Pa. appellate judges kick the can down the road with some rulings last year
January 16, 2012 3:00 PM
By Gabrielle Banks Pittsburgh Post-Gazette
Is a 17-year-old with sketchy grammar and average grades mature enough to get an abortion without her parents' consent?
Should a town be able to set its own geographic restrictions for where sex offenders can live?
Must a state trooper pay out of his own pocket for injuries sustained in an on-duty accident with an under-insured motorist?
While 2011 wasn't a show-stopping year for appellate court rulings, judges in Pennsylvania wrangled with these and a variety of other compelling legal questions.
The Pittsburgh Post-Gazette asked several Pittsburgh lawyers who track the state judiciary to highlight criminal and civil cases that jumped out during the past year. In some, the high court judges ruled firmly on one side; in others, the court split, kicking the can down the road.
• Bruce Ledewitz, who teaches criminal and constitutional law at Duquesne Law School, told us "the only noteworthy case" of 2011 was
Gillard v. AIG Insurance Co.
Two other experts we consulted also cited Gillard, in which the state Supreme Court fleshed out the definition of attorney-client privilege.
The insurance company involved in this suit was said to have handled a claim in bad faith, rejecting a customer's claim for no apparent reason.
The claimants' attorney sought discovery of opposing counsel's advice to the company regarding the claim. The lower court granted access to it, based on the notion that attorney-client privilege only works in one direction: it protects what a client says to an attorney.
However, the state Supreme Court ruled that attorney-client privilege protects communication in both directions. Otherwise, the suing party would have been allowed to see what advice lawyers gave the insurance company, explained Louis C. Long, a partner and chair of the appellate group at Pietragallo Gordon Alfano Bosick & Raspanti, LLP, another expert who cited this case.
If the company lawyer told the insurer it had no basis to deny the claim and the company denied it anyway, the claimants could use that communication as evidence against the insurer.
"The court regarded public policy as favoring parties that seek out legal advice and it deemed that advice to be confidential," Mr. Long said.
• Mr. Long also listed among last year's key decisions a Superior Court case,
Barrick v. Holy Spirit Hospital.
In it, a hospital asked the court to allow discovery of communication between a patient's lawyer and an expert witness.
The witness, the man's treating physician at the hospital, had initially said that a collapsing chair on the premises did not injure a patient. Upon further consultation with the man's lawyer out of court, the doctor testified the chair could have caused an injury. The hospital wanted to see communications between the doctor and the lawyer.
The lower court permitted discovery, but the Superior Court reversed.
"The decision is important because expert witnesses are becoming an essential part of contemporary litigation," Mr. Long said. "Cases can be won or lost on the strength of what the expert says and how the expert says it."
• Expert witnesses in Pennsylvania still have no latitude, however, to testify about the reliability of eyewitness identifications, a matter worth noting, said Bruce A. Antkowiac, veteran law professor and director of the Criminology, Law and Society Program at Saint Vincent College. In
Commonwealth v. Selenski
, the Superior Court refused to allow expert testimony on the reliability of eyewitness identification.
Mr. Antkowiac said Pennsylvania is one of just two states that do not allow experts to testify about the science behind eyewitness identification. "Federal courts have permitted this for decades and three-fourths of wrongful conviction cases have at least one 'positive' ID, yet we decline to permit it."
• Witold Walczak, Pennsylvania legal director of the American Civil Liberties Union, noted a
Jane Doe case
the ACLU was involved with, in which a girl three months shy of her 18th birthday sought to bypass the requirement of parental consent for an abortion.
An Allegheny County Common Pleas judge had rejected her petition on the basis that she had average grades, poor grammar and was not mature enough to make an informed decision, because she had opted not to consult her mother beforehand.
The Supreme Court majority held that a girl's failure to consult with a parent could not be used as a standard for denying a petition for judicial bypass. It's not for a judge to determine whether abortion is the best decision, the court said, but merely whether a minor is capable and mature enough to make the decision on her own.
"This was a particularly egregious decision because the judge relied on completely irrelevant and impossible factors such as the child's grammar and whether she'd ever opened a bank account," Mr. Walczak said.
• The ACLU was also involved with
Fross v. Allegheny County
, which dealt with a local ordinance restricting where sex offenders can live.
Six sex offenders subject to Megan's Law registration and housing restrictions in Allegheny County filed suit in federal court against the county. They argued the state sentencing code and the precursor to the parole code pre-empted the local ordinance, which said sex offenders couldn't live "within 2,500 feet of any child care facility, community center, public park or recreational facility or school."
Judge Gary L. Lancaster of the U.S. District Court for the Western District found that the ordinance was an "obstacle" to carrying out the objective of Megan's Law, noting the "conflict with state law is evident: Where the state has decided that the offender is ready to return to his community, the county has placed a nearly insurmountable obstacle in the way of that return."
On appeal by Allegheny County, a panel of the 3rd U.S. Circuit Court of Appeals referred the case to the state Supreme Court, which found that allowing each community to create its own living restrictions for sex offenders undermines the ability of judges, probation officers and treatment professionals to determine how best to protect public safety.
• Robert Byer, a former Commonwealth Court judge who heads the appellate group at Duane Morris, offered another notable opinion:
Slippery Rock Area School District v. Pennsylvania Cyber Charter School
In that case, the state Supreme Court reversed a unanimous decision by the Commonwealth Court. The high court said if a public school district does not offer kindergarten to 4-year-olds, it is not obligated to fund cyber charter for 4-year-olds.
• The court split on two important tort liability cases, Mr. Byer said. In the first,
Toney v. Chester County Hospital
, a woman sued for negligent infliction of emotional distress after her baby was born with "profound deformities" that had not been noted in ultrasound exams.
The hospital had told her the baby looked fine, which her lawyer said constituted a negligent breach of contractual or fiduciary duty.
The Toney decision, Mr. Byer said, "shows the deep division on the Supreme Court on issues of tort liability."
The 3-3 split means that the Supreme Court will let stand the opinion of the lower court, which said the mother should be allowed to claim for negligent infliction of emotional distress -- even though she was not "physically impacted" by the negligence.
Schmidt v. Boardman Co.
, in which one child was killed and another badly injured by a fire hose that came loose on a Coraopolis fire truck, Mr. Byer said the Supreme Court made a significant procedural ruling, but it again split, 3-3, and kicked the can down the road on two matters.
The first question was whether a new company that bought a fire nozzle business should be liable for a defective product made by the old company.
"Traditionally, when you buy assets, you don't assume the liabilities. They stay with the company unless you expressly agree to take them over," Mr. Byer said. However, he said, "There is movement in the Superior Court toward doing away" with that standard.
The court also split on the question of whether product liability damages could be extended to bystanders -- parents of the girls -- who suffered post-traumatic stress, depression and other ailments after witnessing the accident.
Williams v. Geico
, a state trooper was seriously injured in an on-duty accident with motorist. The motorist did not have enough insurance coverage to compensate for the trooper's injuries. The trooper, a 10-year-veteran of the force, sought to get his injuries covered by his own personal auto insurance, Geico.
But since it was an employer-owned car and he worked for the state, he couldn't recover expenses, and the Supreme Court ruled for Geico. Had he been an employee of a private company, he could have recovered the money.
• In criminal cases, Mr. Antkowiac said the Supreme Court also established, in
Commonwealth v. Roebuck
, that a person may be held as an accomplice to a crime in which the primary suspect is only proved guilty of willful recklessness.
He said the appellate courts made several new rulings on search-and-seizure cases. In
Commonwealth v. Holmes
, the Supreme Court found having an object dangling from your car's rearview mirror constitutes reasonable suspicion to stop a car. And in
Commonwealth v. Joseph
, the Superior Court ruled that officers must have probable cause to impound a car for the purpose of later subjecting it to a search.
• Wrapping up the 2011 judicial summary on a sunny note, Mr. Antkowiac cited a state Supreme Court opinion reversing an insurance fraud ruling, in which Justice J. Michael Eakin (once again) rendered an entire opinion in rhyming verse:
"Never thinking that appellant's check might have a minor flaw (like perhaps being a forgery), it allowed him to withdraw / several thousand dollars and, days later, a few thousand more; He'd taken over $5,000 before the bank would learn the score / There was no evidence appellant seemed the least bit nervous, having picked a branch with such unmatched customer service."