Your Resource for Pending Pennsylvania Appellate Issues and Recent Decisions

September 2017 Cases & Analysis

Sept. 12, 2017 – Philadelphia, PA 

Confrontation ClauseCom. v. Brown

In Brown the Supreme Court will consider whether use of an autopsy report by an expert who did not perform the autopsy as the basis of his opinion as to the cause and manner of victim’s death (1) violates the Sixth Amendment guarantee of the right of Confrontation or (2) runs afoul of Pa. Rule of Evidence 703, which allows an expert to use inadmissible evidence to form his opinion, but does not allow the inadmissible evidence to be used for its truth.



Workers’ Comp/Statutory Interpretation/Presumption of Compensability – City of Philadelphia Fire Dept. v. W.C.A.B. (Sladek),144 A.3d 1011 (Pa. Cmwlth. 2016) (en banc), allocatur granted, 13 EAP 2017

Issues: Sladek presents issues concerning (1) what a Workers’ Compensation claimant must prove before the Act’s rebuttable presumption of compensability for an occupational disease arises; and (2) what evidence the employer must present to overcome the presumption.  Where a claimant establishes that he has an occupational disease listed in Section 108 of the Act, a rebuttable presumption of compensability arises.  The claimant need not prove the disease was caused by workplace exposure, as opposed to another exposure; instead, it is the employer’s burden at that point to prove that it was not workplace pollution that caused the claimant’s disease.


In this case, involving a firefighter’s claim that his malignant melanoma was caused by workplace exposure, the Workers’ Compensation Judge and the Board granted benefits, reasoning that because the firefighter proved that he was exposed on the job to carcinogens identified in the Act, his malignant melanoma met the definition of occupational disease set forth in Section 108(r) of the Act. The Board held that Claimant did not need to show that the carcinogens to which he was exposed caused his particular cancer.

The Commonwealth Court disagreed, citing the statute’s definition of occupational disease relied on by the claimant: “Cancer suffered by a firefighter which is caused by exposure to a known carcinogen which is recognized as a Group 1 carcinogen by the International Agency for Research on Cancer.” 77 P.S. § 27.1(r).  The Court explained:

In Section 108(r) of the Act, the General Assembly placed the words “caused by” between “cancer suffered by a firefighter” and “exposure to a known [Group 1] carcinogen” for a reason. The Board reasoned that where a claimant shows “that he had cancer generally and was exposed to any Group 1 carcinogens, he [has] met his initial burden.” Board Adjudication, 3/13/2015, at 13. We must give effect to “caused by,” and the Board erred in not doing so. It was incumbent upon Claimant to prove that his malignant melanoma is a type of cancer caused by the Group 1 carcinogens to which he was exposed in the workplace to establish an occupational disease. Only then do the presumptions in Section 301(e) and (f) of the Act come into play.

144 A.3d 1021-1022.

Also at issue is the evidence the employer must adduce to overcome the presumption.  The Board rejected as inadequate the employer’s expert’s testimony that ultraviolet radiation is the only known cause of malignant melanoma, because the expert failed to offer an opinion as to what caused claimant’s malignant melanoma. The Commonwealth Court reversed, holding that the employer need not prove the cause of claimant’s melanoma, only that it was not a workplace cause.


Double Jeopardy Bar Based on Prosecutorial Misconduct Intentionally Undertaken to Deny a Fair Trial – Proof of Intent v. Brown, 2016 WL 3153970 (Pa. Super 2016) (NonPrecedential), allocatur granted, 10 EAP 2017

Issue: The issue the Court will decide in Brown is whether, in deciding to prohibit a retrial based on double jeopardy grounds because of intentional prosecutorial conduct designed to deny a fair trial, the intent of the prosecutor must be established based on factual findings of the original trial judge or a hearing based on further testimony.

Background: Three co-defendants were convicted of second degree murder based on the testimony of an accomplice who had entered into a plea agreement. On appeal, Superior Court reversed and ordered a new trial because of two specific instances of prosecutorial misconduct involving the prosecutor’s improper attempts to bolster the credibility of the accomplice-turned-government-witness, once during trial, and once in closing arguments, each of which the Superior Court found on the basis of the trial transcript to be deliberate and highly prejudicial attempts to destroy the objectivity of the jury and prevent the jury from rendering a true verdict.

On remand a different judge granted motions to dismiss on double jeopardy grounds based on the “intent to deny a fair trial” rationale adopted in Com. v. Smith, 615 A. 2d 321 (Pa. 1992)(double jeopardy clause of the Pennsylvania Constitution prohibits retrial of a defendant not only when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, but also when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial). The Superior Court affirmed dismissal on double jeopardy grounds.  The Supreme Court granted allocatur to address whether factual findings of the original trial judge or a hearing based on further testimony are required to support a finding of intentional prosecutorial misconduct before dismissal on double jeopardy grounds can be granted.


Enforceability of Legal Fee Sharing Contract with Non-LawyerSCF Consulting, LLC v. Barrack Rodos, 154 A.3d 846 (Pa. Super. 2016) (Table) (Non-Precedential), allocatur granted, 7 EAP 2017


Issue: SCF presents the issue of whether a law firm may avoid an alleged oral contract with a non-lawyer consultant to share fees as void for public policy solely because Rule of Professional Conduct 5.4 prohibits a lawyer from sharing fees with a non-lawyer, or whether the contract should be enforced so as to prevent the law firm from profiting by violating the rules of professional conduct.

Background: SCF Consulting, an LLC with a single member who is a non-lawyer,  alleges an oral contract to originate securities litigation clients for Barrack Rodos, a securities litigation law firm, in exchange for an annual consulting fee plus 5% of the law firm’s profits derived from SCF-originated litigation.  The complaint alleges that the law firm paid the annual consulting fee but not the agreed 5% of profits.  The Court of Common Pleas of Philadelphia (Glazer, J.) dismissed the complaint on preliminary objections, holding that the alleged arrangement “violates public policy” as expressed in Rule of Professional Conduct  5.4 and that “all of plaintiff’s legal claims based on that arrangement fail, including the claims for breach of contract, unjust enrichment, breach of fiduciary duty, and for an accounting of fees allegedly due.” 2015 WL 351232.  The Superior Court (Fitzgerald, J.) affirmed on the same basis in a non-precedential memorandum opinion.


Warrantless search of Cell Phone/ Whether Independent Evidence Renders Constitutional Error Harmless v. Fulton, 2016 WL 1708918 (Pa.Super. 2016) (Non-Precedential), allocatur granted, 10 EAP 2017


Issues: (1) Whether Superior Court’s opinion affirming the trial court’s denial of murder defendant’s motion to suppress all evidence derived from the warrantless search of defendant’s cell phone, is contrary to the United States Supreme Court’s decisions in Riley v. California, 134 S.Ct. 2473 (2014) and United States v. Wurie; and (2) whether Superior Court’s finding that denial of murder defendant’s motion to suppress all evidence derived from the warrantless search of defendant’s cell phone was harmless error is contrary to law because there was no independent evidence of guilt that was untainted, uncontradicted and overwhelming.


Sept. 13, 2017

Governmental immunity, vehicle liability exception, definition of “operation”Balentine v. Chester Water Authority, 1490 A. 3d 69 (Pa. Cmwlth. 2016), allocatur granted, 119 MAP 2016

Issue: Whether the involuntary movement of a stopped vehicle (where stopped vehicle owned by local government authority was struck by another vehicle and propelled into roadside worker, causing worker’s death) constitutes an act as to which sovereign immunity has been waived under the Political Subdivision Tort Claims Act’s exception to sovereign immunity for “operation of any motor vehicle in the possession or control of the local agency.”

Background: Chester Water Authority (CWA) employee parked vehicle in roadway with engine running while inspecting water system renovations at roadside; another vehicle struck the parked CWA vehicle from behind, pushing parked CWA vehicle into area where decedent contractor was working on water system renovations, pinning and killing decedent.  Trial court granted CWA’s motion for summary judgment on immunity grounds, finding that the Political Subdivision Tort Claims Act’s vehicle liability exception to sovereign immunity, which applies to “operation of any motor vehicle in the possession or control of the local agency,” does not extend to a stopped vehicle because a stopped vehicle is not “in operation.” A three judge panel of the Commonwealth Court (Covey, J.) affirmed, holding that involuntary movement of a vehicle does not constitute “operation” for purposes of the motor vehicle exception to governmental immunity; Friedman, J. dissented on this issue.


Effect of Conviction Under Criminal Statute Declared Unconstitutional – v. Derhammer, 134 A. 3d 1066 (Pa. Super. 2016), allocatur granted, 121 MAP 2016

Issue: Whether a sex offender can be convicted of the crime of failing to register with the State Police where the statute under which he was charged and convicted had been declared unconstitutional.

Background:  By order issued January 7, 2014, Superior Court reversed and remanded sex offender’s conviction for failure to register with State Police under Megan’s Law because he had not received an adequate colloquy prior to waiving his jury trial rights.  However, on December 16, 2013, Supreme Court in Com. v. Neiman had declared the statute unconstitutional in its entirety as a violation of the Pennsylvania Constitution’s single subject rule, but deferred effectiveness of its decision to allow the legislature time to reenact the law.  On remand, defendant filed a motion to dismiss based on Neiman, arguing that the statute under which he was charged was unconstitutionally void and that the substantive crime for which he was charged no longer existed. The trial court denied the motion, defendant was convicted again, and Superior Court affirmed, holding that the repeal of a statute defining a criminal offense by a statute that re-enacts in substance the original offense does not interrupt the operation of the older offense, and that the General Assembly did not abolish the crime of failing to register, but instead replaced and substantially re-enacted that law via 18 Pa.C.S. § 4915.1. Therefore, the offense of failing to register as a sex offender continued and was at all times prohibited.


Attorneys Fees and Costs for Voluntary Discontinuance of Mortgage Foreclosure Action Under Loan Interest and Protection Law – Bayview Loan v. Lindsay, Pa. Super. 2364 EDA 2015 (July 27, 2016), allocatur granted, 15 EAP 2017


Issue: Whether mortgagor is a “prevailing party” under the Loan Interest and Protection Law for purposes of recovering attorneys fees and costs, where mortgagee fails to give pre-foreclosure notices required under the law before initiating a mortgage foreclosure action, and then voluntarily discontinues the action.

Background: Loan Interest and Protection Law requires that mortgagee give notice to a residential homeowner that a delinquent mortgage is subject to foreclosure at some future date unless the owner takes some action, before initiating foreclosure action.   41 P.S. § 403.  The Law also allows for attorneys fees and costs to be awarded to the prevailing party for actions arising under the Loan Interest and Protection Law.  In this case, the mortgagee failed to provide the notice required under the Law before commencing its mortgage foreclosure action.  After filing its mortgage foreclosure action, mortgagee moved for summary judgment, trial court denied motion, and mortgagee thereafter voluntarily discontinued mortgage foreclosure action. Mortgagor then sought attorneys fees and costs under the Loan Interest and Protection Law, claiming to be the prevailing party in an action arising under the Law.  Trial court ruled, and Superior Court affirmed, that the mortgage foreclosure action arose under the Rules of Civil Procedure, not the Loan Interest and Protection Law, such that attorneys fees and costs were not recoverable.


Suppression of evidence discovered upon entry into defendants’ residence based on arrest warrant for third party believed to reside there; standard of review of suppression court’s finding of fact concerning grant of permission to enter residence – Romero, 138 A.3d 21 (Pa. Super. 2016) allocatur granted, 37 and 38 EAP 2017


Issues: (1) Whether, in view of Payton v. New York, 445 U.S. 573 (1980) and Steagald v. U.S., 451 U.S.204 (1981) evidence including 61 marijuana plants discovered upon entry into defendants’ residence based on arrest warrant for third party believed to reside there, and other evidence obtained through subsequent search warrant issued on the basis of initial search, should have been suppressed; and (2) whether Superior Court was bound by suppression court’s finding of fact that authorities did not have express permission to enter defendants’ residence while attempting to execute arrest warrant for third party believed to reside there.


Background:  Suppression court granted Angel Romero’s and Wendy Castro’s (h/w) motions to suppress evidence uncovered as a result of a search of their Philadelphia residence by Romero’s brother’s parole agent who was attempting to execute an arrest warrant for Romero’s brother whom agent believed resided with Romero and Castro; on the basis of Commonwealth’s interlocutory appeal as of right pursuant to Pa. R.A.P 311(d), Superior Court reversed and remanded for trial on drug and related charges.  Parole officer testified that he believed parolee resided with Romero and Castro because parolee had previously used their address on Board of Probation and Parole forms and an expired driver’s license; suppression court concluded belief was not reasonable.  Parole officer testified that Romero and Castro did not say either “yes” or “no” when asked if their premises could be searched, but protested when authorities made it clear they intended to search the basement of the residence where marijuana plants were located.


Procedural requirements under Article III of the Pennsylvania Constitution for enactment of legislation, including change in original purpose, covering more than one subject, and need for consideration by both chambers on three separate days – Washington v. Dept. of Public Welfare, 71 A. 3d 1070 (Pa. Comwlth. 2013) (direct appeal)


Background: Associations and providers servicing individuals with mental illness, intellectual disabilities, and substance abuse issues, along with individual objectors, brought action challenging the constitutionality of the Act of June 30, 2012, P.L. 668, No. 80 (Act 80), which enacted House Bill 1261, amending the Public Welfare Code. These amendments affected a number of human services programs administered by the Department of Public Welfare, including general assistance, medical assistance, child welfare, mental health services, intellectual disabilities services, physical disabilities services and nursing home services. Petitioners challenged Act 80 as unconstitutional on procedural and substantive grounds.  Commonwealth Court sustained preliminary objections to counts I-III in 2013, but overruled preliminary objections as to counts IV-VI.  After plaintiffs discontinued case as to counts IV-VI in 2016, thereby rendering the 2013 order as to counts I-III final, they appealed the 2013 dismissal of counts I-III.

Count I alleges violation of Article III, § 1 of the Pennsylvania Constitution because original purpose of House Bill 1261 changed during the course of its enactment.  Count II alleges violation of Article III, § 3 of the Pennsylvania Constitution because House Bill 1261 covered more than one subject) and count III alleges violation of Article III, § 4 of the Pennsylvania Constitution because House Bill 1261 was not considered on three different days in each chamber of the General Assembly.