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Posted by on May 3, 2017 in Attorney Discipline, Constitutional Provisions, Rule-Making Powers | 0 comments

Villani v. Seibert: Dragonetti Statute Does Not Violate Separation of Powers; But We’re Leaving the Door Open

 

Civil lawyers know—and may even fear—the threat of a Dragonetti action. The draconian name accurately depicts one of the few times in law that a lawyer can subsequently be called into court for his actions as an advocate. The Act is named for Joseph Dragonetti, a then-retired reporter for the Philadelphia Daily News, who unsuccessfully brought suit after he was frivolously named in a lawsuit against a bank which he had done some marketing for. Dragonetti was unable to recover because of the common law rule—dating back to the 13th century—that required a show of imprisonment or seizure before an abuse of process claim could prevail. Dragonetti persuaded the legislature to pass 42 Pa.C.S. § 8352(1), the Act now commonly called by his name, in 1980, and his name has been bandied about in acrimonious disputes between litigious attorneys ever since.

Villani v. Seibert arose out of a case in Chester County (home of America’s most valuable mushrooms) in which a Dragonetti action was pleaded. Seibert persuaded the trial court to grant preliminary objections on the basis that the Dragonetti statute impermissibly crosses into the exclusive purview of the Supreme Court of Pennsylvania under Article 5, Section 10 of the Pennsylvania Constitution, which grants the Court the exclusive right to regulate the conduct of attorneys and to lay down rules governing the profession.

In a 6-1 decision, (though with only five votes for the majority opinion), the Court ruled that the Dragonetti Act did not violate its prerogatives to regulate the practice of law in the Commonwealth.

Saylor for the Majority: Dragonetti Statute is Primarily Substantive, but Where Punitive to Attorneys, It’s a Problem

Describing the statute as having “a strong substantive, remedial thrust,” Chief Justice Saylor relied on the Court’s voluminous caselaw (which is well summarized in the prior case of Com v. Olivo, 127 A.3d 769 (2015)) establishing that Article V, § 10’s provisions are generally meant to give the Court exclusive power to create procedural rules, while the legislature retains its more traditional power to create substantive rights and remedies for the Commonwealth.

The Court relied on federal caselaw which characterizes tort statutes such as this one as “perform[ing] an important remedial role” to emphasize that the legislature’s actions in passing the Dragonetti statute were substantive, not procedural. Given this fact, the statute falls within the legislature’s prerogative, rather than the Court’s.

“There is no directed challenge to the punitive damages aspect here,” Saylor noted, taking care to leave wide the door to the argument that an attorney is not subject to punitive sanctions under the Dragonetti Act. Such punishment might run afoul of the Court’s prerogative to discipline attorneys, and leaving attorneys open to discipline in civil actions brought by private parties throughout the Commonwealth may be argued to trample the Court’s exclusive powers. But this question is left for another day, and a narrower case. For now, the Court was content to rule that there is no “generalized attorney immunity from the substantive principles of tort law embodied in the Dragonetti Act.

Conclusion: Separation of Powers

This case represents a creative argument and a further refinement on the Court’s separation of powers jurisprudence. Several times, now, the Court has resisted the urge to become overly-aggressive in defense of its prerogatives, and is working to strike a balance between the substantive rights of the legislature and the more restrained procedural rule-making power of the Court. As the Court notes in this opinion, the legislature is better situated for making broad policy, and leaving questions such as the civil remedies available to aggrieved defendants to the legislature.

One final note: somewhat unusually, the Attorney General declined to take up the defense of the statute as called for under Pa.R.C.P. No. 235. The Court notes this oddity with some surprise in footnote 2. It is unclear why the AG’s office declined to intervene here.

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Posted by on Apr 29, 2017 in Constitutional Provisions, Criminal, Probation and Parole | 0 comments

Pittman v. Pa. Bd. of Probation and Parole: Board Abused its Discretion by Failing to Use Discretion

The Parole Violation statute requires the Board of Probation and Parole to use its discretion when considering whether to credit “time at liberty on parole” to a convicted parole violator’s re-sentencing for the underlying crime, the Supreme Court has ruled in Pittman v. Pa. Bd. of Probation and Parole. Furthermore, the Board must explain its decision in order to provide an opportunity for effective appellant review.

Kevin Pittman was sentenced in 2010 for a Possession With Intent to Distribute, and was paroled a year later. While on parole, Pittman committed another crime, which brought him before the Board. The Board checked a “No” box in answer to the question “Credit time spent at liberty on parole” on a form, and when pressed for an explanation by Pittman via letter, the Board argued he had “automatically forfeited credit for all of the time that you spent on parole” by committing a subsequent crime. Pittman appealed to the Commonwealth Court for review, which affirmed en banc.

Baer for the Majority: Parole Board has discretion to award credit for time at liberty on parole, and must at least consider doing so

 The Parole Violation statute provides that the Parole Board “may, in its discretion, award credit . . . for the time spent at liberty on parole.” This provision “clearly and unambiguously grants the Board discretion” to award credit for time at liberty on parole. Thus, the Board erred when it said that Pittman “automatically forfeited” his time spent on parole. “[T]he Board abused its discretion . . . by concluding that it had no discretion,” Justice Baer said for the majority, reversing the Commonwealth Court and remanding to the Board to consider whether, in its discretion, Pittman should be credited with time he spent at liberty on parole.

The Court went further, ruling that the Board must produce more than a “Yes” or “No” checkbox on a form when rendering a discretionary decision. The majority held that this requirement, though not found in the statute, rested on three separate bases. First, Article V, Section 9 of the Pennsylvania Constitution grants citizens the right to an appeal from all administrative agency hearings to courts of record. Failing to provide any written reasoning for the Board’s decision threatened to turn this Constitutional appellate right to a “mere empty formality.” Second, “inherent notions of due process” demand a written explanation when a convicted parole violator is facing re-sentencing. Third, the General Assembly’s intent in passing the Parole Violation statute is best served by requiring a written opinion regarding a decision involving the Board’s discretion.

Saylor: This Decision is In Keeping with our Past Decisions on Parole Board Appeals

 Noting that the Court has previously ruled that parole revocation determinations are subject to the right to appeal, Chief Justice Saylor expressed concern in a brief concurrence that the majority opinion “may be read to diverge from this statutory requirement concerning the timing and/or content of written explanations by the Board.” Saylor offered no further explanation on this point, and was joined by Justice Todd in this opinion.

Mundy: Discretion Must be Exercised by the Board, but No Explanation is Required in the Statute

Arguing that the majority “insert[ed] new language” into the statute, Justice Mundy, joined by Justice Wecht, concurred in the result because the Board abused its discretion, but noted that nothing in the statute requires a written opinion. Noting that the Board is free to defend its decision in the appellate courts—as it did here—she argued that a written decision is not required by the statute or by practice in order for a meaningful appeal to take place.

Conclusion: The Board lost this one, right?

 The Parole Board loses this appeal on paper, but one always wonders what the Appellant wins in a case like this. For his pains, he receives the right to go back before the Parole Board, wounded by a rebuke by the Commonwealth’s highest tribunal, and beg for discretionary mercy. This time, the Board will be free to check “No” again, and will be sure to write an opinion as to why. Perhaps the Board will grant some mercy, now aware that it has broader latitude than it previously thought, but it seems unlikely that Mr. Pittman ends up in a much better situation now than before.

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Posted by on Apr 28, 2017 in Criminal, Direct Capital Review | 0 comments

Com v. Yandamuri: Direct Capital Appeal

Com v. Yandamuri was a direct capital appeal case pursuant to the Court’s responsibility to directly review all death penalty cases. In a botched baby-kidnapping-for-ransom attempt, Raghunandan Yandamuri, a non-citizen, knocked on the door of the home of friends, forced entry and threatened the grandmother with a four-inch knife. The grandmother struggled when Yandamuri grabbed the baby, and he stabbed Grandmother in the throat several times, killing her. He then stuffed a cloth in the baby’s mouth, bound the baby’s head with a towel (to keep the cloth in place), and then stuffed the child in a suitcase and left the suitcase in a sauna while he showered.

Yandamuri’s “plan,” such as it was, unraveled when he used an identifiable term for the parents known to only a small group of friends on the ransom notes strewn about the scene of the crime. He was in a casino when approached by security and asked if he would meet police in a hallway. He complied, and voluntarily accompanied the police to the station, and from there, the story is simple. He was repeatedly told he could leave at any time, and as his story changed, he finally was read Miranda rights, and he gave a full confession.

Yandamuri’s challenge to his conviction for first-degree murder is as weak as his plan for ransom. He challenged his “detention,” the admissibility of his confessions and claimed that “discrepancies” in the stories of the Commonwealth’s witnesses constituted “false evidence.” These arguments were flatly rejected.

Baer for the Majority: No Custodial Interrogation, Miranda not Required

Justice Baer, speaking for the majority upheld the conviction. Yandamuri’s first argument is that he was illegally arrested and detained. But the facts clearly demonstrated that he was first approached by private security guards at the casino where he was gaming, and he agreed to go with the guards, then with the police, and that he voluntarily remained with the police at the station in an unlocked room, even after repeatedly being reminded he was free to leave.

Second, Yandamuri argued that his confessions were coerced because he was not Mirandized early enough in the process. In determining whether a Defendant was in custodial interrogation such that Miranda warnings are required, the courts use an objective test, asking whether a reasonable person would have believed he was at liberty to terminate the police encounter under the circumstances. In this case, the officers’ repeated reminders that he was free to leave, their offer that he take breaks for food or to use the restroom, and the fact that Mr. Yandamuri had a master’s degree, implying high intelligence that makes it unlikely he was psychologically coerced.

The Court notes only two factors in his favor: Yandamuri is not a citizen, and thus “may have been unfamiliar with police practices” here in America; and he was at the police station for thirteen hours before confessing—his final confession came early in the hours of the morning. But nothing else in the situation argued in favor of a coerced confession, and so the confession could be properly admitted.

Finally, the Court rejected Defendant’s argument that minor discrepancies in the testimony of witnesses for the Commonwealth constituted the presentation of “false evidence.” Discrepancies, by themselves, are not false evidence.

Conclusion: You Can Always Waive Your Rights

These cases are always heartbreaking—especially when they deal with a murdered baby, and a grandmother who tried, however futilely, to wrest the baby back from the kidnapper. This case provides little of interest to the practicing attorney, but reaffirms the basic principle that constitutional protections cannot be foisted on those who are not interested in preserving them. The evidence used to convict Yandamuri came largely from his own mouth.

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Posted by on Apr 27, 2017 in Uncategorized | 0 comments

City of Allentown v. Int’l Ass’n of Fire Fighters Local 302: Minimum staffing is not managerial prerogative

In order to facilitate efficient and final labor agreements for public entities, Pennsylvania’s Act 111 provides for binding arbitration where an impasse in negotiations is reached. Such arbitration award can only deal with matters rationally related to the terms and conditions of employment, however, and specifically exempted from the realm of matters related to employment are those matters which are “managerial prerogative.”

The trouble begins where a matter that is fairly within the parameters of the terms and conditions of employment is also a matter of managerial prerogative. In City of Allentown v. International Association of Fire Fighters Local 302, the Court applied its three part, shifting test, developed in past cases, to hold that an arbitration award layout out minimum staffing requirements for firefighters did not “unduly infringe” upon the public employer’s essential managerial responsibilities, and so was a valid arbitration award.

The firefighter union and the City of Allentown (subject of Billy Joel’s famous blue-collar anthem) failed to reach terms on a collective bargaining agreement, and the matter was certified for binding arbitration in 2011. The arbitration panel issued an Award in November 2013 which required, among other things, a minimum of twenty-five firefighters employed on each shift. Allentown appealed, arguing that the minimum staffing requirement was within the city’s “managerial prerogative,” and thus not subject to an arbitration award in a collective bargaining dispute.

Majority, Todd: Allentown failed to demonstrate undue infringement

In illustrating the difficulties found in this case, Justice Todd evokes the image of a Venn Diagram, illustrated here for convenience.

City of Allentown v. International Association of Fire Fighters Local 302

 Those matters which are “managerial prerogative” are not to be included in an arbitration award to resolve a collective bargaining dispute. But those matters which are fairly included in the terms and conditions of employment must be included. Thus, when these two overlap, the Appellate Courts of the Commonwealth are called upon to do some line drawing.

Todd lays out the policy considerations at play in adjudicating collective bargaining agreements, then lays out an established three-part test and applies it.

  1. Where a topic is “rationally related” to the terms and conditions of employment (and thus subject to the right of collective bargaining); and
  2. where such topic also implicates a “managerial responsibility”;
  3. the municipality bears the burden of demonstrating that the topic would “unduly infringe” upon the public employer’s essential managerial responsibilities.

In the case at hand, the municipality failed to bear its burden on part three. While setting requirements for total force staffing would be managerial prerogative, Allentown failed to counteract the uncontradicted testimony that the safety of firefighters was directly threatened by a failure to meet certain minimum thresholds of staffing.

The Court sought some evidence that the burden on the City’s managerial prerogative was so great as to make the arbitration award unacceptable; but Allentown failed to meet this burden. “[T]here is a direct and significant relationship between the number of individuals available to respond to a call at a station . . . . and the safety of the City’s firefighters.” Thus, the award was properly within the purview of collective bargaining, and was allowed to stand.

Saylor: Are we going to do this every time?

 Chief Justice Saylor penned a concurrence urging courts to “minimize such fact-finding and defer” to arbitration panels. Concerned that decisions such as this one will create a body of caselaw that will lead to small cities governed by fact-intensive inquiries settled in cases involving large cities, and vice-verse. Saylor would leave such matters in the sound discretion of arbitration panels wherever possible.

Dougherty: Undue Infringement is a High, Evidence-Driven Bar

 Justice Dougherty’s concurrence reminds the reader that “[p]olice officers and firefighters gave up the ability to strike in exchange for the right to bargain collectively,” and argues that a municipality’s burden must be high in order to show that the infringement on its managerial prerogative is undue; he also urges that the burden of proof rests on the municipality.

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Posted by on Apr 9, 2017 in Civil, Family Law | 0 comments

In re Adoption of LBM and ADM: A Child and His Counsel

A child’s legal interests are not the same as his best interests, and in proceedings for the Termination of Parental Rights, the child has a statutory right to counsel for the former, even if he already has a guardian ad litem for the latter. The holding in this case, which arises out of a Child and Youth Services (“CYS”) petition in Franklin County (home of John Brown’s Hideout), was a 5-2 decision upholding a child’s right to an attorney in Termination of Parental Rights proceedings to advocate for the child’s “preferred outcome” in the litigation.

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