1999 March

Commonwealth of Pennsylvania v. Marcus A. Wilmington, No. 02790PHL97 1999 PA Super 66 Filed: 3/31/99
	Appeal from the Judgment of Sentence June 25, 1997, In the Court of Common Pleas of Monroe County, Criminal, No. 6 Criminal 1997
Before: McEWEN, P.J., CAVANAUGH, DEL SOLE, KELLY, EAKIN, JOYCE, STEVENS, SCHILLER, and LALLY-GREEN, JJ.
Opinion by: McEWEN, P.J.
Dissenting Opinion by: EAKIN, J.
This Court granted the petition for reargument filed by the Commonwealth in this case to consider whether the Pennsylvania Constitution prohibits the random stopping of a Greyhound bus at a toll plaza on a rural interstate to permit police officers to conduct a “drug interdiction investigation” in the absence of reasonable suspicion or probable cause to believe that an individual on the bus is transporting narcotics. 2 Our study, as well as our resolution of the competing concerns presented by this case – eradication of the deadly plague visited upon our society by illicit drugs and the preservation of the sacred freedoms guaranteed to us by the Pennsylvania Constitution - is guided by the admonition of our Supreme Court that [t]he seriousness of the criminal activity under investigation, whether it is the sale of drugs or the commission of a violent crime, can never be used as justification for ignoring or abandoning the constitutional rights of every individual in this Commonwealth to be free from intrusions upon his or her personal liberty absent probable cause. Commonwealth v. Rodriquez, 532 Pa. 62, 73, 614 A.2d 1378, 1383 (1992). 3 We conclude, as set forth hereinafter, that the Greyhound bus was seized by the officers when the driver pulled over at their request and that, in the absence of reasonable suspicion or probable cause, the random stopping of a bus to allow troopers to interrogate the passengers violates Article I, Section 8 of the Pennsylvania Constitution just as surely as the random stopping of automobiles by such troopers – solely for the purpose of questioning occupants of those automobiles as to their identities and itineraries, would violate Article I, Section 8 of the Pennsylvania Constitution.

Donald Horne v. Gregory A. Haladay, Francis A. Haladay, George S. Haladay, Gregory A. Haladay and James G. Haladay, T/D/B/A/ Haladay Bros. Poultry, Haladay Farms, a Partnership, by and through its Partners George S. Haladay, Gregory A. Haladay and Francis A. Haladay, Haladay Bros. Poultry, Inc., Haladay Bros. Poultry, a Partnership, No. 00324HBG98 1999 PA Super 64 Filed: 3/30/99
	Appeal from the Order Entered January 15, 1998, Docketed January 16, 1998, In the Court of Common Pleas of Columbia County, Civil Division at No. 1623 of 1995 .
Before: POPOVICH, SCHILLER and OLSZEWSKI, JJ.
Opinion by: POPOVICH, J.
This is an appeal from the order of the Court of Common Pleas of Columbia County, which granted appellees’ motion for summary judgment and dismissed appellant’s complaint. Herein, appellant contends that the lower court erred in granting summary judgment in favor of appellees on his claims of private nuisance and negligence. Finding no error in the decision of the lower court, we affirm.

Commonwealth of Pennsylvania v. James Hynes No. 00816PHL98 1999 PA Super 63 Filed: 3/30/99
	Appeal from the Order Entered February 05, 1998 In the Court of Common Pleas of Bucks County Criminal No. 5737/97
Before: FORD ELLIOTT, STEVENS, JJ. and CERCONE, P.J.E.
Opinion by: STEVENS J.
Dissenting Opinion by: CERCONE P.J.E.
This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Bucks County against Appellant, James Hynes, for Driving Under the Influence. Appellant contends that the lower court erred in refusing to suppress evidence obtained after an allegedly improper traffic stop. We affirm.

Suzanne Baker, Administratrix of the Estate of Albert J. Baker, and Wife of Albert J. Baker v. Ac&S, Inc., et al., No. 00835PHL97 1999 PA Super 65 Filed: 3/30/99
	Appeal from the Order Dated January 16, 1997 Docketed January 24, 1997 In the Court of Common Pleas, Civil Division Philadelphia County, No. 2257 January Term 1989
Before: McEWEN, P.J., CAVANAUGH, DEL SOLE, KELLY, EAKIN, JOYCE, STEVENS, SCHILLER and LALLY-GREEN, JJ.
Opinion by: SCHILLER, J.
Dissenting Opinion by: EAKIN, J.
This case involves consolidated appeals from judgments against AC&S, Inc. entered in favor of Suzanne Baker, as administratrix of the estate of her deceased husband and in her own right. Mrs. Baker appeals from these judgments, alleging that the trial court erred in molding the verdict. AC&S cross-appeals from these judgments, alleging that there was insufficient evidence to establish its liability. For the reasons set forth below, we reverse in part, affirm in part and remand for further proceedings.

Suzanne Baker, Administratrix of the Estate of Albert J. Baker, and Wife of Albert J. Baker v. Ac&S, Inc., et al., No. 00784PHL97 1999 PA Super 65 Filed: 3/30/99
	Appeal from the Order Dated January 16, 1997 Docketed January 24, 1997 In the Court of Common Pleas, Civil Division Philadelphia County, No. 2257 January Term 1989
Before: McEWEN, P.J., CAVANAUGH, DEL SOLE, KELLY, EAKIN, JOYCE, STEVENS, SCHILLER and LALLY-GREEN, JJ.
Opinion by: SCHILLER, J.
Dissenting Opinion by: EAKIN, J.
This case involves consolidated appeals from judgments against AC&S, Inc. entered in favor of Suzanne Baker, as administratrix of the estate of her deceased husband and in her own right. Mrs. Baker appeals from these judgments, alleging that the trial court erred in molding the verdict. AC&S cross-appeals from these judgments, alleging that there was insufficient evidence to establish its liability. For the reasons set forth below, we reverse in part, affirm in part and remand for further proceedings.

Commonwealth of Pennsylvania v. Jason L. Quail No. 02195PHL98 1999 PA Super 62 Filed: 3/24/99
	Appeal from the Order of June 22, 1998, In the Court of Common Pleas, Chester County, Criminal Division, at No. 2708-96.
Before: FORD ELLIOTT, ORIE MELVIN and BROSKY, JJ.
Opinion by: BROSKY, J.
This is an appeal from an order denying appellant relief under the PCRA. Appellant asserts that he lost his appeal rights due to counsel's ineffectiveness, that his plea was unlawfully induced and that the sentence imposed was disproportionate to that given his co-defendant's. We remand for the provision of counsel and the filing of a counseled brief.

Commonwealth of Pennsylvania v. Raymond Lee Crouse No. 01099HBG97 1999 PA Super 61 Filed: 3/23/99
	Appeal from the Judgment of Sentence October 23, 1997 Docketed October 24, 1997 In the Court of Common Pleas of Adams County Criminal, No. CC-278-97
Before: *KELLY, BROSKY and MONTEMURO, JJ.**
Opinion by: KELLY, J.
In this appeal, Appellant, Raymond Lee Crouse, asks us to determine whether a “protective sweep” of a private residence, executed by state police in connection with a valid arrest warrant, violates Article 1, Section 8 of the Pennsylvania Constitution. We hold that a “protective sweep,” as defined in Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), in connection with the execution of a valid arrest warrant is permissible under the Constitution of this Commonwealth. Accordingly, we affirm Appellant’s judgment of sentence.

Ronald Flora and Lucille Flora v. Dr. George P. Moses No. 00103HBG98 1999 PA Super 60 Filed: 3/19/99
	Appeal from the Judgment of January 13, 1998, In the Court of Common Pleas, Luzerne County, Civil Division, at No. 1119-C of 1996.
Before: KELLY, BROSKY and BECK, JJ.
Opinion by: BROSKY, J.
This is an appeal from a judgment entered in appellee's favor in a medical malpractice/breach of contract action. Appellants raise three issues for our review, whether § 606 of the Health Care Services Malpractice Act (HCSMA), 40 P.S. § 1301. Et seq., relied upon by the lower court in finding in appellee's favor, is unconstitutional; whether § 606 of the HCSMA prohibits a patient from bringing a breach of contract/warranty action; and whether appellee waived the defense by failing to raise it in new matter? We affirm.

In Re: D.E.M. Appeal of: Commonwealth of Pennsylvania No. 02231PHL97 1999 PA Super 59 Filed: 3/18/99
	Appeal from the order entered May 14, 1997 In the Court of Common Pleas of Berks County Juvenile No. 192-J-1997
Before: KELLY, EAKIN, and OLSZEWSKI, J.J.
Opinion by: KELLY, J.
In this appeal, the Commonwealth asks us to determine whether school officials act as agents of the police, where school officials conduct an investigation after being informed by police that a student may have a gun on school property. The Commonwealth also asks us to decide whether school officials must possess reasonable suspicion, supported by specific and articulable facts, before school officials can detain and question a student about an anonymous rumor that the student possesses a gun on school premises. Finally, the Commonwealth asks us to decide whether school officials must furnish a student with Miranda warnings before questioning the student about conduct that violates both the law and school rules. 2 We hold that school officials do not act as agents of the police where they conduct an independent investigation based upon information the officials received from police. We also hold that school officials do not need reasonable suspicion, supported by specific and articulable facts, before merely detaining and questioning a student about a rumor concerning his possession of a gun on school property. Finally, we hold that school officials need not provide Miranda warnings to a student before questioning the student about conduct that violates the law and/or school rules. Accordingly, we reverse the order of the suppression court, which granted D.E.M.’s omnibus pre-trial motion to suppress physical evidence and remand for trial.

Commonwealth of Pennsylvania v. Calvin Butler, No. 01260PHL98 1999 PA Super 58 Filed: 3/17/99
	Appeal from the Judgment of Sentence March 19, 1998, In the Court of Common Pleas of Delaware County, Criminal Division at No. 389-97.
Before: POPOVICH, HUDOCK, JJ. and CERCONE, P.J.E.
Opinion by: POPOVICH, J.
Appellant Calvin Butler appeals from the judgment of sentence entered on March 19, 1998, in the Court of Common Pleas of Delaware County, following his conviction of voluntary manslaughter. We affirm.

Erin Fern Egelman O.B.O. Matthew Egelman (Minor) v. Eric Egelman No. 02092PHL97 1999 PA Super 57 Filed: 3/17/99
	Appeal from the Order Entered April 28, 1997, In the Court of Common Peas of Philadelphia County, Family, No. D.R. No. 970407345.
Before: McEWEN, P.J., BROSKY and OLSZEWSKI, JJ.
Opinion by: OLSZEWSKI, J.
Dissenting Opinion by: McEWEN, P.J.
Erin Egelman appeals from the order issued by the Hon. Thomas D. Watkins that dismissed her petition in abuse with prejudice, set forth procedures for future petitions in abuse, limited hearings regarding the welfare of the child to take place in the custody context only, and awarded counsel fees to the appellee. For the reasons set forth below, we reverse the order with respect to the procedures it sets forth for future petitions in abuse, the limitations on hearings regarding the welfare of the child, and the award of counsel fees to the appellee.

Commonwealth of Pennsylvania v. Alexander Serrano No. 00586HBG98 1999 PA Super 54 Filed: 3/16/99
	Appeal from the Judgments of Sentence in the Court of Common Pleas of Berks County, Criminal Division, No. 2770-97
Before: HUDOCK, J., CIRILLO, P.J.E., and TAMILIA, J.
Opinion by: TAMILIA, J.
On October 7, 1997, appellant, Alexander Serrano, pled guilty to delivery of a controlled substance (cocaine), criminal conspiracy and making false reports to law enforcement authorities and was sentenced to five (5) years in the Berks County Intermediate Punishment Program. thereafter, having found appellant to be in violation of the terms and conditions of the program, appellant’s intermediate punishment was revoked pursuant to 42 Pa.C.S.A. § 9773, Modification or revocation of intermediate punishment sentence, (b) Revocation. On March 10, 1998, an aggregate sentence of twelve (12) to thirty-six (36) months’ imprisonment followed by two (2) years’ probation was imposed. Following motions to modify the sentence, a hearing on the motions was held on April 2, 1998 at which time the March 10, 1998 judgment of sentence was vacated and appellant was resentenced to a term of 22 to 24 months’ imprisonment followed by two (2) years’ probation. Timely appeals were filed at Nos. 584, 585 and 586 Harrisburg, 1998. Because sentencing on appellant’s conspiracy conviction apparently was overlooked, the sentencing court, on June 26, 1998, imposed an additional eleven (11) to twenty-four (24) month term of imprisonment to run concurrently with the April 2, 1998 judgment of sentence and the appeal at No. 1013 Harrisburg, 1998 was filed. Appellant raises the following challenge to his April 2 and June 26, 1998 judgments of sentence.

Robert A. Korn, Jerome N. Kline, and Alan R. Kutner v. Ellyn M. Epstein and Desimone Reporting Group, Inc. Appeal of: Ellyn M. Epstein No. 01203PHL98 Petition for Reargument Denied 5/12/99 Filed: 3/16/99
	Appeal from the Order Dated March 23, 1998, Docketed April 3, 1998, in the Court of Common Pleas of Philadelphia County, Civil Division, at No. April Term, 1994, 1441.
Before: CAVANAUGH, LALLY-GREEN and HESTER, JJ.
Opinion by: HESTER, S.J.
Ellyn M. Epstein appeals from the judgment entered in the Court of Common Pleas of Philadelphia County on April 3, 1998. For the reasons set forth below, we affirm.

Commonwealth of Pennsylvania v. Alexander Serrano No. 00584HBG98 1999 PA Super 54 Filed: 3/16/99
	Appeal from the Judgments of Sentence in the Court of Common Pleas of Berks County, Criminal Division, No. 2770-97
Before: HUDOCK, J., CIRILLO, P.J.E., and TAMILIA, J.
Opinion by: TAMILIA, J.
On October 7, 1997, appellant, Alexander Serrano, pled guilty to delivery of a controlled substance (cocaine), criminal conspiracy and making false reports to law enforcement authorities and was sentenced to five (5) years in the Berks County Intermediate Punishment Program. thereafter, having found appellant to be in violation of the terms and conditions of the program, appellant’s intermediate punishment was revoked pursuant to 42 Pa.C.S.A. § 9773, Modification or revocation of intermediate punishment sentence, (b) Revocation. On March 10, 1998, an aggregate sentence of twelve (12) to thirty-six (36) months’ imprisonment followed by two (2) years’ probation was imposed. Following motions to modify the sentence, a hearing on the motions was held on April 2, 1998 at which time the March 10, 1998 judgment of sentence was vacated and appellant was resentenced to a term of 22 to 24 months’ imprisonment followed by two (2) years’ probation. Timely appeals were filed at Nos. 584, 585 and 586 Harrisburg, 1998. Because sentencing on appellant’s conspiracy conviction apparently was overlooked, the sentencing court, on June 26, 1998, imposed an additional eleven (11) to twenty-four (24) month term of imprisonment to run concurrently with the April 2, 1998 judgment of sentence and the appeal at No. 1013 Harrisburg, 1998 was filed. Appellant raises the following challenge to his April 2 and June 26, 1998 judgments of sentence.

Commonwealth of Pennsylvania v. Sortir Capo, No. 04779PHL97 Petition for Reargument Denied 5/12/99 Filed: 3/16/99
	Appeal from the Judgment of Sentence September 30, 1997 In the Court of Common Pleas of Philadelphia County Criminal No. 9706-1161
Before: *JOHNSON, MONTEMURO, JJ. and CIRILLO, P.J.E.**
Opinion by: MONTEMURO, J.
Dissenting Opinion by: CIRILLO, P.J.E.
This is an appeal from judgment of sentence following Appellant’s conviction for indecent assault. We affirm.

Commonwealth of Pennsylvania v. Alexander Serrano No. 01013HBG98 1999 PA Super 54 Filed: 3/16/99
	Appeal from the Judgments of Sentence in the Court of Common Pleas of Berks County, Criminal Division, No. 2770-97
Before: HUDOCK, J., CIRILLO, P.J.E., and TAMILIA, J.
Opinion by: TAMILIA, J.
On October 7, 1997, appellant, Alexander Serrano, pled guilty to delivery of a controlled substance (cocaine), criminal conspiracy and making false reports to law enforcement authorities and was sentenced to five (5) years in the Berks County Intermediate Punishment Program. thereafter, having found appellant to be in violation of the terms and conditions of the program, appellant’s intermediate punishment was revoked pursuant to 42 Pa.C.S.A. § 9773, Modification or revocation of intermediate punishment sentence, (b) Revocation. On March 10, 1998, an aggregate sentence of twelve (12) to thirty-six (36) months’ imprisonment followed by two (2) years’ probation was imposed. Following motions to modify the sentence, a hearing on the motions was held on April 2, 1998 at which time the March 10, 1998 judgment of sentence was vacated and appellant was resentenced to a term of 22 to 24 months’ imprisonment followed by two (2) years’ probation. Timely appeals were filed at Nos. 584, 585 and 586 Harrisburg, 1998. Because sentencing on appellant’s conspiracy conviction apparently was overlooked, the sentencing court, on June 26, 1998, imposed an additional eleven (11) to twenty-four (24) month term of imprisonment to run concurrently with the April 2, 1998 judgment of sentence and the appeal at No. 1013 Harrisburg, 1998 was filed. Appellant raises the following challenge to his April 2 and June 26, 1998 judgments of sentence.

Commonwealth of Pennsylvania v. Alexander Serrano No. 00585HBG98 1999 PA Super 54 Filed: 3/16/99
	Appeal from the Judgments of Sentence in the Court of Common Pleas of Berks County, Criminal Division, No. 2770-97
Before: HUDOCK, J., CIRILLO, P.J.E., and TAMILIA, J.
Opinion by: TAMILIA, J.
On October 7, 1997, appellant, Alexander Serrano, pled guilty to delivery of a controlled substance (cocaine), criminal conspiracy and making false reports to law enforcement authorities and was sentenced to five (5) years in the Berks County Intermediate Punishment Program. thereafter, having found appellant to be in violation of the terms and conditions of the program, appellant’s intermediate punishment was revoked pursuant to 42 Pa.C.S.A. § 9773, Modification or revocation of intermediate punishment sentence, (b) Revocation. On March 10, 1998, an aggregate sentence of twelve (12) to thirty-six (36) months’ imprisonment followed by two (2) years’ probation was imposed. Following motions to modify the sentence, a hearing on the motions was held on April 2, 1998 at which time the March 10, 1998 judgment of sentence was vacated and appellant was resentenced to a term of 22 to 24 months’ imprisonment followed by two (2) years’ probation. Timely appeals were filed at Nos. 584, 585 and 586 Harrisburg, 1998. Because sentencing on appellant’s conspiracy conviction apparently was overlooked, the sentencing court, on June 26, 1998, imposed an additional eleven (11) to twenty-four (24) month term of imprisonment to run concurrently with the April 2, 1998 judgment of sentence and the appeal at No. 1013 Harrisburg, 1998 was filed. Appellant raises the following challenge to his April 2 and June 26, 1998 judgments of sentence.

Elizabeth Viruet, Ex Rel. Rosemary Velasquez v. Elizabeth Cancel No. 02992PHL97 1999 PA Super 53 Filed: 3/11/99
	Appeal From the Order Entered June 19, 1997, In the Court of Common Peas of Philadelphia County, Family, No. 970407283.
Before: McEWEN, P.J., BROSKY and OLSZEWSKI, JJ.
Opinion by: OLSZEWSKI, J.
Elizabeth Viruet on behalf of Rosemary Velasquez, a minor, appeals from the order issued by the Honorable Thomas D. Watkins vacating a temporary Protection from Abuse order, dismissing her petition under the Protection from Abuse Act (hereinafter PFA petition) with prejudice, and setting forth a requirement to post a bond prior to filing any future petitions in abuse. For the reasons set forth below, we reverse the order with respect to the procedures that it sets forth for future petitions in abuse and the finding that the petition was frivolous.

First Philson Bank, N.A. v. Hartford Fire Insurance Company, T/A ITT Hartford Insurance Group and ITT Hartford and Thomas L. Keep No. 00746PGH98 1999 PA Super 51 Filed: 3/10/99
	Appeal from the Order Entered March 24, 1998 entered in the Court of Common Pleas of Somerset County, Civil Division, at No. 337 Civil 1993
Before: HUDOCK, JOYCE, and LALLY-GREEN, JJ.
Opinion by: LALLY-GREEN, J.
First Philson Bank (Bank), appeals the trial court’s grant of summary judgment entered in the Court of Common Pleas of Somerset County. We affirm.

Commonwealth of Pennsylvania v. Michael Lee Sims No. 00293HBG98 Petition for Reargument Denied 5/17/99 Filed: 3/10/99
	Appeal from the Judgment of Sentence entered January 27, 1998, docketed February 3, 1998, in the Court of Common Pleas of Cumberland County, No. 97-1234
Before: EAKIN, STEVENS and HESTER, JJ.
Opinion by: EAKIN, J.
This appeal by the Commonwealth contends the trial court abused its discretion in departing from the applicable guidelines when sentencing appellee Michael Sims, following his plea of guilty to two counts of simple assault. We vacate the judgment of sentence and remand for resentencing.

The Birth Center v. The St. Paul Companies, Inc., Sharon Dawson-Coates and Al Afonso No. 02379PHL97 Petition for Reargument Denied 5/3/99 Filed: 3/9/99
	Appeal from the Order Dated June 3, 1997 Docketed June 4, 1997 In the Court of Common Pleas of Delaware County Civil, No. 94-06492
Before: *MCEWEN, P.J., KELLY, and HOFFMAN, JJ.**
Opinion by: KELLY, J.
In these consolidated appeals we must determine whether the trial court properly granted judgment notwithstanding the verdict (“J.N.O.V.”) in favor of Appellee, St. Paul Companies, Inc. ("St. Paul"), where the jury found sufficient evidence that St. Paul had acted in bad faith in refusing to negotiate and settle a medical malpractice suit brought by a third party against its insured, Birth Center. We must also decide whether compensatory damages may be available to the insured in this context where the insurer ultimately pays the excess verdict in the underlying third-party action. For the reasons set forth as follows, we hold that there was sufficient evidence to support the jury’s finding of bad faith and that compensatory damages may also be available to the insured in the context of the insurer’s unreasonable refusal to settle a claim within the policy limits. Accordingly, we reverse and remand with instructions.

The Birth Center v. The St. Paul Companies, Inc., Sharon Dawson-Coates and Al Afonso Appeal of: The St. Paul Companies, Inc. No. 02670PHL97 Petition for Reargument Denied 5/3/99 Filed: 3/9/99
	Appeal from the Order entered June 3, 1997 Docketed June 3, 1997 In the Court of Common Pleas of Delaware County Civil, No. 94-6492
Before: *MCEWEN, P.J., KELLY, and HOFFMAN, JJ.**
Opinion by: KELLY, J.
In these consolidated appeals we must determine whether the trial court properly granted judgment notwithstanding the verdict (“J.N.O.V.”) in favor of Appellee, St. Paul Companies, Inc. ("St. Paul"), where the jury found sufficient evidence that St. Paul had acted in bad faith in refusing to negotiate and settle a medical malpractice suit brought by a third party against its insured, Birth Center. We must also decide whether compensatory damages may be available to the insured in this context where the insurer ultimately pays the excess verdict in the underlying third-party action. For the reasons set forth as follows, we hold that there was sufficient evidence to support the jury’s finding of bad faith and that compensatory damages may also be available to the insured in the context of the insurer’s unreasonable refusal to settle a claim within the policy limits. Accordingly, we reverse and remand with instructions.

The Birth Center v. The St. Paul Companies, Inc., Sharon Dawson-Coates and Al Afonso No. 02659PHL97 Petition for Reargument Denied 5/3/99 Filed: 3/9/99
	Appeal from the Judgment entered June 10, 1997 Docketed June 3, 1997 In the Court of Common Pleas of Delaware County Civil, No. 94-06492
Before: *MCEWEN, P.J., KELLY, and HOFFMAN, JJ.**
Opinion by: KELLY, J.
In these consolidated appeals we must determine whether the trial court properly granted judgment notwithstanding the verdict (“J.N.O.V.”) in favor of Appellee, St. Paul Companies, Inc. ("St. Paul"), where the jury found sufficient evidence that St. Paul had acted in bad faith in refusing to negotiate and settle a medical malpractice suit brought by a third party against its insured, Birth Center. We must also decide whether compensatory damages may be available to the insured in this context where the insurer ultimately pays the excess verdict in the underlying third-party action. For the reasons set forth as follows, we hold that there was sufficient evidence to support the jury’s finding of bad faith and that compensatory damages may also be available to the insured in the context of the insurer’s unreasonable refusal to settle a claim within the policy limits. Accordingly, we reverse and remand with instructions.

The Birth Center v. The St. Paul Companies, Inc., Sharon Dawson-Coates and Al Afonso No. 02380PHL97 Petition for Reargument Denied 5/3/99 Filed: 3/9/99
	Appeal from the Order dated May 29, 1997 Docketed June 3, 1997 In the Court of Common Pleas of Delaware County Civil, No. 94-06492
Before: *MCEWEN, P.J., KELLY, and HOFFMAN, JJ.**
Opinion by: KELLY, J.
In these consolidated appeals we must determine whether the trial court properly granted judgment notwithstanding the verdict (“J.N.O.V.”) in favor of Appellee, St. Paul Companies, Inc. ("St. Paul"), where the jury found sufficient evidence that St. Paul had acted in bad faith in refusing to negotiate and settle a medical malpractice suit brought by a third party against its insured, Birth Center. We must also decide whether compensatory damages may be available to the insured in this context where the insurer ultimately pays the excess verdict in the underlying third-party action. For the reasons set forth as follows, we hold that there was sufficient evidence to support the jury’s finding of bad faith and that compensatory damages may also be available to the insured in the context of the insurer’s unreasonable refusal to settle a claim within the policy limits. Accordingly, we reverse and remand with instructions.

Commonwealth Of Pennsylvania v. George Ulrich No. 00809HBG97 1999 PA Super 50 Filed: 3/9/99
	Appeal from the Judgment of Sentence entered July 24, 1997 in the Court of Common Pleas of Lycoming County, Criminal No. 97-11, 778.
Before: DEL SOLE, STEVENS and ORIE MELVIN, JJ.
Opinion by: DEL SOLE, J.
Appellant was convicted of one count of Cruelty to Animals and sentenced to 2 days incarceration and a fine of $750 at a trial de novo following a hearing before a district justice. Appellant then filed a “Post-Sentence Motion” in the nature of a Motion in Arrest of Judgment and a Motion for Reconsideration which was dismissed with prejudice. This direct appeal followed. 2 Appellant raises the following issues for our review: (1) “May a person be convicted of Cruelty to Animals … for the mere killing of a dog, absent an additional act of cruelty?”; (2) “Were all the elements of Cruelty to Animals … proven in the Lower Court?”; (3) “Did Appellant Ulrich have a privilege to kill the dog in question and was the killing of the dog part of a normal agricultural activity and a reasonable activity undertaken in connection with pest of vermin control?”; and (4) “Did the Lower Court abuse its discretion in not allowing Appellant Ulrich’s expert to testify, in ordering Appellant’s fine to be paid within fifteen (15) days of imposition of sentence, in allowing the District Magistrate’s sentence to dictate the terms [sic] Court of Common Pleas sentence and in generally imposing an excessive sentence?” We vacate the judgment of sentence.

Commonwealth of Pennsylvania v. John Hill No. 02542PHL97 Petition for Reargument Denied 5/6/99 Filed: 3/8/99
	Appeal from the Judgment of Sentence June 12, 1997 In the Court of Common Pleas of Philadelphia County Criminal, No. 9606-1202 ½
Before: KELLY, JOYCE, JJ. and CERCONE, P.J.E.
Opinion by: KELLY, J.
Appellant, John Hill, asks us to determine whether a trial court is required, under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to recall and seat venirepersons who have been excused through the use of peremptory challenges. We hold that a trial court has the discretion to fashion a remedy for properly sustained Batson objections, which, depending on the circumstances of the case, may involve calling additional jurors to the venire, granting additional challenges, seating the challenged jurors; or beginning a new jury selection. Accordingly, we affirm.

Dona M. Beltrami A/K/A Dona M. Rossi v. Robert D. Rossi No. 00321HBG98 1999 PA Super 47 Filed: 3/4/99
	Appeal from the Order of January 15, 1998, In the Court of Common Pleas, Luzerne County, Civil Division, at No. 4216-C of 1993.
Before: KELLY, BROSKY and BECK, JJ.
Opinion by: BROSKY, J.
This is an appeal from an order granting relief pursuant to a petition for relief in aid of execution. The relief granted was in the form of the issuance of a Domestic Relations Order to facilitate the payment of a portion of appellant's pension payments directly to appellee. Appellant raises four issues for our consideration: may the trial court enter a Domestic Relations Order in response to a Pa.R.Civ.P. 3118 petition in aid of execution upon a judgment entered in a contract action; is the Pennsylvania State Employee Retirement System (SERS) subject to an attachment in aid of execution upon a judgment entered in a civil action for money damages against a member of SERS; is appellee barred by the doctrine of res judicata from obtaining a Domestic Relations Order (DRO); and did the lower court lack jurisdiction to issue a DRO due to appellee's failure to exhaust administrative remedies? We affirm.

Sandra J. Basile and Laura Clavin, individually and on behalf of all Others similarly situated v. H & R Block, Inc., H & R Block Eastern Tax Services, Inc. and Mellon Bank (De) National Association Appeal of: H & R Block, Inc. and H & R Block Eastern Tax Services Inc., No. 00711PHL98 1999 PA Super 44 Filed: 3/3/99
	Appeals from the Order, entered May 30, 1997, docketed June 2, 1997, Court of Common Pleas, Philadelphia County, Civil Division at No. 3246 April Term, 1993.
Before: *JOHNSON, MONTEMURO, and CIRILLO, JJ.**
Opinion by: JOHNSON, J.
In this appeal, we determine the nature of the relationship between mass-market tax preparer H&R Block, Inc., and H&R Block Eastern Tax Services, Inc. (Block), and taxpayers who retained Block’s services to file their tax returns under Block’s Rapid Refund® service between 1990 and 1993. Plaintiffs contend, inter alia, that Block was their agent and/or fiduciary and owed them a corresponding duty to disclose that their purported rapid refunds were, in fact, short-term, high interest, refund anticipation loans (RALs) in which Block shared an interest with Defendant Mellon Bank, N.A. (Mellon). The trial court entered summary judgment, concluding that Block was neither a fiduciary nor an agent and, consequently, did not owe the plaintiffs any duty of disclosure. For the following reasons, we reverse in part and remand for further proceedings consistent with this Opinion.

Sandra J. Basile and Laura Clavin, individually and on behalf of all Others similarly situated v. H & R Block, Inc., H & R Block Eastern Tax Services, Inc. and Mellon Bank (De) National Association No. 00586PHL98 1999 PA Super 44 Filed: 3/3/99
	Appeal from the Order dated December 31, 1997, docketed January 16, 1998, Court of Common Pleas, Philadelphia County, Civil Division at No. 3246 April Term, 1993.
Before: *JOHNSON, MONTEMURO, and CIRILLO, JJ.**
Opinion by: JOHNSON, J.
In this appeal, we determine the nature of the relationship between mass-market tax preparer H&R Block, Inc., and H&R Block Eastern Tax Services, Inc. (Block), and taxpayers who retained Block’s services to file their tax returns under Block’s Rapid Refund® service between 1990 and 1993. Plaintiffs contend, inter alia, that Block was their agent and/or fiduciary and owed them a corresponding duty to disclose that their purported rapid refunds were, in fact, short-term, high interest, refund anticipation loans (RALs) in which Block shared an interest with Defendant Mellon Bank, N.A. (Mellon). The trial court entered summary judgment, concluding that Block was neither a fiduciary nor an agent and, consequently, did not owe the plaintiffs any duty of disclosure. For the following reasons, we reverse in part and remand for further proceedings consistent with this Opinion.

Sandra J. Basile and Laura Clavin, individually and on behalf of all Others similarly situated v. H & R Block, Inc., H & R Block Eastern Tax Services, Inc. and Mellon Bank (De) National Association No. 00585PHL98 1999 PA Super 44 Filed: 3/3/99
	Appeals from the Order, entered May 30, 1997, docketed June 2, 1997, Court of Common Pleas, Philadelphia County, Civil Division at No. 3246 April Term, 1993.
Before: *JOHNSON, MONTEMURO, and CIRILLO, JJ.**
Opinion by: JOHNSON, J.
In this appeal, we determine the nature of the relationship between mass-market tax preparer H&R Block, Inc., and H&R Block Eastern Tax Services, Inc. (Block), and taxpayers who retained Block’s services to file their tax returns under Block’s Rapid Refund® service between 1990 and 1993. Plaintiffs contend, inter alia, that Block was their agent and/or fiduciary and owed them a corresponding duty to disclose that their purported rapid refunds were, in fact, short-term, high interest, refund anticipation loans (RALs) in which Block shared an interest with Defendant Mellon Bank, N.A. (Mellon). The trial court entered summary judgment, concluding that Block was neither a fiduciary nor an agent and, consequently, did not owe the plaintiffs any duty of disclosure. For the following reasons, we reverse in part and remand for further proceedings consistent with this Opinion.

Commonwealth of Pennsylvania v. Anthony Horce, Jr. (Appeal Of Michael T. Hodge) No. 00904HBG98 1999 PA Super 45 Filed: 3/3/99
	Appeal from the Order Entered May 19, 1998, In the Court of Common Pleas of Dauphin County, Criminal, No. 2042 CD 1997.
Before: CAVANAUGH, EAKIN, and OLSZEWSKI, JJ.
Opinion by: OLSZEWSKI, J.
Michael T. Hodge appeals from an order issued by the Court of Common Pleas of Dauphin County entering a judgment against him for $25,000.00 on a petition to execute on a surety bond. We affirm.

Sandra J. Basile and Laura Clavin, individually and on behalf of all Others similarly situated v. H & R Block, Inc., H & R Block Eastern Tax Services, Inc. and Mellon Bank (De) National Association Appeal of: H & R Block, Inc. and H & R Block Eastern Tax Services Inc. No. 00710PHL98 1999 PA Super 44 Filed: 3/3/99
	Appeal from the Order dated December 31, 1997, docketed January 16, 1998, Court of Common Pleas, Philadelphia County, Civil Division at No. 3246 April Term, 1993.
Before: *JOHNSON, MONTEMURO, and CIRILLO, JJ.**
Opinion by: JOHNSON, J.
In this appeal, we determine the nature of the relationship between mass-market tax preparer H&R Block, Inc., and H&R Block Eastern Tax Services, Inc. (Block), and taxpayers who retained Block’s services to file their tax returns under Block’s Rapid Refund® service between 1990 and 1993. Plaintiffs contend, inter alia, that Block was their agent and/or fiduciary and owed them a corresponding duty to disclose that their purported rapid refunds were, in fact, short-term, high interest, refund anticipation loans (RALs) in which Block shared an interest with Defendant Mellon Bank, N.A. (Mellon). The trial court entered summary judgment, concluding that Block was neither a fiduciary nor an agent and, consequently, did not owe the plaintiffs any duty of disclosure. For the following reasons, we reverse in part and remand for further proceedings consistent with this Opinion.

Commonwealth of Pennsylvania v. Eddie Vasquez No. 01474PHL98 1999 PA Super 46 Filed: 3/3/99
	Appeal from the Judgment of Sentence of February 26, 1998, In the Court of Common Pleas, Monroe County, Criminal Division, at No. 702 Criminal 1997.
Before: MCEWEN, P.J., BROSKY, and OLSZEWSKI, JJ.
Opinion by: BROSKY, J.
This is an appeal from a judgment of sentence imposed upon appellant after he pled guilty to two counts of delivery of cocaine. Appellant raises three issues which we paraphrase as follows: are the sentence enhancement provisions found at 18 Pa.C.S.A. § 7508 applicable to enhance a sentence on the second count of a two count indictment where that indictment represents an offenders first arrest for drug trafficking charges and are these provisions violative of the equal protection clause of the United States and Pennsylvania constitutions; do the mandatory minimum sentencing provisions of § 7508 inflict "cruel punishment" in violation of the Pennsylvania Constitution; and does allowing the prosecutor to determine whether to seek imposition of the mandatory minimum sentence violate the separation of powers doctrine of the United States and Pennsylvania constitutions? We vacate the sentence in part and remand.

Commonwealth of Pennsylvania v. David Leroy Gillmore No. 00888HBG98 1999 PA Super 43 Filed: 3/2/99
	Appeal from the Judgment Of Sentence May 20, 1998, In the Court of Common Pleas of Berks County, Criminal Division at No. 2869/97.
Before: POPOVICH, SCHILLER and OLSZEWSKI, JJ.
Opinion by: POPOVICH, J.
This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Berks County, which followed appellant’s conviction for driving while operator’s license is suspended or revoked. We affirm.

Commonwealth of Pennsylvania v. Darrin Williams No. 02213PHL97 1999 PA Super 42 Filed: 3/1/99
	Appeal from the Judgment of Sentence of September 26, 1994, In the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 92-01-1682, 85, 87.
Before: JOHNSON, SCHILLER and BROSKY, JJ.
Opinion by: BROSKY, J.
Darrin Williams appeals, nunc pro tunc, from the judgment of sentence of the trial court following his bench trial convictions of rape, indecent assault and simple assault. On September 26, 1994 he was sentenced to an aggregate term of imprisonment of 3-7 years. On October 14, 1994 appellant filed a direct appeal but the appeal was withdrawn on December 6, 1994. On November 30, 1995 Appellant filed a PCRA petition, requesting that his direct appeal rights be reinstated. The PCRA request was granted, and this nunc pro tunc appeal followed. 2 Appellant’s statement of questions presented is as follows. 1. Did the trial court err when it denied Appellant’s motion to dismiss the charges against him for violations of his statutory and constitutional rights to a speedy trial? 2. Was Appellant denied his state and federal constitutional rights to effective assistance of counsel when his counsel failed to properly represent his rights to a speedy trial by not aggressively asserting his rights and entered into a stipulation with the Commonwealth, which miscalculated the days of excludable delay? Appellant’s Brief at 2. We affirm the judgment of sentence of the trial court.

Commonwealth of Pennsylvania v. Thomas Myers No. 00068PHL98 1999 PA Super 41 Filed: 3/1/99
	Appeal from the Order entered December 5, 1997 In the Court of Common Pleas of Philadelphia County Criminal, No. 9703-3741, 97-008280
Before: *KELLY, MONTEMURO, JJ. and CIRILLO, P.J.E.**
Opinion by: MONTEMURO, J.
This is an appeal from the denial of a petition for writ of certiori filed with the Philadelphia County Court of Common Pleas. Appellant was convicted of knowing and intentional possession of cocaine, and contends on appeal that the trial court erred in failing to suppress the cocaine seized when police unconstitutionally detained him without probable cause or reasonable suspicion. Appellant further alleges that even if the police had reasonable suspicion for a stop, the subsequent search of his person was not warranted. With this latter assertion we agree, and therefore reverse.