d 95 (Pa.Super. 2002)
Issue: In a personal injury action arising from injuries sustained by Appellant in a fall while working at a manufacturing plant under reconstruction, Appellant and his wife appealed the partial summary judgment entered in favor of Appellee, manufacturer, after striking the strict products liability count. After the trial court found that the unassembled oven did not constitute a “product” and Appellant was not a “user” under the Restatement of Torts, the action proceeded to the jury solely on a negligence claim. Since the jury found that Appellant was contributorily negligent, which was a substantial factor in causing the injury, the trial court entered an order based on the jury finding that Appellant was 51% negligent. The issue presented was whether an item during the course of assembly by the producer constituted a “product” and whether an assembler was a “user” under the Restatement of Torts to support the trial court’s partial summary judgment on the strict liability count. Specifically, the Court reviewed the request for a determination of whether the trial court properly granted partial summary judgment based on its holding that the partially-assembled commercial furniture finishing oven in which Appellant was installing wiring was not a product nor was Appellant one of its assemblers in a matter of first impression. Appellant also sought review of whether the trial court erred in its denial of Appellant’s post-trial motion seeking a new trial, whether the trial court erred in its jury charges, and whether the trial court erred in its admission of testimony relative to OSHA regulations.
Decision of Court: The Court held that the trial court did not err in granting partial summary judgment on the strict liability count or in the denial of Appellant’s post-trial motions, thereby affirming the entry of judgment in favor of Appellees.
Position of Judge: Authored opinion.
Case Name: Thomas Rigging & Const. Co., Inc. v. Contraves, Inc., 798 A.2d 753 (Pa.Super. 2002)
Issue: Arising from a royalty payment dispute under an exclusive license agreement for the manufacture and sale of snowblowers invented by decedent, represented by Appellants, Appellants, “licensors”, challenged the trial court’s denial of their claim for counsel fees and licensees challenged the finding that the license agreement required certain minimum payments.
Decision of Court: Based on the contractual language, the Court concluded that Appellee was not required to make minimum yearly royalty payments. Thus, it reversed the summary judgment order in favor of licensors and remanded for entry of judgment in favor of Appellees on this issue. By finding that the trial court erred in holding that Appellee was obligated to pay minimum payments, under the agreement, the provision for counsel fees was not triggered. Thus, it reversed the judgment in part and affirmed in part, thereby remanding with instructions.
Position of Judge: Authored opinion.
Case Name: In re J.H., 797 A.2d 260 (Pa.Super. 2002)
Issue: Appellant, a juvenile student, challenged the Dauphin County Court of Common Pleas order adjudicating him delinquent and placing him on formal probation for an eight-week program for making terroristic threats against his drama teacher. Although Appellant conceded that he threatened to commit a violent crime against his teacher, he challenged the sufficiency of the evidence to support the adjudication of delinquency.
Decision of Court: The Court denied Appellant’s argument that his statement was a “spur-of-the moment threat” made in anger without the requisite intent to terrorize. Thus, the Court affirmed finding the record supported Appellant possessed the requisite intent for a conviction.
Position of Judge: Authored opinion.
Case Name: Marsico v. DiBileo, 796 A.2d 997 (Pa.Super. 2002)
Issue: Arising from a personal injury action in negligence in which Appellant/plaintiff sought compensatory damages for herself and her daughter, the issue presented on appeal was whether Section 3321 of the Motor Vehicle Code pertaining to vehicle right-of-ways applied to vehicles traveling in parking lots. Specifically, the Court addressed whether the trial court abused its discretion by denying Appellant’s motion for a new trial on the basis of erroneous jury instruction for prejudicial mistakes made at trial.
Decision of Court: Finding the trial court’s jury instructions misleading under Section 3321 since Appellant did not have a duty to yield at a parking lot intersection, the Court held the trial court erred by denying Appellant’s motion for a new trial. Thus, the Court reversed the judgment in favor of Appellee and remanded the matter for a new trial.
Position of Judge: Authored opinion.
Case Name: Hamilton v. Hamilton, 795 A.2d 403 (Pa.Super. 2002)
Issue: Appellant, who was not the biological father of the child, signed an Acknowledgement of Paternity, while having a relationship with the child’s mother whom he married. The mother/Appellee filed support actions against Appellant and subsequently, the parties separated and Appellant filed for divorce. In response to a support action, Appellant filed a Petition to Dispute Paternity of a Minor Child, requesting that his Acknowledgement of Paternity be rescinded and requested blood tests. Since Appellant actively participated in the minor’s life from the time she was three years old until twelve years old and the child referred to him as Dad, the trial court estopped Appellant from denying paternity, denied his petition, and entered a child support order requiring Appellant to pay child support. Appellant asserted the trial court erred by finding he was estopped in denying paternity because (1) he did not understand the Acknowledgement of Paternity when he signed it; (2) Appellee acted fraudulently to obtain his signature on the Acknowledgement and in seeking support; (3) his relationship with the child was as a step-parent without legal obligation for support upon dissolution of the marriage; (4) Appellee conceded he was not the natural father; and (5) Appellee was estopped from asserting a paternity claim after previously holding out another individual as the child’s father.
Decision of Court: Although it was undisputed that Appellant was not the biological father, he acted in such capacity that renunciation of that duty would harm the child. Finding the record fully supported the trial court’s application of paternity by estoppel and Appellant’s challenges otherwise meritless, it affirmed the trial court order. Further, it rejected the argument that Appellee’s actions were fraudulent as to preclude application of paternity by estoppel.
Position of Judge: Authored opinion.
Case Name: In re A.J.B., 797 A.2d 264 (Pa.Super. 2002)
Issue: The issue presented was one of first impression in which the Court was asked to determine whether the Orphans’ court erred in imposing a reasonableness standard with respect to the Office of Children and Youth’s refusal to consent to Mother’s voluntary relinquishment petition. Appellant, the Erie County Office of Children and Youth, appealed the Erie County Court of Common Pleas Orphans’ Court division order dismissing the OCY’s petition for a trial and denial of its motion to voluntarily relinquish parental rights, filed by mother, K.B., with respect to her daughter, A.J.B.
Decision of Court: Affirmed. The Court dismissed the OCY’s petition for involuntary termination of Mother’s parental rights with respect to A.J.B. and denying OCY ‘s motion to dismiss her voluntary relinquishment petition.
Position of Judge: Authored opinion.
Case Name: Deutsch, Larrimore & Farnish, P.C. v. Johnson, 791 A.2d 350 (Pa.Super. 2002)
Issue: Following the order granting Libros’ Petition to Intervene, Stay, and Set Aside Writ of Execution, Appellant, Deutsch, argued that (1) the Multi-Party Accounts Statute does not apply to brokerage accounts, and (2) Libros, the sole contributor to the joint brokerage account, made in an inter vivos gift one-third of the brokerage account to Johnson, a party named on account to be used as an estate planning device in the event of incapacitation.
Decision of Court: The Court found that the Multi-Party Accounts Statute did not apply, and therefore, affirmed. It found that the trial court correctly concluded that the assets in the account solely belonged to Libros.
Position of Judge: Authored opinion.
Case Name: Reefer v. Reefer, 791 A.2d 372 (Pa.Super. 2002)
Issue: After father and mother divorced, Appellant, father, sought review of the trial court’s modification of the previous custody order through which the mother was awarded primary physical custody and the father was awarded partial physical custody. Appellant asked the Court to consider four issues, including (1) whether the trial court abused its discretion in granting primary physical custody to the mother rather than use evidence in the record to determine the child’s best interests; (2) whether the trial court erred when it determined that the paternal grandmother had de facto custody and the custody disputes should be decided between the mother and grandmother rather than mother and father; (3) whether the trial court erred when it did not treat the matter as a relocation matter and did not conduct the three-prong Gruber test; and (4) whether the trial court erred in its examination of the facts in evidence and thereby, determining the best interests of the child when it transferred custody from shared legal custody and joint physical custody and awarded primary custody to mother.
Decision of Court: Finding that it was unnecessary to address all of Appellant’s issues, it concluded that the trial court’s decision had to be vacated and the case remanded based on the second and third allegations of error relative to the trial court’s conclusion that the child’s paternal grandmother had de facto custody and the trial court failed to consider in its custody determination the factors set forth under the Gruber test.
Position of Judge: Authored opinion.
Case Name: Burkholder v. Burkholder, 790 A.2d 1053 (Pa.Super. 2002)
Issue: Burkholder, the father, appealed the Court of Common Pleas of Monroe County’s order denying his complaint for custody and petition for special relief and granting the petition for relocation of Brenda Burkholder, the mother. Subsequently, Appellant challenged the trial court’s order, alleging that it erred on six counts, namely (1) by changing its order to require the minor children involved to be returned to Pennsylvania pending additional court proceedings when such a change was based solely on the relocating parent obtaining a PFA order in her state of destination; (2) by allowing a relocation with the minor children involved for a period of fourteen months before holding a hearing on the relocation right; (3) in failing to determine that the defendant had not met a prevailing factor to be considered in a relocation proceedings, specifically improvement of the children’s lives; (4) in not considering the circumstances that the parties at the time of the requested relocation rather than fourteen months later; (5) in failing to determine that defendant had not met a prevailing factor to be considered in a relocation proceeding, specifically a motive of the party seeking relocation; and (6) in not finding that the family contacts of the were stronger than in the state in which relocation was sought.
Decision of Court: The Court affirmed. It held that the order of the trial court denying Father’s petition for special relief and for custody and for granting Mother’s petition for relocation.
Position of Judge: Authored opinion.
Case Name: Bey v. Sacks, 789 A.2d 232 (Pa.Super. 2001)
Issue: Appellants challenged the judgment entered by the Philadelphia County Court of Common Pleas in favor of Appellees following a jury trial on various claims of professional negligence, lack of informed consent, and derivative loss of consortium and an award of compensatory damages in the amount of $400,000 and damages for loss of consortium in the amount of $200,000 arising from dental care provided. Appellant requested a new trial on the issue of lack of informed consent relating for expert testimony provided, a ruling precluding the cross-examination of plaintiffs about known risks and alternatives, the trial court’s jury charge, and an allegedly excessive jury verdict.
Decision of Court: The Court held that (1) the expert testimony was within a reasonable scope; (2) testimony about known risks or alternatives garnered from other providers was inadmissible; (3) the jury charge was appropriate; and (4) the jury awards for compensatory damages and loss of consortium claims were not excessive. Thus, the trial court’s judgment was upheld.
Position of Judge: Authored opinion.
Case Name: Drum v. Shaull Equipment and Supply Co., 787 A.2d 1050 (Pa.Super. 2001)
Issue: In a personal injury action arising out of negligence, Appellant, who had been employed as a heating and plumbing installer for a company which contracted with Appellee for the installation of an overhead radiant heating system to be suspended in the service garage area of Appellee’s facility, sued claiming negligence and strict liability on three theories, including (1) control of the workplace; (2) negligent supply of chattel for business purposes; and (3) vicarious liability based on particular risk. Appellant suffered spinal injuries which rendered him partially paralyzed after a pipe fell on him while working within his employment capacity using a forklift and pallet. Following a jury trial and the trial court’s denial of appellant’s post-trail motions for a new trial, Appellants raised seven specific allegations of error including whether a new trial was warranted where (1) no verdict was rendered in the trial court because the jury was denied the opportunity to announce orally its verdict in open court; (2) the trial court improperly interfered with the jury deliberations; (3) the trial court’s binding instruction on the doctrine of peculiar risk was legally erroneous and prejudicial to Appellants; (4) the trial court gave an erroneous and prejudicial jury instruction on Appellants’ theory of negligent supply of chattel for a business purpose; (5) the trial court erred in refusing to delineate Appellants’ three theories of negligence on the verdict slip; (6) where the jury was confused and unable to deliver a reasoned, rational result; and (7) the trial court erred in refusing to grant Appellants’ requests for a binding jury instruction on Appellees’ negligence and for judgment n.o.v. despite Appellee’s admission at trial of negligence.
Decision of Court: The Court held that the trial court abused its discretion in denying Appellants’ request for a new trial and reversed its denial of Appellant’s post-trial motion on the issue of jury confusion and remanded for a new trial. It also held that the trial court did not abuse its discretion in refusing to give an instruction that Appellee was negligent as a matter of law. The Court vacated the judgment entered by the trial court and reversed its order denying Appellant’s motion for Post-Trial Relief. The action was remanded for a new trial.
Position of Judge: Authored opinion.
Case Name: Paone v. Dean Witter Reynolds, Inc., 789 A.2d 221 (Pa.Super. 2001)
Issue: Following an order denying its petition to compel arbitration, Appellant (Dean Witter) presented the issue of whether the parties entered into an enforceable agreement to arbitrate that, under the mandatory provision of 42 Pa.C.S.A. § 7304(a), warranted an order compelling the parties to proceed with arbitration. Appellee filed a complaint against Appellant for fraud seeking money and punitive damages and Appellant filed a petition to stay the proceedings and compel arbitration to which the broker filed preliminary objections alleging a binding arbitration provision. After holding hearings, the trial court found that Appellee did not sign the application and was therefore unaware of its arbitration provision as well as holding that the agreements were unenforceable as they were fraudulently induced. Thus, Appellant challenged the trial court’s conclusion that there was no binding agreement between parties to arbitration and denial of Dean Witter’s petition to compel arbitration.
Decision of Court: Vacated and remanded the trial court’s order for a hearing wherein the parties may present evidence and Dean Witter must be given the opportunity to demonstrate that the arbitration provision which Dean Witter was attempting to enforce was fair under the circumstances, was knowingly entered into, and this was not the result of a confidential relationship between Dean Witter and Paone.
Position of Judge: Authored opinion.
Case Name: Hall v. Jackson, 788 A.2d 390 (Pa.Super. 2001)
Issue: The Court addressed cross-appeals of Appellees, individually and as executors of the Estate of Plaintiffs, Appellant-doctor, and Tyler Memorial Hospital-Appellant from the judgment entered from a jury verdict in favor of Plaintiffs-Appellees. After decedent slipped and fell on ice outside, she went to Tyler Memorial Hospital for examination. Pursuant to hospital policy, the doctor on call at the emergency room ordered x-rays to determine whether or not there were bone fractures. Instead, the x-rays revealed a lesion on decedent’s lungs, but pursuant to hospital policy she did not learn this about these results. Approximately three years later, she sought her family physician’s care for a seemingly chronic bronchial problem at which point x-rays showed the same lesion the emergency room doctor discovered. After she was referred to a specialist, she learned she had inoperable stage 3B-lung cancer and died. Plaintiffs sought recovery for liability against the emergency room physician on a theory of a failure to notify decedent of her x-ray results with regard to the lesion. Further, plaintiffs sought recovery against the Hospital on two grounds: vicarious liability for the physician’s actions and corporate liability for its policy of assigning a physician to a patient rather than providing information to the patient’s known family physician which allegedly increased her risk of harm. The trial court sustained the Hospital’s motion for compulsory non-suit on punitive damages for failure to present evidence of bad faith, malice, or ill will and the jury found that both the doctor and hospital were negligent, but the decedent was contributorily negligent in failing to follow-up per her discharge instructions thereby awarding plaintiffs over one million dollars, which were increased by the trial court’s addition of delay damages. The trial court denied all post-trial motions. The issues presented concerned whether the trial court erred in (1) denying a new trial on the basis that the jury’s verdict was inconsistent; (2) refusing to charge the jury on superseding causation; (3) permitting hearsay testimony from the decedent’s family members; and (4) instructing the jury on both direct causation and increased risk of harm. The Hospital contended that the trial court erred in accepting the jury’s award for loss of life’s pleasures as (1) there was no proof of such; (2) there was a separate award for pain and suffering; (3) decedent was not alive at the time of the trial; and 4) the nature of the action was transformed into a wrongful death and survival action without formal amendment. On appeal, plaintiffs argued that the Hospital policy constituted sufficiently reckless indifference to the rights of others that warranted punitive damages and the trial court erred in granting the Hospital’s motion for non-suit such that a new trial was required.
Decision of Court: Affirmed. The Court upheld the trial court’s conclusion that a jury instruction on superseding causation was not warranted since no question regarding superseding causation existed or raised, thereby waiving it. It also denied any argument that the trial court erred in allowing testimony by decedent’s family members. The Court agreed with the trial court in concluding that the Hospital had waived its issue on appeal by failing to make a timely objection to the court’s jury charge. The Court agreed with the trial court that the plaintiffs failed to demonstrate that the Hospital acted with reckless indifference or with the knowledge that its conduct would have increased the risk of harm to its patients such that punitive damages were warranted. It also concluded that the trial court did not err in granting the hospital’s motion for non-suit with regard to plaintiffs, so a new trial was not required.
Position of Judge: Authored opinion.
Case Name: Kripp v. Kripp, 784 A.2d 158 (Pa.Super. 2001)
Issue: Issue: The wife appealed from the Chester County Court of Common Pleas order denying her petition for contempt filed against her former husband. After a hearing the trial court admitted parole evidence to interpret the parties’ intent of the word “cohabitation” in their Property Settlement Agreement and denied the wife’s contempt petition, concluding that she had cohabitated the Agreement by living with another woman. Appellant challenged (1) whether the trial court erred in violating the rule against the admission of parole evidence by considering evidence to determine the meaning of the word “cohabitation”; (2) whether the trial court erred in expanding the definition of cohabitation to include living with anyone, even a family member or member of the same sex; (3) whether the trial court erred in finding the husband’s $1000 payment to wife against a $36,000 debt was adequate consideration to constitute an accord and satisfaction of the husband’s debt to wife pursuant to the parties telephone discussions and the agreement.
Decision of Court: The Court held that the term “cohabitation” has been defined by the legislature and case law as requiring members of the opposite sex who are not family members within the degrees of consanguinity to reside together as husband and wife, the Court found the Property Settlement Agreement was not ambigiuous. Thus, the trial court committed an error of law and abused its discretion by admitting parol evidence regarding the parties’ intent in their use of the term. Furthermore, the Court found that the trial court improperly expanded the meaning of the term “cohabitation” to include the wife’s same-sex roommate, despite the absence of specific language in the Agreement to that effect. Therefore, the Court reversed the trial court’s order denying the wife’s petition for contempt and remanded the matter for entry of an order consistent with the opinion.
Position of Judge: Authored opinion.
Case Name: Bowersox v. Progressive Cas. Ins. Co., 781 A.2d 1236 (Pa.Super. 2001)
Issue: The administrators of the estate of Paul S. Bowersox appealed the trial court’s denial of relief following a finding by the board of arbitrators that Progressive Casualty Insurance Company was not obligated to pay underinsured motorists benefits under the circumstances of the case.
Decision of Court: The Court affirmed the judgment finding that absent further review by the Supreme Court or the Pennsylvania legislature, it was compelled to hold. The Court concluded that it was constrained to hold that the set-off provision at issue was not contrary to public policy principles represented by the MVFRL.
Position of Judge: Authored opinion.
Case Name: Estate of Ghaner v. Bindi, 779 A.2d 585 (Pa.Super. 2001)
Issue: Arising out of the death of her husband in a traffic accident, Appellant, as administratrix of the estate and guardian of their children, initiated a wrongful death and survival action against Appellee, the driver of the vehicle that struck decedent. The trial court granted Appellee’s motion in limine seeking to preclude Appellant from introducing any testimony or exhibits for failure to file a pretrial statement as required by Pa.C.R.P. 212.2. Following its denial of Appellant’s attorney’s petition for leave to withdraw as counsel and request for continuance, the trial court granted Appellee’s motion for summary judgment without oral argument. The issue presented was whether the trial court imposed too severe a sanction and abused its discretion by granting the motion in limine precluding Appellant from introducing testimony or evidence as sanction for Appellant’s failure to file a pretrial statement and by entering summary judgment against Appellant.
Decision of Court: Since there was only a single failure to comply with the Rules of Civil Procedure and no evidence of bad faith or multiple occurrences, the trial court improperly precluded Appellant from introducing evidence or testimony as a sanction without an opportunity to correct the omission and without causing irreparable prejudice to Appelle’s trial preparation. Ruling that it abused its discretion, the Court reversed the trial court’s order granting the motion in limine and summary judgment. It vacated the judgment in favor of Appellee, and remanded to the trial court for further proceedings.
Position of Judge: Authored opinion.
Case Name: Municipality of Mt. Lebonon v. Reliance Ins. Co., 778 A.2d 1228 (Pa.Super. 2001)
Issue: In the insurance coverage declaratory judgment action, the Municipality of Mt. Lebanon appealed the trial court’s grant of judgment on the pleadings in favor of Appellee. In the underlying action, Kerstens filed a complaint against Appellant for negligence and gross negligence for damages in excess of $300,000, relative to a tree root caused a rupture to a gas line, and ensuing fire on their property. Accordingly, Appellant sought insurance coverage from Appellee pursuant to a general liability policy. However, Appellee denied coverage and refused to defend Appellant pursuant to a policy exclusion entitled “Total Pollution Exclusion.” Appellant instituted the action, seeking a declaration that Appellee had a duty to defend and indemnify it against the Kersten’s claim. The trial court granted Appellee’s motion for summary judgment, and the appeal followed. The issues presented included whether the trial court erred in (1) concluding that Appellee had no duty to defend Appellant when the underlying complaint contained allegations which potentially fell within the scope of the coverage provided by the policy (2) granting a motion for judgment on the pleadings when there are disputed issues of material fact such that the moving party was not entitled to judgment as a matter of law and (3) holding that the policy exclusion was ambiguous and erred in finding that it was excluded under that provision.
Decision of Court: The Court reversed, holding that Appellee failed to carry its burden of proving that natural gas was a pollutant as defined by the policy and thus, erred in entering judgment on the pleadings in favor of Appellee. Also, the Court found that the trial court erred in concluding based on the record that Appellee had no duty to defend Appellant and thus, erred as a matter of law in granting summary judgment on the pleadings in favor of Appellee.
Position of Judge: Authored opinion.
Case Name: Stecher v. Ford Motor Co., 779 A.2d 491 (Pa.Super.
2001)
Issue: Arising from a products liability action, parties cross-appealed the judgment entered in favor of Ford Motor Company based on a jury finding that the vehicle driven by Mrs. Strecher, which caused serious brain injury and a pelvic fracture, was defective, but the defect was not a substantial factor. The Court addressed whether a plaintiff in an enhanced injury case bears the burden of proving the precise extent of injuries arising from a defect when the injury suffered was indivisible by its nature. Appellant sought review of whether the trial court erred by (1) instructing the jury that plaintiffs were required to prove an enhanced injury attributable to the manufacturing defect; (2) by refusing to instruct the jury on concurring causes based on the reasoning that the case was a strict liability action rather than a negligence action; (3) by allowing expert testimony about statistical analysis and accident frequency/severity studies; and (4) by precluding expert testimony without an evidentiary hearing. In a cross-appeal, Ford raised the questions of whether the trial court erred in denying its motions for compulsory non-suit and directed verdict without evidence that the injuries suffered were above and beyond those she would have suffered from the initial collision and by precluding Ford from presenting evidence of crash tests.
Decision of Court: The Court held that the trial court erred in instructing the jury that the Strechers had the burden of quantifying the extent of the enhanced injuries caused by the alleged defect. Thus, rendering other issues raised moot, the Court vacated and remanded for a new trial. It found that on retrial if the Strechers establish by a preponderance of evidence that a defect in the Ford vehicle was a substantial factor in increasing injuries sustained, then the burden would shift to Ford to quantify the extent of the injuries caused by the defect. Additionally, it deferred to the trial court about whether particular evidence or testimony was relevant.
Position of Judge: Authored opinion.
Case Name: Bovard v. Baker, 775 A.2d 835 (Pa.Super. 2001)
Issue: Following an order from the Blair County Court of Common Pleas, Appellant, Baker and “mother”, sought review of the order granting shared legal custody of their four children to both the mother and father, primary physical custody of all the children to father, and partial physical custody to mother under a specified schedule. Specifically, Appellant asked whether (1) the trial court erred in failure to interview or receive testimony from the four sisters; (2) whether the trial court gave inadequate weight to the testimony of Appellant’s experts, the testimony of Appelle regarding physical force and the testimony about the oldest child’s strained relationship with Appelllee; and (3) whether the determination was in fact supported by the evidence and legal principles applied about this matter.
Decision of Court: The Court vacated the order and remanded for an evidentiary hearing. Based on the trial court’s judgment that both parents were equally loving and capable, it held that the custodial preferences of the children influence in favor of one of the parents. Thus, it stated that the trial court abused its discretion by concluding that interviews with or testimony by the children was not necessary. Consequently, the Court vacated and remanded for an evidentiary hearing so the trial court could consider the children’s preferences, including each child’s reasons, level of maturity, and intelligence.
Position of Judge: Authored opinion.
Case Name: Bahl v. Lambert Farms, Inc., 773 A.2d 1256 (Pa.Super. 2001)
Issue: The issue presented concerned an action to partition real estate filed by Appellants seeking their father’s share of the farm sold to Appelle Lambert Farms I 1991. Following trial and denial of Appellants’ post-trial motions, judgment was entered in favor of Appellee. In a partition action, the sole question presented was Appellants, the heirs of decendant’s putative son, were entitled to an action in Partition of Real Estate against Appellee for their father’s share of the value of the farm owned by Appellee.
Decision of Court: Reversed. Since the extensive evidence demonstrated the lifelong intent of grantors to treat Appellant as their son, regardless of whether he was their natural child, his heirs have a right to claim their father’s fair intestate share. Thus, the Court reversed the trial court denial of a petition for partition and remanded for additional proceedings consistent with