2012 Pennsylvania Superior Court: Top issues revolved around constitution

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In a year in which many eyes were focused on Pennsylvania trial courts -- where proceedings in the Penn State sex-abuse scandal and a prosecution against a high official of the Catholic Archdiocese of Philadelphia played out -- the state Superior Court took increased measures to broaden the availability of its body of work and weigh in on issues ranging from automobile litigation to how juvenile murderers are sentenced.

In 2012, the court announced two initiatives widely seen as steps in the direction of transparency: a website making available all filings in "high-profile cases" and a long-awaited decision to publish non-precedential memorandum opinions. The court announced it would be publishing the opinions, which are not citable law, in October. The court's president judge, Correale F. Stevens, confirmed the cases would be available by the start of the new year.

As for precedent, the intermediate appellate court decided several noteworthy cases on issues ranging from automobile litigation to criminal matters to appeals out of family court.

Perhaps the most closely followed cases were two cases that, though worlds apart in subject matter, were both decided through interpreting the state constitution. In one case, the court struck down a Pennsylvania statute banning so-called "wrongful birth" actions on the grounds that the law was enacted unconstitutionally.

In Sernovitz v. Dershaw, the court concluded the enactment of the law banning wrongful birth and wrongful life actions violated the "single-subject rule" contained in Article III, Section 3 of the Pennsylvania Constitution. Act 47, in which the law was passed, was intended to address post-trial matters in criminal cases.

The other matter was a pair of criminal appeals by twin brothers, both of whom were convicted of murder as juveniles. In two separate opinions captioned Commonwealth v. Knox, the court ruled mandatory life sentences for juveniles without the possibility of parole violated the constitution. The decisions implemented the U.S. Supreme Court's decision in Miller v. Alabama.

Since the Knox case was decided, though, the Pennsylvania General Assembly has amended the statute on sentencing juvenile murderers, seemingly guiding courts from here on out.

But the Superior Court weighed in again to note the law could not broadly apply to every case. Particularly, the court was referring to cases where the defendant has preserved issues of constitutionality on direct appeal. The three-judge panel therefore remanded the matter of Commonwealth v. Lofton to the Philadelphia Court of Common Pleas for resentencing.

Also of note from the frontline appeals court: past surgical notes are not discoverable in medical malpractice suits, a bipolar man does not have to give his mental health records to his ex-wife in their custody case, and Lisa Michelle Lambert -- the defendant in one of the most-watched murder trials in Pennsylvania history, in which she was convicted of stalking and killing a girl she thought was romantically involved with her boyfriend -- may have seen her last day in court after two decades of appeals.

Auto cases

In Smith v. Rohrbaugh, the Superior Court ruled state law does not allow for underinsured motorist recovery to offset an award against a third-party tortfeasor. The ruling means a plaintiff may secure such benefits before advancing a claim against a third-party tortfeasor.

In so holding, the en banc panel abrogated the credit it had previously carved out in Pusl v. Means, overruling its decision in that case. The panel's decision, in essence, was that the Pusl court had wrongly equated underinsured motorist recovery with first-party benefits when the specific offset provision in the Motor Vehicle Financial Responsibility Law does not make any mention of underinsured benefits.

In a case awaiting proceedings before the state Supreme Court, the Superior Court ruled an insurer was prejudiced by an insured's failure to timely notify the insurer a phantom vehicle had been involved in an accident before filing a claim for underinsured motorist benefits.

Seven-figure cases

In 2012, the court issued decisions in several cases where the award or potential award was in the tens of millions. That list includes a case where the court decided to vacate $90.3 million in future damages awarded in a coal-mining contract dispute.

The court also modified the damage award in two cases that initially resulted in combined punitive damages awards of more than $100 million against drugmakers Wyeth and Pharmacia & Upjohn Inc. The punitive damages ultimately totaled a combined $35.5 million after the Superior Court's ruling.

In another decision that made headlines this year, the court reinstated a $500 million malpractice suit against K&L Gates and accounting firm Pascarella & Wiker for their alleged failure to detect fraudulent activity at the now-bankrupt Le-Nature's. The lawsuit is over an internal investigation the firms conducted at Le-Nature's years before its bankruptcy.

In May, a three-judge panel overturned an Allegheny trial court's ruling in Kirschner v. K&L Gates, instead finding K&L Gates did have an attorney-client relationship with Le-Nature's and not just the special committee that hired the firm to investigate allegations of fraud. The court also found Le-Nature's suffered damages and that they, according to facts pleaded in the complaint, were proximately caused by K&L Gates' actions.

Also of note

In Landay v. Rite Aid, the court ruled pharmacists are considered health care providers for purposes of the Medical Records Act, a decision that renewed a class action brought by attorneys who alleged they were overcharged by Rite Aid when the pharmacy charged a flat fee of $50 each time a person's pharmacy records were requested.

Two appeals out of Pennsylvania family courts also drew attention. In Reber v. Reiss, a panel ruled a woman's ability to have children outweighs her ex-husband's interest in not procreating. In so holding, the panel ruled on an issue of first impression, awarding 13 frozen pre-embryos to a man's ex-wife as part of the couple's equitable distribution in their divorce. The man, who already had a child with another woman, wanted the embryos destroyed.


Ben Present: bpresent@alm.com. To read more articles, visit www.thelegalintelligencer.com.


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