Here’s a recap of January’s most important and interesting appellate cases:
Notable New Precedential Decisions:
- Aiding and abetting fraud: In Marion v. Bryn Mawr Trust Co., ___A.3d___, 2023 WL 308110 (Pa. Jan. 19, 2023), our High Court unanimously held the tort of aiding and abetting fraud is actionable in Pennsylvania consistent with previous intermediate court decisions hinting at the tort’s applicability. Importantly, the Court determined the requisite mens rea is actual knowledge—thus, a party is required to have actual knowledge of the underlying fraud. This decision creates an important mechanism to thwart fraud by holding third-party actors responsible for their role in a fraudster’s scheme while also limiting their exposure to circumstances where they have actual knowledge of the fraud.
- A weakened marital privilege: In Smith v. O’Brien, ___A.3d___, 2023 WL 309009 (Pa. Super. Jan. 19, 2023), the panel concluded that an order requiring a wife to testify at a deposition about a privileged marital communication with her now-deceased husband was not immediately appealable under the collateral order doctrine. Previously, in CAP Glass, Inc. v. Coffman, 130 A.3d 783 (Pa. Super. 2016), the Superior Court held an order implicating the marital privilege satisfied the collateral order doctrine. But the Smith panel determined that the husband’s death altered that analysis because the privilege’s applicability was not so important and would not be irreparably lost where there was no marriage to protect. The Smith panel’s decision may still undercut the privilege’s objective because it leaves open the possibility that an otherwise privileged communication could be revealed depending on which spouse dies first.
- Statutory employer immune from liability: In Yoder v. McCarthy Construction, Inc., ___A.3d___, 2023 WL 1113573 (Pa. Super. Jan. 31, 2023), the panel reversed a $5.5M verdict based on its conclusion that McCarthy (general contractor) was a statutory employer pursuant to the Workers’ Compensation Act and therefore was immune from tort liability. The case hinged on whether McCarthy could prove Yoder was an employee of the subcontractor and not, as the trial court ruled, an independent contractor. According to the panel, Yoder was judicially estopped from arguing he was an independent contractor because he already applied for and obtained workers’ compensation benefits as an employee of the subcontractor.
Noteworthy Responsive Opinions:
- Curse words not “obscene:” In Commonwealth v. Muhammad, 2023 WL 156823 (Pa. Super. Jan. 11, 2023) (Stevens, P.J.E., concurring), Judge Stevens urged the legislature to criminalize (with a fine) abusive and belligerent conduct toward law enforcement officers and first responders because the current statute criminalizing “obscene” language did not cover conduct like the defendant’s—who repeatedly yelled the f-word at security in a courthouse when she was asked to where a mask.
- Commonwealth not entitled to untimely 1925(b) statements? In Commonwealth v. Taylor, 2023 WL 183673 (Pa. Super. Jan. 13, 2023) (Stabile, J., concurring), Judge Stabile called for Commonwealth v. Grohowski, 980 A.2d 113, 115 (Pa. Super. 2009) (interpreting Pennsylvania Rule of Appellate Procedure 1925(c)(3) to allow untimely 1925(b) statements by the Commonwealth) to be overruled because it conflicts with the Rule’s plain language and comment.
- Private criminal complaints: In In re Ajaj, ___A.3d___, 2023 WL 308130 (Pa. Jan. 19, 2023) (Dougherty, J., concurring), Justice Dougherty authored a thoughtful opinion that illuminated the contours of the seldom-used private criminal complaint process and identified potential separation of powers issues.
- Hills and ridges doctrine: In Mertira v. Camelback Lodge and Indoor Waterpark, 2023 WL 371663 (Pa. Super. Jan. 24, 2023) (Bowes, J., concurring), Judge Bowes suggested that the hills and ridges doctrine—which shields business owners from liability for injuries on walkways and parking areas caused by slippery conditions—is incompatible with the heightened duty otherwise owed by business owners to business invitees.
Interesting Unpublished Decision:
- Ruff Justice: In Commonwealth v. Heuer, 2023 WL 408999 (Pa. Cmwlth. Jan. 26, 2023), the trial court concluded Heuer violated the Dog Law, 3 P.S. § 459-502-A, by harboring a dangerous dog (named Jax) because Jax—who was with another dog, Brewster—killed a neighbor’s Alpaca. Notwithstanding Brewster’s involvement, the trial court concluded that Jax seriously injured or killed the Alpaca based on circumstantial evidence that Jax: was found on the neighbor’s property; was panting and tired; resisted officers’ attempts to restrain him; and vomited Alpaca remains. The panel initially observed the highly deferential standard of review and concluded there was substantial evidence to support the trial court’s conclusion. The panel also noted because there was substantial evidence to support the lower court’ decision, any evidence suggesting that Brewster acted alone was immaterial. Unfortunately for Heuer, a violation for harboring a dangerous dog comes with costly registration and compliance requirements.
Appellate Tips: The following two issues arose a few times throughout the month. First, Pennsylvania Rule of Appellate Procedure 341 requires counsel to file separate notices of appeal when a single order resolves issues arising on one or more lower court dockets. See Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018). There is a limited exception to this rule where a single order is entered at a “lead docket number for consolidated civil matters where all record information necessary for the appeal exists, and which involves identical parties, claims and issues[.]” Always Busy Consulting, LLC v. Babford & Co., Inc., 247 A.3d 1033, 1043 (Pa. 2021). In the event you run afoul of this rule, an appellate court has the discretion to allow an appellant to remediate the defect in an otherwise timely filed appeal. See Commonwealth v. Young, 265 A.3d 462, 477 (Pa. 2021). Second, all questions presented—whether in an appellate brief, 1925(b) statement, or allocatur—must be concise so that the court can meaningfully review the issues.
Coming Soon: The Pennsylvania Supreme Court granted allocatur on four cases including the following:
- UTPCPL treble damages: In Dwyer v. Ameriprise Fin., Inc., 2023 WL 128061 (Pa. Jan. 9, 2023), the Court will decide whether a trial court improperly considered the amount of punitive damages and attorneys’ fees in declining to impose treble damages pursuant to the Uniform Trade and Consumer Protection Law (UTPCPL). This is the third UTPCPL case the Court has heard in the past two years as it works to define the contours of the law.
- Service: In Ferraro v. Patterson-Erie Corp., 2023 WL 31320 (Pa. Jan. 4, 2023), the Court will decide whether a plaintiff’s failure to strictly comply with service requirements in the civil rules of procedure can be excused where she made a good faith effort to do so. The facts of this case are unique, and it appears that a good portion of the delay was attributable the Sheriff’s Office’s failure to timely serve the complaint as well as COVID-19. In any event, the High Court will have the opportunity to determine where this case fits among the three leading cases in this arena: Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), McCreesh v. City of Philadelphia, 888 A.2d 664 (Pa. 2005), and Gussom v. Teagle, 247 A.3d 1046 (Pa. 2021).
