September 12, 2017 (Philadelphia)

Confrontation Clause

Com. v. Brown, 139 A.3d 208 (Pa. Super. 2016), allocatur granted, 40 EAP 2016; 41 EAP 2016

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.

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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

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.

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Enforceability of Legal Fee Sharing Contract with Non-Lawyer

SCF Consulting, LLC v. Barrack Rodos, 154 A.3d 846 (Pa. Super. 2016) (Table) (Non-Precedential), allocatur granted, 7 EAP 2017

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.

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Double Jeopardy Bar Based on Prosecutorial Misconduct Intentionally Undertaken to Deny a Fair Trial – Proof of Intent 

Com. v. Brown, 2016 WL 3153970 (Pa. Super 2016) (NonPrecedential), allocatur granted, 10 EAP 2017

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.

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Warrantless search of Cell Phone; Whether Independent Evidence Renders Constitutional Error Harmless 

Com. v. Fulton, 2016 WL 1708918 (Pa.Super. 2016) (Non-Precedential), allocatur granted, 10 EAP 2017

In Fulton, the Supreme Court will decider 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.

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September 13, 2017

Governmental immunity, vehicle liability exception, definition of “operation”

Balentine v. Chester Water Authority, 140 A. 3d 69 (Pa. Cmwlth. 2016), allocatur granted, 119 MAP 2016

In Balentine, the Supreme Court will consider 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.”

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Effect of Conviction Under Criminal Statute Declared Unconstitutional

Com. v. Derhammer, 134 A. 3d 1066 (Pa. Super. 2016), allocatur granted, 121 MAP 2016

In Derhammer, the Supreme Court will decide 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.

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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

In Bayview Loan, the Supreme Court will decide 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.

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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 

Com. v. Romero, 138 A.3d 21 (Pa. Super. 2016) allocatur granted, 37 and 38 EAP 2017

In Romero, the Supreme Court will determine 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.

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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. Cmwlth. 2013) (direct appeal)

In Washington, the Supreme Court will consider 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.

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For more information, contact Kevin McKeon or Dennis Whitaker