September 2017 Allocatur Grant Archive

Com. v. Ortiz, 160 A.3d 230 (Pa. Super. 2017), appeal docket 45 WAP 2017

Allocatur granted Sept. 26, 2017. Kidnapping of a Minor; Interference with Custody; Mens Rea

Whether interference with custody of children, 18 Pa.C.S. § 2904, can be the felony offense that supports a conviction of kidnapping of a minor, 18 Pa.C.S. § 2901(a.1)(2)?

Allocatur granted Sept. 26, 2017. Waiver for Failure to Object to Jury Verdict Before Jury Retires; Inconsistency Versus Weight of Evidence

Does the Superior Court’s decision to reverse the trial court’s finding of waiver, despite Giant Eagle’s failure to object to flawed jury instructions, flawed verdict slip and/or the problematic verdict, all of which contributed to the error complained of on appeal, conflict with this Court’s holding in Straub v. Cherne Indus., 583 Pa. 608, 880 A.2d 561 (2005), a case not considered by the Superior Court?

Allocatur granted Sept. 22, 2017. Miranda Rights; Suppression of Evidence; “Fruit of the Poisonous Tree”

As a matter of first impression, did the Pennsylvania Superior Court err in holding that a suspect that is subject to custodial interrogation clearly and unambiguously invokes his right to remain silent under the standard articulated in Berghuis v. Thompkins, 130 S.Ct. 2250 (2010), where he makes a statement that he does not wish to talk, but, qualifies that statement with a statement of “I don’t know” and a general assertion of innocence?

Allocatur granted Sept. 19, 2017. Withdrawal of nolo contendere plea; sufficiency of assertion of innocence.

Whether a defendant’s assertion of innocence based on the sufficiency of the evidence and his inability to reconcile entering a plea when he maintained his innocence well before the time of his sentencing and when the Commonwealth made no argument of prejudice, is sufficient to establish a fair and just reason for withdrawing his plea of nolo contendere?

Allocatur granted Sept. 19, 2017. Immunity under the Political Subdivisions Tort Claims Act absent “willful misconduct”

Did the Commonwealth Court err in holding that a jury’s finding of intentional tort liability was sufficient to vitiate a police officer’s immunity under the Political Subdivisions Tort Claims Act even though the jury found that he did not commit willful misconduct?

Allocatur granted Sept. 15, 2017. Workers’ Compensation Act Section 319 (employer/insurer’s right of subrogation where compensable injury caused by third-party); statutory interpretation of “installments of compensation”; waiver.

Did the Commonwealth Court err in concluding that the term “instalments of compensation” in Section 319 of the Workers’ Compensation Act, 77 P.S. § 671, encompasses both medical and disability compensation? Did the Commonwealth Court err in finding that the defendant-employer did not waive its rights under Section 319 of the Workers’ Compensation Act, 77 P.S. § 671?

Allocatur granted Sept. 12, 2017. Data Breach – Duty of Employer to Use Reasonable Care to Safeguard Sensitive Personal Information Stored on Employer’s Internet Accessible Computer System; Applicability of Economic Loss Doctrine.

Does an employer have a legal duty to use reasonable care to safeguard sensitive personal information of its employees when the employer chooses to store such information on an internet accessible computer system? Does the economic loss doctrine permit recovery for purely pecuniary damages which result from the breach of an independent legal duty arising under common law, as opposed to the breach of a contractual duty?

Allocatur granted Sept. 11, 2017. Prosecutor’s Closing Argument Characterizations of Murder Defendant.

Where, in closing argument, the district attorney characterized the Petitioner as a “cold blooded killer” and a “dangerous man,” did the district attorney violate the ruling of this Court announced in Commonwealth v. Capalla, 185 A. 203, 205 (Pa. 1936)? Were the district attorney’s characterizations of the Petitioner during closing argument permissible oratorical emphasis consistent with Pennsylvania Rules of Professional Conduct 3.4(c) and ABA Standards for Criminal Justice 3-5.8?

Allocatur granted Sept. 11, 2017. Trial Judge’s Unavailability to Cure Deficient Pa. R.A.P. 1925 Opinion in Non-Jury Case – Appropriate Role of Appellate Court; Scope and Standard of Review of Bench Ruling Where Trial Court Opinion Inadequate.

What is the proper role of an appellate court in reviewing a non-jury decision where it deems the Pa.R.A.P. 1925(a) opinion inadequate but the trial judge is no longer available to provide a supplemental opinion? If the appellate court is required to reach the merits of the trial court’s decision, what are the appropriate scope and standard of review?

Allocatur granted Sept. 11, 2017. First Class Townships – By-Ward or At-Large Election of Commissioners and Role of Court of Common Pleas; Statutory Construction Interplay Among Article IX, Section 11 of the Pennsylvania Constitution, the Municipal Reapportionment Act, and the First Class Township Code.

Whether the Commonwealth Court committed an error of law in concluding that the First Class Township Code required Swatara Township to seek judicial approval of its by-ward reapportionment effort despite the applicability of the Municipal Reapportionment Act and Article IX, Section 11 of the Pennsylvania Constitution, and the legislative authority afforded to Pennsylvania municipalities to conduct reapportionment? Whether the Commonwealth Court committed an error of law by interpreting the phrase “not entirely elected at large” contained in the Pennsylvania Constitution and Municipal Reapportionment Act in a manner violating the rules of statutory construction?

Allocatur granted Sept. 6, 2017. Criminal Trespass – Building or Occupied Structure, 18 Pa.C.S.A. 3503(a)(1)(i).

Whether a tenant who has not been evicted under the Landlord Tenant Law may be prosecuted for criminal trespass based on his continuing occupancy of the residence.

Allocatur granted Sept. 6, 2017. Accomplice Liability, Criminal Liability for the Act of Another, Co-Conspirator Liability.

Revisitation of co-conspirator liability and accomplice liability issues.

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For more information, contact Kevin McKeon or Dennis Whitaker.