welcome to the pennsylvania case law update while you drive podcast you give us less than 20 minutes per week we will make sure you never miss changes in the law this week’s episode is brought to you by the mcshane firm for nearly 20 years the attorneys of the mcshane firm have been trusted by our neighbors and our friends to represent them in dui and criminal law cases thank you for joining us for episode 19 of the pennsylvania case law update while you drive podcast i’m your host katie mcshane and today we’re covering cases decided between october 21st 2020 and october 26 2020 we will start this week’s update with several general civil litigation cases in the matter of hammonds vs ethicon the court evaluates pennsylvania’s long-armed jurisdiction statute and whether there is specific personal jurisdiction in pennsylvania over new jersey corporate defendants in a case filed by an indiana resident regarding an injury caused in indiana this case involves an injury caused by pelvic mesh the only connection to the case in pennsylvania is that the mesh only one part of the pelvic mesh kit is produced in pennsylvania generally a forum states jurisdiction over an out-of-state defendant satisfies due process only when the defendant has certain minimum contacts with the state such that the maintenance of suit does not offend traditional notions of fair play and substantial justice general jurisdiction is proper only where corporations contacts are so continuous and systematic as to render it essentially at home in the forum state specific jurisdiction involves a more limited form of submission to a state’s authority when a defendant purposely avails itself of the privilege of conducting activities within the forum state it submits the judicial power of otherwise foreign sovereign to the extent that the power is exercised in connection with the defendant’s activities touching on the state case law has synthesized personal jurisdiction into a three-part test one did the plaintiff’s cause of action arise out of or relate to the out-of-state defendant’s form-related contacts two did the defendant purposely direct its activities towards the forum state or did the defendant purposely avail itself of the privilege of conducting activities therein and three with the exercise of personal jurisdiction over the non-resident defendant in the forum state satisfy the requirement that it be reasonable and fair in this case the court concluded that hammond’s claim that she suffered injury resulting from the pelvic mesh device arises out of and indisputably relates to the mesh that was manufactured in pennsylvania further the defendant purposely availed itself to the privilege of conducting business in pennsylvania and subjecting the defendant to litigation is not unfair because they are already litigating related claims brought by pennsylvania plaintiffs in the case witherspoon versus wright witherspoon and wright were involved in a relationship witherspoon lived with right but when the relationship soured witherspoon was evicted from wright’s house following his removal many of his tools and belongings were either taken or destroyed by right witherspoon sued wright alleging conversion of his property and seeking more than two hundred thousand dollars in damages following trial witherspoon was awarded seventy five hundred dollars in damages he appealed claiming that the amount awarded was against the weight of the evidence of interesting note in this case is that wright passed away following the filing of notice of appeal but before the judgment was entered because wright was unrepresented the law indicates that the court proceedings may continue as directed by the appellate court granting the court wide discretion and handling cases following the death of a party the court ruled that wright’s death did not render the case moot as the outcome will have relevance to her estate and to witherspoon’s rights as a creditor to her estate determining that the case could proceed despite the death the court addresses the merits of the claim regarding damages the court found that the award of only 7 500 was not against the weight of the evidence in so holding the court concluded that the trial court is not required to accept the plaintiff’s valuation of damages and that the trio of fact must consider the evidence of damages from both the plaintiff and the defendant and to measure the value of damages in context of the plaintiff’s burden here the court agreed with the trial court that witherspoon overstated the estimated value of his property in addition to failing to consider depreciation of the property and therefore the award of 7 500 in damages was not against the weight of the evidence in cabot oil versus spear the superior court addresses limited disclosure orders known as attorney’s eyes only ordered in an action for wrongful use of civil proceedings in this case speer an attorney had filed suit against cabot oil a national natural gas company in pennsylvania on behalf of a client the client and spear settled with the company but then filed a second lawsuit cabot oil requested discovery of the attorney’s private income-related materials including bank records and tax returns the court granted the request and entered an attorney eyes only order spear appealed the court first found that this appeal was right for review as

it satisfied all three prongs required for a collateral order separability importance and irreparable harm the court held that disclosure of confidential information on an attorney’s eyes only basis is a routine feature of civil litigation the purpose of this form of limited disclosure is to prevent a party from viewing sensitive information while nevertheless allowing a party’s lawyer to litigate on the basis of that information in weyland vs pennsylvania school employee retirement board at issue was whether money received in a settlement of an age discrimination case constitutes retirement covered compensation for purposes of calculating final average salary whalen was a school principal who filed an age discrimination suit claiming that due to his age he was denied raises that younger principals in the same district were receiving pursuant to a settlement agreement whalen was awarded fifteen thousand dollars whelan retired and at that time the board determined that the fifteen thousand dollars was not retirement covered compensation whalen appealed to the commonwealth court which found the terms of the settlement agreement to be clear and unambiguous when that is the case the words are to be strictly construed the settlement agreement stated it is the intent of the parties that the salary adjustments be income qualified for full pension credit the commonwealth court concluded that when the reading of this settlement agreement as a whole the provision that is in the intent of the parties that the salary adjustment be income for full pension credit is not a characterization but rather a clear expression of the party’s intent that the payment was what weyland should have received as part of his salary and thus be credited to his pension the settlement agreement clearly expresses the party’s intent that the payment was a salary enhancement to resolve weyland’s claim for back pay and was to be retirement covered compensation the court concludes that as a matter of law the fifteen thousand dollars must be considered retirement covered compensation in the matter of blue pilot energy versus pennsylvania public utility commission the court determines whether the commission acted within its jurisdiction when adjudicating the matter of improper price increases by blue pilot energy and evaluate the validity of the penalty imposed in this case blue pilot energy was a licensed provider supplying electricity consumers blue pilot offered variable rate plans generally these plans included an enticing fixed introductory rate that converted to a variable rate typically after the first 60 to 90 days during the polar vortex of 2014 the rate charged by blue pilot skyrocketed the first issue addressed in this case is whether the commission has the authority to adjudicate the matter the court acknowledged that the legislature imbued the commission with the authority and enabling statutes the competition act requires that all energy suppliers be licensed by the commission and further requires all licensees to abide by the regulations further the commission possesses the statutory authority to enforce its regulations therefore the commission acted properly when adjudicating the claim of excessive price increases the commission found that blue pilot violated the commission’s regulations and therefore awarded damages to the consumers who suffered from the sharp increase in price in conclusion the court found that the commission acted within its jurisdiction in adjudicating issues surrounding blue pilot’s lack of compliance with commission regulations particularly with respect to the question of consistency between pricing and disclosure statements to customers and the contents of those disclosure statements blue pilot has not persuaded the court that the civil penalty awarded was unconstitutionally excessive or a violation of due process finally the court found that the commission lacked the authority to order the creation of a refund pool for all affected customers the case is affirmed as to the civil penalty but the order creating the refund pool is overturned up next the criminal law cases for the week in the case of commonwealth versus johnson the supreme court granted discretionary review to determine the permissible scope of a warrant to search an individual cell phone for evidence relating to illegal narcotics activity and firearm activity the court instead however found that the warrant was so lacking in probable cause that it failed to justify any search of the appellant’s phone at all as background there was a 9-1-1 call reporting shots fired in an apartment officers responded to the scene and upon entering the apartment and conducting a protective sweep discovered heroin in plain view there were also firearms discovered in the apartment the appellant was searched and they seized two cell phones from his person no drugs drug paraphernalia or firearms were found on the appellant further appellant was not a resident of the apartment but was simply a visitor the commonwealth requested a search warrant to search the entire contents of appellants phones for evidence of narcotics and or firearm activity in evaluating the sufficiency of a warrant you must look at both whether the thing to be seized is described with specificity and whether there is probable cause to search for the items sought the sufficiency of the description in the warrant must be measured against those items for which there was probable cause to search where law enforcement seeks to search a person’s cell phone based on the person’s mere proximity to illegal contraband as was the situation in this case

some links sufficient to connect the two must be provided in the affidavit of probable cause the court’s review of the affidavit in this case reveals no such link in this case the affidavit of probable cause provides little more than the bare fact that the appellant was present in a place where illegal contraband happened to be found that in and of itself cannot supply probable cause for a search of the appellant cell phone in commonwealth versus katona the superior court addresses application of the independent source doctrine in denying a suppression motion in this case law enforcement was working with a confidential informant to investigate drug dealings involved with a motorcycle gang based on information provided by the ci the court granted an order authorizing a consensual wiretap that would allow the ci to wear a recording device inside the defendant’s residence based on information obtained from the ci and the wiretap recordings the police obtained a search warrant for the defendant’s home where he discovered evidence of drug dealing the defendant filed a motion to suppress the evidence obtained in the search on the basis that the wiretap recordings were unlawful during the hearing the trooper indicated that the decision to obtain a search warrant was not solely based on the recordings but rather the totality of the evidence collected over the course of the investigation the court further held that even when the recordings themselves may be inadmissible it does not render the information inadmissible the information that was contained in the wiretap recordings was likewise provided to the officers directly from an independent source the ci who was wearing the recording device the court agreed with the trial court that the independent source doctrine meaning the unlawfully obtained evidence was obtained lawfully from a separate and independent source could provide a basis for denying the motion to suppress in commonwealth versus cox the court addresses whether the death penalty is cruel and unusual due to the defendant’s particular intellectual disability as a general rule individuals with intellectual disability are categorically precluded from execution the determination of which individuals fit within that category must be decided by the individual states that assessment however cannot be based upon only an iq score the assessment must focus on adaptive deficiencies not adaptive strengths and must rely heavily upon the current expressions and practices of the medical community the assessment should not rely on politically created rules divorced from medical expertise after defendant in this case received the death penalty he filed a pcra petition the pcra court held that the defendant failed to carry his burden to prove that he was intellectually disabled relying largely on credibility findings the court ultimately determined that the testing protocols used did not yield a reliable assessment of the defendant’s intellectual functioning the standard of review for the supreme court on the question of whether a petitioner fits the definition of intellectually disabled is fact-intensive as it will primarily be based upon the testimony of experts and involve multiple credibility determinations accordingly the standard of review is whether the factual findings are supported by substantial evidence and whether the legal conclusions drawn there from are clearly erroneous the pcra court found that the defendant failed to present evidence of significance in any of his deficits in adaptive functioning because he failed to introduce a single reliable clinical diagnosis however case law does not require a reliable clinical diagnosis while a clinical diagnosis may be preferable it is not required the supreme court found that the pcra court erroneously believed that such diagnosis was required and therefore failed to consider any of the other evidence presented the matter is remanded for an evaluation of the totality of the evidence despite the lack of a clinical diagnosis we’ll be right back after a brief note from our sponsors this segment of pennsylvania case law while you drive podcast is sponsored by the mcshane firm the mcshane firm is pennsylvania’s largest and best dui and criminal law firm their mission is simple make sure the presumed to be innocent remain innocent welcome back we’ll continue with the remaining criminal cases of the week in commonwealth versus shmeel the court addresses the validity of expert testimony based upon microscopic comparison of hair samples in this case following a robbery and a murder a mask was found on the scene with hair on it the mask was made from an old sweater which was linked to the defendant’s brother upon being questioned by the police the defendant’s brother confessed that he and his brother the defendant had planned the robbery together but that he backed out and decided he wasn’t going to go through with it in addition the brother had a very solid alibi for the night the crime was committed at trial an expert testified that the hair was microscopically similar to a sample of the defendant’s hair and that the defendant’s brother could be excluded as a contributor in addition to the hair comparison there was mitochondrial dna that indicated that neither the defendant nor his brother could be excluded siblings will have the same mitochondrial dna as it is passed down from their mother so as long as they have the same mother they will have the same mitochondrial dna there was no more conclusive dna evidence as it was a mixture and not suitable for more conclusive testing the defendant appeals on the grounds of the hair comparison evidence based on

the fact that in 2015 the fbi admitted that microscopic care analysis is no longer considered to be scientifically reliable in this case the court found that the expert testified that there were limitations to hair comparison and that the trial court concluded that the expert’s testimony did not exceed the limits of science and overstate to the jury the significance of microscopic hair analysis due to the fact that there was considerable additional evidence the superior court found that the defendant failed to establish that the outcome of his trial would have been different had the hair analysis been excluded in the case of commonwealth versus muhammad the court addresses registration requirements under sorna when the defendant was convicted of interference with custody of children false imprisonment and unlawful restraint the facts leading up to these convictions began with a custody dispute between the defendant’s brother and his ex-girlfriend brother and girlfriend had a three-year-old son brother had custody of the sun while his ex-girlfriend was in jail upon her release the acts requested a visit with the son defendant’s brother agreed but when it was time to return the son to brother the ex refused the brother along with the defendant and some others went and forcibly took the sun from the axe the defendant in this case participated by driving the car after the sun was taken following her conviction at trial the defendant was ordered to register as a sex offender for 15 years it is this registration requirement that leads to this appeal this is the first and only criminal offense of this defendant further there is no evidence that the defendant committed or intended to commit any acts sexual of nature there is no question that registration as a sex offender under sorna creates a presumption and a stigma that the defendant is a dangerous adult who is likely to commit further sexual offenses the court concluded that as applied to this defendant in this case the application of sauna registration requirements creates an irrebuttable presumption that encroaches on the defendant’s constitutional interest in her reputation it is clear from the absence of any sexual misconduct in this case along with the defendant’s otherwise spotless record that she is not a high risk to commit additional or any sexual offenses as sorna violates her constitutional rights to reputation the order requiring her to register as a sex offender is vacated this case stands for the proposition that just because a particular charge carries with it a registration requirement it does not mean that that requirement does not violate constitutional rights in certain circumstances and each case must be evaluated on its facts to determine if registration is appropriate commonwealth vs dolan is a case regarding allowing the commonwealth to rely exclusively on hearsay to establish a prima facie case at a preliminary hearing this case really does not address any new law but simply issues an order upholding the new law announced in mcclelland which held that the commonwealth could not rely on hearsay alone here the case is remanded for a new preliminary hearing where the commonwealth must introduce some evidence other than hearsay in commonwealth versus davis the defendant appeals from a conviction of robbery and burglary on the basis that the police officer’s seizure of cell phone records and historical cell site location records was a search for which a warrant was required and there was insufficient probable cause in this case the officer had requested cell site location records and was provided them by the cell phone company prior to the decision in carpenter which required the police obtain a search warrant for such records following the decision in carpenter the police department applied for and were granted a search warrant for cell phone records they were again provided with the same records the defendant contends that the warrant was insufficient to eliminate the taint of the illegally seized records the commonwealth argued that since the cell phone records would have been and in fact were ultimately discovered by lawful means the evidence should not be excluded pursuant to the inevitable discovery doctrine under the inevitable discovery doctrine if the prosecution can establish by a preponderance of the evidence that illegally obtained evidence ultimately or inevitably would have been discovered by lawful means the evidence is admissible here the court held that based on the totality of the circumstances set forth in the affidavit there was a fair probability that evidence of a crime would be found upon examination of the cell phone records and therefore probable cause to obtain the search warrant existed because the evidence ultimately was obtained by a lawful search warrant supported by probable cause the evidence is admissible the next case addresses election law in ray the november 3rd 2020 general election evaluates whether or not the election code requires county election boards to reject mail-in ballots based on signature analysis where there are alleged or perceived signature variances the election code indicates that the county board of elections shall compare the information in the declaration to the registered absentee and mail and voters file but there is nothing in the code that requires a verification or comparison of the signature the court further found that this was not an oversight in the election code as the legislature has evidenced its ability to require signature variation in other matters and therefore its absence in this particular provision is evidence that they did not intend for the election board to compare or verify authenticity of signatures further in light of the fact that there are not standards or guidelines contained within the code as to how an official should perform such a

comparison procedures would vary from county to county creating a significant risk of error and uncertainty in the review of ballots the court concludes that it is the board’s duty to check the identification listed on the voter’s mail and or absentee ballot to see if it is the type permitted by the election code and to verify that it is valid the studio does not however require or authorize county boards to go further and compare the signature on the voter’s ballot to ensure it is the same as that which appears on the form of identification listed on the application county election boards are prohibited from rejecting mail and ballots based on signature comparison the final case of the week addresses unemployment compensation in the case of humanist versus the unemployment compensation board of review the commonwealth court addresses whether a person who is hired through and paid by humanist to tutor students is self-employed for purposes of determining unemployment eligibility here claimant was hired as an independent contractor with humanist to work as a tutor for students referred by the achievement house cyber charter school at the rate of 18 per hour claimant used his own computer and was free to work for other companies contemporaneously if he so chose as a general rule an employee is ineligible for unemployment compensation for any week in which he is engaged in self-employment to be considered self-employed the employee must work free from direction and control and be customarily engaged in an independently established trade occupation profession or business in determining whether an individual is engaged in self-employment and therefore ineligible for benefits an analysis does not evaluate what a claimant could do but what he has done and or is doing in terms of providing personal services for remuneration in this case the court found that while the claimant could have accepted other tutoring assignments had they come along he did not and it does not appear that he sought any such opportunities because there is no indication that the claimant was actually involved in an independently established trade occupation profession or business he is not self-employed and therefore eligible for unemployment compensation a busy week for the courts this week thank you as always for joining us i hope you learned something useful please join us next week and please subscribe thank you for listening to the pennsylvania case law update while you drive podcast be sure to subscribe to this podcast and our youtube channel to make sure that you are always in the know when it comes to important changes in pennsylvania case law we want to thank this week’s sponsor the mcshane firm the mcshane firm is a central pennsylvania fixture when it comes to dui and criminal defense the attorneys and staff at the mcshane firm believe in good old-fashioned central pennsylvania values like hard work and straight talking give them a call if you or a loved one ever needs help you