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Posted by on Mar 15, 2017 in Uncategorized | 0 comments

Bill Cosby Jury Pool Round-up

Today’s roundup is entirely composed of reaction to the Court’s choice of Allegheny County for the new venire in the Bill Cosby case.

Phil DiLucente of Pittsburgh’s WPXI News discusses the “great cross section of society” available in Allegheny County. Pittsburgh’s Tribune-Review and Post-Gazzette provide summaries of the maneuvering over the jury pool so far, along with some local reaction. Finally, though posted a few weeks ago, we offer The Legal Intelligencer’s pre-decision discussion of where to find an appropriate jury pool in this case.

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Posted by on Mar 14, 2017 in Criminal | 0 comments

Bill Cosby gets Allegheny Jury

The “Twelve Angry Men” who will be called upon to decide Bill Cosby’s fate in his pending rape trial will hail from Allegheny County, the Supreme Court decided yesterday. Under Pa.R.Crim.P. 584, the decision to change “venire” (that is, the county pool from which the jury will be selected) rests with the trial court hearing the case. This case is unusual in that the change of venire was consented to by both sides in order to facilitate moving forward quickly to trial.

Upon certification to SCOPA of an order to change venire, it rests with our Supreme Court to choose the appropriate county from which to draw the jury. It is unusual to see the Supreme Court comply with an “Order” from a lower court, yet that is precisely the situation under the rules.

The Court released no reasoning with its order yesterday for the selection of Allegheny County, but presumably, the press surrounding Mr. Cosby’s case is wide-spread enough, and his reputation sufficiently pervasive to make a lengthy list of strikes for cause. Allegheny, as the most populous county on the Western end of the state is the best suited to provide a sufficient number of jurors to choose from at the greatest distance from the actual trial.

Once chosen and impaneled, the jurors will be transported across the state at Montgomery County’s expense, and the Cosby trial will proceed.

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Posted by on Feb 23, 2017 in Civil, Insurance, MVFRL | 0 comments

Ford v. American States Ins. Co – UIM Waiver is Close Enough

Sometimes, a few words can be very expensive; sometimes, they don’t matter. 75 Pa.C.S.A. § 1731 of the Motor Vehicle Financial Responsibility Law (“MVFRL”) prescribes a form to be used verbatim by insurance companies when offering an insured the right to waive Underinsured Motorist coverage (“UIM coverage”) on their car insurance policy. For those unfamiliar, UIM coverage is what your insurance company pays out when your injuries exceed the policy limits of the responsible driver, and while insurance companies are required to offer UIM to their Pennsylvania customers, the insured may waive UIM protection in exchange for lower premiums. After explicitly mandating the wording of the form to be used, (“The named insured shall be informed that he may reject uninsured motorist coverage by signing the following written rejection form:”), the statute goes on to emphasize that any company that does not “specifically comply with this section” will have to pay the insured’s UIM claim up to the policy’s bodily injury limits, even though the insured paid the lower, non-UIM premium leading up to the accident.

So what really happens when an insurance company does not “specifically comply” with the form in the statute? Or perhaps the better way to frame the argument—and the framing the Court appears to have accepted—is what it means to “specifically comply” with a statute that provides explicit language for insurers to use. Is it the precise wording of the statute the legislature was requiring, or the underlying meaning of the words?

In the case at hand, Audrey Ford purchased insurance on her 2000 Chevrolet Cavalier and waived the UIM offering from American States Insurance Company. (Note that on this site, we strive not to judge anyone’s lifestyle choices, and so we’ll allow both Ms. Ford’s waiver of UIM and her choice of the Chevy Cavalier to pass without comment). She waived UIM and paid the resultant lower premiums until one fateful day in 2013, when her Chevy Cavalier was struck in Union Township (birthplace of Mr. Radio Baseball). Ms. Ford’s injuries exceeded the limits of the other party’s insurance (the Court helpfully identifies the other driver only as “Tortfeasor”), and she subsequently made a claim against her own insurance company for UIM.

American Insurance’s UIM waiver form contained two minor additions to the statutory language, underlined as follows:

By signing this waiver I am rejecting underinsured motorists coverage under this policy, for myself and all relatives residing in my household. Underinsured motorists coverage protects me and relatives living in my household for losses and damages suffered if injury is caused by the negligence of a driver who does not have enough insurance to pay for all losses and damages. I knowingly and voluntarily reject this coverage.

The Court, speaking by Justice Baer, preferred function over form, in this case. The majority’s reasoning relied on two points: first, it was “important” that Ms. Ford had paid lower premiums in exchange for the understanding that she was waiving UIM. Presumably, the Justices did not like the idea that someone could reap the benefit of a bargain for lower coverage, and then still cash in on the higher coverage she had declined. More centrally, however, while acknowledging a long line of cases requiring strict compliance with the statutory waiver form, the majority points out that the statute requires only “specific compliance” with the statute, not “verbatim reproduction” of the form within the statute. Calling any insurer’s decision to deviate, even slightly, from the form in the statute “ill-advised,” the majority goes on to hold that, “when a UIM rejection form differs from the statutory form in an inconsequential manner, the form will be construed to specifically comply with Section 1731 of the MVFRL.” Because the Insurance Company’s addition of a letter and a word injected no ambiguity into the meaning of the form, the General Assembly’s intention that an insured be put on notice of the rights she was waiving was still accomplished.

If you’re wondering how we’ll know when a UIM-waiver form’s deviation is “inconsequential” in the future, you’re not alone. Justice Donohue, joined by Justice Todd, offers a dissent rebuking the Majority’s approach as “contrary” to the statute, and to the General Assembly’s express intent, and predicting that insurance companies are now invited to “tinker, ad nauseam, with the statutorily required language.” The courts will be called on to “oversee case after case” regarding an infinite variety of ways to express the underlying ideas into the statute. Justice Dougherty concludes, “I am at a loss to understand why this Court would inject uncertainty into this abundantly clear expression of legislative direction.”

This case reflects another interesting deviation in that Justice Baer is normally the Court’s most textualist writer. His opinion attempts to reconcile that textualism with a fairly-clear statute, and the Justice seems comfortable with his view that the term “specifically comply” does not mean “strictly verbatim.” The big takeaway for insurance defense is to check your clients’ UIM waivers; there’s just no reason to risk tinkering with the statute’s language. But the takeaway for the plaintiff finding verbal discrepancies in the form is this: don’t get your hopes up.

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Posted by on Feb 22, 2017 in Criminal, Direct Capital Review | 0 comments

Com v. Smyrnes: Capital Appeal

The facts in this case are a repeat of those in Com v. Knight, and they are horrific enough not to bear repeating. Smyrnes appears to have been the ringleader of the conspirators described in the previous appeal. As a matter of both practice and public interest, this case hardly warrants a review, as the Court reviewed and affirmed all matters of the trial. Indeed, most of the points of review were deemed to have been waived by the Defendant, whose failure to object, and indeed, his endorsement of the trial court’s rulings led the Court to refuse further discussion of most of his objections.

Two points stand out, however: first, the Court takes a moment to caution prosecutors on “the value of restraint in scenarios involving potential prejudice connected with . . . non-essential evidence” such as photographs of victims. Here, the Commonwealth made limited use of a pre-injury photograph of the mentally disabled victim to demonstrate what she looked like before her hair was cut by the defendant.

This portion of the opinion represents a possible refinement on prior caselaw, which held that photographs of a victim may not be entered to prove an uncontested element of a crime, or to demonstrate a “victim’s character or physical abilit[y].” Com v. Rivers, 537 Pa. 394, 406-07 (1994). This is in keeping with Pennsylvania Rule of Evidence 403, which requires a balancing of the unfair prejudice created by a piece of evidence with its probative value.

It is plain that the Court did not approve of the use of the photograph in this case, as it “was by no means essential to the prosecution to place this photograph before the jury.” The Court goes on to argue that it “had some relevance,” and to rest its decision on the Commonwealth’s “limited use” of the photo. Of course, “relevance” is only a baseline of admissibility under Pa.R.E. 402, and Rule 403’s balancing test is left unaddressed by the Court. It is hard to see how a photograph was necessary to prove that the victim’s hair was cut during the torture sequence preceding her murder, and a photograph proving that she once had long hair could hardly be argued to be probative. The Court more properly should have ruled this an error, but ruled it harmless and unprejudicial to the defense; however, the Court appears to be squeamish about admitting even a minor fault in a death penalty case that it has no intention of remanding for a new trial.

Second, the Defendant raised a novel argument that the aggravating factor of a murder “committed by means of torture” in 42 Pa.C.S. § 9711(d)(8) could not be imputed to a conspirator who was not the “instrumentality of death.” The Defendant was found vicariously responsible for murder by virtue of his encouragement of the others, his leadership in the conspiracy to murder, and his malicious state of mind. But while the Defendant participated in the acts of torture, he did give the final blows of the knife that killed the victim, and argued he could not properly be attributed with the aggravating circumstance of torture for the purpose of reaching a death penalty verdict. The Court notes that, although the active voice is required elsewhere in the aggravating factors statute, the passive voice referring to an offense “committed by means of torture” clearly demonstrates the propriety of the torture aggravator even when the Defendant was not the physical murderer.

Capital Appeals are statutorily-required of the Commonwealth’s High Court, to ensure that a sentence is not “the product of passion, prejudice, or any other arbitrary factor,” and to ensure that the aggravating factors were properly found by the jury. 42. Pa.C.S. § 9711(h)(3). The resulting opinions rarely make for interesting reading or for novel caselaw, but they serve an important role in ensuring the justice of executions.

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Posted by on Nov 23, 2016 in Uncategorized | 0 comments

City of Philadelphia v. Lerner—Ignoring the Government’s Requests for Information Only Works if You’re With the Government

Remember Lois Lerner? Remember her pleading the Fifth, and refusing to answer questions about alleged IRS wrongdoing?  In City of Phila. v. Lerner, we learn that this doesn’t work out the same way when you’re not employed by the government.

In 2004, the City of Brotherly Love (home of the Tax-Free Shopping Spree) received an anonymous tip that one of its residents—Nathan Lerner—wasn’t shouldering his share of the city’s tax burdens and was concealing the existence of businesses (and thus, their taxable profits) from the City. But games of hide-and-seek don’t end just because the Seeker asks where you’re hiding, and Mr. Lerner declined to answer the City’s requests for information about his businesses. More audaciously, Lerner ignored the exorbitant tax bills that the City sent him to smoke out the true information.

The City filed an enforcement action in the CCP, requesting full payment of the exorbitant taxes they assessed. A default judgment followed, and an opening of the default, and finally Mr. Lerner showed up in court. Lerner, as appears to be his custom, declined to answer the City’s motion in limine, which was granted, preempting Lerner from challenging the underlying tax estimates, which the City’s own employees described as “just [made] up,” and designed to scare the taxpayer into “com[ing] in and mak[ing] sure the figures are accurate.” The trial court agreed, concluding the tax bill was “basically an amount pulled out of the sky,” but nonetheless ordered Lerner to pay the full, assessed amount with interest.

Lerner challenged the trial court’s ruling that he must pay the tax bill as against the weight of the evidence, and argued that he should have been able to argue the underlying tax bill in the CCP. SCOPA disagreed, ruling that a litigant’s failure to exhaust all administrative remedies barred him from raising the waived argument in court. The Court framed this as a jurisdictional matter, arguing that the Philadelphia Tax Review Board had exclusive original jurisdiction over the tax amount.

Lerner urged for a special exception to the rule, which has been around since at least Krug v. City of Phila., 152 Pa.Cmwlth. 475 (1993). The Court declined to create such an exception, and made little effort to disguise its disgust with Lerner for his failure to answer requests for information, tax bills, complaints, and even motions before the trial court. “Lerner asserts that reversal is necessary to prevent a ‘fraud’ in the legal process. But that process consists of rules, and Lerner has flouted them at every turn.”

An unusually spirited pair of dissents issued from Chief Justice Saylor and Justice Donohue. Justice Donohue argues that the “scam preceded any attempt by Lerner to assert a defense,” and expresses hope that it will be “the rarest of occasions when a plaintiff comes into a Pennsylvania court, straightforwardly admits in its case-in-chief that it is proceeding arbitrarily and without any evidentiary basis whatsoever, and nevertheless demands that the court enter judgment in its favor on a fictional damage amount.” Justice Donohue would eschew the typical considerations of efficiency underlying the “exhaustion of administrative remedies rule,” and refuse to allow an admitted fraud to be perpetrated through the courts.

This case is not terribly noteworthy for its rule of decision: after all, exhaustion of administrative remedies is a standard precursor to arguments in trial courts. But one can’t help but notice the way in which this decision would be different if the parties were reversed. We don’t need the experience of Lois Lerner to know that local taxing authorities don’t feel constrained to respond to the taxpayer’s request for information in a timely manner. For the taxpayer, however, failure to respond gives the taxing authority power to pick the penalty in a Pennsylvania court, and apparently to accompany the choice with an open admission of its exorbitance.

Furthermore, while this case rested largely on procedural grounds, one wonders why the Court did not consider the possibility that there is a difference between skipping administrative remedies as a Plaintiff, and being able to raise the lack of substantive proof as a Defendant. No one is arguing that Lerner should be able to sue the City of Philadelphia without first exhausting all administrative processes; but when sued over an amount that is admittedly made up, a trial court seems like the appropriate venue for fact-finding, regardless of the taxpayer’s past omissions.

Slip opinion here.

Saylor, C.J., dissenting.

Donohue, J., dissenting.


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