The Legal Intelligencer Blog

Jenkins Confirmed as Superior Court Judge

By Max Mitchell
Of the Legal Staff

Judge Patricia H. Jenkins, of the Delaware County Court of Common Pleas, has been nominated to the state Superior Court, Gov. Tom Corbett announced today.

Jenkins fills a vacancy on the Superior Court created when Correale F. Stevens, then its president judge, was elevated July 3 to a seat on the state Supreme Court. Stevens' term was set to expire in 2016. With the confirmation, the Superior Court will operate with a full complement.

“Judge Jenkins’ record of integrity will make her a great asset to the Superior Court of Pennsylvania,” Corbett said in a statement. “Her vast legal and judicial knowledge will serve all the people of Pennsylvania, and I want to thank the Senate for her confirmation.”

Jenkins was appointed to the Delaware County bench in February 1993, and was elected to her first full 10-year term in the fall of that year. During her tenure she presided over the high-profile murder case of John E. du Pont in 1996. Du Pont was convicted of third-degree murder and sentenced to 13 to 30 years in prison for shooting to death Olympic wrestler Dave Schultz.

Before becoming a judge, Jenkins worked as a partner at Kassab Archbold & O'Brien. She also worked as a professor of paralegal studies at both Widener University School of Law and Villanova University School of Law, where she taught litigation specialization and property law.

She was also married to former speaker of the Pennsylvania House of Representatives Matthew J. Ryan, who died in 2003.

"I thank Gov. Corbett for his nomination and look forward, upon confirmation, to the opportunity to serve Pennsylvania as judge for the Superior Court of Pennsylvania," Jenkins said in a statement when her nomination was announced.

Jenkins is expected to serve until the first Monday of January 2016.

Max Mitchell can be contacted at 215-557-2354 or [email protected]. Follow him on Twitter @MMitchellTLI.

PAJ Asks to Reargue Restatement Case

By Max Mitchell
Of the Legal Staff

An amicus curiae in a high-profile products liability case has asked the state Supreme Court to hear its separate arguments in the case even though the justices heard from both the plaintiffs and defendant during an oral argument session more than a month ago.

The Pennsylvania Association for Justice made the unprecedented request of the high court in Tincher v. Omega Flex on Nov. 25. Through its application for relief, the PAJ argued that counsel for the plaintiffs had conflicting interests and failed to stick to the positions outlined in its appellate brief.

The case is believed to be the test case for whether the courts will adopt what some see as the more defense-friendly Restatement (Third) of Torts, or continue using the Restatement (Second) of Torts, which is thought to be more favorable to plaintiffs.

Writing the brief on behalf of the PAJ, Clifford A. Rieders, of Rieders, Travis, Humphrey, Harris, Waters, Waffenschmidt & Dohrmann, contended that Cozen O’Connor, which was counsel for the Tinchers, was conflicted because the firm had argued for the application of the Third Restatement in previous cases.

“The position urged at argument by counsel for the Tinchers represents a dramatic shift in the position of any plaintiff suing for damages in a products liability case and is certainly inconsistent with the position taken by amicus curiae PAJ,” Rieders said in the brief. “A broader interest exists, however, on behalf of injured consumers in product liability cases, which deserves vigorous representation before this court.”

The brief further contended that attorney Mark Utke, who argued the case for the plaintiffs before the high court, strayed from the appellate brief when he conceded during the session that the court did not need to uphold its 1977 ruling in Azzarello v. Black Brothers, which upheld the Second Restatement.

In Azzarello, the court found that the phrase "unreasonably dangerous" in the Second Restatement did not refer to issues of negligence and determined that considerations of negligence are inappropriate in a strict liability case. Plaintiffs and defense counsel agreed during oral arguments that Azzarello went too far in its attempt to protect plaintiffs, and should be reversed.

“The impact of a court decision reversing Azzarello or abandoning the Restatement Second Section 402A is so significant that it should not be determined based upon a subrogation case essentially ‘owned’ by [an] insurance company and argued by one who is not committed to consumer protection policies,” Rieders said.

Tincher involves a couple that sued the flexible natural-gas piping company Omega Flex because electricity from a lightning strike burned a hole in the Omega Flex gas pipe installed at their home and then allegedly caused the house to burn down. According to court papers, the jury found in favor of the couple on a strict liability claim, not a negligence claim.

According to the PAJ brief, USAA Insurance Co. compensated the Tinchers for their damages and brought the suit seeking reimbursement from Omega Flex.

Max Mitchell can be contacted at 215-557-2354 or [email protected]. Follow him on Twitter @MMitchellTLI.

Penn State Defendants Ask for Details on Charges

By Max Mitchell
Of the Legal Staff

Three former high-ranking Penn State officials, all accused of covering up abuse allegations against convicted serial child molester Jerry Sandusky, are seeking additional details on the charges they face.

Counsel for former Penn State president Graham Spanier, former athletic director Tim Curley and former vice president of business and finance Gary Schultz each filed a request to the state attorney general for the bill of particulars September 27.

The three requests are tailored to the individual claims against each defendant; however, the defendants’ motions all generally ask the prosecutors to, among other things, identify the children and facilities over which they allegedly had oversight, and to specify the relevant documents, the duties that were allegedly breached, the alleged overt acts of conspiracy and conspiracy to commit perjury, and the dates when the alleged actions occurred.

Prosecutors claim that the ex-administrators knew about Sandusky's inappropriate contact with children and failed to alert the authorities. In July, the three were charged with offenses including conspiracy, obstruction and endangering the welfare of a child. Spanier has also been charged with perjury.

Attorney Timothy Lewis of Schnader Harrison Segal & Lewis filed the motion for Spanier; Caroline M. Roberto of Pittsburgh filed for Curley; and Thomas J. Farrell of Farrell & Reisinger filed the motion for Schultz.

Max Mitchell can be contacted at 215-557-2354 or [email protected]. Follow him on Twitter @MMitchellTLI.

Three Appointed to Judicial Conduct Board and Disciplinary Court

By Max Mitchell
Of the Legal Staff

Two nonlawyers and one Superior Court judge have been appointed to fill vacancies on the board that investigates alleged judicial misconduct and the court where the judicial misconduct allegations are tried.

The Pennsylvania Supreme Court has appointed Superior Court Judge Jack A. Panella to the Court of Judicial Discipline. Earlier this month, Governor Tom Corbett appointed Kenneth E. Lawrence Jr. and Thomas M. Tigue to the Judicial Conduct Board.

This will be the second time Panella has served on the Court of Judicial Discipline. He previously served on the disciplinary court from 1997 to 2001. Panella previously served for 12 years as a trial judge in Northampton County, and most recently has served on the Superior Court since 2004.

“Jack has served the people of Northampton County and the state of Pennsylvania well for several years and will be an outstanding addition to the Court of Judicial Discipline,” Pennsylvania Chief Justice Ronald D. Castille said in a statement to the press. “He is a proven leader with outstanding credentials to serve in Pennsylvania’s judiciary disciplinary oversight system.”

Tigue is a former member of the Pennsylvania House of Representatives, who served from 1981 until 2006, and Lawrence is the senior vice president for government, community and public affairs for Temple University. Lawrence will fill the unexpired term of Francis Bianconi, who passed away this spring. The term will expire on August 16, 2014. Tigue’s four-year term will expire on September 3, 2017. Both Tigue and Lawrence are Democrats.

Law Abolishing Jury Commissioner Offices Ruled Constitutional

By Max Mitchell
Of the Legal Staff

The Pennsylvania Supreme Court has ruled that a Pennsylvania law abolishing jury commissioner offices did not violate the Pennsylvania Constitution.

On September 17, the Supreme Court issued an order affirming the Commonwealth Court's July 31 decision to uphold Act 4 of 2013, which Governor Tom Corbett signed in May. The law allows counties to elect to abolish jury commissioner officers.

During oral arguments before the Supreme Court last week, Samuel C. Stretton, counsel for the Pennsylvania State Association of Jury Commissioners, argued that the jury commissioner office plays a key role in the judicial system, and therefore the law is a violation of the separation of powers doctrine and an unlawful delegation of powers to the county governing bodies. John Bartley Delone, of the state Office of Attorney General, argued that the law will only abolish the administrative offices, and that the judiciary will retain control of the court.

The Supreme Court order noted that Justice Debra M. Todd dissented from the opinion. The order further said that opinions on the decision will follow.

- Read more about it in an upcoming issue of The Legal.