by Francis Notarianni

Here’s a recap of February’s most important and most interesting appellate cases:

Notable New Precedential Decisions:

  • Statutory attorneys’ fees w/ an administrative law twist: In Clean Air Council v. Dep’t of Envtl. Prot.¸ ___A.3d___, 2023 WL 2145657 (Pa. Feb. 22, 2023), the Court considered whether the DEP had discretion to limit application of the Clean Streams Law’s attorneys’ fees provision to circumstances where bad faith exists. The majority first held that because the case presents an issue of statutory interpretation—i.e., whether the DEP exceeded its discretion in restricting the application of fees— it would apply a de novo standard of review instead of the abuse of discretion standard typically applied in the administrative context. See id. at *12-14. The majority then concluded the Board’s interpretation of the fees provision conflicted with its plain language—which was broad and contained no limiting language—and was at odds with the express legislative goal of promoting clean water because it would discourage citizens from policing the permitting process. See id. at *16-17; *20.  
  • $0.38 sales tax refund: In Myers v. Commonwealth, ___A.3d___, 2023 WL 2145639 (Pa. Feb. 22, 2023), the Court examined the Tax Code’s requirements for establishing a new purchase price on a receipt for purposes of imposing a sales tax. The majority concluded the Code requires a receipt show: (1) the amount of the discount; (2) whether it was a discount or coupon that was applied; and (3) a description of the discount or coupon. See id. at *8-10. Here, the Court concluded that because the taxpayer’s receipts simply stated “SCANNED COUP” the description was insufficient to satisfy the Tax Code and therefore he was not entitled to refund. See id. at *9.
  • OAG’s concurrent representation and PA sales tax for services: In Synthes USA HQ, Inc. v. Commonwealth, ___A.3d___, 2023 WL 2145670 (Pa. Feb. 22, 2023), the Court initially determined that the Attorney General was permitted, pursuant to the Commonwealth Attorney’s Act, to represent the Commonwealth separately—i.e., take a different position than—the Department of Revenue. See at *14. The majority, however, observed that such representation implicates ethical obligations regarding concurrent representation—between the current client (Commonwealth) and former client (Department)—and implicitly questioned the Attorney General’s compliance with the Rules of Professional Conduct. See id. at *16-17. On the merits, the majority adopted the “benefit received” method of sourcing sales of service—for purposes of establishing a company’s “income producing activity” under the Tax Reform Code. See id. at *25 The benefit received method, according to the majority, is consistent with other provisions in the Code that “locate[] the sale of services to where the service is fulfilled and the income finally produced, which is at the customer’s location . . . .” Id.
  • Physical force not required under 18 Pa.C.S. § 2702(a)(1): In United States v. Harris, ___A.3d___, 2023 WL 2147248 (Pa. Feb. 22, 2023), the majority—considering a certified question from the Third Circuit—held that the use or attempted use of physical force is not required under Section 2702(a)(1) (aggravated assault). See id. at *8-10. The majority observed that the Section 2702(a)(1) does not mention force at all and that the use of “serious bodily injury” focuses on the nature of the injury rather than the manner in which it was inflicted. See id. at *9. The majority also deemed persuasive Commonwealth v. Thomas, 867 A.2d 594 (Pa. Super. 2005) (upholding Section 2702(a)(1) conviction where defendant starved child to death) which declined to find a force requirement where none exists in the statute and where no court has interpreted Section 2702(a)(1) to require force. See id. at *9-10.
  • Executive compensation and public charity status: In Pottstown Sch. Dist. v. Montgomery Cty. Bd. of Assessment Appeals, ___A.3d___, 2023 WL 1871505 (Pa. Cmwlth. Feb. 10, 2023) (en banc),the panel distinguished Phoebe Services, Inc. v. City of Allentown, 262 A.3d 660 (Pa. Cmwlth. 2021) (executive salaries not unreasonable for purposes of the “purely public charity” analysis because the executives’ pay was “typical of other healthcare nonprofits, represents fair market value for the services provided, and is not directly tied to the financial status of the nonprofit” and “designed to stay competitive within the market, and retain employees rather than lose the employees to competitors in the market”) and denied the Hospital tax exempt status based on its executive salaries—which were in the 90th percentile for such salaries. See id. at *9. The panel reasoned that “tying 40% of the bonus incentives to Hospital’s financial performance is sufficiently substantial to indicate a private profit motive” in violation of the constitutional analysis used to determine whether an entity is “purely a public charity.” Id.
  • Latent occupational disease claimant has common law claim: In Herold v. Univ. of Pittsburgh – of Commonwealth Sys. of Higher Educ., et al., ___A.3d___, 2023 WL 2028266 (Pa. Cmwlth. Feb. 16, 2023), the panel concluded an “occupational disease that manifests more than 4 years after an employee’s last exposure to hazards causing that disease is not subject to the exclusive remedy mandate of the” Pennsylvania Occupational Disease Act, and thus the injured worker could pursue common law claims. See id. at *3. The panel was guided by the Act’s unambiguous language, as well as the Supreme Court’s decision in Tooey v. AK Steel Corp., 81 A.3d 851 (Pa. 2013) (interpreting as similar provision in the Workers’ Compensation Act). See id. at *8-10. The court reasoned that the legislature did not intend claimants suffering from latent occupational diseases to be precluded from compensation. See id. at *12.
  • Inventory Searches: Commonwealth v. Thompson, ___A.3d___, 2023 WL 1793568 (Pa. Super. Feb 7, 2023) the panel concluded that Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020) (requiring probable cause and exigent circumstances for warrantless vehicle search) did not eliminate the inventory search exception to the warrant requirement. The court observed that the inventory search exception has two rationales: (1) the vehicle’s inherent mobility; and (2) a reduced expectation to privacy in vehicles because they are subject to constant government regulation. See id. at *3. The panel concluded the automobile exception is doctrinally distinct from the inventory search exception because the latter is performed pursuant to an officer’s community caretaking duties. Id. at *4-5. In any event, the panel acknowledged that Alexander may support future restrictions on the inventory search exception’s application. See id.
  • Our Father who art in court? In Commwealth v. Coniker, ___A.3d____, 2023 WL 20001111 (Pa. Super. Feb. 15, 2023), the panel, inter alia, upheld a disorderly conduct conviction based on Coniker’s decision to remove the eucharist from his mouth at communion so that he could bring it to court with him. Id. at *11. The panel determined that Coniker: (1) recklessly caused public inconvenience, annoyance or alarm because “he understood the significance of removing the consecrated host from his mouth and the alarm that it would cause” based on his previous attempts to do so; and (2) created a hazardous condition because his actions caused fellow worshipers to surround him and call the police. See id. Coniker argued that he had a “legitimate purpose” because he made a private decision in search of spiritual guidance; but the panel rejected this argument because Coniker did not argue how his actions were legitimate while he understood those same actions were grounds for excommunication. See id.
  • Crimes Code and the Prevailing Wage Act: In Commonwealth v. Goodco Mech., Inc., ___A.3d___, 2023 WL 2250954 (Pa. Super. Feb. 28, 2023), the panel concluded, inter alia, that there is no conflict between the crime of theft by failure to make required disposition of funds received and PWA’s civil penalties provisions, and therefore the panel was required to give effect to both. See id. at *11. The panel further concluded that application of the crimes code would not in any way affect the Department of Labor and Industry’s jurisdiction or interfere with the PWA’s pervasive regulatory scheme. See id. at *11-13.

Interesting Responsive Opinions:

  • Hearsay and GPS data: In Commonwealth v. Wallace, ___A.3d___, 2023 WL 2145302 (Pa. Feb. 22, 2023) (Wecht, J., concurring), Justice Wecht warned the Majority’s decision—that GPS data transmitted from an ankle monitor is not hearsay under the plain language of Pennsylvania’s Rules of Evidence because it was not statement made by a declarant—would “prove untenable” because prosecutors will rely on computer generated data to “shield their cases from evidentiary objections by laundering evidence and conclusions through algorithms and code” “without having to demonstrate why that evidence should be entitled to a presumption of trustworthiness[.]” Id. at *15.
  • New 404(b) exception? In Commonwealth v. Johnson, ___A.3d___, 2023 WL 2146502 (Pa. Feb. 22, 2023) (Donohue, J., concurring), Justice Donohue critiqued the majority’s analysis that prior bad acts evidence, see Pa.R.E. 404(b), was admissible to show motive, mistake, or the “relationship” between the defendant and victim. See id. at *67. In particular, Justice Donohue opined there is no “so-called ‘relationship’ exception” in Rule 404(b)(2) and that it originated from a misreading of case law. See id. at *68. Justice Donohue observed that the Majority has “bless[ed] the use of prior bad acts evidence . . . beyond the outer limits of any Rule 404(b)(2) analysis previously condoned by this Court.” Id. at *69. She further warned that the decision “encourages prosecutors to use improper evidence under a distorted and ever-expanding view of Rule 404(b)(2) that we too often see from our trial and intermediate appellate courts.” Id.
  • Traffic Circles and turning signals: In Commonwealth v. Hill, 2023 WL 2027077 (Pa. Super. Feb. 15, 2023) (McLaughlin, J., dissenting), Judge McLaughlin concluded there was no arguable merit to Hill’s claim that counsel was ineffective for failing to challenge the basis of his traffic stop for failing to signal when exiting a traffic stop. Judge McLaughlin concluded the record belied Hill’s claim that he stayed on the same road throughout, and thus never changed lanes. Judge McLaughlin further critiqued the Majority’s lack of statutory analysis regarding the Vehicle Code’s turn signal requirement and determined the plain language of the provision was sufficient to resolve the matter. 
  • Intent-based parentage: In Glover v. Junior, 2023 WL 2213417 (Pa. Super. Feb. 24, 2023) (Bowes, J., dissenting), the majority held that Junior was not the legal parent of a child conceived by Glover through IVF because no document identified Junior as the child’s legal parent. Judge Bowes rejected the majority’s holding and concluded Junior “established a contract-based right to parentage, as evidenced by the couple’s collective intent and shared cost in conceiving a child with her wife, Ms. Glover, via assisted reproductive technology.” Id. at *5. Judge Bowes further asked the Supreme Court to consider this case as an opportunity to establish “intent-based parentage” along the lines of that alluded to by Justices Dougherty and Wecht in their concurring opinions in C.G. v. J.H., 193 A.3d 891 (Pa. 2018). Id. at *9.

Noteworthy Unpublished Decisions

  • “In the same employ:” In Evans v. Hostetter, 2023 WL 2054576 at * (Pa. Super. Feb. 17, 2023) (unpublished), the panel concluded that “in the same employ” as used in Section 205 of the Workers’ Compensation Act does not include a consideration of whether the employee was in the “course and scope of employment” at the time of the workplace injury. Id at *3 (relying on Apple v. Reichert, 278 A.2d 482 (Pa. 1972)). The panel observed that other panels of the Superior Court have strayed from Apple’s holding and urged the Pennsylvania Supreme Court to re-visit Apple. Id. At *3 n.13.  
  • Shared closet = shared gun? In Commonwealth v. Oberdorf, 2023 WL 1466579 (Pa. Super. Feb. 2, 2023) (unpublished), the panel held that the Commonwealth established the defendant constructively possessed a firearm in a closet based solely on evidence that he shared the closet with his fiancé. See id. at *3 (“the Commonwealth needed only to show that Oberdorf shared the bedroom closet with his fiancé and had equal access to it”).  
  • 404(b)(3) notice:  In Commonwealth v. Shiffer, 2023 WL 1794509 (Pa. Super. Feb. 7, 2023) (unpublished), the panel affirmed the trial court’s decision denying defendant’s request for mistrial despite the Commonwealth’s failure to give proper notice of 404(b) evidence as required by Rule 404(b)(3). Id. at *3; see Pa.R.E. 404(b)(3) (“In a criminal case the prosecutor must provide reasonable written notice in advance of trial so that the defendant has a fair opportunity to meet it . . .”).
  • A mandatory request? In In re Estate of Serin, 2023 WL 1795175 (Pa. Super. Feb. 7, 2023) (unpublished), the panel concluded a will that “request[ed]” a nephew “take care of his brother’s needs” so that the testator would be “assured” the brother was cared for, was ambiguous given the use of the apparently contradictory terms “request” and “assured.” Id. at *3-4.
  • “serious permanent disfigurement:” In Waldinger v. Wokulich, 2023 WL 2017992 (Pa. Super. Feb. 15, 2023) (unpublished), the panel defined, for the first time, what the phrase “serious permanent disfigurement” means under the Motor Vehicle Financial Responsibility Law. See id. at *6. The panel observed the dearth of case law defining the phrase and consulted the dictionary definition of each term, as well as a similar phrase in the Workers’ Compensation Act. The panel concluded “‘serious permanent disfigurement’ requires that one’s appearance, form or beauty be affected or marred in a displeasing, harmful way which is significant and not minor and will not change, go way or be diminished.” Id. at *7. To determine whether that definition was met, the panel applied a three-part analysis: (1) what disfigurement resulted from the accident; (2) was the disfigurement permanent; and (3) was the disfigurement serious (considering appearance, obviousness, size, shape, symmetry, coloration and other relevant factors). See id. Here, the panel reversed the trial court’s decision that a two-inch scar on appellant’s wrist was not serious permanent disfigurement as a matter of law. Id. at *8.
  • No like-kind exchange deferral: In Pearlstein v. Commonwealth, 2023 WL 1871694 (Pa. Cmwlth. Feb. 10, 2023) (unpublished), the panel overruled the taxpayers’ exceptions to its precedential decision Pearlstein v. Commonwealth, 267 A.3d 593 (Pa. Cmwlth 2021) (en banc) thereby making the precedential decision final and appealable. In the precedential opinion, the panel held that the taxpayers’ use of the Federal Income Tax method—which allows taxpayers to defer personal income tax on like-kind exchanges until the exchanged property is sold—was not permitted under Pennsylvania’s Tax Reform Code because the relevant section, by its plain terms, did not allow for deferral of like-kind exchanges. See id. at 604.
  • Free to leave? In Commonwealth v. Sullivan, 2023 WL 1434289 (Pa. Super. Feb. 1, 2023) (unpublished), the panel concluded that when an officer concludes a traffic stop, begins to walk away, but returns, the encounter is transformed to a mere encounter and therefore a reasonable person would believe they are free to leave. See id. at *7. The panel concluded an officer’s search of a makeup bag inside the car was beyond the scope of the voluntary consent—which in this case, a reasonable person would have believed to be limited only to a search of the vehicle and not the contents of a zipped makeup bag. See id. at *8.

Appellate Tips: On more than one occasion last month, our appellate courts reprimanded litigants for failing to comply with Rule of Appellate Procedure 2119(a) which requires the argument section of briefs to be divided into as many parts as there are questions, contain distinctive headings, and develop arguments with citation to relevant authorities. See Pa.R.A.P. 2119. Another issue that drew the ire of our appellate courts was a litigant’s failure to file a concise Rule 1925(b) statement. This particular litigant submitted a 19-page 1925(b) statement that contained 43 issues and 46 sub issues. The court determined that the lack of concision so severely hampered any meaningful review by the trial court or the appellate court that all of the issues were waived. 

Miscellaneous: In Ball v. Chapman, ___A.3d___, 2023 WL 2031284 (Pa. Feb. 8, 2023), the Court issued its opinion in support of its November 2022 Order wherein the Justices deemed undated ballots invalid as a matter of state law but were equally divided on the issue of whether the Election Code’s date requirement violated the materiality provision. The High Court also issued two per curiam orders affirming lower court opinions by nature of an evenly divide court. See GM Berkshire Hills LLC v. Berks Cty. Bd. of Assessment, ___A.3d___, 2023 WL 2342283 (Pa. Feb. 28, 2023) (per curiam); Commonwealth v. Verbeck, ___A.3d___, 2023 WL 2342405 (Pa. Feb. 28, 2023) (per curiam). In both cases, those Justices in support of affirmance and reversal issued written opinions detailing their respective positions. Although not binding, these opinions offer critical insight into those Justices’ views, should the issue again.

Coming Soon: The Supreme Court granted allocatur on five cases including the following:  

  • Goodbye Duffey? In Sicilia v. API Roofers Advantage Program, 287 MAL 2022 (Pa. Feb. 15, 2023), the Court will consider whether the Commonwealth Court’s application of Duffey v. WCAB (Trola-Dyne, Inc.), 152 A.3d 984, 987 (Pa. 2017) (physician performing an IRE has an obligation to determine “the degree of impairment due to the compensable injury” and thus can consider injuries beyond those accepted in the notice of compensation payable) usurped the authority of the Workers’ Compensation Judge to determine the nature and extent of a compensable injury. This is an issue that has percolated since Duffey—as predicted by Justice Wecht’s dissent.  
  • Statute of Limitations: In KEM Resources, LP v. Deer Park Lumber, Inc., 349 MAL 2022 (Pa. Feb. 6, 2023), the Court will determine whether an accounting claim (i.e., a form of relief pursuant to, in this case, a statutory cause of action to enforce the rights of co-tenants of real property) is subject to the catch-all six-year statute of limitations. This is a question of first impression.
  • Public Funds and the PWA: In Ursinus College v. Prevailing Wage Appeals Bd., 380 MAL 2022 (Pa. Feb. 22, 2023), the Court will consider whether a construction project at Ursinus College—that involved public bonds—constitutes a “public work” under the Prevailing Wage Act. The Commonwealth Court concluded that because the public bonds were disbursed to a trustee before being disbursed to Ursinus that the project was not paid for “out of funds” of the public entity as required by the Act. See Ursinus College v. Prevailing Wage Appeals Bd., 280 A.3d 1113, 1123 (Pa. Cmwlth. 2022) (en banc). In so doing, the panel distinguished a series of cases interpreting relevant provision in the Act.

In case you missed it, be sure to check out January’s Appellate Review.