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December 2019
Allocatur granted Dec. 27, 2019. Real Estate Exception to Sovereign Immunity Act
The Pennsylvania Supreme Court granted allocatur in this case to consider whether the real estate exception to the Pennsylvania Sovereign Immunity Act applies to a public housing authority’s failure to provide adequate outside lighting of a sidewalk in a public housing complex at night.
Allocatur granted Dec. 27, 2019. Application of RTKL Predecisional Deliberative Exception to Agency Subcontractors; Application of Mootness Doctrine to Records Produced During Appeal
The Pennsylvania Supreme Court granted allocatur in this matter of first impression involving the application of the Pennsylvania Right to Know Law’s internal, predecisional deliberative exception to information shared with agency subcontractors without a direct contractual relationship with the agency. The court will also consider Commonwealth Court’s application of the mootness doctrine to records produced during the pendency of the appeal.
Certification of State Law granted Dec. 27, 2019. Are after-hour security screenings considered work and compensable under Pennsylvania law?
The Pennsylvania Supreme Court will consider a certification of a question of state law from the Sixth Circuit concerning the Pennsylvania Minimum Wage Act, 43 P.S. §§333.101 – 333.115.
Allocatur granted Dec. 27, 2019. Real Estate Exception to Sovereign Immunity Act
The Pennsylvania Supreme Court granted allocatur in this case to consider whether the real estate exception to the Pennsylvania Sovereign Immunity Act applies to a public housing authority’s failure to provide adequate outside lighting of a sidewalk in a public housing complex at night.
Fox v. Smith, 211 A.3d 862 (Pa. Super. 2019), appeal docket 39 EAP 2019
Allocatur granted Dec. 24, 2019. The internet and electronic communications: what are the implications on venue in a defamation action?
The Pennsylvania Supreme Court granted allocatur in this case to consider whether venue is proper in an internet-based defamation action where the purported defamation is accessed through the internet despite the lack of any other connection to the venue.
Allocatur granted Dec. 9, 2019. Intermediate appellate court’s authority to sua sponte review whether child’s legal interests are represented in parental rights termination proceedings
The Pennsylvania Supreme Court granted allocatur to consider whether the Superior Court has the authority to review, sua sponte, whether a child’s legal interest was represented by counsel during an involuntary termination of parental rights hearing.
November 2019
In Re: J.W.B. and R.D.B., 215 A.3d 602(Pa. Super. 2019), appeal docket 93 MAP 2019
Allocatur granted Nov. 26, 2019. Adoption/parental rights termination; law applicable to parental consent where parent resides in another state
The Pennsylvania Supreme Court granted allocatur to consider what law applies where a parent whose rights are being terminated resides out of state.
Commonwealth v. Baker-Myers, 210 A.3d 1093 (Pa. Super. 2019) (en banc), appeal docket 54 WAP 2019
Allocatur granted Nov. 26, 2019. Is conviction of Chapter 31 sexual offenses a necessary element of Corruption of Minors-Felony?
The Pennsylvania Supreme Court granted allocatur to consider whether a conviction of Chapter 31 sexual offenses is a necessary element for conviction of a Corruptions of Minors felony.
Allocatur granted Nov. 20, 2019. Property Settlement Agreement; Assignment of Pension Benefits to a Third Party for Survival Annuity
The Supreme Court granted allocatur in this case to consider whether a court order requiring a beneficiary to “transfer” ERISA-exempt pension payments received from the plan administrator of the Pa. Municipal Police Pension Law (MPPL) violates the MPPL, which specifically prohibits “transfer” of its payments and further prohibits the payments from being subject to “legal process.”
Raynor v. D’Annunzio, 205 A.3d 1252 (Pa. Super. 2019), appeal dockets 35 EAP 2019 & 36 EAP 2019
Allocatur granted Nov. 6, 2019. Is a Civil Contempt Action a “Civil Proceeding” for Purposes of the Dragonetti Act?; Standing
The Supreme Court will consider whether a civil contempt action is a “civil proceeding” as contemplated by the Dragonetti Act and whether an attorney has standing to assert a cause of action under the Dragonetti Act when she was counsel for a party, but not a party, to the underlying civil action.
October 2019
Allocatur granted Oct. 30, 2019. Unfair Trade Practices and Consumer Protection Law (UTPCPL)
The Pennsylvania Supreme Court granted allocatur to consider two issues of first impression under Pennsylvania’s UTPCPL: the Commonwealth’s ability to sue oil and gas lessees on behalf of landowners for deceptive practices and for violation of antitrust law.
Allocatur granted Oct. 22, 2019. Wrongful Death Act: New Trial for Damages
The Supreme Court granted allocatur to consider whether a new trial on damages is proper where a jury finds liability but awards zero dollars in damages under the Wrongful Death Act.
In the Interest of D.R. et al., 216 A.3d 286 (Pa. Super. 2019), appeal dockets 45-49 WAP 2019
Allocatur granted Oct. 18, 2019. Authority to Compel Drug Testing in CYS Investigations; Constitutional Protection from Unreasonable Search and Seizure
The Supreme Court granted allocatur to determine, as a matter of first impression, whether a court can compel a parent to submit to a drug analysis in a children and youth services investigation involving allegations of drug use by the parent.
September 2019
Allocatur granted Sept. 24, 2019. Right to Know Law: Attorney Fees following Commonwealth Court’s Bad Faith Determination
The Pennsylvania Supreme Court granted allocatur in these combined cases to consider whether the Commonwealth Court’s award of attorneys’ fees based on an agency’s bad faith in responding to a RTKL request was proper.
Commonwealth v. Peck, 202 A.3d 739 (Pa. Super. 2019), appeal docket 75 MAP 2019
Allocatur granted Sept. 24, 2019. Liability for drug delivery resulting in death where delivery of drugs occurred out of state but death occurred in Pennsylvania
The Pennsylvania Supreme Court granted allocatur to consider questions relating to whether a drug delivery that occurred out of state resulting in a death in Pennsylvania may be a basis for a drug delivery resulting in death (DDRD) conviction.
S.B. v. S.S., 201 A.3d 774 (Pa. Super. 2019), appeal docket 39 WAP 2019
Allocatur granted Sept. 11, 2019. Does a gag order prohibiting a parent from speaking publicly about a child custody case violate the constitutional right to free speech?
The Pennsylvania Supreme Court granted allocatur to consider whether a gag order issued in a child custody case violates a parent’s constitutional right to free speech because the order precludes the parent and attorneys from speaking publicly about the case in a manner that would identify the child involved.
J.F. v. Dep’t of Human Servs., 204 A.3d 1042 (Pa. Cmwlth. 2019) (sealed), appeal docket 72 MAP 2019
Allocatur granted Sept. 2019. Child Protective Services Law; Right to a Hearing Contesting Founded Report Based on Facts Not Adjudicated
The Supreme Court granted allocatur in this sealed case involving an issue of first impression: whether an alleged perpetrator is entitled to an evidentiary hearing under the Child Protective Services Law on a founded report based on an ARD proceeding.
In Re: Passarelli Family Trust, 206 A.3d 1188 (Pa. Super. 2019), appeal docket 71 MAP 2019
Allocatur granted Sept. 11, 2019. Irrevocable Trusts: Termination pursuant to 20 Pa.C.S. § 7736 for fraud
The Pennsylvania Supreme Court granted allocatur in this case to consider the standard for termination of a trust pursuant to 20 Pa.C.S. § 7736 when a party seeks to rescind an irrevocable trust that was induced by fraud.
Commonwealth v. Bagnall, 2019 WL 994169 (Pa. Super. 2019), appeal docket 38 WAP 2019
Allocatur granted Sept. 11, 2019. Grant of New Trial Based on Brady Violation
The Pennsylvania Supreme Court granted allocatur to consider whether the Superior Court correctly affirmed the trial court’s refusal to grant a new trial based upon a serious Brady violation when the Defendant failed to demonstrate that the Commonwealth willingly withheld material evidence and that the evidence was in the exclusive control of the Commonwealth.
Allocatur granted Sept. 10, 2019. Restrictive covenants: can a restrictive covenant be enforceable if it is signed after employment begins?
The Pennsylvania Supreme Court granted allocatur to consider issues related to Superior Court’s affirmance of the trial court’s order denying a preliminary injunction to enforce a non-compete agreement.
Commonwealth v. Mason, 2019 WL 1084210 (Pa. Super. 2019) (unreported), appeal docket 69 MAP 2019
Allocatur granted Sept. 10, 2019. Is an audio recording of an unknowing babysitter a violation of the Wiretap Act?
The Pennsylvania Supreme Court granted allocatur to consider whether an audio recording of an unknowing babysitter, who was an employee and regular guest in the home, is a violation of the Wiretapping and Electronic Surveillance Control Act.
Allocatur granted Sept. 4, 2019. Constitutionality of Lack of Right to Redemption under the Real Estate Tax Sale Law
The Supreme Court will consider whether exclusion of a post-sale right to redemption under the tax sale law for less populous (second class-A through eighth) counties violates the Equal Protection Clause of the United States Constitution and Article III of the Pennsylvania Constitution in light of the inclusion of a post-sale right of redemption clause in the tax sale law of more populous (first and second class) counties.
Allocatur granted Sept. 4, 2019. Forfeiture of Estate of Adult Decedent Dependent on Parental Support
The Pennsylvania Supreme Court granted allocatur to consider whether, pursuant to 20 Pa.C.S.A. § 2106(b)(1), an adult decedent is a “dependent child” where the decedent depended on the support of a parent in order to care for himself.
Allocatur granted Sept. 3, 2019. Does the Mental Health Procedures Act, 50 P.S. §§ 7101-7503, apply to voluntary outpatient treatment?
The Supreme Court granted allocatur in this case to determine whether the Mental Health Procedures Act (MHPA) applies to voluntary outpatient treatment.
August 2019
Woodford v. Pennsylvania Ins. Dep’t, 201 A.3d 899 (Pa. Cmwlth. 2019), appeal docket 65 MAP 2019
Allocatur granted Aug. 13, 2019. Summary Judgment based on Moving Party’s Testimonial Evidence; Prohibition of Fees in Addition to Commissions in Insurance Transactions
The Supreme Court of Pennsylvania granted allocatur to consider (1) whether genuine issues of material fact concerning the credibility of statements made in a moving party’s affidavit precludes summary judgment and (2) an issue of first impression, whether the Insurance Commissioner’s directive that a producer stop imposing fees in addition to commissions in consumer transactions was reasonable.
Sivick v. State Ethics Commission, 202 A.3d 814 (Pa. Cmwlth. 2019), appeal docket 62 MAP 2019
Allocatur granted Aug. 6, 2019. Violation of the Public Official and Employee Ethics Act; Restitution for Indirect Financial Gain; Conflict of Interest Exception
The Supreme Court will consider whether a Township Supervisor’s participation in verifying Township payroll records for Township employees, including his son, constituted a prohibited conflict of interest in violation of Section 1103(a) of the Ethics Act and whether restitution may be ordered for an ethics violation where the individual who obtained financial gain was not a public official, but an immediate family member.
July 2019
Allocatur granted July 24, 2019. Consolidated County Assessment Law; Tax Assessment; Valuation of Advertising Signs
The Supreme Court will consider whether the presence of an outdoor advertising sign on a property is a proper consideration when determining the fair market value of the property for the purposes of a real estate tax assessment.
Allocatur granted July 3, 2019. Act 111; Scope of Review
The Pennsylvania Supreme Court will consider the narrow certiorari scope of review for grievance arbitration of public employees, including police officers, when the outcome creates unreasonable results in this Act 111 case.
Allocatur granted July 2, 2019. Soverign Immunity; Separation of Powers
The Pennsylvania Supreme Court will consider whether the Judiciary is exempt from the Pennsylvania Human Relations Act through sovereign immunity or the separation of powers doctrine.
June 2019
Gregg v. Ameriprise Financial, Inc., 195 A.3d 930 (Pa. Super. 2018), appeal docket 29 WAP 2019
Allocatur granted June 27, 2019. Strict Liability under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law’s Catchall Provision
The Supreme Court will hear argument on whether a strict liability standard should apply to a claim under the “catch-all” provision of the Pennsylvania Unfair Trade Practices and Consumer Protection Law.
Harrison v. Health Network Lab, et al, 203 A.3d 307 (Pa Super. 2018), appeal docket 51 MAP 2019
Allocatur granted June 27, 2019. Pennsylvania Human Relations Act
Is the Pennsylvania Human Relations Act the exclusive remedy for a retaliation claim under the Pennsylvania Whistleblower Law where the wrong alleged by the whistleblower is unlawful discrimination against a third party?
Commonwealth v. Davis, 207 A.3d 341 (Pa. Super. 2019), appeal docket 49 MAP 2019 (to be argued consecutively with Commonwealth v. Lehman involving a similar cost of prosecution issue)
Allocatur granted June 25, 2019. Costs of Prosecution for Resentencing under 16 P.S. § 1403
The Supreme Court will hear argument on whether costs relating to re-sentencing, constitute “costs of prosecution and trial” under 16 P.S. § 1403.
Commonwealth v. Lehman, 201 A.3d 1279 (Pa. Super. 2019), appeal docket 47 MAP 2019 (to be argued consecutively with Commonwealth v. Davis involving a similar cost of prosecution issue)
Allocatur granted June 25, 2019. Costs of Prosecution for Contested Expert Testimony in Contested Resentencing under 16 P.S. § 1403
The Supreme Court will consider whether costs relating to contested expert testimony in a contested resentencing constitute costs of prosecution under 16 P.S. §1403, and are ineligible for imposition upon a defendant reimbursement as part of a sentence as a matter of law.
Commonwealth v. Copenhaver, 200 A.3d 956 (Pa. Super. 2018), appeal docket 48 MAP 2019
Allocatur granted June 25, 2019. May a sheriff conduct a stop and search based on observing an expired vehicle registration tag, treating it as a “breach of the peace?”
The Supreme Court granted review of the Superior Court’s finding that an expired vehicle registration tag constitutes a “breach of the peace”, thus granting sheriffs and citizens a common law power to arrest on that basis alone.
Allocatur granted June 25, 2019. Application of equitable and minority tolling to administrative complaints before the PHRC
The Pennsylvania Supreme Court granted allocatur to consider the application of equitable and minority tolling to administrative complaints before the PHRC.
Allocatur granted June 25, 2019. Summary Judgment; Standard of care; Recklessness and/or Gross Negligence
The Supreme Court granted review of Superior Court’s affirmance of a York County Court of Common Pleas order finding that Bourgeois signed a valid waiver relieving Defendants from claims of negligence.
May 2019
Allocatur granted May 14, 2019. Use of General Contractor Overhead and Profit (GCOP) in determining Actual Cash Value benefits under insurance policy affording replacement coverage
The Pennsylvania Supreme Court granted allocatur in this case to consider whether GCOP should be excluded when determining the actual cash value benefits under property insurance policies affording replacement coverage.
Allocatur granted May 14, 2019. Civil license suspension appeal based on delay; Gingrich factors
The Supreme Court granted allocatur in this case involving Commonwealth Court’s application of the factors set forth in Gingrich v. Department of Transportation, Bureau of Driver Licensing, 134 A.3d 528 (Pa. Cmwlth. 2016) (en banc) to a license suspension challenge based on a 2-year, 4-month delay in the Delaware County Office of Judicial Support’s (OJS) reporting of a DUI conviction to the Department of Transportation.
Dana Holding Corp. v. WCAB (Smuck), 195 A.3d 635 (Pa. Cmwlth. 2018), appeal docket 44 MAP 2019
Allocatur granted May 14, 2019. Workers’ Compensation: Retroactive application of Protz to determine impairment ratings
The Supreme Court of Pennsylvania granted allocatur in this case involving workers’ compensation impairment ratings.
Allocatur granted May 6, 2019. Can a parent be considered a perpetrator of abuse when there is another identified direct perpetrator of sexual abuse?
The Supreme Court of Pennsylvania granted allocatur in this case involving the sexual abuse of a minor.
April 2019
Commonwealth v. Jones, 2018 WL 3598642 (Pa. Super. 2018) (unreported), appeal docket 24 WAP 2019
Allocatur granted April 30, 2019. Testimony concerning sex crime victim behaviors and responses: Expert or lay?
The Pennsylvania Supreme Court granted allocatur to address whether testimony concerning sex crime victims’ responses and behaviors is expert or lay opinion testimony.
In re: H.R., a Minor, 196 A.3d 1059 (Pa. Super. 2018), appeal docket 41 MAP 2019
Allocatur granted April 30, 2019. Is 42 Pa. C.S. § 6403 (“Act 21”), providing for civil commitment of sexually violent minors, “punitive,” and thus unconstitutional?
The Pennsylvania Supreme Court granted allocatur in this case involving the retroactive application of Act 21 and its mechanism for determining whether an individual is a sexually violent delinquent child.
Allocatur granted April 10, 2019. Personal Jurisdiction in Product Liability Actions brought by Out of State Plaintiffs; Application of Bristol-Myers Squibb
The Supreme Court granted allocatur to determine whether Pennsylvania may assert personal jurisdiction over two New Jersey companies in pelvic mesh product liability cases involving Indiana resident asserting claims under the Indiana Product Liability Act
Commonwealth v. Wolfel, 2017 WL 6629411 (Pa. Super. 2017)(unreported), appeal docket 23 WAP 2019
Allocatur granted April 10, 2019. DUI; Suppression of Blood Test Evidence in light of Birchfield v. North Dakota; Waiver
The Supreme Court granted allocatur in this case involving the retroactive application of the US Supreme Court’s decision in Birchfield v. North Dakota to the admission of DUI blood test results.
March 2019
Berg v. Nationwide Mut. Ins. Co., 189 A.3d 1030 (Pa. Super. 2018), appeal docket 33 MAP 2019
Allocatur granted March 29, 2019. Bad faith claims: deference to trial court factual findings
The Supreme Court granted review of the Superior Court’s extraordinary step of vacating the trial court’s judgment in favor of the insured and entering judgment for Nationwide, based on a determination that the trial court’s factual findings were not supported by the evidence.
A Special Touch v. UC Tax Services, 192 A.3d 1238 (Pa. Cmwlth. 2018), appeal docket 30 MAP 2019
Allocatur granted March 12, 2019. Liability for unemployment compensation tax
The Pennsylvania Supreme Court will consider when workers are “independent contractors” because they are “customarily engaged in an independently established trade, occupation, profession, or business.”
Commonwealth v. Montgomery, 192 A.3d 1198 (Pa. Super 2018), appeal docket 4 EAP 2019
Allocatur granted March 12, 2019. Sufficiency of evidence; Concealed firearm
The Pennsylvania Supreme Court granted allocatur to consider the meaning of “concealed” for purposes of a Section 6106 unlicensed carry charge.
Commonwealth v. Taylor, 2018 WL 4290127 (Pa. Super. 2018), appeal docket 29 MAP 2019
Allocatur granted March 12, 2019. Criminal Prosecution of a Juvenile
The Pennsylvania Supreme Court granted allocatur in this case to determine whether a juvenile court violates a juvenile’s Fifth Amendment right if it considers refusal to admit guilt as a reason to transfer to criminal court.
Walsh v. BASF Corp., 191 A.3d 838 (Pa. Super. 2018), appeal dockets 14, 15, 16, 17 and 18 WAP 2019
Allocatur granted March 5, 2019. Expert Testimony; Frye Standard: Trial Court as Gatekeeper?
The Pennsylvania Supreme Court granted allocatur in this case involving application of the Frye standard to evaluate expert scientific evidence.
Commonwealth v. King, 2018 WL 4271212 (Pa. Super. 2018) (unreported), appeal docket 3 EAP 2019
Allocatur granted March 5, 2019. Attempted Murder: Longer Sentence Notice Requirement; Multiple Convictions for More Than One Inchoate Offense
The Pennsylvania Supreme Court granted allocatur in this criminal case involving notice issues and multiple convictions for more than one inchoate offense.
Dean v. Bowling Green Brandywine, 192 A.3d 1177 (Pa. Super. 2018), appeal docket 20 MAP 2019
Allocatur granted March 4, 2019. Mental Health Procedures Act; Limited Immunity for Care of Addicted Patients
The Pennsylvania Supreme Court granted allocatur in this case to consider if the Mental Health Procedures Act limited immunity provisions apply to a patient receiving treatment for addiction.
February 2019
Commonwealth v. Hoover, 2018 WL 4215020 (Pa. Super. 2018)(unreported), appeal docket 25 MAP 2019
Allocatur granted Feb. 27, 2019. Reconsideration of Early Release Order based on Subsequent Offense
The Pennsylvania Supreme Court granted allocatur in this case involving reconsideration of an early release order following Defendant’s subsequent DUI charge.
Commonwealth v. Smith, 2018 WL 4089657 (Pa. Super. 2018)(unreported), appeal docket 2 EAP 2019
Allocatur granted Feb. 26, 2019. Possession of Firearms; Determination of Fugitive Status
The Pennsylvania Supreme Court granted allocatur to consider the Superior Court’s determination of fugitive status to support a possession of firearms conviction.
Allocatur granted Feb. 13, 2019. Is a Disclosure that Violates the Psychiatrist/Patient Privilege in an Act 21 Commitment Harmless Error?
The Pennsylvania Supreme Court granted allocatur in this case to determine if a disclosure where the trial court violates the psychiatrist/patient privilege can ever be harmless error.
Maas v. UPMC, 192 A.3d 1139 (Pa. Super. 2018), appeal docket 7 WAP 2019
Allocatur granted Feb. 13, 2019. Duty to Warn Third Parties of Danger Posed by Mental Health Patient
The Pennsylvania Supreme Court will consider whether mental health professionals have a duty to warn unidentified neighbors of a mental health patient of possible risk.
Com. v. Hamlett, 2018 WL 4327391 (Pa. Super. 2018) (unreported), appeal docket 8 WAP 2019
Allocatur granted Feb. 13, 2019. Sua Sponte Raising of Harmless Error; Right for Any Reason Doctrine
The Pennsylvania Supreme Court granted allocatur in this criminal case to determine issues related to harmless error and the right for any reason doctrine.
In Re: The Estate of William K. McAleer, 194 A.3d 587 (Pa. Super. 2018), appeal docket 6 WAP 2019
Allocatur granted Feb. 4, 2019. Attorney-client Privilege; Administration of Trusts.
The Pennsylvania Supreme Court granted allocatur to determine whether attorney-client privilege and work product doctrines protect communications between a trustee and counsel from discovery by beneficiaries.
Easton Area Sch. Dist. v. Miller, 191 A.3d 75 (Pa. Cmwlth. 2018), appeal docket 13 MAP 2019
Allocatur granted Feb. 4, 2019. Right to Know Law; Disclosure of School Bus Surveillance Video under Family Educational Rights and Privacy Act
The Supreme Court granted allocatur in this case involving public disclosure of school bus security footage pursuant to the RTKL.
January 2019
Allocatur granted Jan. 29, 2019. Jurisdiction; Landlord Tenant Dispute without a Lease
The Supreme Court granted allocatur in this case involving subject matter jurisdiction in landlord tenant action before the magistrate.
Allocatur granted Jan. 23, 2019. Municipalities Authorities Act: “Majority” Needed to Take Action
The Supreme Court granted allocatur in this case involving application of the majority voting requirement pursuant to the MAA.
Allocatur granted Jan. 23, 2019. Jury Selection; McHugh Deference
The Supreme Court granted allocatur in this case to address issues related to the application of the McHugh deference standard.
Allocatur granted Jan. 16, 2019. Act 111; Arbitrator’s Authority in a Grievance Arbitration
The Supreme Court granted allocatur in this case to address the scope of authority of the arbitrator in an Act 111 grievance arbitration.
Carr v. PennDOT & SCSC, 189 A.3d 1 (Pa. Cmwlth. 2018), appeal docket 3 MAP 2019.
Allocatur granted Jan. 8, 2019. Protected matter of public concern or actionable expression of personal frustration?
The Pennsylvania Supreme Court granted allocatur in this case to determine if a disclosure where the trial court violates the psychiatrist/patient privilege can ever be harmless error.
Allocatur granted Jan. 3, 2019. Definition of “Public Utility”; DAS Service vs. Cell Phone Service; Agency Deference; Statutory Construction
The Supreme Court granted allocatur in this appeal of a Pennsylvania Public Utility Commission decision regarding DAS provider Crown Castle.
Allocatur granted Jan. 2, 2019. Statutory Interpretation; Sentence Credit Revocation Under the Parole Code
The Supreme Court granted allocatur in this appeal involving the revocation of earned sentence credit under the Parole Code.
For more information, contact Kevin McKeon or Dennis Whitaker.