JOHN E. HOPKINS, JR. v. SONYA F. BYES
No. 1544 WDA 2007 2008 PA Super 172 Atlantic: n/a Filed: 7/30/2008
Appeal from the Order entered in the Court of Common Pleas of Erie County, Domestic Relations Division, No(s): 14661-1998
Before: BENDER, GANTMAN and TAMILIA, JJ.
Opinion by: TAMILIA, J.
Sonya F. Byes, mother of the parties’ minor son, DOB 12/28/97, appeals from the July 24, 2007, Order finding her in contempt on the basis she interfered with child custody by ignoring a visitation Order. As a sanction, the court also assessed mother attorney’s fees totaling $500. By Order entered in this Court on February 29, 2008, this matter was remanded for preparation of a trial court Opinion and to allow supplementation of the record by the parties. The trial court complied on May 28, 2008, and we thereafter allowed the parties time within which to respond. Appellant complied on June 3, 2008; appellee, whose brief was due ten days hence on June 13, 2008, has not responded. The appeal is now ripe for our review.
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When considering an appeal from an Order holding a party in
contempt for failure to comply with a court Order, our scope of review is
narrow: we will reverse only upon a showing the court abused its discretion.
Hyle v. Hyle, 868 A.2d 601 (Pa.Super. 2005), appeal denied, 586 Pa. 727,
890 A.2d 1059 (2005). The court abuses its discretion if it misapplies the
law or exercises its discretion in a manner lacking reason. Id. To be in
contempt, a party must have violated a court Order, and the complaining
party must satisfy that burden by a preponderance of the evidence. Id.
¶ 4 Attorney fees may be assessed as a sanction for the contemnor’s
refusal to comply with a court Order, causing the innocent party to incur fees
in an effort to obtain what was rightfully his. See 42 Pa.C.S.A. § 2503,
Right of participants to receive counsel fees; Rhoades v. Pryce, 874
A.2d 148 (Pa.Super. 2005), appeal denied, 587 Pa. 724, 899 A.2d 1124
(2006) (holding attorney fees may be awarded as a sanction to compensate
the contemnor's adversary for injuries resulting from the contemnor's
noncompliance with a court Order); see also Goodman v. Goodman, 556
A.2d 1379 (Pa.Super. 1989), appeal denied, 523 Pa. 642, 565 A.2d 1167
(1989).
Wednesday, July 30, 2008
Tuesday, July 29, 2008
Superior Court 7/29/08 - COMMONWEALTH OF PENNSYLVANIA v. ANTONIO GRIFFIN
COMMONWEALTH OF PENNSYLVANIA v. ANTONIO GRIFFIN
No. 1662 EDA 2007 2008 PA Super 170 Atlantic: n/a Filed: 7/29/2008
Appeal from the Order entered June 7, 2007 in the Court of Common Pleas of Philadelphia County, Criminal at No. CP-51-CR-0709121-2006
Before: FORD ELLIOTT, P.J., ALLEN and KELLY, JJ.
Opinion by: ALLEN, J.
The Commonwealth of Pennsylvania appeals from the trial court’s order granting the suppression motion of Appellee, Antonio Griffin (“Defendant”). We reverse.
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The Commonwealth raises the following issue on appeal:
Did the lower court err in suppressing both the
crack cocaine found in plain view when police
stopped defendant’s truck and additional evidence
seized pursuant to subsequently-obtained search
warrants where the Commonwealth’s
uncontradicted evidence – including multiple,
corroborated reports from an identified informant –
clearly demonstrated reasonable suspicion and the
lower court’s suppression order resulted from its
use of the wrong legal standards, including its
failure to consider all of the Commonwealth’s
evidence?
No. 1662 EDA 2007 2008 PA Super 170 Atlantic: n/a Filed: 7/29/2008
Appeal from the Order entered June 7, 2007 in the Court of Common Pleas of Philadelphia County, Criminal at No. CP-51-CR-0709121-2006
Before: FORD ELLIOTT, P.J., ALLEN and KELLY, JJ.
Opinion by: ALLEN, J.
The Commonwealth of Pennsylvania appeals from the trial court’s order granting the suppression motion of Appellee, Antonio Griffin (“Defendant”). We reverse.
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The Commonwealth raises the following issue on appeal:
Did the lower court err in suppressing both the
crack cocaine found in plain view when police
stopped defendant’s truck and additional evidence
seized pursuant to subsequently-obtained search
warrants where the Commonwealth’s
uncontradicted evidence – including multiple,
corroborated reports from an identified informant –
clearly demonstrated reasonable suspicion and the
lower court’s suppression order resulted from its
use of the wrong legal standards, including its
failure to consider all of the Commonwealth’s
evidence?
Superior Court 7/29/08 - IN RE: ESTATE OF RONALD SLOMSKI a/k/a RONALD J. SLOMSKI, Deceased, JENNIFER SMITH and JACILYN SNYDER v. THE THERMOCLAD.....
IN RE: ESTATE OF RONALD SLOMSKI a/k/a RONALD J. SLOMSKI, Deceased, JENNIFER SMITH and JACILYN SNYDER v. THE THERMOCLAD COMPANY, RITA SLOMSKI, RONALEE CURTIS and RANDALL SLOMSKI APPEAL OF: RITA SLOMSKI, RONALEE CURTIS and RANDALL SLOMSKI IN RE: ESTATE OF RONALD SLOMSKI Deceased, JENNIFER SMITH and JACILYN SNYDER v. THE THERMOCLAD COMPANY, RITA SLOMSKI, RONALEE CURTIS and RANDALL SLOMSKI APPEAL OF: JENNIFER SMITH and JACILYN SNYDER
No. 1330 & 1400 WDA 2007 2008 PA Super 169 Atlantic: n/a Filed: 7/29/2008
Appeal from the Order entered in the Court of Common Pleas of Erie County, Orphans’ Court Division, No(s): 32-2007
Before: BENDER, BOWES and TAMILIA, JJ.
Opinion by: OPINION PER CURIAM
Rita Slomski, Ronalee Curtis and Randall Slomski appeal from the portion of the June 15, 2007, Order denying their motion for judgment on the pleadings relative to the issue of whether appellant Rita Slomski (Slomski) was vested with the authority to give unlimited gifts of bank account proceeds, life insurance proceeds, and personal property under a duly executed power of attorney (POA) granted to her by her son, Ronald Slomski the decedent (1330 WDA 2007).
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Appellants raise the following issues for our consideration at 1330 WDA 2007.
A. Whether an agent under a power of attorney may
engage in banking transactions, tangible
personal property transactions and gift making?
B. Whether an agent under a power of attorney may
change the beneficiary designation on a life
insurance policy owned by the principal?
C. Whether an agent under a power of attorney
may change the beneficiary designations of the
principal’s qualified retirement plan?
D. Did the trial court err in refusing to permit the
agent from presenting testimony relative to the
principal’s intentions concerning gift making?
Appellants’ brief at 5.4
Cross-appellants raise a single issue for our consideration at 1400 WDA 2007.
Whether an agent, acting under a power of attorney
that does not contain the power to make unlimited
gifts who changes the principal’s retirement account
beneficiary designations in order for the agent’s
children to take the retirement account instead of
principal’s stepdaughters designated in writing by
him, has thereby made an unauthorized gift?
Cross-appellants’ brief at 3.
No. 1330 & 1400 WDA 2007 2008 PA Super 169 Atlantic: n/a Filed: 7/29/2008
Appeal from the Order entered in the Court of Common Pleas of Erie County, Orphans’ Court Division, No(s): 32-2007
Before: BENDER, BOWES and TAMILIA, JJ.
Opinion by: OPINION PER CURIAM
Rita Slomski, Ronalee Curtis and Randall Slomski appeal from the portion of the June 15, 2007, Order denying their motion for judgment on the pleadings relative to the issue of whether appellant Rita Slomski (Slomski) was vested with the authority to give unlimited gifts of bank account proceeds, life insurance proceeds, and personal property under a duly executed power of attorney (POA) granted to her by her son, Ronald Slomski the decedent (1330 WDA 2007).
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Appellants raise the following issues for our consideration at 1330 WDA 2007.
A. Whether an agent under a power of attorney may
engage in banking transactions, tangible
personal property transactions and gift making?
B. Whether an agent under a power of attorney may
change the beneficiary designation on a life
insurance policy owned by the principal?
C. Whether an agent under a power of attorney
may change the beneficiary designations of the
principal’s qualified retirement plan?
D. Did the trial court err in refusing to permit the
agent from presenting testimony relative to the
principal’s intentions concerning gift making?
Appellants’ brief at 5.4
Cross-appellants raise a single issue for our consideration at 1400 WDA 2007.
Whether an agent, acting under a power of attorney
that does not contain the power to make unlimited
gifts who changes the principal’s retirement account
beneficiary designations in order for the agent’s
children to take the retirement account instead of
principal’s stepdaughters designated in writing by
him, has thereby made an unauthorized gift?
Cross-appellants’ brief at 3.
Superior Court 7/29/08 - ANNESS COOPER v. CHURCH OF ST. BENEDICT
ANNESS COOPER v. CHURCH OF ST. BENEDICT
No. 879 MDA 2007 2008 PA Super 171 Atlantic: n/a Filed: 7/29/2008
Appeal from the Order entered April 20, 2007, Court of Common Pleas, Schuylkill County, Civil Division at No. S-2001-2006
Before: FORD ELLIOTT, P.J., DONOHUE, and POPOVICH, JJ.
Opinion by: DONOHUE, J.
Concurring Statement by: FORD ELLIOT, P.J.
In this appeal, Anness Cooper (“Cooper”) appeals the trial court’s order granting preliminary objections in the nature of a demurrer filed by the Church of St. Benedict (the “Church”). Because we conclude that the trial court erred as a matter of law, we reverse.
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The trial court granted the Church’s preliminary objections and
dismissed Cooper’s Second Amended Complaint. In its written opinion, the
trial court offered the following reasons for its disposition of the case:
We accept the argument of [the Church] that
[Cooper’s] contract claim against Defendant Roman
Catholic Church is barred by the Free Exercise Clause
of the First Amendment to the United States
Constitution which prohibits judicial encroachment
upon decisions made by a religious institution
concerning the employment of its ministers. Because
the Roman Catholic Church views music as an
integral part of its Catholic worship, the
Organist/Musical Director is considered a minister of
the Church. Therefore, this Court has no subject
matter jurisdiction.
No. 879 MDA 2007 2008 PA Super 171 Atlantic: n/a Filed: 7/29/2008
Appeal from the Order entered April 20, 2007, Court of Common Pleas, Schuylkill County, Civil Division at No. S-2001-2006
Before: FORD ELLIOTT, P.J., DONOHUE, and POPOVICH, JJ.
Opinion by: DONOHUE, J.
Concurring Statement by: FORD ELLIOT, P.J.
In this appeal, Anness Cooper (“Cooper”) appeals the trial court’s order granting preliminary objections in the nature of a demurrer filed by the Church of St. Benedict (the “Church”). Because we conclude that the trial court erred as a matter of law, we reverse.
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The trial court granted the Church’s preliminary objections and
dismissed Cooper’s Second Amended Complaint. In its written opinion, the
trial court offered the following reasons for its disposition of the case:
We accept the argument of [the Church] that
[Cooper’s] contract claim against Defendant Roman
Catholic Church is barred by the Free Exercise Clause
of the First Amendment to the United States
Constitution which prohibits judicial encroachment
upon decisions made by a religious institution
concerning the employment of its ministers. Because
the Roman Catholic Church views music as an
integral part of its Catholic worship, the
Organist/Musical Director is considered a minister of
the Church. Therefore, this Court has no subject
matter jurisdiction.
Monday, July 28, 2008
Superior Court 7/28/08 - COMMONWEALTH OF PENNSYLVANIA v. ALVIN BEDELL
COMMONWEALTH OF PENNSYLVANIA v. ALVIN BEDELL
No. 679 EDA 2007 2008 PA Super 168 Atlantic: n/a Filed: 7/28/2008
Appeal from the PCRA Order entered on February 13, 2007 in the Court of Common Pleas of Delaware County, Criminal Division, No. CP-23-CR-0000468-2006
Before: STEVENS, MUSMANNO and HUDOCK, JJ.
Opinion by: MUSMANNO, J.
Alvin Bedell (“Bedell”) appeals from the trial court’s denial of his first Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-46. We affirm.
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Bedell appeals, raising the following questions for our review:
I. Whether trial counsel was ineffective for failing to fully advise [Bedell] that he had a valid defense to robbery as charged thereby inducing [Bedell] to involuntarily, unknowingly and unintelligently tender a guilty plea to a crime [for] which there was no factual basis that he committed a robbery?
II. Whether [Bedell] … receive[d] effective assistance of counsel since his trial counsel did not ensure that [Bedell] entered into a knowing and understanding plea since the plea colloquy was defective[?]
No. 679 EDA 2007 2008 PA Super 168 Atlantic: n/a Filed: 7/28/2008
Appeal from the PCRA Order entered on February 13, 2007 in the Court of Common Pleas of Delaware County, Criminal Division, No. CP-23-CR-0000468-2006
Before: STEVENS, MUSMANNO and HUDOCK, JJ.
Opinion by: MUSMANNO, J.
Alvin Bedell (“Bedell”) appeals from the trial court’s denial of his first Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-46. We affirm.
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Bedell appeals, raising the following questions for our review:
I. Whether trial counsel was ineffective for failing to fully advise [Bedell] that he had a valid defense to robbery as charged thereby inducing [Bedell] to involuntarily, unknowingly and unintelligently tender a guilty plea to a crime [for] which there was no factual basis that he committed a robbery?
II. Whether [Bedell] … receive[d] effective assistance of counsel since his trial counsel did not ensure that [Bedell] entered into a knowing and understanding plea since the plea colloquy was defective[?]
Friday, July 25, 2008
Superior Court 7/25/08 - IN RE: ESTATE OF CELINA FIELD
IN RE: ESTATE OF CELINA FIELDAPPEAL OF: AMERICAN CANCER SOCIETY, BENEFICIARY UNDER THE LIVING TRUST OF CELINA FIELD, ECEASED
No. 2128 EDA 2007 2008 PA Super 167 Atlantic: n/a Filed: 7/25/2008
Appeal from the Decree entered in the Court of Common Pleas of Monroe County, Civil Division, No(s): 126 O.C. 2004
Before: BOWES, GANTMAN and TAMILIA, JJ.
Opinion by: TAMILIA, J.
The American Cancer Society (ACS) appeals the July 12, 2007, Decree ordering the distribution of assets in the Celina Field Living Trust in accordance with a trust amendment, the validity of which constitutes the genesis of this controversy.
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ACS’ attempt to analogize the law of wills with the law of trusts by
resorting to general pronouncements is unpersuasive. ACS is correct in its
assertion that a will is only valid when signed, marked, or signed by a thirdparty
at the direction of the testator. 20 Pa.C.S.A. § 2502, supra. The issue
of whether a will has been executed validly, nevertheless, has no bearing on
the issue of whether a trust amendment is valid. There is no support in our
caselaw for the proposition that a trust amendment must be signed by the
settlor simply because “the right to amend…is personal to the Settlor.”
Appellant’s brief at 16. To the contrary, in 2002 and 2003, when decedent
settled her living trust and when the various amendments thereto were
drafted, personalty trust agreements themselves did not have to be written
and signed, or otherwise executed, to be effective. Dotterer, supra at 954,
citing In re Estate of Trbovich, 488 Pa. 583, 413 A.2d 379 (1980); cf. 20
Pa.C.S.A. § 7732, Requirements for creation. More to the point, the law
governing how revocable trusts can be amended has been consistent
throughout this Commonwealth’s history, and nothing in this history requires
a trust amendment to be executed before it is deemed valid. Kaufmann,
supra at 211 (“[A] revocable or amendable trust can only be revoked or
amended in accordance with the terms of the trust.”)
No. 2128 EDA 2007 2008 PA Super 167 Atlantic: n/a Filed: 7/25/2008
Appeal from the Decree entered in the Court of Common Pleas of Monroe County, Civil Division, No(s): 126 O.C. 2004
Before: BOWES, GANTMAN and TAMILIA, JJ.
Opinion by: TAMILIA, J.
The American Cancer Society (ACS) appeals the July 12, 2007, Decree ordering the distribution of assets in the Celina Field Living Trust in accordance with a trust amendment, the validity of which constitutes the genesis of this controversy.
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ACS’ attempt to analogize the law of wills with the law of trusts by
resorting to general pronouncements is unpersuasive. ACS is correct in its
assertion that a will is only valid when signed, marked, or signed by a thirdparty
at the direction of the testator. 20 Pa.C.S.A. § 2502, supra. The issue
of whether a will has been executed validly, nevertheless, has no bearing on
the issue of whether a trust amendment is valid. There is no support in our
caselaw for the proposition that a trust amendment must be signed by the
settlor simply because “the right to amend…is personal to the Settlor.”
Appellant’s brief at 16. To the contrary, in 2002 and 2003, when decedent
settled her living trust and when the various amendments thereto were
drafted, personalty trust agreements themselves did not have to be written
and signed, or otherwise executed, to be effective. Dotterer, supra at 954,
citing In re Estate of Trbovich, 488 Pa. 583, 413 A.2d 379 (1980); cf. 20
Pa.C.S.A. § 7732, Requirements for creation. More to the point, the law
governing how revocable trusts can be amended has been consistent
throughout this Commonwealth’s history, and nothing in this history requires
a trust amendment to be executed before it is deemed valid. Kaufmann,
supra at 211 (“[A] revocable or amendable trust can only be revoked or
amended in accordance with the terms of the trust.”)
Superior Court 7/25/08 - COMMONWEALTH OF PENNSYLVANIA v. JOSHUA BOOZE
COMMONWEALTH OF PENNSYLVANIA v. JOSHUA BOOZE
No. 2854 EDA 2006 2008 PA Super 166 Atlantic: n/a Filed: 7/25/2008
Appeal from the Judgment of Sentence of September 11, 2006, in the Court of Common Pleas of Lehigh County, Criminal Division, at No. CP-39-CR-0001800-2005.
Before: BOWES, ALLEN AND KELLY, JJ.
Opinion by: BOWES, J.
Joshua Michael Booze appeals from the September 11, 2006 judgment of sentence of twenty-three to forty-six years incarceration imposed after a jury found him guilty of two counts each of robbery and false imprisonment, and one count each of burglary, theft, and criminal conspiracy to commit robbery and burglary. After careful review, we affirm.
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¶ 13 Appellant now raises the following issues for our review:
A. Did the lower court err by failing to suppress from use at time
of trial the Defendant’s confession and an identification of the
Defendant through the use of a photo array which were both
the direct result of the improper seizure of other evidence by
the police?
B. Were the Defendant’s rights to a speedy trial pursuant to
[Pa.R.A.P.] 600 violated due to the delay in his being
returned from the State of New Jersey and then not being
promptly given his trial?
C. Were the Defendant’s rights to a speedy disposition of his
case violated through the Commonwealth’s failure to bring
the Defendant to trial within 120 days after he was returned
from New Jersey as required pursuant to the Interstate
Agreement on Detainers Act?
D. Did the court abuse its sentencing discretion by giving the
Defendant sentences for the robbery charges which exceeded
the sentencing guideline ranges and for giving sentences
that, for all charges and counts, were consecutive?
No. 2854 EDA 2006 2008 PA Super 166 Atlantic: n/a Filed: 7/25/2008
Appeal from the Judgment of Sentence of September 11, 2006, in the Court of Common Pleas of Lehigh County, Criminal Division, at No. CP-39-CR-0001800-2005.
Before: BOWES, ALLEN AND KELLY, JJ.
Opinion by: BOWES, J.
Joshua Michael Booze appeals from the September 11, 2006 judgment of sentence of twenty-three to forty-six years incarceration imposed after a jury found him guilty of two counts each of robbery and false imprisonment, and one count each of burglary, theft, and criminal conspiracy to commit robbery and burglary. After careful review, we affirm.
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¶ 13 Appellant now raises the following issues for our review:
A. Did the lower court err by failing to suppress from use at time
of trial the Defendant’s confession and an identification of the
Defendant through the use of a photo array which were both
the direct result of the improper seizure of other evidence by
the police?
B. Were the Defendant’s rights to a speedy trial pursuant to
[Pa.R.A.P.] 600 violated due to the delay in his being
returned from the State of New Jersey and then not being
promptly given his trial?
C. Were the Defendant’s rights to a speedy disposition of his
case violated through the Commonwealth’s failure to bring
the Defendant to trial within 120 days after he was returned
from New Jersey as required pursuant to the Interstate
Agreement on Detainers Act?
D. Did the court abuse its sentencing discretion by giving the
Defendant sentences for the robbery charges which exceeded
the sentencing guideline ranges and for giving sentences
that, for all charges and counts, were consecutive?
Superior Court 7/25/08 - ROBIN M. WYTIAZ AND KEITH WYTIAZ, HER HUSBAND v. DAVID J. DEITRICK, D.O., MERCY PRIMARY CARE, INC., KHALILI NOORBAKHSH AND DE
ROBIN M. WYTIAZ AND KEITH WYTIAZ, HER HUSBAND v. DAVID J. DEITRICK, D.O., MERCY PRIMARY CARE, INC., KHALILI NOORBAKHSH AND DEITRICK METROPOLITAN OBSTETRIC GYNECOLOGY ASSOCIATES, INC.
No. 1219 WDA 2007 2008 PA Super 165 Atlantic: n/a Filed: 7/25/2008
Appeal from the Judgment entered June 12, 2007 in the Court of Common Pleas of Allegheny County, Civil Division, at No. GD06-2688.
Before: ORIE MELVIN, BENDER and ALLEN, JJ.
Opinion by: ORIE MELVIN, J.
Appellants, Robin and Keith Wytiaz, appeal from the judgment entered following a jury verdict in favor of the defense in this medical malpractice action. Appellants claim that the verdict was against the weight of the evidence and that they were denied a fair trial. After careful review, we affirm.
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No. 1219 WDA 2007 2008 PA Super 165 Atlantic: n/a Filed: 7/25/2008
Appeal from the Judgment entered June 12, 2007 in the Court of Common Pleas of Allegheny County, Civil Division, at No. GD06-2688.
Before: ORIE MELVIN, BENDER and ALLEN, JJ.
Opinion by: ORIE MELVIN, J.
Appellants, Robin and Keith Wytiaz, appeal from the judgment entered following a jury verdict in favor of the defense in this medical malpractice action. Appellants claim that the verdict was against the weight of the evidence and that they were denied a fair trial. After careful review, we affirm.
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Wednesday, July 23, 2008
Superior Court 7/23/08 - B.K.B. v. J.G.K. v. M.M.K.
B.K.B. v. J.G.K. v. M.M.K.
No. 1937 WDA 2007 2008 PA Super 164 Atlantic: n/a Filed: 7/23/2008
Appeal from the Order October 5, 2007,In the Court of Common Pleas of Clearfield County,Civil Division at No. 01-891 CD.
Before: LALLY-GREEN, KLEIN, and POPOVICH, JJ.
Opinion by: POPOVICH, J.
Concurring Statement by: LALLY-GREEN, J.
Appellant B.K.B. appeals the order denying his petition to intervene on grounds that the trial court erred in doing so based upon the doctrine of paternity by estoppel; that the trial court abused its discretion in refusing to hear DNA evidence to establish Appellant as the biological father of K.J.K., the minor-child; and that the trial court erred in failing to acknowledge that Appellee M.M.K. engaged in fraud or misrepresentation regarding the parentage of K.J.K. (d.o.b. 5/4/97). We affirm.
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No. 1937 WDA 2007 2008 PA Super 164 Atlantic: n/a Filed: 7/23/2008
Appeal from the Order October 5, 2007,In the Court of Common Pleas of Clearfield County,Civil Division at No. 01-891 CD.
Before: LALLY-GREEN, KLEIN, and POPOVICH, JJ.
Opinion by: POPOVICH, J.
Concurring Statement by: LALLY-GREEN, J.
Appellant B.K.B. appeals the order denying his petition to intervene on grounds that the trial court erred in doing so based upon the doctrine of paternity by estoppel; that the trial court abused its discretion in refusing to hear DNA evidence to establish Appellant as the biological father of K.J.K., the minor-child; and that the trial court erred in failing to acknowledge that Appellee M.M.K. engaged in fraud or misrepresentation regarding the parentage of K.J.K. (d.o.b. 5/4/97). We affirm.
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Superior Court 7/23/08 - PREFERRED FIRE PROTECTION, INC. v. JOSEPH DAVIS, INC., AND LIBERTY MUTUAL INSURANCE COMPANY
PREFERRED FIRE PROTECTION, INC. v. JOSEPH DAVIS, INC., AND LIBERTY MUTUAL INSURANCE COMPANY
o. 445 WDA 2007 2008 PA Super 162 Atlantic: n/a Filed: 7/23/2008
Appeal from the Order Entered August 8, 2006,in the Court of Common Pleas of Allegheny County,Civil Division at No. GD No. 04-10243.
Before: BENDER, BOWES and TAMILIA, JJ.
Opinion by: BOWES, J.
Preferred Fire Protection, Inc. (“Preferred”) appeals from the August 8, 2006 order granting the motion for summary judgment in favor of Liberty Mutual Insurance Company (“Liberty”), the commercial surety that posted a Labor and Materialmen’s Payment Bond (“Bond”) on behalf of Joseph Davis, Inc. (“JDI”), the general contractor, in connection with a contract between Preferred and JDI for the installation of a fire protection sprinkler system for a parking garage project. We reverse and remand.
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o. 445 WDA 2007 2008 PA Super 162 Atlantic: n/a Filed: 7/23/2008
Appeal from the Order Entered August 8, 2006,in the Court of Common Pleas of Allegheny County,Civil Division at No. GD No. 04-10243.
Before: BENDER, BOWES and TAMILIA, JJ.
Opinion by: BOWES, J.
Preferred Fire Protection, Inc. (“Preferred”) appeals from the August 8, 2006 order granting the motion for summary judgment in favor of Liberty Mutual Insurance Company (“Liberty”), the commercial surety that posted a Labor and Materialmen’s Payment Bond (“Bond”) on behalf of Joseph Davis, Inc. (“JDI”), the general contractor, in connection with a contract between Preferred and JDI for the installation of a fire protection sprinkler system for a parking garage project. We reverse and remand.
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Superior Court 7/23/08 - COMMONWEALTH OF PENNSYLVANIA v. HENRY PULANCO
COMMONWEALTH OF PENNSYLVANIA v. HENRY PULANCO
No. 1443 MDA 2007 2008 PA Super 163 Atlantic: n/a Filed: 7/23/2008
Appeal from the Judgment of Sentence EnteredAugust 16, 2004, Court of Common Pleas, Berks County,Criminal Division, at No. CP-06-CR-0005771-2003.
Before: LALLY-GREEN, SHOGAN, and COLVILLE, JJ.
Opinion by: SHOGAN, J.
Appellant, Henry Pulanco, purports to appeal nunc pro tunc from the judgment of sentence entered on August 16, 2004. Upon review of the unique procedural history of this case, we are constrained to vacate the order allowing Appellant to file an amended Pa.R.A.P. 1925(b) statement nunc pro tunc, which in effect, reinstated his direct appeal rights. We remand this matter for further proceedings consistent with this opinion.
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No. 1443 MDA 2007 2008 PA Super 163 Atlantic: n/a Filed: 7/23/2008
Appeal from the Judgment of Sentence EnteredAugust 16, 2004, Court of Common Pleas, Berks County,Criminal Division, at No. CP-06-CR-0005771-2003.
Before: LALLY-GREEN, SHOGAN, and COLVILLE, JJ.
Opinion by: SHOGAN, J.
Appellant, Henry Pulanco, purports to appeal nunc pro tunc from the judgment of sentence entered on August 16, 2004. Upon review of the unique procedural history of this case, we are constrained to vacate the order allowing Appellant to file an amended Pa.R.A.P. 1925(b) statement nunc pro tunc, which in effect, reinstated his direct appeal rights. We remand this matter for further proceedings consistent with this opinion.
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Monday, July 21, 2008
Superior Court 7/21/08 - JAMES QUINN v. MICHAEL BUPP
JAMES QUINN v. MICHAEL BUPP
No. No. 317 & 827 WDA 2007 2008 PA Super 161 Atlantic: n/a Filed: 7/21/2008
Appeal from the Order Entered January 17, 2007, in the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 05-003069.
Before: BENDER, BOWES AND TAMILIA, JJ.
Opinion by: BOWES, J.
This appeal and cross-appeal followed the trial court’s determination that Michael Bupp (“Seller”) breached a real estate sales agreement and its pretrial ruling that limited the amount of damages recoverable by James Quinn (“Buyer”). We affirm the trial court’s conclusion that Buyer is entitled to specific performance of the agreement, but we reverse in part its decision to restrict the amount of damages that Buyer is entitled to recover. We remand solely for a hearing on damages as further outlined in this adjudication.
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No. No. 317 & 827 WDA 2007 2008 PA Super 161 Atlantic: n/a Filed: 7/21/2008
Appeal from the Order Entered January 17, 2007, in the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 05-003069.
Before: BENDER, BOWES AND TAMILIA, JJ.
Opinion by: BOWES, J.
This appeal and cross-appeal followed the trial court’s determination that Michael Bupp (“Seller”) breached a real estate sales agreement and its pretrial ruling that limited the amount of damages recoverable by James Quinn (“Buyer”). We affirm the trial court’s conclusion that Buyer is entitled to specific performance of the agreement, but we reverse in part its decision to restrict the amount of damages that Buyer is entitled to recover. We remand solely for a hearing on damages as further outlined in this adjudication.
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Friday, July 18, 2008
Superior Court 7/18/08 - COMMONWEALTH OF PENNSYLVANIA v. SHAHRAM NAHAVANDIAN
COMMONWEALTH OF PENNSYLVANIA v. SHAHRAM NAHAVANDIAN
No. 839 MDA 2007 2008 PA Super 159 Atlantic: n/a Filed: 7/18/2008
Appeal from the Judgment of Sentence July 24, 2006 In the Court of Common Pleas of Northumberland County Criminal at No(s): CP-49-CR-0000214-2000 CP-49-CR-0000463-2000
Before: STEVENS, PANELLA, and HUDOCK, JJ.
Opinion by: STEVENS, J.
This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Northumberland County, after this Court vacated sentence and remanded for resentencing in light of Commonwealth v. Ludwig, 583 Pa. 6, 874 A.2d 623 (2005). Here, Appellant contends his new aggregate sentence impermissibly includes a 21 to 48 month sentence of incarceration for Delivery of a Controlled Substance which the court had initially vacated after remand, based upon the Commonwealth’s concession that the delivery charge and conviction was of questionable fairness. Specifically, Appellant argues (1) the Commonwealth was estopped from seeking reimposition of sentence on the delivery charge once it conceded sentence should not be imposed, and (2) the court lacked jurisdiction to reimpose sentence on the delivery count after 30 days had lapsed from the date of its order vacating sentence on the count. We quash.
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¶ 8 In the case at bar, Appellant filed his notice of appeal within 30 days
after the court denied his February 16, 2007 post-sentence motion, which
itself had been filed within 10 days of when his sentence was reduced to
writing and docketed. As can be seen by the procedural history recounted
supra, however, Appellant’s sentence was first imposed for our purposes
here when the court pronounced it in open court on October 17, 2006.
¶ 9 This Court has held that the date of imposition of sentence in open
court, and not the date on which the sentence is docketed, is the reference
point for computing the time for filing post-sentence motions. See
Commonwealth v. Green, 862 A.2d 613 (Pa. Super. 2004) (collecting
cases on Pa.R.Crim.P. 720 and corresponding Commentary and holding time
calculations used to determine timeliness of post-sentence motions and
notice of appeal refer to date on which sentence is actually imposed,
regardless of when sentence is docketed).
No. 839 MDA 2007 2008 PA Super 159 Atlantic: n/a Filed: 7/18/2008
Appeal from the Judgment of Sentence July 24, 2006 In the Court of Common Pleas of Northumberland County Criminal at No(s): CP-49-CR-0000214-2000 CP-49-CR-0000463-2000
Before: STEVENS, PANELLA, and HUDOCK, JJ.
Opinion by: STEVENS, J.
This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Northumberland County, after this Court vacated sentence and remanded for resentencing in light of Commonwealth v. Ludwig, 583 Pa. 6, 874 A.2d 623 (2005). Here, Appellant contends his new aggregate sentence impermissibly includes a 21 to 48 month sentence of incarceration for Delivery of a Controlled Substance which the court had initially vacated after remand, based upon the Commonwealth’s concession that the delivery charge and conviction was of questionable fairness. Specifically, Appellant argues (1) the Commonwealth was estopped from seeking reimposition of sentence on the delivery charge once it conceded sentence should not be imposed, and (2) the court lacked jurisdiction to reimpose sentence on the delivery count after 30 days had lapsed from the date of its order vacating sentence on the count. We quash.
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¶ 8 In the case at bar, Appellant filed his notice of appeal within 30 days
after the court denied his February 16, 2007 post-sentence motion, which
itself had been filed within 10 days of when his sentence was reduced to
writing and docketed. As can be seen by the procedural history recounted
supra, however, Appellant’s sentence was first imposed for our purposes
here when the court pronounced it in open court on October 17, 2006.
¶ 9 This Court has held that the date of imposition of sentence in open
court, and not the date on which the sentence is docketed, is the reference
point for computing the time for filing post-sentence motions. See
Commonwealth v. Green, 862 A.2d 613 (Pa. Super. 2004) (collecting
cases on Pa.R.Crim.P. 720 and corresponding Commentary and holding time
calculations used to determine timeliness of post-sentence motions and
notice of appeal refer to date on which sentence is actually imposed,
regardless of when sentence is docketed).
Superior Court 7/18/08 - COMMONWEALTH OF PENNSYLVANIA v. SAMUEL JONES
COMMONWEALTH OF PENNSYLVANIA v. SAMUEL JONES
No. 1158 EDA 2007 2008 PA Super 160 Atlantic: n/a Filed: 7/18/2008
Appeal from the Judgment of Sentence July 29, 2003 In the Court of Common Pleas of Philadelphia County Criminal at No(s): CP-51-CR-1102421-2002
Before: STEVENS, KLEIN, and POPOVICH, JJ.
Opinion by: STEVENS, J.
This is an appeal nunc pro tunc from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County after a jury convicted Appellant of robbery and burglary. Sentenced to two concurrent terms of five to ten years’ incarceration to be followed by five years’ probation, Appellant challenges the sufficiency of the evidence and the adequacy of the jury instruction. We affirm.
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Appellant raises two issues for our review:
I. WAS THE EVIDENCE INSUFFICIENT TO FIND THE DEFENDANT [GUILTY] OF BURGLARY AND ROBBERY?
II. DID THE TRIAL COURT ERR IN NOT GIVING A CHARGE TO THE JURY THAT THE DEFENDANT WAS NOT IDENTIFIED AS THE PERPETRATOR BY THE COMPLAINING WITNESS?
No. 1158 EDA 2007 2008 PA Super 160 Atlantic: n/a Filed: 7/18/2008
Appeal from the Judgment of Sentence July 29, 2003 In the Court of Common Pleas of Philadelphia County Criminal at No(s): CP-51-CR-1102421-2002
Before: STEVENS, KLEIN, and POPOVICH, JJ.
Opinion by: STEVENS, J.
This is an appeal nunc pro tunc from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County after a jury convicted Appellant of robbery and burglary. Sentenced to two concurrent terms of five to ten years’ incarceration to be followed by five years’ probation, Appellant challenges the sufficiency of the evidence and the adequacy of the jury instruction. We affirm.
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Appellant raises two issues for our review:
I. WAS THE EVIDENCE INSUFFICIENT TO FIND THE DEFENDANT [GUILTY] OF BURGLARY AND ROBBERY?
II. DID THE TRIAL COURT ERR IN NOT GIVING A CHARGE TO THE JURY THAT THE DEFENDANT WAS NOT IDENTIFIED AS THE PERPETRATOR BY THE COMPLAINING WITNESS?
Superior Court 7/18/08 - APPEAL OF: SHERRY KASPRZYK
RACQUEL UNDERWOOD, A Minor by and Through Her Mother and Natural Guardian CATHERINE UNDERWOOD, SHAUNA McINNES, and ANDREW DASH v. DANA WIND, An Individual and SHERRY KASPRZYK, An Individual APPEAL OF: DANA WIND APPEAL OF: SHERRY KASPRZYK
No. 1502 & 1701 WDA 2007 2008 PA Super 158 Atlantic: n/a Filed: 7/18/2008
Appeal from the Judgment entered in the Court of Common Pleas of Allegheny County, Civil Division, No(s): GD 04-007373
Before: BENDER, BOWES and TAMILIA, JJ.
Opinion by: TAMILIA, J.
On November 23, 2003, two pit bull dogs owned by appellant Dana Wind, escaped from the home she rented from her aunt, appellant Sherry Kasprzyk, and attacked the minor child, appellee Racquel Underwood, as well as the good Samaritans, appellees Shauna McInnes and Andrew Dash, who attempted to rescue the child. A jury entered awards of $65,000, $85,000, and $80,000, respectively, in favor of the appellees. On August 8, 2007, appellants’ post-trial motions were denied, and appellees’ request for delay damages was granted: Underwood was awarded an additional $8,724.25; McInnes was awarded $11,408.62; and Dash was awarded $10,737.53. On August 17, 2007, an aggregate judgment of $260,870.40 was entered in favor of appellees, that amount representing the total of the appellees’ awards and delay damages.
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The dangerous propensities of an animal may be established by a single incident of an attack on a human being. You may determine prior knowledge of the possible dangerous propensities of an animal by direct and/or circumstantial evidence.
In order to prove the vicious propensities of an animal, actual notice is not necessary. It is sufficient if one knew or should have known that the animal was a probable cause of harm.
Now, I told you that the law is a violation -- an unexcused violation of the dog law is negligence per se. And the dog law talks about dogs getting out. It used to be referred to as dogs running at large. Now it’s a different thing, but it’s the same concept. They need to be confined or on a leash or a chain. And it also defines what dangers dogs are and the negligence of keeping a dangerous dog. Pennsylvania’s dog law, which is a state law in effect at the time this harm occurred, provided in
part that it is unlawful for the owner or keeper of any dog to fail to keep at all times such dog confined within the premises of the owner. This state law dictates the duty of care required of someone in the same situation as Defendants. If you find that there was a violation of this state law, you must find Defendant negligent as a matter of law.
However, before you answer that, you need to determine whether the negligence was a factual cause of the injuries. Now, that’s with respect to the dog getting out. The Pennsylvania dog law, which is a state law in effect at the time this harm occurred, provided in part that when a dog owner’s dog has inflicted severe injury on a human being without provocation, the dangerous propensities of the animal are established by a single incident of attacking the human being. This state law dictates the duty of care required of someone in the same situation as the Defendants.
Pennsylvania’s dog law, a state law in effect at the time, provides in part that the owner or keeper of any dog that aggressively attacks and causes severe injury or death of any human through the intentional, reckless or negligent conduct of the dog’s owner has violated the Pennsylvania dog law.
This state law dictates the duty of care required of someone in the same situation as the Defendants. And again, in all three of those instances you need to find that the fact -- that that violation was a factual cause of the injury.
Now, I talked to you about -- in the law remember I told you it says an unexcused violation? An excuse means a reasonable explanation for why the act occurred acceptable to a reasonable person under all the facts and circumstances in the case. And it’s the burden of the person offering that excuse to prove it by a preponderance of the evidence.
No. 1502 & 1701 WDA 2007 2008 PA Super 158 Atlantic: n/a Filed: 7/18/2008
Appeal from the Judgment entered in the Court of Common Pleas of Allegheny County, Civil Division, No(s): GD 04-007373
Before: BENDER, BOWES and TAMILIA, JJ.
Opinion by: TAMILIA, J.
On November 23, 2003, two pit bull dogs owned by appellant Dana Wind, escaped from the home she rented from her aunt, appellant Sherry Kasprzyk, and attacked the minor child, appellee Racquel Underwood, as well as the good Samaritans, appellees Shauna McInnes and Andrew Dash, who attempted to rescue the child. A jury entered awards of $65,000, $85,000, and $80,000, respectively, in favor of the appellees. On August 8, 2007, appellants’ post-trial motions were denied, and appellees’ request for delay damages was granted: Underwood was awarded an additional $8,724.25; McInnes was awarded $11,408.62; and Dash was awarded $10,737.53. On August 17, 2007, an aggregate judgment of $260,870.40 was entered in favor of appellees, that amount representing the total of the appellees’ awards and delay damages.
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The dangerous propensities of an animal may be established by a single incident of an attack on a human being. You may determine prior knowledge of the possible dangerous propensities of an animal by direct and/or circumstantial evidence.
In order to prove the vicious propensities of an animal, actual notice is not necessary. It is sufficient if one knew or should have known that the animal was a probable cause of harm.
Now, I told you that the law is a violation -- an unexcused violation of the dog law is negligence per se. And the dog law talks about dogs getting out. It used to be referred to as dogs running at large. Now it’s a different thing, but it’s the same concept. They need to be confined or on a leash or a chain. And it also defines what dangers dogs are and the negligence of keeping a dangerous dog. Pennsylvania’s dog law, which is a state law in effect at the time this harm occurred, provided in
part that it is unlawful for the owner or keeper of any dog to fail to keep at all times such dog confined within the premises of the owner. This state law dictates the duty of care required of someone in the same situation as Defendants. If you find that there was a violation of this state law, you must find Defendant negligent as a matter of law.
However, before you answer that, you need to determine whether the negligence was a factual cause of the injuries. Now, that’s with respect to the dog getting out. The Pennsylvania dog law, which is a state law in effect at the time this harm occurred, provided in part that when a dog owner’s dog has inflicted severe injury on a human being without provocation, the dangerous propensities of the animal are established by a single incident of attacking the human being. This state law dictates the duty of care required of someone in the same situation as the Defendants.
Pennsylvania’s dog law, a state law in effect at the time, provides in part that the owner or keeper of any dog that aggressively attacks and causes severe injury or death of any human through the intentional, reckless or negligent conduct of the dog’s owner has violated the Pennsylvania dog law.
This state law dictates the duty of care required of someone in the same situation as the Defendants. And again, in all three of those instances you need to find that the fact -- that that violation was a factual cause of the injury.
Now, I talked to you about -- in the law remember I told you it says an unexcused violation? An excuse means a reasonable explanation for why the act occurred acceptable to a reasonable person under all the facts and circumstances in the case. And it’s the burden of the person offering that excuse to prove it by a preponderance of the evidence.
Thursday, July 17, 2008
Superior Court - ANDREA LANE vs. COMMONWEALTH OF PENNSYLVANIA AND PENNSYLVANIA DEPARTMENT OF TRANSPORTATION AND ......
NDREA LANE vs. COMMONWEALTH OF PENNSYLVANIA AND PENNSYLVANIA DEPARTMENT OF TRANSPORTATION AND NESHAMINY CONSTRUCTORS, INC. AND JAMES J. ANDERSON CONSTRUCTION COMPANY AND JOSEPH B. FAY, CO.APPEAL OF: NESHAMINY CONSTRUCTORS, INC.
No. 1679 EDA 2007 2008 PA Super 157 Atlantic: n/a Filed: 7/17/2008
Appeal from the Order Entered June 14, 2007, in the Court of Common Pleas of Philadelphia County, Civil Division, at,No. February Term, 2005, No. 001880.
Before: BOWES, SHOGAN AND FITZGERALD, JJ.
Opinion by: BOWES, J.
In this appeal, Neshaminy Constructors, Inc., Appellant, seeks indemnification from James J. Anderson Construction Co., Appellee, for the verdict entered against Appellant and in favor of Andrea Lane (“Plaintiff”) in this personal injury action. Application of controlling case law to the jury’s resolution of this action compels the conclusion that Appellant is not entitled to indemnification from Appellee. We therefore affirm.
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No. 1679 EDA 2007 2008 PA Super 157 Atlantic: n/a Filed: 7/17/2008
Appeal from the Order Entered June 14, 2007, in the Court of Common Pleas of Philadelphia County, Civil Division, at,No. February Term, 2005, No. 001880.
Before: BOWES, SHOGAN AND FITZGERALD, JJ.
Opinion by: BOWES, J.
In this appeal, Neshaminy Constructors, Inc., Appellant, seeks indemnification from James J. Anderson Construction Co., Appellee, for the verdict entered against Appellant and in favor of Andrea Lane (“Plaintiff”) in this personal injury action. Application of controlling case law to the jury’s resolution of this action compels the conclusion that Appellant is not entitled to indemnification from Appellee. We therefore affirm.
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Wednesday, July 16, 2008
Superior Court 7/16/08 - COMMONWEALTH OF PENNSYLVANIA v. GREGORY RICKY BROWN
COMMONWEALTH OF PENNSYLVANIA v. GREGORY RICKY BROWN
No. 1507 MDA 2006 2008 PA Super 156 Atlantic: n/a Filed: 7/16/2008
Appeal from the Judgment of Sentence entered on January 23, 2006, in the Court of Common Pleas of Lancaster County, Criminal Division, at No. CP-36-CR-0005948-2004
Before: FORD ELLIOTT, P.J., STEVENS, ORIE MELVIN, LALLY-GREEN, KLEIN, BENDER, BOWES, GANTMAN, and SHOGAN, JJ.
Opinion by: LALLY-GREEN, J.
Concurring Statement by: KLEIN, J.
Appellant, Gregory Ricky Brown, appeals from the judgment of sentence entered on January 23, 2006, as made final by a restitution order entered on May 16, 2006. We granted en banc review to determine whether Medicare is entitled to restitution under 18 Pa.C.S.A. § 1106. The trial court ruled that Medicare was entitled to restitution. We agree and therefore affirm.
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¶ 5 Appellant raises one issue on appeal:
I. Did the trial court err in ordering Mr. Brown to pay
$509.65 to Medicare, where Medicare is a
government agency, and is not a victim entitled to
restitution pursuant to 18 Pa.C.S. § 1106?
¶ 6 Appellant argues that the sentence is illegal because Medicare is not
entitled to restitution. Appellant reasons that under 18 Pa.C.S.A. § 1106,
Medicare is only entitled to restitution if it paid Mr. Rissell directly; instead,
Medicare paid Mr. Rissell’s medical providers. Appellant’s Brief at 13.
¶ 7 Appellant contends that under the Crimes Code, the trial court had no
authority to award restitution to Medicare. Thus, Appellant raises a nonwaivable
challenge to the legality of the sentence. Commonwealth v.
Pleger, 934 A.2d 715, 719 (Pa. Super. 2007), citing In the Interest of
M.W., 725 A.2d 729, 731 n.4 (Pa. 1999). This issue of statutory
construction is a pure question of law, subject to plenary and de novo
review. Commonwealth v. Bradley, 834 A.2d 1127, 1131 (Pa. 2003).
¶ 8 The Legislature has the authority to define, by statute, who is entitled
to restitution. Commonwealth v. Runion, 662 A.2d 617, 620-621 (Pa.
1995). Thus, our task is one of statutory interpretation. The rules of
statutory construction are well settled:
No. 1507 MDA 2006 2008 PA Super 156 Atlantic: n/a Filed: 7/16/2008
Appeal from the Judgment of Sentence entered on January 23, 2006, in the Court of Common Pleas of Lancaster County, Criminal Division, at No. CP-36-CR-0005948-2004
Before: FORD ELLIOTT, P.J., STEVENS, ORIE MELVIN, LALLY-GREEN, KLEIN, BENDER, BOWES, GANTMAN, and SHOGAN, JJ.
Opinion by: LALLY-GREEN, J.
Concurring Statement by: KLEIN, J.
Appellant, Gregory Ricky Brown, appeals from the judgment of sentence entered on January 23, 2006, as made final by a restitution order entered on May 16, 2006. We granted en banc review to determine whether Medicare is entitled to restitution under 18 Pa.C.S.A. § 1106. The trial court ruled that Medicare was entitled to restitution. We agree and therefore affirm.
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¶ 5 Appellant raises one issue on appeal:
I. Did the trial court err in ordering Mr. Brown to pay
$509.65 to Medicare, where Medicare is a
government agency, and is not a victim entitled to
restitution pursuant to 18 Pa.C.S. § 1106?
¶ 6 Appellant argues that the sentence is illegal because Medicare is not
entitled to restitution. Appellant reasons that under 18 Pa.C.S.A. § 1106,
Medicare is only entitled to restitution if it paid Mr. Rissell directly; instead,
Medicare paid Mr. Rissell’s medical providers. Appellant’s Brief at 13.
¶ 7 Appellant contends that under the Crimes Code, the trial court had no
authority to award restitution to Medicare. Thus, Appellant raises a nonwaivable
challenge to the legality of the sentence. Commonwealth v.
Pleger, 934 A.2d 715, 719 (Pa. Super. 2007), citing In the Interest of
M.W., 725 A.2d 729, 731 n.4 (Pa. 1999). This issue of statutory
construction is a pure question of law, subject to plenary and de novo
review. Commonwealth v. Bradley, 834 A.2d 1127, 1131 (Pa. 2003).
¶ 8 The Legislature has the authority to define, by statute, who is entitled
to restitution. Commonwealth v. Runion, 662 A.2d 617, 620-621 (Pa.
1995). Thus, our task is one of statutory interpretation. The rules of
statutory construction are well settled:
Tuesday, July 15, 2008
Superior Court 7/15/08 - P.T. & K.T. v. M.H.
P.T. & K.T. v. M.H.
No. 900 WDA 2007 2008 PA Super 155 Atlantic: n/a Filed: 7/15/2008
Appeal from the Order of April 13, 2007, in the Court of Common Pleas of Allegheny County, Family Court Division, No. FD 99-003698-005.
Before: BENDER, BOWES, AND TAMILIA, JJ.
Opinion by: BOWES, J.
Appellants, P.T. and K.T., appeal the order dated April 13, 2007, and entered April 16, 2007, wherein the trial court denied their motion for standing to file a complaint for custody pursuant to 23 Pa.C.S. § 5303 in the Court of Common Pleas of Allegheny County Family Division, but granted standing in an ongoing dependency proceeding in juvenile court. We affirm.
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On appeal, Appellants raise the following issues for our review:
1. Whether the [Family Division] trial court erred in denying Appellants’ Motion for Standing to file their Complaint for Primary Custody of [A.H.]?
2. Whether the [Family Division] trial court erred in not informing Appellants of their right to counsel and not appointing counsel for Appellants for all proceedings related to their legal status in relation to Child and otherwise when Appellants allege that they were legal custodians and stood in loco parentis to Child?
¶ 7 We first address our appellate jurisdiction. Mother and CYF both
challenge whether the Family Division trial court’s order was an appealable
final order under Pa.R.A.P. 341. Mother and CYF discuss the order in the
context of the underlying dependency proceeding. Mother asserts, “The
April 13, 2007 order does nothing more than oblige [Appellants] to litigate
their custody claim as part of the ongoing dependency proceedings.”
Mother’s brief at 7. Similarly, CYF posits, “The order does not dispose of
[Appellant’s] custody claims, it merely requires [Appellants] to litigate those
claims in the dependency proceeding in Juvenile Court.” CYF brief at 8.
¶ 8 We disagree with both contentions because each ignores that the order
being appealed was not entered in the dependency case. Rather, the order
appealed herein was entered in response to Appellants’ motion for in loco
parentis standing to file a custody complaint in the Family Division action.
While Appellants did participate in the dependency action, albeit on a limited
basis, they never sought to intervene in those proceedings. Simply stated,
the April 13, 2007 order effectively dismissed Appellants’ custody complaint,
precluded them from litigating their custody claim, and confined Appellants
to participation in the dependency proceeding’s dispositional stage. As the
April 13, 2007 order did, in fact, dispose of Appellants’ custody claim filed in
the Family Division, we find that the order is final.3 Cf. Carpenter v.
Carpenter, 474 A.2d 1124, 1126 (Pa.Super. 1984) (since order vacating
earlier award of temporary custody and staying custody proceedings on
ground that Massachusetts court was already exercising its jurisdiction, the
appellant was precluded from litigating the case in Pennsylvania, and order
appealed was a final order). Thus, the appeal is proper.
No. 900 WDA 2007 2008 PA Super 155 Atlantic: n/a Filed: 7/15/2008
Appeal from the Order of April 13, 2007, in the Court of Common Pleas of Allegheny County, Family Court Division, No. FD 99-003698-005.
Before: BENDER, BOWES, AND TAMILIA, JJ.
Opinion by: BOWES, J.
Appellants, P.T. and K.T., appeal the order dated April 13, 2007, and entered April 16, 2007, wherein the trial court denied their motion for standing to file a complaint for custody pursuant to 23 Pa.C.S. § 5303 in the Court of Common Pleas of Allegheny County Family Division, but granted standing in an ongoing dependency proceeding in juvenile court. We affirm.
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On appeal, Appellants raise the following issues for our review:
1. Whether the [Family Division] trial court erred in denying Appellants’ Motion for Standing to file their Complaint for Primary Custody of [A.H.]?
2. Whether the [Family Division] trial court erred in not informing Appellants of their right to counsel and not appointing counsel for Appellants for all proceedings related to their legal status in relation to Child and otherwise when Appellants allege that they were legal custodians and stood in loco parentis to Child?
¶ 7 We first address our appellate jurisdiction. Mother and CYF both
challenge whether the Family Division trial court’s order was an appealable
final order under Pa.R.A.P. 341. Mother and CYF discuss the order in the
context of the underlying dependency proceeding. Mother asserts, “The
April 13, 2007 order does nothing more than oblige [Appellants] to litigate
their custody claim as part of the ongoing dependency proceedings.”
Mother’s brief at 7. Similarly, CYF posits, “The order does not dispose of
[Appellant’s] custody claims, it merely requires [Appellants] to litigate those
claims in the dependency proceeding in Juvenile Court.” CYF brief at 8.
¶ 8 We disagree with both contentions because each ignores that the order
being appealed was not entered in the dependency case. Rather, the order
appealed herein was entered in response to Appellants’ motion for in loco
parentis standing to file a custody complaint in the Family Division action.
While Appellants did participate in the dependency action, albeit on a limited
basis, they never sought to intervene in those proceedings. Simply stated,
the April 13, 2007 order effectively dismissed Appellants’ custody complaint,
precluded them from litigating their custody claim, and confined Appellants
to participation in the dependency proceeding’s dispositional stage. As the
April 13, 2007 order did, in fact, dispose of Appellants’ custody claim filed in
the Family Division, we find that the order is final.3 Cf. Carpenter v.
Carpenter, 474 A.2d 1124, 1126 (Pa.Super. 1984) (since order vacating
earlier award of temporary custody and staying custody proceedings on
ground that Massachusetts court was already exercising its jurisdiction, the
appellant was precluded from litigating the case in Pennsylvania, and order
appealed was a final order). Thus, the appeal is proper.
Monday, July 14, 2008
Superior Court 7/14/08 - DARWIN OTTOLINI v. MELINDA S. BARRETT
DARWIN OTTOLINI v. MELINDA S. BARRETT
No. 1234 WDA 207 2008 PA Super 154 Atlantic: n/a Filed: 7/14/2008
Appeal from the Order in the Court of Common Pleas of Potter County, Civil Division, No. 1154 of 2003
Before: BENDER, GANTMAN and TAMILIA, JJ.
Opinion by: TAMILIA, J.
Father, Darwin Ottolini, appeals the June 4, 2007, Order granting mother, Melinda S. Barrett, primary custody over the couple’s two minor children, Derek (DOB 12/17/1997) and Dalton (DOB 08/25/2001).
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¶ 7 Father raises the following assignments of error:
1. Did the court abuse its discretion in denying counsel, and thus [father], [the opportunity] to be present and an opportunity to participate in interviewing the two children in question; and further, not making the interview a part of the record
so that counsel could be fully aware of what was exactly stated in the interview?
2. Did the court abuse its discretion in considering Dr. Addis’ report even though the report was not entered into evidence, nor was Dr. Addis called as a witness; and that [father] objected to Dr. Addis’ report being admitted into evidence absent the
opportunity to cross-examine Dr. Addis?
3. Did the court abuse its discretion by not preparing and filing findings of fact?
4. Did the court abuse its discretion by not giving proper weight to the evidence?
Our standard of review over a custody order is for a gross abuse of discretion. A.J.B. v. M.P.B., 945 A.2d 744, 746-747 (Pa.Super. 2008). If a trial court, in reaching its conclusion, overrides or misapplies the law or exercises judgment which is manifestly unreasonable, or reaches a conclusion that is the result of partiality, prejudice, bias or ill will as shown by the evidence of record, then discretion is abused. Bonawits v. Bonawits, 907 A.2d 611, 614 (Pa.Super. 2006). Our scope of review over custody disputes is broad; this Court is not bound by the deductions and inferences the trial court derives from its findings of fact, nor must we accept the trial court’s findings of fact when these findings are not supported by competent evidence of record. A.J.B., supra at 746-747. Our paramount concern in child custody matters is the best interests of the children. Id. at 747.
No. 1234 WDA 207 2008 PA Super 154 Atlantic: n/a Filed: 7/14/2008
Appeal from the Order in the Court of Common Pleas of Potter County, Civil Division, No. 1154 of 2003
Before: BENDER, GANTMAN and TAMILIA, JJ.
Opinion by: TAMILIA, J.
Father, Darwin Ottolini, appeals the June 4, 2007, Order granting mother, Melinda S. Barrett, primary custody over the couple’s two minor children, Derek (DOB 12/17/1997) and Dalton (DOB 08/25/2001).
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¶ 7 Father raises the following assignments of error:
1. Did the court abuse its discretion in denying counsel, and thus [father], [the opportunity] to be present and an opportunity to participate in interviewing the two children in question; and further, not making the interview a part of the record
so that counsel could be fully aware of what was exactly stated in the interview?
2. Did the court abuse its discretion in considering Dr. Addis’ report even though the report was not entered into evidence, nor was Dr. Addis called as a witness; and that [father] objected to Dr. Addis’ report being admitted into evidence absent the
opportunity to cross-examine Dr. Addis?
3. Did the court abuse its discretion by not preparing and filing findings of fact?
4. Did the court abuse its discretion by not giving proper weight to the evidence?
Our standard of review over a custody order is for a gross abuse of discretion. A.J.B. v. M.P.B., 945 A.2d 744, 746-747 (Pa.Super. 2008). If a trial court, in reaching its conclusion, overrides or misapplies the law or exercises judgment which is manifestly unreasonable, or reaches a conclusion that is the result of partiality, prejudice, bias or ill will as shown by the evidence of record, then discretion is abused. Bonawits v. Bonawits, 907 A.2d 611, 614 (Pa.Super. 2006). Our scope of review over custody disputes is broad; this Court is not bound by the deductions and inferences the trial court derives from its findings of fact, nor must we accept the trial court’s findings of fact when these findings are not supported by competent evidence of record. A.J.B., supra at 746-747. Our paramount concern in child custody matters is the best interests of the children. Id. at 747.
Friday, July 11, 2008
Superior Court 7/11/08 -
COMMONWEALTH OF PENNSYLVANIA v. SAMELL MACK
No. 58 EDA 2007 2008 PA Super 153 Atlantic: n/a Filed: 7/11/2008
Appeal from the Order Entered November 22, 2006, in the Court of Common Pleas of Philadelphia County Criminal Division at No. 0603-0620 1/1
Before: FORD ELLIOTT, P.J., PANELLA AND KELLY, JJ.
Opinion by: FORD ELLIOT, P.J.
The Commonwealth appeals from the order granting Samell Mack’s (“Mack”) omnibus pre-trial motion to suppress evidence. Upon review, we reverse and remand for trial.
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¶ 6 The Commonwealth raises one issue for our consideration: whether
the trial court erred in granting the suppression motion as Officer Morris was
justified in conducting a limited safety-related frisk of Mack’s person. The
Commonwealth argues the officer articulated he had reasonable suspicion to
suspect that Mack may be armed or engaged in criminal activity.
(Commonwealth’s brief at 7.)
¶ 7 When the Commonwealth appeals from a suppression order, we follow
a clearly defined standard of review and consider only the evidence from the
defendant’s witnesses together with the evidence of the prosecution that,
when read in the context of the entire record, remains uncontradicted.
Commonwealth v. Henry, 943 A.2d 967, 969 (Pa.Super. 2008.). We must
first determine whether the record supports the factual findings of the
suppression court and then determine the reasonableness of the inferences
and legal conclusions drawn from those findings. Id. In appeals where
there is no meaningful dispute of fact, as in the case sub judice, our duty is
to determine whether the suppression court properly applied the law to the
facts of the case. Commonwealth v. Ruey, 586 Pa. 230, 892 A.2d 802,
807 (2006).......
.........¶ 15 Based on the facts found by the suppression court, we find that the
totality of the circumstances led Officer Morris to reasonably suspect that
Mack may be armed. Mack’s reaching movements in the vehicle while the
officer approached, in conjunction with the time of day, Mack’s nervousness
and lack of proper identification, could lead Officer Morris to reasonably
conclude that his safety was in jeopardy. As such, Officer Morris was
justified in subjecting Mack to a Terry frisk in order to ensure his own safety
and the safety of his fellow officer. See Commonwealth v. Mesa, 683
A.2d 643, 646 (Pa.Super. 1996) (finding officer had articulable suspicion the
appellant might be armed and dangerous when he observed the appellant
“moving around a great deal” in the passenger seat); Commonwealth v.
Morris, 619 A.2d 709, 712 (Pa.Super. 1992), appeal denied, 534 Pa. 654,
627 A.2d 731 (1993) (finding officer had articulable suspicion the appellant
might be armed and dangerous when he observed the appellant’s “furtive
movements in stuffing a brown bag under the front passenger seat of the
vehicle.”). See also Gray, supra at 606 n.7 (stating that while
nervousness alone will not establish reasonable suspicion, it is a relevant
factor to be considered in the totality of the circumstances).
¶ 16 Accordingly, we find that the trial court abused its discretion when it
suppressed the evidence. Therefore, we reverse its suppression order and
remand for proceedings consistent with this opinion.
¶ 17 Order reversed. Case remanded. Jurisdiction relinquished.
......
No. 58 EDA 2007 2008 PA Super 153 Atlantic: n/a Filed: 7/11/2008
Appeal from the Order Entered November 22, 2006, in the Court of Common Pleas of Philadelphia County Criminal Division at No. 0603-0620 1/1
Before: FORD ELLIOTT, P.J., PANELLA AND KELLY, JJ.
Opinion by: FORD ELLIOT, P.J.
The Commonwealth appeals from the order granting Samell Mack’s (“Mack”) omnibus pre-trial motion to suppress evidence. Upon review, we reverse and remand for trial.
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¶ 6 The Commonwealth raises one issue for our consideration: whether
the trial court erred in granting the suppression motion as Officer Morris was
justified in conducting a limited safety-related frisk of Mack’s person. The
Commonwealth argues the officer articulated he had reasonable suspicion to
suspect that Mack may be armed or engaged in criminal activity.
(Commonwealth’s brief at 7.)
¶ 7 When the Commonwealth appeals from a suppression order, we follow
a clearly defined standard of review and consider only the evidence from the
defendant’s witnesses together with the evidence of the prosecution that,
when read in the context of the entire record, remains uncontradicted.
Commonwealth v. Henry, 943 A.2d 967, 969 (Pa.Super. 2008.). We must
first determine whether the record supports the factual findings of the
suppression court and then determine the reasonableness of the inferences
and legal conclusions drawn from those findings. Id. In appeals where
there is no meaningful dispute of fact, as in the case sub judice, our duty is
to determine whether the suppression court properly applied the law to the
facts of the case. Commonwealth v. Ruey, 586 Pa. 230, 892 A.2d 802,
807 (2006).......
.........¶ 15 Based on the facts found by the suppression court, we find that the
totality of the circumstances led Officer Morris to reasonably suspect that
Mack may be armed. Mack’s reaching movements in the vehicle while the
officer approached, in conjunction with the time of day, Mack’s nervousness
and lack of proper identification, could lead Officer Morris to reasonably
conclude that his safety was in jeopardy. As such, Officer Morris was
justified in subjecting Mack to a Terry frisk in order to ensure his own safety
and the safety of his fellow officer. See Commonwealth v. Mesa, 683
A.2d 643, 646 (Pa.Super. 1996) (finding officer had articulable suspicion the
appellant might be armed and dangerous when he observed the appellant
“moving around a great deal” in the passenger seat); Commonwealth v.
Morris, 619 A.2d 709, 712 (Pa.Super. 1992), appeal denied, 534 Pa. 654,
627 A.2d 731 (1993) (finding officer had articulable suspicion the appellant
might be armed and dangerous when he observed the appellant’s “furtive
movements in stuffing a brown bag under the front passenger seat of the
vehicle.”). See also Gray, supra at 606 n.7 (stating that while
nervousness alone will not establish reasonable suspicion, it is a relevant
factor to be considered in the totality of the circumstances).
¶ 16 Accordingly, we find that the trial court abused its discretion when it
suppressed the evidence. Therefore, we reverse its suppression order and
remand for proceedings consistent with this opinion.
¶ 17 Order reversed. Case remanded. Jurisdiction relinquished.
......
Thursday, July 10, 2008
Superior Court 7/10/08 - COMMONWEALTH OF PENNSYLVANIA v. MICHAEL WALL
COMMONWEALTH OF PENNSYLVANIA v. MICHAEL WALL
No. 2282 EDA 2005 2008 PA Super 151 Atlantic: n/a Filed: 7/10/2008
Appeal from the Judgment of Sentence February 11, 2005 In the Court of Common Pleas of Philadelphia County Criminal at No(s): 0210-0192 1/1
Before: PANELLA, HUDOCK, and FITZGERALD?, JJ
Opinion by: PANELLA, J.
Appellant, Michael Wall, appeals from the judgment of sentence entered on February 11, 2005, by the Honorable Thomas Dempsey, Court of Common Please of Philadelphia County. After careful review, we affirm.
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Subsequently, Wall filed a post-sentence motion raising sufficiency and
weight of evidence challenges to his rape conviction. After hearings on May
19, 2005 and May 24, 2005, Judge Dempsey issued an opinion on July 21,
2005, denying Wall’s motions. This timely appeal followed.
¶ 7 In his first issue presented on appeal, Wall argues that the evidence
presented at the bench trial was legally insufficient to sustain his conviction
for rape.4 In evaluating a challenge to the sufficiency of the evidence, we
must determine whether, viewing the evidence in the light most favorable to
the Commonwealth as verdict winner, together with all reasonable
inferences therefrom, the trier of fact could have found every element of the
crime charged beyond a reasonable doubt. See Commonwealth v.
Sullivan, 864 A.2d 1246, 1249 (Pa. Super. 2004).
No. 2282 EDA 2005 2008 PA Super 151 Atlantic: n/a Filed: 7/10/2008
Appeal from the Judgment of Sentence February 11, 2005 In the Court of Common Pleas of Philadelphia County Criminal at No(s): 0210-0192 1/1
Before: PANELLA, HUDOCK, and FITZGERALD?, JJ
Opinion by: PANELLA, J.
Appellant, Michael Wall, appeals from the judgment of sentence entered on February 11, 2005, by the Honorable Thomas Dempsey, Court of Common Please of Philadelphia County. After careful review, we affirm.
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Subsequently, Wall filed a post-sentence motion raising sufficiency and
weight of evidence challenges to his rape conviction. After hearings on May
19, 2005 and May 24, 2005, Judge Dempsey issued an opinion on July 21,
2005, denying Wall’s motions. This timely appeal followed.
¶ 7 In his first issue presented on appeal, Wall argues that the evidence
presented at the bench trial was legally insufficient to sustain his conviction
for rape.4 In evaluating a challenge to the sufficiency of the evidence, we
must determine whether, viewing the evidence in the light most favorable to
the Commonwealth as verdict winner, together with all reasonable
inferences therefrom, the trier of fact could have found every element of the
crime charged beyond a reasonable doubt. See Commonwealth v.
Sullivan, 864 A.2d 1246, 1249 (Pa. Super. 2004).
Superior Court 7/10/08 - COMMONWEALTH OF PENNSYLVANIA v. DAVID JOHN LETTAU
COMMONWEALTH OF PENNSYLVANIA v. DAVID JOHN LETTAU
No. 1396 WDA 2007 2008 PA Super 152 Atlantic: n/a Filed: 7/10/2008
Appeal from the Judgment of Sentence June 28, 2007 In the Court of Common Pleas of Butler County Criminal Division at No. C.A. No. 2635 of 2006
Before: KLEIN, BENDER and POPOVICH, JJ.
Opinion by: BENDER, J.
Dissenting Opinion by: POPOVICH, J.
David John Lettau appeals the judgment of sentence imposed following his conviction of Forgery and Theft by Receiving Stolen Property, 18 Pa. C.S. §§ 4101(a)(3), 3925 (respectively). Lettau contends that the trial court erred in overruling his objection and denying his motion for mistrial based upon the prosecutor’s repeated reference to Lettau’s pre-arrest silence during direct examination of the investigating officer and later on Lettau’s cross-examination. Lettau contends that the Commonwealth’s references were calculated to suggest that he refused to cooperate with the police investigation of his case and in so doing implicitly admitted his guilt of the crimes charged. Upon review, we find Lettau’s assertions meritorious. Accordingly, we vacate his judgment of sentence.
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No. 1396 WDA 2007 2008 PA Super 152 Atlantic: n/a Filed: 7/10/2008
Appeal from the Judgment of Sentence June 28, 2007 In the Court of Common Pleas of Butler County Criminal Division at No. C.A. No. 2635 of 2006
Before: KLEIN, BENDER and POPOVICH, JJ.
Opinion by: BENDER, J.
Dissenting Opinion by: POPOVICH, J.
David John Lettau appeals the judgment of sentence imposed following his conviction of Forgery and Theft by Receiving Stolen Property, 18 Pa. C.S. §§ 4101(a)(3), 3925 (respectively). Lettau contends that the trial court erred in overruling his objection and denying his motion for mistrial based upon the prosecutor’s repeated reference to Lettau’s pre-arrest silence during direct examination of the investigating officer and later on Lettau’s cross-examination. Lettau contends that the Commonwealth’s references were calculated to suggest that he refused to cooperate with the police investigation of his case and in so doing implicitly admitted his guilt of the crimes charged. Upon review, we find Lettau’s assertions meritorious. Accordingly, we vacate his judgment of sentence.
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Wednesday, July 9, 2008
Superior Court 7/9/08 - COMMONWEALTH OF PENNSYLVANIA v. DAVID C. DECK, TRACI M. GEORGIADIS, JOHN F. GEORGIADIS, JR.
COMMONWEALTH OF PENNSYLVANIA v. DAVID C. DECK, TRACI M. GEORGIADIS, JOHN F. GEORGIADIS, JR.
No. 884 MDA 2007 2008 PA Super 150 Atlantic: n/a Filed: 7/9/2008
Appeal from the Order entered on April 23, 2007, in the Court of Common Pleas of Cumberland County, Criminal Division, at No(s). CP-21-CR-0001907-2006, CP-21-CR-0001908-2006, CP-21-CR-0001913-2006
Before: STEVENS, LALLY-GREEN, and FITZGERALD, JJ.
Opinion by: LALLY-GREEN, J.
Appellant, the Commonwealth of Pennsylvania, appeals from the trial court’s order entered on April 23, 2007, granting the motion to preclude introduction of audio tapes filed by Appellee, David C. Deck (“Deck”). We affirm.
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The relevant facts and procedural history may be summarized as follows. In July of 2006, Deck resided with his girlfriend and her minor daughter, C.P. C.P. sought to prove to her mother and the police that Deck was engaging in sexual relations with her. C.P. knew that the police used recording devices to monitor conversations, based on her participation in a previous police investigation. On July 6, 2006, C.P. telephoned Deck at his place of work. Deck was in his office with the door open when he took C.P.’s call. At the start of their conversation, C.P. told Deck that she had placed him on the speakerphone. Without Deck’s knowledge or consent, C.P. recorded the conversation on a cassette tape in an answering machine. Later in the day, C.P. went to the Fairview Township Police Department and gave the tape of the telephone conversation to Officer Tyson Baker.
¶ 3 On September 1, 2006, at Criminal Action No. CP-21-CR-0001907-2006, Deck was charged with statutory sexual assault, involuntary deviate sexual intercourse, aggravated indecent assault, indecent assault, and sexual abuse of children. 18 Pa.C.S.A. §§ 3122.1, 3123(a)(7), 3125, 3126(a)(8), 6312, 306.1
¶ 4 On December 20, 2006, Deck filed a motion to preclude introduction of the audio tape. Deck asserted that the tape recording of his telephone conversation with C.P. was inadmissible at any proceeding against him because it was made in violation of the Wiretapping and Electronic Surveillance Control Act (“Wiretap Act” or “Act”), 18 Pa.C.S.A. § 5701 et seq.
¶ 5 Following a hearing, on April 23, 2007, the trial court granted Deck’s motion and suppressed the tape recording. The trial court determined that the telephone conversation between Deck and C.P. was a wire 1 On September 1, 2006, the Commonwealth also charged John F. Georgiadis, Jr. and Traci M. Georgiadis with engaging in involuntary deviate sexual intercourse with C.P. at Criminal Action No. CP-21-CR-0001908-2006 and Criminal Action No. CP-21-CR-0001913-2006, respectively. On September 1, 2006, the Commonwealth filed a notice of trial joinder, notifying the parties that it intends to try these two cases and Deck’s case together.
¶ 6 The Commonwealth raises the following issue:
1. Did the trial court err in suppressing an audio
tape of a telephone conversation between the 40
year-old defendant and the 15 year-old victim
where, the defendant did not have an
expectation of privacy which society is willing to
recognize as reasonable?
No. 884 MDA 2007 2008 PA Super 150 Atlantic: n/a Filed: 7/9/2008
Appeal from the Order entered on April 23, 2007, in the Court of Common Pleas of Cumberland County, Criminal Division, at No(s). CP-21-CR-0001907-2006, CP-21-CR-0001908-2006, CP-21-CR-0001913-2006
Before: STEVENS, LALLY-GREEN, and FITZGERALD, JJ.
Opinion by: LALLY-GREEN, J.
Appellant, the Commonwealth of Pennsylvania, appeals from the trial court’s order entered on April 23, 2007, granting the motion to preclude introduction of audio tapes filed by Appellee, David C. Deck (“Deck”). We affirm.
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The relevant facts and procedural history may be summarized as follows. In July of 2006, Deck resided with his girlfriend and her minor daughter, C.P. C.P. sought to prove to her mother and the police that Deck was engaging in sexual relations with her. C.P. knew that the police used recording devices to monitor conversations, based on her participation in a previous police investigation. On July 6, 2006, C.P. telephoned Deck at his place of work. Deck was in his office with the door open when he took C.P.’s call. At the start of their conversation, C.P. told Deck that she had placed him on the speakerphone. Without Deck’s knowledge or consent, C.P. recorded the conversation on a cassette tape in an answering machine. Later in the day, C.P. went to the Fairview Township Police Department and gave the tape of the telephone conversation to Officer Tyson Baker.
¶ 3 On September 1, 2006, at Criminal Action No. CP-21-CR-0001907-2006, Deck was charged with statutory sexual assault, involuntary deviate sexual intercourse, aggravated indecent assault, indecent assault, and sexual abuse of children. 18 Pa.C.S.A. §§ 3122.1, 3123(a)(7), 3125, 3126(a)(8), 6312, 306.1
¶ 4 On December 20, 2006, Deck filed a motion to preclude introduction of the audio tape. Deck asserted that the tape recording of his telephone conversation with C.P. was inadmissible at any proceeding against him because it was made in violation of the Wiretapping and Electronic Surveillance Control Act (“Wiretap Act” or “Act”), 18 Pa.C.S.A. § 5701 et seq.
¶ 5 Following a hearing, on April 23, 2007, the trial court granted Deck’s motion and suppressed the tape recording. The trial court determined that the telephone conversation between Deck and C.P. was a wire 1 On September 1, 2006, the Commonwealth also charged John F. Georgiadis, Jr. and Traci M. Georgiadis with engaging in involuntary deviate sexual intercourse with C.P. at Criminal Action No. CP-21-CR-0001908-2006 and Criminal Action No. CP-21-CR-0001913-2006, respectively. On September 1, 2006, the Commonwealth filed a notice of trial joinder, notifying the parties that it intends to try these two cases and Deck’s case together.
¶ 6 The Commonwealth raises the following issue:
1. Did the trial court err in suppressing an audio
tape of a telephone conversation between the 40
year-old defendant and the 15 year-old victim
where, the defendant did not have an
expectation of privacy which society is willing to
recognize as reasonable?
Superior Court 7/9/08 - COMMONWEALTH OF PENNSYLVANIA v. JAMES MATTHEW STRUNK, JR.
COMMONWEALTH OF PENNSYLVANIA v. JAMES MATTHEW STRUNK, JR.
No. 1422 WDA 2007 2008 PA Super 149 Atlantic: n/a Filed: 7/9/2008
Appeal from the Judgment of Sentence entered on April 20, 2007, in the Court of Common Pleas of Blair County, Criminal Division, at No(s). 05 CR 1914
Before: LALLY-GREEN, KLEIN, AND POPOVICH, JJ.
Opinion by: KLEIN, J.
Appellant, James Matthew Strunk, Jr., appeals from the judgment of sentence entered on April 20, 2007, in the Court of Common Pleas of Blair County. We affirm.
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¶ 5 Appellant raises the following issue on appeal:
I. Is your [A]ppellant entitled to a new trial
where one of the jurors may have been
sleeping during the trial and/or the charge and
where the trial judge acknowledged that the
juror had closed his eyes a couple of times?
¶ 6 Appellant claims that he was denied his Sixth Amendment right to a
fair trial by an impartial jury. This right, Appellant urges, encompasses a
jury consisting of 12 people who are paying close attention to the court’s
instruction and the evidence. Appellant argues that because Juror Number
10 was asleep at times, this juror would have to rely upon other jurors’
recollections of the evidence and the judge’s instructions. Therefore,
Appellant claims that he was effectively denied his constitutional right to a
jury of 12 people.
No. 1422 WDA 2007 2008 PA Super 149 Atlantic: n/a Filed: 7/9/2008
Appeal from the Judgment of Sentence entered on April 20, 2007, in the Court of Common Pleas of Blair County, Criminal Division, at No(s). 05 CR 1914
Before: LALLY-GREEN, KLEIN, AND POPOVICH, JJ.
Opinion by: KLEIN, J.
Appellant, James Matthew Strunk, Jr., appeals from the judgment of sentence entered on April 20, 2007, in the Court of Common Pleas of Blair County. We affirm.
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¶ 5 Appellant raises the following issue on appeal:
I. Is your [A]ppellant entitled to a new trial
where one of the jurors may have been
sleeping during the trial and/or the charge and
where the trial judge acknowledged that the
juror had closed his eyes a couple of times?
¶ 6 Appellant claims that he was denied his Sixth Amendment right to a
fair trial by an impartial jury. This right, Appellant urges, encompasses a
jury consisting of 12 people who are paying close attention to the court’s
instruction and the evidence. Appellant argues that because Juror Number
10 was asleep at times, this juror would have to rely upon other jurors’
recollections of the evidence and the judge’s instructions. Therefore,
Appellant claims that he was effectively denied his constitutional right to a
jury of 12 people.
Monday, July 7, 2008
Superior Court 7/7/08 - UNITED PARCEL SERVICE AND LIBERTY MUTUAL INSURANCE COMPANY v. MARK HOHIDER
UNITED PARCEL SERVICE AND LIBERTY MUTUAL INSURANCE COMPANY v. MARK HOHIDER
No. 1596 WDA 2007 2008 PA Super 148 Atlantic: n/a Filed: 7/7/2008
Appeal from the Order Entered July 27, 2007 In the Court of Common Pleas of Westmoreland County Civil Division at No. 1723 of 2007
Before: KLEIN, BENDER and POPOVICH, JJ.
Opinion by: BENDER, J.
Dissenting Opinion by: KLEIN, J.
United Parcel Service and Liberty Mutual Insurance Company (collectively “Employer”) appeal from the order dated and entered on July 27, 2007, that granted Mark Hohider’s (“Claimant”) motion to strike the judgment entered against Claimant on the common pleas docket by Employer. The order that formed the basis for the judgment was issued by a Workers’ Compensation Judge (WCJ) directing Claimant to pay Employer $67,223.23 in satisfaction of Employer’s subrogation lien on a portion of the amount received by Claimant in a third-party action. For the reasons that follow, we reverse.
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¶ 7 Our review of Employer’s praecipe to enter judgment reveals that it
cited two sections of the Workers’ Compensation Act (Act), namely, Section
428 of the Act, 77 P.S. § 921, and Section 319 of the Act, 77 P.S. § 671, to
support its entry of judgment against Claimant for failure to “disgorge to
employer $67,223.23 in satisfaction of employer’s subrogation lien.” WCJ’s
Order, 12/19/06.
¶ 8 “Section 319 of the Act authorizes an employer to be reimbursed for
compensation benefits paid to an injured employee from the award of
damages recovered by that employee from a third party for the work-related
injury.” Kidd-Parker v. W.C.A.B. (Phila. Sch. Dist.), 907 A.2d 33, 37
(Pa. Cmwlth. 2006), appeal denied, 916 A.2d 1104 (Pa. 2007). “[A]s a
general principle of law, the employer’s subrogation rights are statutorily
absolute and can be abrogated only by choice.” Id. at 40 (quoting Winfree
v. Philadelphia Elec. Co., 554 A.2d 485, 487 (Pa. 1989)). The Kidd-
Parker opinion further explained that:
The purpose of this subrogation is threefold: it prevents double
recovery for the same injury; it relieves the employer of liability
occasioned by the negligence of a third party; and it prevents a
third party from escaping liability for his negligence. Dale
Manufacturing Co. v. Bressi, 491 Pa. 493, 421 A.2d 653
(1980). Section 319 is clear and unambiguous; is written in
mandatory terms; and admits no exceptions, equitable or
otherwise. Thompson v. Workers' Compensation Appeal
Board (USF&G Co.), 566 Pa. 420, 781 A.2d 1146 (2001). The
employer’s right to subrogation under Section 319 is automatic,
and it is absolute. Winfree v. Philadelphia Electric Co., 520
Pa. 392, 554 A.2d 485 (1989).
Id. at 37. Accordingly, we conclude that Employer has the absolute right to
subrogation pursuant to Section 319 of the Act. Moreover, the parties
stipulated to the sum due Employer during the proceedings before the WCJ.
No. 1596 WDA 2007 2008 PA Super 148 Atlantic: n/a Filed: 7/7/2008
Appeal from the Order Entered July 27, 2007 In the Court of Common Pleas of Westmoreland County Civil Division at No. 1723 of 2007
Before: KLEIN, BENDER and POPOVICH, JJ.
Opinion by: BENDER, J.
Dissenting Opinion by: KLEIN, J.
United Parcel Service and Liberty Mutual Insurance Company (collectively “Employer”) appeal from the order dated and entered on July 27, 2007, that granted Mark Hohider’s (“Claimant”) motion to strike the judgment entered against Claimant on the common pleas docket by Employer. The order that formed the basis for the judgment was issued by a Workers’ Compensation Judge (WCJ) directing Claimant to pay Employer $67,223.23 in satisfaction of Employer’s subrogation lien on a portion of the amount received by Claimant in a third-party action. For the reasons that follow, we reverse.
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¶ 7 Our review of Employer’s praecipe to enter judgment reveals that it
cited two sections of the Workers’ Compensation Act (Act), namely, Section
428 of the Act, 77 P.S. § 921, and Section 319 of the Act, 77 P.S. § 671, to
support its entry of judgment against Claimant for failure to “disgorge to
employer $67,223.23 in satisfaction of employer’s subrogation lien.” WCJ’s
Order, 12/19/06.
¶ 8 “Section 319 of the Act authorizes an employer to be reimbursed for
compensation benefits paid to an injured employee from the award of
damages recovered by that employee from a third party for the work-related
injury.” Kidd-Parker v. W.C.A.B. (Phila. Sch. Dist.), 907 A.2d 33, 37
(Pa. Cmwlth. 2006), appeal denied, 916 A.2d 1104 (Pa. 2007). “[A]s a
general principle of law, the employer’s subrogation rights are statutorily
absolute and can be abrogated only by choice.” Id. at 40 (quoting Winfree
v. Philadelphia Elec. Co., 554 A.2d 485, 487 (Pa. 1989)). The Kidd-
Parker opinion further explained that:
The purpose of this subrogation is threefold: it prevents double
recovery for the same injury; it relieves the employer of liability
occasioned by the negligence of a third party; and it prevents a
third party from escaping liability for his negligence. Dale
Manufacturing Co. v. Bressi, 491 Pa. 493, 421 A.2d 653
(1980). Section 319 is clear and unambiguous; is written in
mandatory terms; and admits no exceptions, equitable or
otherwise. Thompson v. Workers' Compensation Appeal
Board (USF&G Co.), 566 Pa. 420, 781 A.2d 1146 (2001). The
employer’s right to subrogation under Section 319 is automatic,
and it is absolute. Winfree v. Philadelphia Electric Co., 520
Pa. 392, 554 A.2d 485 (1989).
Id. at 37. Accordingly, we conclude that Employer has the absolute right to
subrogation pursuant to Section 319 of the Act. Moreover, the parties
stipulated to the sum due Employer during the proceedings before the WCJ.
Superior Court 7/7/08 - COMMONWEALTH OF PENNSYLVANIA v. JERMAINE DONNELL FOX
COMMONWEALTH OF PENNSYLVANIA v. JERMAINE DONNELL FOX
No. 546 MDA 2007 2008 PA Super 147 Atlantic: n/a Filed: 7/7/2008
Appeal from the Judgment of Sentence, February 5, 2007, in the Court of Common Pleas of Dauphin County CP-22-CR-0002577-2002, CP-22-CR-0002578-2002
Before: FORD ELLIOTT, P.J., DONOHUE AND POPOVICH, JJ.
Opinion by: FORD ELLIOT, P.J.
Jermaine Donnell Fox appeals from the judgment of sentence of February 5, 2007. We affirm.
¶ 6 Appellant argues that his right to due process was violated where
nearly one year elapsed between remand and re-sentencing. Appellant
contends that the appropriate remedy for this delay was outright dismissal.
We disagree.
¶ 7 Appellant relies on Pennsylvania Rule of Criminal Procedure 704, which
provides that except for good cause shown, sentence shall ordinarily be
imposed within 90 days of conviction or the entry of a plea of guilty or
nolo contendere. Appellant cites Commonwealth v. Anders, 555 Pa.
467, 725 A.2d 170 (1999), in which the Pennsylvania Supreme Court held
that in evaluating a Rule 704 motion for discharge, a defendant must
demonstrate actual prejudice. See also Commonwealth v. Still, 783 A.2d
829 (Pa.Super. 2001)
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No. 546 MDA 2007 2008 PA Super 147 Atlantic: n/a Filed: 7/7/2008
Appeal from the Judgment of Sentence, February 5, 2007, in the Court of Common Pleas of Dauphin County CP-22-CR-0002577-2002, CP-22-CR-0002578-2002
Before: FORD ELLIOTT, P.J., DONOHUE AND POPOVICH, JJ.
Opinion by: FORD ELLIOT, P.J.
Jermaine Donnell Fox appeals from the judgment of sentence of February 5, 2007. We affirm.
¶ 6 Appellant argues that his right to due process was violated where
nearly one year elapsed between remand and re-sentencing. Appellant
contends that the appropriate remedy for this delay was outright dismissal.
We disagree.
¶ 7 Appellant relies on Pennsylvania Rule of Criminal Procedure 704, which
provides that except for good cause shown, sentence shall ordinarily be
imposed within 90 days of conviction or the entry of a plea of guilty or
nolo contendere. Appellant cites Commonwealth v. Anders, 555 Pa.
467, 725 A.2d 170 (1999), in which the Pennsylvania Supreme Court held
that in evaluating a Rule 704 motion for discharge, a defendant must
demonstrate actual prejudice. See also Commonwealth v. Still, 783 A.2d
829 (Pa.Super. 2001)
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Superior Court 7/7/08 - FORD MOTOR COMPANY AND KEYSER & MILLER FORD, INC. v. ROBYN BUSEMAN
FORD MOTOR COMPANY AND KEYSER & MILLER FORD, INC. v. ROBYN BUSEMAN
No. 807 EDA 2007 2008 PA Super 146 Atlantic: n/a Filed: 7/7/2008
Appeal from the Order dated December 4, 2006 In the Court of Common Pleas of Philadelphia County Civil at No(s): June Term, 2005, No. 2272
Before: STEVENS, KLEIN, and POPOVICH, JJ.
Opinion by: STEVENS, J.
This is an appeal from the December 4, 2006 order entered in the Court of Common Pleas of Philadelphia County denying Ford Motor Company and Keyser & Miller Ford, Inc.’s (collectively Appellants) motion for summary judgment. We reverse the order denying Appellants’ motion for summary judgment, and we enter summary judgment in favor of Appellants.
Appellants contend that the releases, which were signed by Appellee in
the federal lawsuit, bar the present lawsuit, and, therefore, summary
judgment should have been granted in favor of Appellants. Specifically,
Appellants contend that (1) the language of the releases is unambiguous and
clearly releases Appellants, (2) there is no evidence of fraud, accident, or
mutual mistake, and (3) Appellee’s unilateral claim of mistake and/or that
she did not intend to release Appellants when she signed the releases is not
a viable defense to the entry of summary judgment.
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No. 807 EDA 2007 2008 PA Super 146 Atlantic: n/a Filed: 7/7/2008
Appeal from the Order dated December 4, 2006 In the Court of Common Pleas of Philadelphia County Civil at No(s): June Term, 2005, No. 2272
Before: STEVENS, KLEIN, and POPOVICH, JJ.
Opinion by: STEVENS, J.
This is an appeal from the December 4, 2006 order entered in the Court of Common Pleas of Philadelphia County denying Ford Motor Company and Keyser & Miller Ford, Inc.’s (collectively Appellants) motion for summary judgment. We reverse the order denying Appellants’ motion for summary judgment, and we enter summary judgment in favor of Appellants.
Appellants contend that the releases, which were signed by Appellee in
the federal lawsuit, bar the present lawsuit, and, therefore, summary
judgment should have been granted in favor of Appellants. Specifically,
Appellants contend that (1) the language of the releases is unambiguous and
clearly releases Appellants, (2) there is no evidence of fraud, accident, or
mutual mistake, and (3) Appellee’s unilateral claim of mistake and/or that
she did not intend to release Appellants when she signed the releases is not
a viable defense to the entry of summary judgment.
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Thursday, July 3, 2008
Superior Court 7/3/08 - COMMONWEALTH OF PENNSYLVANIA v. GREGORY WALLACE
COMMONWEALTH OF PENNSYLVANIA v. GREGORY WALLACE
No. 3546 EDA 2006 2008 PA Super 144 Atlantic: n/a Filed: 7/3/2008
Appeal from the Order entered November 21, 2006 In the Court of Common Pleas of Philadelphia County Criminal at No(s): 0606-0839 1/1
Before: STEVENS, KLEIN, and POPOVICH, JJ.
Opinion by: STEVENS, J.
The Commonwealth appeals from the order entered by the Court of Common Pleas of Philadelphia County on November 21, 2006, granting the motion to suppress of Appellee, Gregory Wallace. Herein, the Commonwealth argues that the trial court erred in granting the motion in that the search warrant in question was supported by probable cause. We agree and reverse and remand for further proceedings.
¶ 7 Pa.R.Crim.P. 203 provides, in pertinent part, that:
A search warrant may be issued in anticipation of a
prospective event as long as the warrant is based upon an
affidavit showing probable cause that at some future time, but
not currently, certain evidence of a crime will be located at a
specified place.
Pa.R.Cri.P. 203(F).
¶ 8 It is well-settled that “in determining whether probable cause for
issuance of a warrant is present a ‘totality of the circumstances’ test” is
employed. Commonwealth v. Murphy, 916 A.2d 679, 681-682 (Pa.Super.
2007). This Court has noted that: “Under such a standard, the task of the
issuing authority is to make a practical, common sense assessment whether,
given all the circumstances set forth in the affidavit, there is a fair
probability that contraband or evidence of a crime will be found in a
particular place.” Id. at 682 (citation omitted). In Commonwealth v.
West, 937 A.2d 516 (Pa.Super. 2007), this Court reiterated the above
standard, adding that “[p]robable cause does not require a prima facie
showing of criminal activity.” Id. at 530 (citation omitted). See
Commonwealth v. Gannon, 454 A.2d 561, 565 (Pa.Super. 1982) (“The
critical element in a reasonable search is not that the owner of the property
J. A11010/08
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is suspected of crime but that the specific ‘things’ to be searched for and
seized are located on the property to which entry is sought.”) (citation
omitted).
¶ 9 The Supreme Court has explained that “[p]robable cause is a
‘practical, nontechnical conception:’ it ‘is a fluid concept -- turning on the
assessment of probabilities in particular factual contexts not readily, or even
usefully, reduced to a neat set of legal rules.’” Commonwealth v. Glass,
562 Pa. 187, 201, 754 A.2d 655, 663 (2000) (citations omitted). “[T]he
notion of probable cause [is] based on ‘the factual and practical
considerations of everyday life on which reasonable and prudent men, not
legal technicians, act.’” Commonwealth v. Gray, 509 Pa. 476, 483, 503
A.2d 921, 925 (1985), quoting Illinois v. Gates, 462 U.S. 213, 231 (1983).
¶ 10 Moreover, we note that “[a] reviewing court may not conduct a de
novo review of the issuing authority’s probable cause determination. The
role of both the reviewing court and the appellate court is confined to
determining whether there is substantial evidence in the record supporting
the decision to issue the warrant.” Commonwealth v. Huntington, 924
A.2d 1252, 1259 (Pa.Super. 2007) (internal citations omitted).
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No. 3546 EDA 2006 2008 PA Super 144 Atlantic: n/a Filed: 7/3/2008
Appeal from the Order entered November 21, 2006 In the Court of Common Pleas of Philadelphia County Criminal at No(s): 0606-0839 1/1
Before: STEVENS, KLEIN, and POPOVICH, JJ.
Opinion by: STEVENS, J.
The Commonwealth appeals from the order entered by the Court of Common Pleas of Philadelphia County on November 21, 2006, granting the motion to suppress of Appellee, Gregory Wallace. Herein, the Commonwealth argues that the trial court erred in granting the motion in that the search warrant in question was supported by probable cause. We agree and reverse and remand for further proceedings.
¶ 7 Pa.R.Crim.P. 203 provides, in pertinent part, that:
A search warrant may be issued in anticipation of a
prospective event as long as the warrant is based upon an
affidavit showing probable cause that at some future time, but
not currently, certain evidence of a crime will be located at a
specified place.
Pa.R.Cri.P. 203(F).
¶ 8 It is well-settled that “in determining whether probable cause for
issuance of a warrant is present a ‘totality of the circumstances’ test” is
employed. Commonwealth v. Murphy, 916 A.2d 679, 681-682 (Pa.Super.
2007). This Court has noted that: “Under such a standard, the task of the
issuing authority is to make a practical, common sense assessment whether,
given all the circumstances set forth in the affidavit, there is a fair
probability that contraband or evidence of a crime will be found in a
particular place.” Id. at 682 (citation omitted). In Commonwealth v.
West, 937 A.2d 516 (Pa.Super. 2007), this Court reiterated the above
standard, adding that “[p]robable cause does not require a prima facie
showing of criminal activity.” Id. at 530 (citation omitted). See
Commonwealth v. Gannon, 454 A.2d 561, 565 (Pa.Super. 1982) (“The
critical element in a reasonable search is not that the owner of the property
J. A11010/08
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is suspected of crime but that the specific ‘things’ to be searched for and
seized are located on the property to which entry is sought.”) (citation
omitted).
¶ 9 The Supreme Court has explained that “[p]robable cause is a
‘practical, nontechnical conception:’ it ‘is a fluid concept -- turning on the
assessment of probabilities in particular factual contexts not readily, or even
usefully, reduced to a neat set of legal rules.’” Commonwealth v. Glass,
562 Pa. 187, 201, 754 A.2d 655, 663 (2000) (citations omitted). “[T]he
notion of probable cause [is] based on ‘the factual and practical
considerations of everyday life on which reasonable and prudent men, not
legal technicians, act.’” Commonwealth v. Gray, 509 Pa. 476, 483, 503
A.2d 921, 925 (1985), quoting Illinois v. Gates, 462 U.S. 213, 231 (1983).
¶ 10 Moreover, we note that “[a] reviewing court may not conduct a de
novo review of the issuing authority’s probable cause determination. The
role of both the reviewing court and the appellate court is confined to
determining whether there is substantial evidence in the record supporting
the decision to issue the warrant.” Commonwealth v. Huntington, 924
A.2d 1252, 1259 (Pa.Super. 2007) (internal citations omitted).
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Superior Court 7/3/08 - COMMONWEALTH OF PENNSYLVANIA v. VICKY D. SCOTT
COMMONWEALTH OF PENNSYLVANIA v. VICKY D. SCOTT
No. 1414 MDA 2007 2008 PA Super 145 Atlantic: n/a Filed: 7/3/2008
Appeal from the Judgment of Sentence Entered July 11, 2007, Court of Common Pleas, Lackawanna County, Criminal Division, at No. CP-35-CR-0001675-2006.
Before: FORD ELLIOTT, PJ, SHOGAN and COLVILLE, JJ.
Opinion by: SHOGAN, J.
Appellant, Vicky D. Scott, appeals from the judgment of sentence entered following her convictions of seven counts of arson endangering persons, seven counts of recklessly endangering another person, and one count of arson endangering property. We remand for further proceedings.
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In the instant matter, our review of the record reflects that Appellant filed her notice of appeal on August 9, 2007. On August 14, 2007, the trial court issued an order directing Appellant to file a statement pursuant to Rule 1925(b). However, the record further reflects that Appellant has completely failed to file a Rule 1925(b) statement as directed. Thus, we are convinced that counsel has been per se ineffective. Moreover, the trial court has not prepared an opinion pursuant to Rule 1925(a). Therefore, we are constrained to follow the dictates of Rule 1925(c)(3), as amended, and to remand for the filing of a Rule 1925(b) statement nunc pro tunc within 30 days of this Opinion and for the preparation of an opinion by the trial court, to be filed with this Court 30 days thereafter. See also Commonwealth v. West, 883 A.2d 654, 658 (Pa. Super. 2005) (remanding for the filing of a Rule 1925(b) statement and preparation of a trial court opinion and retaining jurisdiction).
¶ 7 Remanded for further proceedings consistent with this Opinion. Panel jurisdiction retained.
No. 1414 MDA 2007 2008 PA Super 145 Atlantic: n/a Filed: 7/3/2008
Appeal from the Judgment of Sentence Entered July 11, 2007, Court of Common Pleas, Lackawanna County, Criminal Division, at No. CP-35-CR-0001675-2006.
Before: FORD ELLIOTT, PJ, SHOGAN and COLVILLE, JJ.
Opinion by: SHOGAN, J.
Appellant, Vicky D. Scott, appeals from the judgment of sentence entered following her convictions of seven counts of arson endangering persons, seven counts of recklessly endangering another person, and one count of arson endangering property. We remand for further proceedings.
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In the instant matter, our review of the record reflects that Appellant filed her notice of appeal on August 9, 2007. On August 14, 2007, the trial court issued an order directing Appellant to file a statement pursuant to Rule 1925(b). However, the record further reflects that Appellant has completely failed to file a Rule 1925(b) statement as directed. Thus, we are convinced that counsel has been per se ineffective. Moreover, the trial court has not prepared an opinion pursuant to Rule 1925(a). Therefore, we are constrained to follow the dictates of Rule 1925(c)(3), as amended, and to remand for the filing of a Rule 1925(b) statement nunc pro tunc within 30 days of this Opinion and for the preparation of an opinion by the trial court, to be filed with this Court 30 days thereafter. See also Commonwealth v. West, 883 A.2d 654, 658 (Pa. Super. 2005) (remanding for the filing of a Rule 1925(b) statement and preparation of a trial court opinion and retaining jurisdiction).
¶ 7 Remanded for further proceedings consistent with this Opinion. Panel jurisdiction retained.
Wednesday, July 2, 2008
Superior Court 7/2/08 - DENTAL CARE ASSOCIATES, INC. v. KELLER ENGINEERS, INC.
DENTAL CARE ASSOCIATES, INC. v. KELLER ENGINEERS, INC.
No. 698 MDA 2007 2008 PA Super 143 Atlantic: n/a Filed: 7/2/2008
Appeal from the Order April 2, 2007 In the Court of Common Pleas of Lycoming County, Civil Division at No. 06-00497
Before: FORD ELLIOTT, P.J., DONOHUE, and POPOVICH, JJ.
Opinion by: POPOVICH, J.
Appellant Dental Care Associates, Inc. appeals the order denying its “Petition to Strike/Open Judgment of Non Pros” due to its failure to file a certificate of merit. We affirm.
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Sub judice, consistent with the rationale in Varner, we hold that
Appellee, a Pennsylvania corporation engaged in the business of providing
engineering services, qualifies as a “licensed professional” for purposes of
the certificate of merit provisions under Rule 1042.1(b)(1)(vi). Concomitant
therewith, we conclude that Appellant’s causes of action against Appellee are
inextricably intertwined with the propriety of assessing the professional
engineering services Appellee provided in the storm water management plan
and civil design of Appellant’s property. This is evident from an examination
of the report prepared by the consultant (Brinjac Engineering) hired by
Appellant to review the design work performed by Appellee; to-wit:
BRINJAC has reviewed [Appellee’s] Storm [W]ater
Management Report for the property and found the report
to be thorough in scope and of sound engineering
methods. There was a discrepancy noted on the pages entitled
SCS segmental Travel Time, in which, the pre[-] and post[-
]development overland flow lengths did not appear to match the
Time of Concentration line depicted on the plans. Upon
reevaluation of these values in accordance with PennDOT’s
Design Manual 2 Chapter 10, BRINJAC found that the post[-
]development storm flows increased approximately 0.75 to 1
cubic foot per second per design year. The existing pipe network
onsite has the capacity to convey this increase in flow.
Exhibit “D” attached to Appellant’s “Petition to Strike and Open Judgment of
Non Pros,” 11/13/05; Record No. 19 (emphasis added).3 We read the
preceding excerpt, which is exemplary of the content of the Brinjac
Engineering Report, to contain topics “beyond the realm of common
knowledge and experience” that would require expert testimony to explicate.
No. 698 MDA 2007 2008 PA Super 143 Atlantic: n/a Filed: 7/2/2008
Appeal from the Order April 2, 2007 In the Court of Common Pleas of Lycoming County, Civil Division at No. 06-00497
Before: FORD ELLIOTT, P.J., DONOHUE, and POPOVICH, JJ.
Opinion by: POPOVICH, J.
Appellant Dental Care Associates, Inc. appeals the order denying its “Petition to Strike/Open Judgment of Non Pros” due to its failure to file a certificate of merit. We affirm.
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Sub judice, consistent with the rationale in Varner, we hold that
Appellee, a Pennsylvania corporation engaged in the business of providing
engineering services, qualifies as a “licensed professional” for purposes of
the certificate of merit provisions under Rule 1042.1(b)(1)(vi). Concomitant
therewith, we conclude that Appellant’s causes of action against Appellee are
inextricably intertwined with the propriety of assessing the professional
engineering services Appellee provided in the storm water management plan
and civil design of Appellant’s property. This is evident from an examination
of the report prepared by the consultant (Brinjac Engineering) hired by
Appellant to review the design work performed by Appellee; to-wit:
BRINJAC has reviewed [Appellee’s] Storm [W]ater
Management Report for the property and found the report
to be thorough in scope and of sound engineering
methods. There was a discrepancy noted on the pages entitled
SCS segmental Travel Time, in which, the pre[-] and post[-
]development overland flow lengths did not appear to match the
Time of Concentration line depicted on the plans. Upon
reevaluation of these values in accordance with PennDOT’s
Design Manual 2 Chapter 10, BRINJAC found that the post[-
]development storm flows increased approximately 0.75 to 1
cubic foot per second per design year. The existing pipe network
onsite has the capacity to convey this increase in flow.
Exhibit “D” attached to Appellant’s “Petition to Strike and Open Judgment of
Non Pros,” 11/13/05; Record No. 19 (emphasis added).3 We read the
preceding excerpt, which is exemplary of the content of the Brinjac
Engineering Report, to contain topics “beyond the realm of common
knowledge and experience” that would require expert testimony to explicate.
Tuesday, July 1, 2008
Superior Court 7/1/08 - RANDOLPH D. DAHL SR. AND MARY K. DAHL v. AMERIQUEST MORTGAGE COMPANY, et al.
RANDOLPH D. DAHL SR. AND MARY K. DAHL v. AMERIQUEST MORTGAGE COMPANY, NATIONAL REAL ESTATE INFORMATION SERVICES and INSURANCE SOLUTIONS CONCEPT, INC.
No. 1333 WDA 2007 2008 PA Super 142 Atlantic: n/a Filed: 7/1/2008
Appeal from the Judgment entered June 25, 2007, in the Court of Common Pleas of Butler County, Civil, at A.D. No. 01-10951.
Before: MUSMANNO, POPOVICH and HUDOCK, JJ.
Opinion by: HUDOCK, J.
This is an appeal from the trial court’s final judgment entered in this case. We affirm.
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Appellants raise the following issues on appeal:
1. Did the Trial Court err in dismissing [Appellants’] RESPA claim against [Ameriquest] by determining as a matter of law that the settlement escrow account created to make payment of hazard insurance on [Appellants’] property was not covered by RESPA?
2. Did the Trial Court err in dismissing [Appellants’] RESPA claim against [NREIS] by determining as a matter of law that NREIS was not a “servicer” of the mortgage as defined by RESPA?
Appellees also argue that Appellants’ failure to file a post-trial motion under Pennsylvania Rule of Civil Procedure 227.1(c)(2) waives all issues on appeal.7 Rule 227.1(c) provides that:
(c) Post-trial motions shall be filed within ten days after
(1) verdict, discharge of the jury because of inability to agree, or nonsuit in the case of a jury trial; or
(2) notice of nonsuit or the filing of the decision in the case of a trial without jury.
Pa.R.C.P. 227.1(c). However, in this case, there was no trial on the merits of the RESPA claims. Appellants challenge the trial court’s dismissal of their RESPA claims against Appellees; Appellants do not make claims involving issues raised during a trial or which must be presented to the trial court through post-trial motions in order to be preserved. DiGregorio v. Keystone Health Plan East, 840 A.2d 361, 365 (Pa. Super 2003) (holding that a motion for post-trial relief “may not be filed pursuant to an order disposing of a motion for summary judgment or other motion relating to a proceeding other than trial”). Thus, Appellants have not waived their RESPA claims by failing to file a post-trial motion. Therefore, Ameriquest’s motion to quash is denied.
No. 1333 WDA 2007 2008 PA Super 142 Atlantic: n/a Filed: 7/1/2008
Appeal from the Judgment entered June 25, 2007, in the Court of Common Pleas of Butler County, Civil, at A.D. No. 01-10951.
Before: MUSMANNO, POPOVICH and HUDOCK, JJ.
Opinion by: HUDOCK, J.
This is an appeal from the trial court’s final judgment entered in this case. We affirm.
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Appellants raise the following issues on appeal:
1. Did the Trial Court err in dismissing [Appellants’] RESPA claim against [Ameriquest] by determining as a matter of law that the settlement escrow account created to make payment of hazard insurance on [Appellants’] property was not covered by RESPA?
2. Did the Trial Court err in dismissing [Appellants’] RESPA claim against [NREIS] by determining as a matter of law that NREIS was not a “servicer” of the mortgage as defined by RESPA?
Appellees also argue that Appellants’ failure to file a post-trial motion under Pennsylvania Rule of Civil Procedure 227.1(c)(2) waives all issues on appeal.7 Rule 227.1(c) provides that:
(c) Post-trial motions shall be filed within ten days after
(1) verdict, discharge of the jury because of inability to agree, or nonsuit in the case of a jury trial; or
(2) notice of nonsuit or the filing of the decision in the case of a trial without jury.
Pa.R.C.P. 227.1(c). However, in this case, there was no trial on the merits of the RESPA claims. Appellants challenge the trial court’s dismissal of their RESPA claims against Appellees; Appellants do not make claims involving issues raised during a trial or which must be presented to the trial court through post-trial motions in order to be preserved. DiGregorio v. Keystone Health Plan East, 840 A.2d 361, 365 (Pa. Super 2003) (holding that a motion for post-trial relief “may not be filed pursuant to an order disposing of a motion for summary judgment or other motion relating to a proceeding other than trial”). Thus, Appellants have not waived their RESPA claims by failing to file a post-trial motion. Therefore, Ameriquest’s motion to quash is denied.
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