The Legal Intelligencer Blog

Fresh Ink: Inside Today's Legal

Welcome to your Tuesday morning round-up of stories in today’s edition of The Legal Intelligencer, which also includes this week’s edition of Pennsylvania Law Weekly. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story in today’s Legal is the state Superior Court reviving a $500 million malpractice claim against K&L Gates. As reporter Gina Passarella writes, K&L Gates and accounting firm Pascarella & Wiker are being sued for allegedly failing to detect fraudulent activity at the now bankrupt Le-Nature’s when they conducted an internal investigation years before the bankruptcy.

Also above the fold on Page 1, Gina Passarella writes that Cozen O’Connor is seeking to reopen a discontinued lawsuit filed against it by former Wolf Block lawyers.

Below the fold on Page 1, reporter Zack Needles writes that the state Supreme Court has agreed to hear arguments in a case regarding whether attorney-client privilege protects clients’ identities from being made public.

In more Regional News on Page 3, reporter Jeff Mordock writes that Eckert Seamans Cherin & Mellott has added nine attorneys to its Wilmington, Del., office.

As always, our People in the News section is on Page 2, and the top stories from our sibling publications across the country make up the Page 4 National News section.

In a Professional Conduct column on Page 5, David B. Picker writes about a potential new duty to preserve pre-closing transaction documents.

In an Environmental Law column on Page 7, Thomas J. Farnan writes that a case regarding the definition of “mineral” could have a big impact on shale.

Today’s lead story in PLW is the state Supreme Court holding oral arguments last week in a case balancing the Coroner’s Act with the Right-to-Know Law. As reporter Ben Present writes, a media company was prohibited from immediately looking at a coroner’s autopsy reporter to find out the manner in which a Pennsylvania college student died and was appealing the issue.

Below the fold on Page 1, Ben Present writes that the Supreme Court will take up will-contest proceeds in a divorce case in a case of first impression.

On Page 3, Ben Present writes that the Supreme Court justices heard oral arguments regarding whether retirement packages block unemployment benefits.

There’s much more inside this week’s PLW, including Samuel C. Stretton’s Ethics Forum, in which he writes that veteran lawyers often face more disciplinary action than younger ones; William F. Kerry Jr.’s Municipal Law commentary, in which he writes that the Pa. real estate tax structure presents dilemmas for municipal officials; and Jeff Jubelirer’s Public Relations commentary, in which he writes that PR should be done by your employees, not just outside assistants.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Wednesday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

Today’s top story is a split en banc state Superior Court panel barring a venue change from Philadelphia to Dauphin County in a suit against Harrisburg law firm Keefer Wood Allen & Rahal and other defendants. As reporter Zack Needles writes, the panel ruled 6-3 to reverse a Philadelphia Court of Common Pleas ruling that had granted the defendants’ petition to change venues for forum non conveniens, a ruling that was then upheld 2-1 by a three-judge Superior Court panel.

Also above the fold on Page 1, reporter Amaris Elliott-Engel writes on yesterday’s events from the Catholic Archdiocese of Philadelphia priest sex-abuse trial. Philadelphia Common Pleas Judge M. Teresa Sarmina said she would not prospectively rule on whether prosecutors could introduce defrocked priest Edward V. Avery’s guilty plea to sexually abusing D.G., who is set to testify today, until after cross-examination is conducted.

Below the fold on Page 1, reporter Saranac Hale Spencer writes that a federal judge has denied a $926,000 referral fee to an attorney who referred cases to a class action RICO suit that settled for hundreds of millions of dollars in 2009.

In more Regional News on Page 3, David Gialanella of Legal affiliate New Jersey Law Journal writes about a U.S. Court of Appeals for the Third Circuit ruling that the government does not need to send a lawyer or other representative to administrative or litigation proceedings for a successful adversary to win attorney fees incurred in fighting the government’s action.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In this week’s GC Mid-Atlantic column on Page 5, Steven D. Usdin and Nella M. Bloom write about identifying signs that a company is in financial distress.

In a Media Law column on Page 7, Gayle C. Sproul and Michael Berry write that the press and public should be free to tweet from court.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to email any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Tuesday morning round-up of stories in today’s edition of The Legal Intelligencer, which also includes this week’s edition of Pennsylvania Law Weekly. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story in today’s Legal is a Berks County trial judge issuing what is believed to be the first order in Pennsylvania suppressing evidence from a Global Positioning System based on the U.S. Supreme Court’s recent ruling in United States v. Jones. As reporter Zack Needles writes, the high court barred evidence obtained through a mobile tracking device used to monitor a suspect’s vehicle in that case, because authorities failed to adhere to the terms of a search warrant. In the case of Commonwealth v. Burgos, Berks County Common Pleas Court Judge Paul M. Yatron reversed “with extreme reluctance” his prior order denying a defendant’s motion to suppress evidence.

Below the fold on Page 1, reporter Saranac Hale Spencer writes that U.S. Steel’s failure to provide a copy of a letter sent to a special master to the Equal Employment Opportunity Commission does not void the master’s recommendation, a Western District judge has ruled. The EEOC has been engaged in a lengthy dispute with the employer.

In more Regional News on Page 3, reporter Amaris Elliott-Engel writes that the state Supreme Court has rejected a new trial for a defendant on death row because a police interview that was not turned over to the defense before trial did not exculpate him.

Also on Page 3, Dan McCormick writes that noted white-collar litigator Donald J. Goldberg has died at 81.

As always, our People in the News section is on Page 2, and the top stories from our sibling publications across the country make up the Page 4 National News section.

In an Immigration Law column on Page 5, Suzanne B. Seltzer writes that a federal judge has reminded the U.S. Citizenship and Immigration Services to play by the rules.

In a Family Law column on Page 7, Michael E. Bertin writes that the Superior Court has ruled declaratory judgment in a divorce action is unappealable.

Today’s lead story in PLW is a look at the upcoming state Supreme Court oral arguments to be held in Pittsburgh this week. As reporter Ben Present writes, the case attracting the most attention is the $18.5 million verdict being appealed by Genuardi’s in a case that involves a long list of appellate lawyer heavyweights filing amicus briefs.

Below the fold on Page 1, Ben Present writes that the state Supreme Court has denied the extraordinary jurisdiction petition of an attorney who has accused a Washington County judge of tampering with the transcripts of the underlying murder trial he defended.

On Page 3, Zack Needles writes that the state Superior Court has ruled a sheriff’s sale cannot be set aside for a late bidder.

There’s much more inside this week’s PLW, including Samuel C. Stretton’s Ethics Forum, in which he discusses privileged information in joint defenses; Matthew T. Mangino’s Criminal Practice column, in which he writes that the Supreme Court has opened the door to ineffective plea-bargaining claims; the Superior Court saying that a jury may decide an injured worker’s employment status; a religious school ruled not exempt from paying unemployment compensation benefits; and David Mandelbaum’s Environmental Law column on the high court and pre-enforcement review under the Clean Water Act.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

 

Fresh Ink: Inside Today's Legal

Welcome to your Tuesday morning round-up of stories in today’s edition of The Legal Intelligencer, which also includes this week’s edition of Pennsylvania Law Weekly. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

Today’s top story comes from PLW, as reporters Ben Present and Zack Needles write about questions looming over the Lackawanna County Family Court guardian ad litem program. A review of family court records by the reporters reveals that the court contracted one person to act as guardian ad litem an average of 88 cases per year between 2009 and 2011. This came after there were no such appointments in 2007 or 2008. There will be more on this story in subsequent issues of The Legal and PLW, so stay tuned.

Below the fold on Page 1, Ben Present writes that a trial court may not refuse to award contractual interest to a prevailing party if the agreement provides for a specific amount. The state Supreme Court reversed a split panel of the Superior Court in TruServ Corp. v. Morgan’s Tool and Supply Co.

On Page 3, reporter Amaris Elliott-Engel writes in an allocatur story that the state Supreme Court is going to consider if health care providers or their records-producing proxies must disclose their actual and reasonable costs of producing charts and records.

There’s much more inside this week’s PLW, including Samuel C. Stretton’s Ethics Forum, in which he discusses a county president judge interfering with a district judge’s constitutional rights; Brandon Swartz’s Personal Injury column on diagnostic testing and bone scans; a $2.6 million medical malpractice verdict heading back to trial court after a second appeal; and Shelly Pagac and Jennifer Russell’s commentary on Employment Law and English-only rules in the workplace.

The lead story in today’s Legal is a look at profit margins and how they relate to a firm’s fiscal health. As reporter Gina Passarella writes, the profitability of firms has become an increasingly important issue. Of the 10 Pennsylvania-based firms that have reported financials so far this year, profit margins range from 22 percent to 44 percent.

Also above the fold on Page 1, Zack Needles writes that a federal judge has preliminarily approved the $17.75 million settlement of the “kids-for-cash” lawsuit. Robert K. Mericle, the builder of two juvenile detention centers who allegedly paid millions in “finder’s fees” to former Luzerne County Judges Michael T. Conahan and Mark A. Ciavarella Jr., agreed to the settlement in December in a civil suit brought by a class of juvenile plaintiffs.

Below the fold on Page 1, Amaris Elliott-Engel writes that a Lehigh County judge has upheld a $23.1 million award in a medical malpractice case in which a woman had both of her legs and a finger amputated because of an infection that went septic and gangrenous.

In more Regional News on Page 3, Hank Grezlak has a From the Chief column in which he asks when men are going to put an end to the boys’ club and stop the misogyny that has become all too common.

As always, our People in the News section is on Page 2, and the top stories from our sibling publications across the country make up the Page 4 National News section.

On Page 5 today is Peter F. Vaira’s look at the Eastern District, as he writes about the use and misuse of depositions in a conversation with Dennis R. Suplee, an expert in depositions from Schnader Harrison Segal & Lewis.

In a Business of Law column on Page 7, Frank Michael D’Amore writes the second in a series about the top areas where law firms differ, including their willingness to embrace change.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Tuesday morning round-up of stories in today’s edition of The Legal Intelligencer, which also includes this week’s edition of Pennsylvania Law Weekly. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The first supplement of 2012, E-Discovery, is also inside the pages of today's Legal, including articles on social media, cloud computing and cost-shifting, so be sure to check it out.

Today’s top story is the expected ruling on the “bad acts” evidence in the Catholic Archdiocese priest sex-abuse case. As reporter Amaris Elliott-Engel writes, Philadelphia Common Pleas Court Judge M. Teresa Sarmina said at the close of Monday’s hearing that she will rule by Feb. 6 on whether evidence of prior bad acts can be admitted into the trial of Monsignor William Lynn on the charges that he endangered the welfare of two young men who were allegedly abused by priests Lynn oversaw.

Also above the fold on Page 1, reporter Ben Present writes that observers are wondering what will come next as they await the opinion on redistricting after the state Supreme Court rejected the state Legislative Reapportionment Commission’s new House and Senate maps.

On the bottom of Page 1, reporter Zack Needles writes that lawyers think Western Pennsylvania could become a global energy power, far outlasting the life span of the Marcellus and Utica shale plays.

In more Regional News on Page 3, reporter Gina Passarella writes that the 3rd U.S. Circuit Court of Appeals upheld a $3 million verdict in an age discrimination case.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

On Page 5 is today’s Litigation column, as Charles F. Forer writes about when it is possible to seek to vacate an arbitration award.

In this week’s Asset Management column, David B. Bruckman and Aland Mandeloff write about the changing face of long-term care insurance policies.

As it is Tuesday, it’s also your chance to read this week’s Pennsylvania Law Weekly. The lead story for PLW comes from Ben Present, who writes that Facebook has become a significant factor for family law cases in the state. Family law practitioners say that it’s becoming a rarity for a case to get through family court without use of the online social network coming into play.

On the bottom of Page 1, Gina Passarella writes that e-mails on government computers aren’t necessarily public records under the state’s Right-to-Know Law, as a divided Commonwealth Court ruled in an apparent case of first impression.

On Page 3, Ben Present has a family law story in which a child’s statements recorded on DVD were ruled hearsay for a variety of reasons. On the bottom of the page, Zack Needles writes about a case in which the state Superior Court ruled an oil and gas lease valid despite vagueness.

There’s much more inside this week’s PLW, including Samuel C. Stretton’s Ethics Forum, in which he tackles lawyers taking multiple solicitorships in a county; Sam Pond’s commentary on workers’ compensation, in which he writes that proposed reforms could harm claimants; a motor vehicles case in which a woman’s license was not suspended because of parental liability; and a judge refusing to award fees and expenses to defense for a Texas deposition after the attorneys declined to use videoconferencing, instead choosing to travel.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

By Jaime Bochet 
Of the Legal Staff

Welcome to your daily round-up of stories in today's edition of The Legal Intelligencer. Click the links below to access stories directly, or head to The Legal homepage.  (Some stories may require registration or a paid subscription.)

In a follow-up piece to last week's article, reporters Zack Needles and Ben Present write that state Supreme Court Justice Max Baer has clarified comments he made to the press regarding Lackawanna County Judge Terrence J. Nealon's ex parte e-mail, saying he did not intend to imply that Nealon either should not or would not be disciplined. 

Below the fold, U.S. Courthouse Correspondent Shannon P. Duffy writes that, striking down several provisions in Pennsylvania's Medicaid law, a federal judge has declared that the state cannot impose any eligibility requirements that conflict with those passed by Congress. "Medicaid is no exception to the general rule that state laws that conflict with federal laws are pre-empted," Senior U.S. District Judge Jan E. DuBois wrote in his 61-page opinion in Lewis v. Alexander.  

Our Page 3 Regional News story today is by reporter Amaris Elliott-Engel, who writes that a defunct law firm can't arbitrate a fee dispute raised as part of a legal malpractice lawsuit filed by a former client, the Superior Court ruled 2-1 in a unpublished opinion last week.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

The Legal's contributed columns begin on Page 5, with our  "Antitrust Law" column by Carl W. Hittinger and Matthew A. Goldberg of DLA Piper, who wonder if a U.S.-China antitrust memorandum is a step in the right direction.

Page 7 has our weekly "Real Estate" column, this week by James M. Lammendola and Harper J. Dimmerman both of Temple University's Fox School of Business. They write: "The recent case of Goldstein v. The Zoning Hearing Board of the Township of Lower Merion, filed April 21 by the Commonwealth Court, emphatically illustrates the importance of not disregarding the mandates of local ordinances when constructing additions or new structures on one's real estate. As we shall soon see, neither the long-standing nature of a nonconformity, the expense of compliance, nor the acquiesance of one's immediate neighbors will afford relief to the landowner when a hardship is not directly tied to a pre-existing unique physical condition on one's property."

Have questions or comments about any of today's stories, or our coverage as a whole? E-mail me or any of the reporters directly. We hope you'll enjoy today's Legal!

Jaime Bochet is the Magazines & Supplements Editor for The Legal. Follow her on Twitter at @JaimeBochetTLI or e-mail JBochet@alm.com.

Fresh Ink: Inside Today's Legal

By Jaime Bochet
Of the Legal Staff

Welcome to your daily round-up of stories in today's edition of The Legal Intelligencer. Click the links below to access stories directly, or head to The Legal homepage. (Some stories may require registration or a paid subscription.)

For th second day in a row, U.S. Courthouse Correspondent Shannon P. Duffy leads today's paper with a 3rd Circuit class action case: In a ruling that may sound the death knell for bringing medical monitoring suits as a class action, the 3rd Circuit has refused to certify claims brought by residents of a small northern Illinois town who say they live in fear of contracting cancer due to chemical dumping from a Rohm & Haas plant.

Sharing the top of the page, senior reporter Gina Passarella has a  big verdict out of Delaware County. A jury there has awarded $3.8 million to the estate of a 52-year-old woman who died of sepsis at Riddle Memorial Hospital 14 hours after going to the emergency room with severe constipation. The award is said to be one of the highest medical malpractice awards, if not the highest, in the county in several years and is one of less than a handful of cases that have gone in the plaintiff's favor in five years.

Our Page 3 Regional News story today is by reporter Zack Needles, who has another  verdict: The state Superior Court has upheld a nearly $5.3 million verdict a Berks County jury awarded to the wife of a man who died after his doctor allegedly failed to diagnose and treat him for heart disease.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

The Legal's contributed columns begin on Page 5, an "Employment Law" column by solo Jeffrey Campolongo, who writes that internal review does not relieve an employer of "cat's paw" liability.

Page 7 has our weekly "Bankruptcy Update" column, this week by Rudolph DiMassa and Blake Roth of Duane Morris, who cover a matter of apparent first impression: In Spicer v. Laguna Madre Oil & Gas II LLC (In re Texas Wyoming Drilling Inc.), the 5th U.S. Circuit Court of Appeals held in an opinion dated July 21 that it was permissible to consider both a plan of reorganization and its accompanying disclosure statement when determining whether a debtor had sufficiently preserved certain causes of action pursuant to § 1123 of the Bankruptcy Code.

Have questions or comments about any of today's stories, or our coverage as a whole? E-mail me or any of the reporters directly. We hope you'll enjoy today's Legal!

Jaime Bochet is the Magazines & Supplements Editor for The Legal. Follow her on Twitter at @JaimeBochetTLI or e-mail JBochet@alm.com.

Fresh Ink: Inside Today's Legal

By Jaime Bochet 
Of the Legal Staff

Welcome to your daily round-up of stories in today's edition of The Legal Intelligencer. Click the links below to access stories directly, or head to The Legal homepage. (Some stories may require registration or a paid subscription.)

Topping today's front page, U.S. Courthouse Correspondent Shannon P. Duffy has a case from the Eastern District of Pennsylvania: In a significant victory for parents of children with autism, a federal judge has certified a class action suit against Cigna Corp. for refusing to cover two types of behavioral treatments on the grounds that they are "investigative or experimental."

Below the fold, reporter Amaris Elliott-Engel writes that a divided state Superior Court has ruled that health care providers can base their charges for providing hard copies of medical records on the maximum charges spelled out under state law.

Our Page 3 Regional News story today is by our Delaware reporter, Jeff Mordock, who writes: Several law professors throughout the country have blasted Widener University School of Law and Dean Linda J. Ammons after the school ordered a one-year suspension without pay and a psychiatric evaluation for university professor Lawrence J. Connell after a university panel cleared him of all but one of the charges levied against him by two former students. The school contends, however, that punishment was warranted in order to protect the students who filed the charges from possible retribution.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

The Legal's contributed columns begin on Page 5, with our "Young Lawyers" (YL) page, featuring a column by Molly Peckman of Dechert, who laments the death of the conversation at the hands of social media and technology.

Page 7 contains our monthly "Paralegals" page, which includes an article by Christine M. Flynn of Swartz Campbell, who writes that CLE plays a vital role in paralegals' professional growth.

Have questions or comments about any of today's stories, or our coverage as a whole? E-mail me or any of the reporters directly. We hope you'll enjoy today's Legal!

Jaime Bochet is the Magazines & Supplements Editor for The Legal. Follow her on Twitter at @JaimeBochetTLI or e-mail JBochet@alm.com.

Fresh Ink: Inside Today's Legal (and PLW)

By Jaime Bochet
Of the Legal Staff

Welcome to your daily round-up of stories in today's edition of The Legal Intelligencer. Click the links below to access stories directly, or head to The Legal homepage. (Some stories may require registration or a paid subscription.)

As is the case every Tuesday, today's paper is especially full, because it includes our Pennsylvania Law Weekly section, which includes analysis pieces, our Verdicts & Settlements section, and contributed columns by Samuel Stretton (Ethics), Jeff Jubelirer (Public Relations), Leonard Deutchman (Cyber Law) and Cliff Rieders (Civil Practice).

But let's begin with The Legal.

Topping the front page is the first of a new weekly series by senior reporter Gina Passarella examining the effects e-discovery has had on the practice of law. The e-discovery scales of justice are consistently tugged between ever expanding forms of data on one hand and improving technology and know-how to manage that data on the other. The question becomes how to bridge a gap that keeps getting wider and is compounded by the tension between the bench and bar's interest in broad discovery and a desperation to quell staggering e-discovery costs that threaten to overshadow the merits of litigation.

Below thew fold,  reporter Zack Needles has another story tied to the Marcellus Shale formation. The meteoric rise of natural gas drilling in Pennsylvania in recent years has boosted the economies of some of the state's smallest and most rural counties. But for some members of law enforcement in those counties, the frenzy surrounding the Marcellus Shale has also led to rapid population swells and, by extension, more crime.

In our Page 3 Regional News section, U.S. Courthouse Correspondent Shannon P. Duffy writes about a case out of the 3rd U.S. Circuit Court of Appeals:  The Port Authority of Allegheny County cannot refuse to run ads on its buses that inform felons in Pennsylvania of their right to vote because it has previously allowed ads that promoted education about other legal rights, the 3rd Circuit has ruled. The unanimous three-judge panel concluded that the authority engaged in "viewpoint discrimination" because it rejected the ads despite allowing messages about women's rights, fair housing and tax information for the poor. 

As always, our People in the News section is on Page 2, where you'll also find a Letter to the Editor from Arlen Specter, defending Chief Justice Ronald D. Castille's opinion in a capital punishment case. And don't miss the top stories from our sister publications across the country make up the Page 4 National News section.

Our first contributed article is Howard J. Bashman's appellate column, "Upon Further Review." Today’s column examines how the 3rd Circuit fared last term in another seven cases that did not originate from the 3rd Circuit but in which the Supreme Court expressly noted that it was resolving conflicts that involved the 3rd Circuit. 

Next up is the "Family Law" column by  Michael Bertin of Obermayer Rebmann axwell & Hippel, who writes that the Pennsylvania Superior Court has been weighing in on jurisdictional issues in in child custody cases. 

Today's Pennsylvania Law Weekly section begins with an article by reporter Ben Present on a workers' compensation issue: An injured employee has some leeway to file an imperfect notice of her injury and still collect workers' compensation because of the "humanitarian purposes" of the Workers' Compensation Act, the Supreme Court has ruled.

Below the fold, Zack Needles has an "Allocatur Watch" story: The state Supreme Court has denied allocatur in two underinsured motorist cases, effectively letting stand a Superior Court panel's ruling that benefits collected under a tortfeasor's umbrella insurance policy can offset the amount of recoverable underinsured motorist benefits.

The PLW has much more, including our weekly Capitol Report from Harrisburg, so head to the main website of that section to check out even more.

Have questions or comments about any of today's stories, or our coverage as a whole? E-mail me or any of the reporters directly. We hope you'll enjoy today's Legal and PLW!

Jaime Bochet is the Magazines & Supplements Editor for The Legal. Follow her on Twitter at @JaimeBochetTLI or e-mail JBochet@alm.com.

Court Clarifies Procedure to Challenge Frivolousness in Double Jeopardy

By Mandi L. Scott
Special to the Legal

Recently, in the case of Commonwealth v. Orie, the Pennsylvania Supreme Court had the opportunity to clarify the procedure required for a defendant in a criminal case to seek limited appellate review of a trial court's written finding that the defendant's double jeopardy challenge is frivolous. The court's recent decision is, in its own words, "a modest adaptation" of the process it previously suggested in the 1986 case of Commonwealth v. Brady.

Procedurally, this matter came before the Supreme Court on defendant Jane C. Orie's petition for review, which the court treated as a petition for allowance of appeal. After her trial ended in a mistrial, Orie moved to dismiss the charges against her on the basis of double jeopardy, but the trial court denied her motion as frivolous. Orie then filed a petition for review to the Superior Court, which was denied. Another petition for review/petition for allowance of appeal was then filed with and granted by the Supreme Court. 

Generally, criminal defendants have a right to appeal a trial court's pre-trial double jeopardy determination under Commonwealth v. Bolden. In Brady, however, the court held that no such right to appeal exists when the trial court makes a finding of frivolousness with respect to the defendant's double jeopardy challenge. While the Brady court explained that a defendant could challenge the finding of frivolousness "in the context of a request for a stay from an appellate court," the mechanism for doing so was not thoroughly explained. 

The Supreme Court has now outlined for litigants exactly how a defendant may seek further review of a trial court's finding of frivolousness. 

According to the court's decision in Orie, a defendant seeking review of a trial court's finding of frivolousness must file a petition for review in the Pennsylvania Superior Court pursuant to Chapter 15 of the Rules of Appellate Procedure. 

Further, if the defendant believes a stay of the underlying trial proceedings is necessary while the petition for review is being considered by the Superior Court, a stay should be sought pursuant to the ordinary stay procedures set forth in Pa. R.A.P. 1781 and seen in Pennsylvania Pub. Utility Comm'n v. Process Gas Consumers Group.

The court noted, however, that there will be instances in which judicial review of a trial court's finding of frivolousness is required but a stay is not. In the Orie case itself, the trial court had continued the retrial proceedings pending resolution of the defendant's petition for review.  Thus, applying for a stay was not necessary.

The court further explained that any stay must first be sought in the court where the appeal would lie had there been had been no finding of frivolousness, that is, the Superior Court in most non-capital cases. The alternative interpretation previously set forth by the Superior Court in Commonwealth v. Learn was disapproved.

Based on the court's holding, the case was remanded to the Superior Court for disposition of the petition for review seeking review of the trial court's finding of frivolousness.

Mandi L. Scott is an associate with the Pittsburgh-based law firm of Goehring Rutter & Boehm, where she has been practicing since 2004. Currently, her practice focuses on appellate issues and municipal law. To contact her, e-mail mscott@grblaw.com.