OPINIONS

By Robert J. Colville

Abstracts of RJC Opinions. Full opinions available upon request.

VAN KIRK v. O'TOOLE, AR-98-6136, Allegheny County, filed October 8, 2003

The court determined that a zero dollar verdict for a plaintiff who had established that a defendant's negligent conduct was the factual cause of an automobile accident, which purportedly caused injury to the plaintiff, was sustainable consistent with one line of Superior Court cases (i.e. Davis v. Mullen, 565 Pa. 386, 773 A.2d 764 (2001)), notwithstanding a competing line of authority (pursuant to Neison v. Hines, 539 Pa. 523, 653 A.2d 638 (1995)).

Affirmed on appeal at 857 A.2d 183 (Pa.Super. 2004).

BRODERICK v. HARCO NATL. INSURANCE CO., GD.03-126, Allegheny County, filed September 23, 2003

The court held that in a matter governed by applicable statutory authority regulating arbitration proceedings, a decision by a majority of the three-member panel of arbitrators was proper if decision was reached following proceedings permitting each arbitrator an opportunity to participate in deliberations. Actual face-to-face deliberations between the arbitrators was not required. Distinguishing Goeller v. Liberty Mutual Insurance Co., 523 Pa. 541, 568 A.2d 176 (1990) which, on different facts, held that "all view points [of the arbitrators] must at least be heard."

Affirmed on appeal at No. 1522 WDA 2003 (Superior Court)

E&G GABRIEL v. WUKITS, GD. 03-6201, Allegheny County, filed October 7, 2003

The court sustained preliminary objections in the nature of a demurrer filed on behalf of defendants thereby dismissing the plaintiffs' complaint. Plaintiffs alleged damages were the result of the defendants' failure to permit plaintiffs to exercise an option to purchase property pursuant to a lease agreement. The court concluded that the plaintiffs' option expired when the plaintiffs' abandoned the subject property prior to exercising that option.

Affirmed on appeal at No. 1552 WDA 2003 (Superior Court)

The court denied the plaintiffs' Motion for an Emergency Special Injunction seeking to prohibit the Mayor of Pittsburgh from closing a City of Pittsburgh Police Station. The court concluded that the parties either lacked standing, and/or statutory authority to support the emergency injunction request. In so doing, the court recognized the executive authority of the Mayor to carry out the police powers of the municipality.

Affirmed on appeal at No. 2249 C.D. 2003 (Commonwealth Court)

KVAERNER U.S., INC., v. LEXINGTON INSURANCE CO., GD. 03-8572, Allegheny County, filed October 31, 2003

The court overruled preliminary objections filed on behalf of the defendant, which sought to dismiss the complaint on the basis of a mandatory arbitration provision in the subject insurance policy. The court concluded that the policy mandated arbitration only for "disagreements as to the interpretation of the policy," and not as to "all disputes." Finding the disagreement in the contested matter did not involve interpretation of the policy. The mandatory arbitration provision was found inapplicable.

Affirmed on appeal at No. 1607 WDA 2003 (Superior Court)

SHANNON v. PIFER, M.D., GD 02-13671, Allegheny County, filed March 26, 2004

The court upheld an $800,000 medical malpractice and lack of informed consent award, where the plaintiff alleged she suffered damages as a result of a badly performed hip-replacement surgery. In particular, the court concluded that there existed adequate evidence from which a jury could reasonably infer that the surgery was performed below professional standards, and that the plaintiff would have elected not to undergo the procedure had the risks of the specific procedure been provided and explained to her.

Appeal discontinued at 212 WDA 2004 (Superior Court)

REED v. PGH. BOARD OF PUBLIC EDUCATION, GD 03-11953, Allegheny County, filed April 7, 2004

The court granted a Motion for Summary Judgment filed on behalf of the defendant concluding that the plaintiff failed to assert facts capable of permitting a jury to infer that a contractual relationship existed between the plaintiff and the defendant.

Affirmed on appeal at No. 1146 C.D. 2004 (Commonwealth Court)

HARRIS v. ALLSTATE INSURANCE CO., GD 01-22381, Allegheny County, filed August 4, 2004

The court concluded that the plaintiff failed to demonstrate the defendant's failure to pay insurance benefits for injuries occurring as a result of an accident covered by the Pennsylvania No-Fault Act. In particular, the court concluded that the claimed damages were not for "allowable expenses" under the No-Fault Act. Additionally, the court concluded, that the claims were barred by the applicable statute of limitations.

Affirmed on appeal at No. 810 WDA 2004 (Superior Court)

NELSON v. BOROUGH OF ROSSLYN FARMS, GD 02-12567, Allegheny County, filed August 4, 2004

The court granted Summary Judgment in favor of the defendant concluding that the property upon which the plaintiff was alleged to have been injured was not a "utility" subject to an exception from the Political Subdivision Tort Claims Act.

Affirmed on appeal at No. 1375 C.D. 2004 (Commonwealth Court)

SUTTNER v. CENTERS FOR REHAB SERVICES, GD 02-3043, Allegheny County, filed August 9, 2004

The court sustained a jury verdict for the defendant physical therapist rejecting numerous allegations of evidentiary error during trial.

Affirmed on appeal at No. 812 WDA 2004 (Superior Court)

AUEL v. ALLIED GLOVE CORP., et al., GD 02-12951, Allegheny County, filed August 12, 2004

The court held that an affidavit by a co-worker witness asserting that the now-deceased plaintiff worked at a specific location 30 years prior was inherently incredible, where the plaintiff, himself, prior to his death, testified that he had not worked at such locations.

Affirmed on appeal at No. 1077 WDA 2004 (Superior Court)

SCHWARTZ v. KIEFER, GD 02-2820, Allegheny County, filed August 16, 2004

The court granted a Petition to Enforce Settlement and Award Counsel Fees, where the court determined that the parties had agreed to amicably resolve their differences with respect to a boundary-line dispute between their respective residential properties. The court determined the percentage of maintenance costs for the subject-contested property, and described the nature of the mutual easement that the parties were found to have agreed to.

Affirmed on appeal at No. 1087 WDA 2004 (Superior Court)

ALPERN, ROSENTHAL & CO. v. PRYCE, GD 02 12638, Allegheny County, filed September 15, 2004

The court dismissed the remainder of the plaintiff's complaint finding said claims to be fruitless where the defendant had proffered full compensation for all validly asserted claims. The court concluded that notwithstanding the plaintiff's desire for her "day in court" the right to a jury trial does not survive the absence of an actual continuing conflict between the parties.

Affirmed on appeal at No. 1140 WDA 2004 (Superior Court)

QDC, INC., v. ZURICH INSURANCE CO., GD 99-8171, Allegheny County, filed March 21 2005

The court conducted a three week non-jury trial, and found that conduct by the defendant insurance company's claim manager constituted bad faith. The court concluded that the claims manager's initiation of an investigation into the insured's alleged drug-usage habits was without a reasonable basis and violated the insurer's fiduciary duty to its insured. The court concluded that other allegations of bad faith conduct and breach of contract were not supported by the evidence in the record.

Affirmed on appeal at No. 275 WDA 2005 (Superior Court)

STOYER V. RAMAKRISHNA, M.D., GD 01-6774, Allegheny County, filed April 25, 2005

The court upheld a jury trial verdict on behalf of the defendant physician in a medical malpractice action. The court rejected allegations of evidentiary error during trial.

Affirmed on appeal at No. 475 WDA 2005 (Superior Court)

The court granted the defendant's Preliminary Objections to the plaintiff's Complaint dismissing defamation and tortuous interference with prospective contractual relations count. The court concluded that because of the conceded disruptive behavior of the plaintiff during prior visits to defendant's facility, the defendant's conduct in requiring its staff to ensure that appropriate security were available during plaintiff's future visits was reasonable and could not give rise to a jury verdict on the claimed causes of action.

Appeal withdrawn.

DAVIS v. LEE, GD 03-26063, Allegheny County, filed August 9, 2005

Court upheld a $500,00 jury verdict for the plaintiff and against the defendant, where the plaintiff alleged that the defendant misrepresented his health status, and engaged in sexual relations with the plaintiff causing her to suffer an HIV infection. The court rejected the defendant's claims that the plaintiff had assumed the risk of such injury, and rejected numerous arguments challenging evidentiary rulings during trial.

Appeal quashed.

COOK v. ALLEGHENY HOUSING REHABILITATION CORP., GD 03-23803, Allegheny County, filed September 23, 2005

The court held that the defendant gas company's distribution of gas through its service lines constituted an adequate placement of its product into the "stream of commerce" for purposes of supporting 402A strict liability and breach of warranty. The court rejected the defendant gas company's assertion that only upon the passage of the gas through the final customer's meter does a "sale" occur, thereby giving rise to 402A liability.

Appeal withdrawn.

LANCASTER v. KOSSIS, GD 05-9214, Allegheny County, filed August 30, 2005, and October 11, 2005

The court entered sanctions against counsel when it became apparent to the court that counsel had engaged in dilatory, obdurate, and vexatious conduct during the pendency of the above-captioned matter resulting in the improper and illegal execution upon defendant's property without adequate legal authority. In addition, the court concluded that the plaintiff's counsel made material misrepresentations directed to the court with respect to the conduct of counsel and the prosecution of the case.

No appeal taken.

RAGER v. SAFETY FIRST INDUSTRIES, INC., GD 02-14977, Allegheny County, filed March 26, 2006

The court denied the defendant's Motion for Summary Judgment asserting that the plaintiff's claims were barred by the applicable statute of limitations. In so doing, the court analyzed the case within the context of Pennsylvania's "separate disease rule" pursuant to Marinari vs. Asbestos Corporation, LTD, 612 A.2d 1021 (Pa. Super. 1992), and its progeny. The court ultimately concluded that the "separate disease rule" permitted a plaintiff to assert a claim for malignant disease even where it had a previous opportunity to assert a claim for "fear of cancer" or "increased risk of cancer."

Appeal refused.

MCINTYRE v. ALLIED SIGNAL, INC., GD 05-6048, Allegheny County, filed March 29, 2006

The court granted the defendant's Motion for Summary Judgment where plaintiffs proffered a recent affidavit of a material witness purporting to assert facts, which supported the plaintiff's claims. The court rejected the evidentiary merit of the proffered affidavit pursuant to Stephens v. Paris Cleaners, 885 A.2d 59 (Pa.Super. 2005) as inherently incredible inasmuch as the proffered affiant had previously testified in direct contradiction to his recent affidavit.

No appeal taken.

MESZAROS v. TRITAN FINANCIAL, INC., AR 05-908, Allegheny County, filed April 28, 2006

Following a non-jury trial, the court entered judgment for money damages on behalf of the plaintiff finding that the defendant had breached its contract with the plaintiff specifically in failing to abide by an implied delivery date under the contract.

No appeal.

DEORIO v. JULIANO, BRAVO ITALIAN KITCHEN, GD-03-6316, Allegheny County, filed May 24, 2006

The court sustained a jury verdict on behalf of the plaintiff and against the defendants, a drunk driver, the driver's employer, and the tavern that served alcoholic beverages to the driver. Plaintiff suffered serious bodily injury following an automobile accident caused by the defendant driver's intoxication. The court rejected several arguments advanced on behalf of the defendants with respect to evidentiary rulings made by the court during trial. The court further rejected the driver's employer's argument that the employer's act of permitting its employee to utilize his employee credit line in order to purchase drinks for himself and clients was not a sufficiently proximate cause of the plaintiff's injuries to impose liability upon the employer.

Affirmed in part, and reversed in part, at No. 530 WDA 2006 (Superior Court)

KOLBRICH v. ALLIED GLOVE CORP., GD 04-4019, Allegheny County, filed July 5, 2006

The court held that application of the Workers Compensation Act's exclusive remedy provisions to claims for occupational diseases, caused by asbestos exposure, does not violate due process and equal protection clauses of the U.S or Pennsylvania Constitutions.

Affirmed on appeal at No 999 WDA 2006 (Superior Court)

IN RE: TOXIC SUBSTANCE CASES, NO. A.D. 03-319, Allegheny County, filed August 17, 2006

The court precluded the plaintiff's experts from offering opinion testimony causally attributing the plaintiff's asbestos related disease to exposure to any specific defendant's friction products. The court concluded that the expert's opinion that "each and every exposure to an asbestos product, was a proximate cause of a subsequently diagnosed asbestos-related disease" was not supported by a generally accepted scientific methodology in the relevant scientific field, as required under Grady v. Frito-Lay, Inc., 839 A.2d 1038 (Pa. 2003).

Currently on appeal at No. 1058 WDA 2006 (Superior Court)

WOMACK v. FITZSIMMONS, GD 03-22204, Allegheny County, filed October 12, 2006

The court granted plaintiff a new trial following a jury verdict for zero dollar damages after a finding that the defendant was negligent but the defendant's negligence was not a legal cause of the plaintiff's injuries. The court concluded that the expert testimony offered at trial did not support the conclusion that the defendant's negligence did not cause the plaintiff's injury or that the plaintiff's injury was insignificant enough to constitute a "non-compensable injury."

Affirmed on appeal at No. 1513 WDA 2006 (Superior Court)

CASEY, MARKS, and STRIGHT v. JOYCE, GD 04-1683, Allegheny County, filed April 20, 2007

Following a non-jury trial, the court granted judgment in favor of the plaintiffs for money damages finding that the defendant had personally guaranteed the plaintiffs loans to a defaulting business concern.

Affirmed on appeal at No. 37 WDA 2007 (Superior Court)

WINTERBOTTOM v. ALLIED GLOVE CORP., GD 06-7353, Allegheny County, filed March 23, 2007

The court granted defendants' Motion for Summary Judgment finding that the plaintiff had failed to proffer evidence adequate to demonstrate that the plaintiff breathed asbestos fibers shed from any of the moving defendants' products as required under Eckenrod v. GAF Corporation, 544 A.2d 50 (Pa.Super. 1988).

Appeal discontinued at No. 40 WDA 2007 (Superior Court)

PATTERSON v. ANTHONY LEASING INC., AR 06-1710, Allegheny County, filed January 7, 2008

Following a non-jury trial, the court awarded plaintiff money damages finding that the defendant had engaged in fraudulent behavior and violated the Pennsylvania Unfair Trade Practices and Consumer Protection Law, inasmuch, as it entered into a vehicle lease agreement with plaintiff while misleading the plaintiff to believe that she had purchased the subject vehicle.

Affirmed on appeal at No. 1705 WDA 2007 (Superior Court)

DAVIS v. PORT AUTHORITY OF ALLEGHENY COUNTY, AR 05 2775, Allegheny County, filed January 15, 2008

The court denied the plaintiff's Motion for Summary Judgment concluding that the defendant's failure to appeal the adverse judgment entered by the Magisterial District Judge did not preclude the defendant, based upon the principle of res judicata, from defending itself against the plaintiff's claims in the Court of Common Pleas.

Affirmed on appeal at No. 1990 C.D. 2007 (Commonwealth Court)

SCAMPONE v. HIGHLAND PARK CARE CENTER, GD 05-24806, Allegheny County, filed February 8, 2008

The court upheld a jury verdict in favor of the plaintiff for money damages in the amount of $193,500.00 for the wrongful death of a nursing home resident. Plaintiff appealed challenging the court's denial of the plaintiff's punitive damages claim. The court rejected the punitive damages claim finding no evidence in the record of intentional or reckless conduct on behalf of the defendant nursing home. Defendant appealed challenging the court's legal conclusion that the corporate negligence theory was applicable to nursing homes. The court rejected this argument pursuant to Thompson v. Nason Hospital, 591 A.2d 703 (Pa. 1991).

Currently pending appeal.

KOCYAN v. SPENA, GD 04-7626, Allegheny County, filed February 19, 2008

The court affirmed the jury verdict on behalf of the plaintiff for money damages in the amount of $750,00.00, and denying the defendant's Motion for Remittitur, while the court concluded that the damages asserted by the plaintiff were in largest part subjective complaints of pain, there existed adequate evidence on the record to support the jury's award.

Affirmed on appeal.

LANDIS v. A.W. CHESTERTON, GD 08-2317, Allegheny County, filed July 29, 2008

The court ruled on behalf of the plaintiff finding that the language of the exclusivity provisions of the Workers' Compensation Act does not apply to mesothelioma and similar cases where the illnesses, for which compensation is sought, do not arise until after 300 weeks following the date of the plaintiff's last occupational exposure.

Appeal quashed.

AMBER v. JONES MOTOR CO. INC., GD 04-16503, Allegheny County, filed September 3, 2008

The court granted the defendant's Preliminary Objections to the plaintiff's Complaint finding that the plaintiff's claims were barred by the applicable statute of limitations, where the plaintiff filed a Writ of Summons on the eve of the expiration of the statute of limitations and then failed to serve the Writ upon the defendant, notwithstanding six reissuances of the Writ, for a period of time in excess of 3 ½ years without adequate justification.

Currently pending appeal.

Melvie Haines v. Raven Arms, 652 A.2d 1280 (Pa.1994)* Dissenting opinion disagreed with majority's grant of remittitur. Dissent challenged majority's reduction of plaintiff's jury verdict where evidence established profound injury including blindness, brain injury, limitations to simple motor skill, vocabulary and memory, and in particular where plaintiff was subjectively aware of limitations.

Wellsville Terminals v. WCAB, 632 A2d 1305 (Pa. 1993)* Majority opinion held that a welder's work on a barge floating in the Ohio River was not sufficiently "land-based" to bring his work related injuries within the scope of both the Longshore and Harbor Workers' Compensation Act and the Pennsylvania Workmen's Compensation Act.

JUVENILE COURT

IN RE: J.T., J.D. NO: 203-00, Allegheny County, filed March 27, 2000 (History No. 64057-A)

The court permitted the prosecution in adult criminal court of a juvenile charged with involuntary deviate sexual intercourse, indecent assault, and endangering the welfare of children following a certification hearing pursuant to 42 Pa.C.S. §6355. The court held that in light of the severity of allegations, and other pending adult criminal charges against the juvenile, the Commonwealth met its burden establishing that the statutory prerequisites for certification were met, in spite of evidence of juvenile's low IQ and past academic performance. Court also permitted reasonable accommodations to permit child witness/victim to testify with the emotional and physical assistance and support of grandmother during testimony.

Appeal quashed at No. 699 WDA 2000

IN RE: S.R. (APPEAL OF D.R.), J.D. NO.: 319-01, Allegheny County, filed August 21, 2001

The court found juvenile to be dependent, (i.e. without adequate parental care) and ordered child to remain in foster care based upon evidence that biological mother failed to comply with Family Service Plan goals particularly with regard to her failure to cooperate with court ordered out-patient mental health treatment and provide satisfactory evidence of capability to care for child and protect child against safety risks posed by other biological family members.

Affirmed on appeal at No. 835 WDA 2001

IN RE: C.A., a minor, J.D. NO.: 927-97, Allegheny County, filed October 23, 2001 IN RE: S.A., a minor, J.D. NO.: 928-97, Allegheny County, filed October 23, 2001

The court held that the sibling juveniles were dependent, and found by clear and convincing evidence that the children were beyond the care and control of the mother warranting placement of children in foster care. Notwithstanding biological mother's contention that the children were acting out simply to avoid mother's household rules, the court concluded that the children's past mental health issues including psychiatric hospitalization for depression and psychotic episodes including suicidal ideation and past history of sexual abuse in mother's home constituted ample evidence to support the court's finding of children's precarious mental health status and the need for their removal from the home.

Appeal discontinued.

IN RE: VANESSA ROZZ0, a minor, J.D. 958-99, (History No. 61652-A), Allegheny County, Filed April 18, 2002 IN RE: STEPHANIE ROSENBERRY, a minor, J.D. 319-01 (History No. 61652-B), Allegheny County, Filed April 18, 2002

The court denied maternal grandmother's request for visitation and/or custody of dependent children based upon the court's finding that it was grandmother's involvement with the family that, in fact, increased the risk of harm to the grandchildren. Grandmother had long-standing alcohol abuse history, and questionable unresolved mental health issues. Dependent grandchildren were brought into the care of CYF when grandmother, appearing in a confused condition, directed police officers to her one-year old grandchild locked in a car. Grandmother's relationship with biological mother was extraordinarily chaotic, turbulent, and volatile, and contributed to biological mother's failure to provide adequate parental care for dependent children.

Appeal quashed at No.: 104 WDA 2002, No.: 105 WDA 2002, and No.: 525 WDA 2002

IN RE: J.S., a minor, J.D. NO.: 95-99 (History No. 36044-E), Allegheny County, filed April 24, 2002

Court held that permanency plan for dependent child was properly changed to "adoption goal" notwithstanding biological mother's assertion that she had recently begun to make progress on her Family Service Plan goals and could demonstrate competence as a parent in a reasonable amount of time. The court's holding was supported by the court's finding that aggravated circumstances existed at the time the child came into the care of the Office of Children, Youth and Families. In spite of reasonable efforts to assist mother with reunification of her child, the child had remained out of mother's care for approximately 21 consecutive months, and mother had failed to satisfactorily meet her mental health, drug, and alcohol addiction issues and had failed to obtain a meaningful source of income in order to support herself and her child.

Affirmed on appeal at No. 376 WDA 2002

IN RE: K. H, a minor, J.D. NO.: 2237-01 (History No. 64949-E), Allegheny County, filed December 30, 2002

The court dismissed the Office of Children, Youth and Families' petition for a finding of aggravated circumstances against biological father because the court concluded that OCYF had offered competent and credible testimony in evidence to support a finding of "abandonment" only for a 5 ½ month period, while the relevant statute required a showing of abandonment for a period of 6 continuous months to support an aggravated circumstance finding. In particular, the court determined that CYF had not extended a meaningful opportunity to father to engage in substantial and continuing contact with his child for the requisite time frame.

Affirmed on appeal at No. 1994 WDA 2002

IN RE: S.B., a minor, NO.: 06-2293 (JID No.: 78157-A)

A.B., a minor, NO.: 06-2292 (JID No.: 78157-B)
B.G., a minor, NO.: 06-2296 (JID No.: 78157-C)
D,G., a minor, NO.: 07-1411 (JID No.: 80510-4), Allegheny County, filed February 19, 2008

The court determined that biological grandmother had automatic standing pursuant 23 Pa.C.S. § 5313 and R.M. v. Baxter, 777 A.2d 446 (Pa. 2001) to assert custody claim within the context of the dependency actions involving her grandchildren. The court rejected arguments on behalf of OCYF and biological parents' counsel that Superior Court decisions subsequent to the Supreme Court's decision in Baxter have undermined the continuing authority and validity of Baxter,

Appeal discontinued at 264 WDA 2008, 265 WDA 2008, 266 WDA 2008, and
266 WDA 2008.

IN RE: H.C., a minor, NO.: JV 07-1359, Allegheny County, Filed February 28, 2008

The court ruled that the subject minor was dependent and ordered the child to be placed in foster care based upon its finding that biological mother had been court ordered by a criminal court judge to have no contact with the child, and the biological father was an inappropriate caregiver based upon clear and convincing evidence of the biological father's untreated mental health issues and inability to ensure adequate housing for the child.

Affirmed on appeal at No. 86 WDA 2008

ORPHANS COURT

IN RE: ADOPTION OF D.W., a minor, CYF No. 078 of 2001, Allegheny County, filed January 8, 2002

The Court found that OCYF had proven by clear and convincing evidence that grounds for termination of parental rights was warranted based upon mother's abandonment and endangerment of children at the time they were taken into the care of CYF, and biological mother and father's failure to cooperate with and meet goals of Family Service Plans for over a two period.

Appeal affirmed at No. 1797 WDA 2001

IN RE: ADOPTION OF VANESSA ROZZO, a minor, at CYF 189 of 2001, Allegheny County, filed January 17, 2002

The court held that maternal grandmother was not entitled to intervene in Orphan Court's matter related to termination of parental rights of biological mother of dependent child. The court held that R.M. v. Baxter ex rel T.M., 777 A.2d 446 (Pa. 2001) conferred automatic standing to grandmother to intervene in dependency matter only, and not termination of parental rights matter. Moreover, the court concluded that grandmother's involvement with dependent child constituted a part of the substantive risks to the child giving rise to a finding of dependency.

Appeal discontinued.

IN RE: ADOPTION OF W.M., a minor, at No. CYF 400 of 2000, Allegheny County, filed February 27, 2002

The court terminated the parental rights of biological parents of dependent child based upon parents' inability to satisfy Family Service Plan goals including completion and verification of drug and alcohol treatment, maintenance of regular visitation with child, maintenance of appropriate contact with the Office of Children, Youth, and Families, securing appropriate housing, and attending and completing appropriate parenting classes. Moreover, termination of parental rights was supported by testimony of a clinical psychologist, who performed an interactional evaluation between child and biological parents and prospective adoptive parents.

Appeal affirmed at No. 179 WDA 2002

IN RE: ADOPTION OF S.C AND S.C., minors, at No. CYF 301 0f 2001, Allegheny County, filed March 4, 2002

Court held that CYF had proven by clear and convincing evidence that grounds for termination of the parental rights of biological parents to dependent children were satisfied based upon biological mother's history of drug and alcohol addiction, her failure to attend and graduate from an approved drug rehabilitation program, her failure to submit to random urine screens, and her failure to satisfactorily complete any applicable Family Service Plan goals.

Remanded for further proceedings at No. 139 WDA 2002, filed August 9, 2002 and affirmed at 139 WDA 2002, Filed December 12, 2001.

IN RE: ADOPTION OF Z.S., a minor, at No. CYF 027 of 2002, Allegheny County, filed August 22, 2002

The court found that OCYF had proven by clear and convincing evidence that grounds for termination of the parental rights of biological mother and father existed based in large part upon the testimony of the CYF caseworker and clinical psychologist, who established that both parents failed to achieve their Family Service Plan goals including maintaining sobriety, gaining an ability to control anger impulses, providing the children with food, shelter, and medical needs, and improving the parent/child relationship in cooperation with OCYF. The clinical psychologist established that the child was very bonded with his prospective adoptive parents, and that adoption would serve the best interest of the child.

Affirmed on appeal at No. 1223 WDA 2002

IN RE: ADOPTION OF B.G., a minor, No. CYF 039 of 2002, Allegheny County, filed September 18, 2002

The court found that CYF had established by clear and convincing evidence that grounds for termination of biological mother's parental rights existed and that termination would serve the needs and welfare of the child based upon the testimony of the CYF caseworker and the clinical psychologist, who interviewed the child and biological mother. The court found the biological mother's failure to comply with her Family Service Plan goals and meet recommendations regarding mental health and drug and alcohol treatment, complete a parenting skills curriculum, maintain regular visitation with the child, and maintain appropriate housing, demonstrated biological mother's incapacity to adequately parent the child. The court's decision relied also upon the testimony of a clinical psychologist, who established that while biological mother's love and affection for her child was apparent, it was also apparent that the biological mother did not possess the capacity to adequately parent the child and most importantly that the child's long term best interests were best served by terminating biological mother's parental rights and permitting the prospective adoptive parents to develop a relationship with the child.

Affirmed on appeal at No. 1367 WDA 2002

IN RE: ADOPTION OF VANESSA ROZZ0, a minor, CYF No.: 189 OF 2001, Allegheny County, filed September 19, 2003 IN RE: ADOPTION OF STEPHANIE ROSENBERRY, a minor, CYF No. 155 of 2002, Allegheny County, filed September 19, 2003

The court denied maternal grandmother's request to be permitted to adopt her dependent grandchildren. The court's decision was based on its finding that maternal grandmother suffered from long-standing, and untreated and unresolved alcohol abuse and mental health issues, and that her relationship with the biological mother of the dependent children, in particular, constituted a risk to the proper development and care of the dependent children.

Affirmed on Appeal at No. 1424 WDA 2003 and 1425 WDA 2003

CRIMINAL

Commonwealth v. Huffman, 638 A.2d (Pa. 1994) * Majority opinion affirmed conviction of conspiracy, robbery, and burglary and reversed conviction of first-degree murder where the trial court jury instruction regarding accomplice culpability was an "outright misstatement of the law on a fundamental issue".

Commonwealth v. Hackett, 627 A.2d 719 (Pa.1993)* Concurring opinion accepts majority opinion's conclusion that first-degree conviction was supported by evidence and that death sentence was warranted but departs from majority's conclusion that the aggravated circumstance of a contract killing was properly supported by the evidence where the contract to kill did not, in fact, cause the killing.

Commonwealth v. Berkowitz, 641 A.2d 1161 (Pa. 1993)* Majority opinion held that absent competent evidence of forcible compulsion rape conviction could not be upheld; and that Rape Shield Law applied to victim's arguments with her boyfriend regarding her alleged infidelities.

Commonwealth v. Yvonne Mason , 637 A.2d 251 (Pa. 1993)* Concurring opinion argues that application of the "independent source doctrine" should be limited to cases where the independent source is truly independent from both the tainted evidence and the police or investigative team which engaged in the misconduct by which the tainted evidence was discovered, in order to deter police misconduct and protect individual privacy rights pursuant to Article I, Section 8 of Pennsylvania's Constitution.

Commonwealth v. Kindler, 639 A.2d 1 (Pa.1994)* Concurring opinion expresses position that while it is proper to quash an active fugitive's appellate claims, a recaptures fugitive's appellate rights should be reinstated only upon a showing of a compelling reason for having claim heard.

Commonwealth v. Frain, 648 A.2d 285 (Pa. 1994)* Concurring opinion would hold that suspected intoxicated driver detainee could not claim that he was "confused by the distracting circumstances" attendant to his traffic stop as a basis for a claimed failure to understand warnings conveyed to him by detaining police officer regarding consequences of refusing to undergo chemical testing + in short "when a police officer is speaking, one should be expected to listen and listen well."

Commonwealth v. Alphonso Rogers, 645 A.2d 223 (Pa. 1994)* Dissenting opinion would hold that a criminal defendant/appellant is not permitted to file separate pro se briefs after appellate counsel has already filed "counseled" appellate briefs.

• denotes Opinion of Pennsylvania Supreme Court, authored by Justice Ralph J. Cappy, Robert J. Colville (as law clerk) assigned primary responsibility for drafting opinion.