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Pennsylvania Supreme Court rules that challenge to Wrongful Birth/Wrongful Life Statute is untimely

Posted in Court of Common Pleas, Legislation, Pennsylvania Supreme Court


Today the Pa Supreme Court reinstated a Montgomery County Court of Common Pleas decision and reversed a Pa Superior Court decision in a Wrongful Birth case.

The Lower Court granted Preliminary Objections and dismissed the lawsuit based upon a 1988 statute that precluded causes of action for wrongful birth and wrongful life. The Pa Superior Court reversed finding that the statute – Act 47 of 1988 – was unconstitutional since it violated the single-subject rule. The Pa Superior Court then struck the portion of the Statute which precluded lawsuits for wrongful birth and wrongful life.  The Pa Superior Court then reinstated the lawsuit.

On appeal to the PA Supreme Court the Court did not address whether the statute violated the single-subject rule.  The Court in dicta did state that if it violate the single-subject rule that it was improper for the Pa Superior Court to strike a portion of the statute. Rather the entire statute is to be stricken.  The Court found that based upon the passage of time – 22 years from enactment of the statute – that the statute was immune from attack.

Accordingly, the Pa Supreme Court reversed the Pa Superior Court and reinstated the Montgomery County Court of Common Pleas order granting the Preliminary Objections to the Complaint.

Pennsylvania Voters to decide whether to extend retirement age for Judges

Posted in Court of Common Pleas, Pennsylvania Commonwealth Court, Pennsylvania Superior Court, Pennsylvania Supreme Court, Trial Practice

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The Pennsylvania Constitution provides a mandatory retirement for all Judges at the age of 70. Actually, December 31st of the year that they reach 70.

In order to amend the Pennsylvania Constitution, the proposed amendment must be approved by 2 consecutive sessions of the House and Senate and then voted on by the public.

On November 17th the PA House and Senate for a second time approved an amendment to the PA Constitution extending the mandatory retirement age for Judges from 70 to 75. The attached memo from the initial sponsor describes the purpose of the amendment.

Now the public will vote on the extension in the spring 2016 primary.


2016 Judicial Assignments Announced for Montgomery County Court of Common Pleas

Posted in Court of Common Pleas, Trial Practice

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The Judicial Assignments for Montgomery County Pennsylvania Court of Common Pleas have been announced which will take effect January 2016.  Currently, there are five divisions in the Court which are Civil, Criminal, Family, Orphans Court and Juvenile.  The following are the Judicial Assignments effective January 2016:

Civil Division

  • Honorable Thomas M. DelRicci, Administrative Judge
  • Honorable Thomas C. Branca
  • Honorable Carolyn T. Carluccio
  • Honorable Richard P. Haaz
  • Honorable Steven C. Tolliver

Criminal Division

  • Honorable William J. Furber, Jr., President Judge
  • Honorable William R. Carpenter, Administrative Judge
  • Honorable Steven T. O’Neill
  • Honorable Thomas P. Rogers
  • Honorable Garrett D. Page
  • Honorable Gary S. Silow
  • Honorable Gail A. Weilheimer
  • Judge Elect Todd Eisenberg

Family Division

  • Honorable Rhonda Lee Daniele
  • Honorable R. Stephen Barrett
  • Honorable Kelly C. Wall, Administrative Judge
  • Honorable Patricia E. Coonahan
  • Judge Elect Daniel J. Clifford
  • Judge Elect Risa Vetri Ferman

Orphan’s Court Division

  • Honorable Lois E. Murphy, Administrative Judge
  • Honorable Cheryl Austin

Juvenile Division

  • Honorable Wendy Demchick-Alloy


Senior Judges

  • Honorable William T. Nicholas
  • Honorable S. Gerald Corso
  • Honorable Calvin S. Drayer
  • Honorable Kent H. Albright
  • Honorable Arthur R. Tilson
  • Honorable Joseph A. Smyth
  • Honorable Bernard A. Moore


Learn About the Dramatic changes to Montgomery County Pennsylvania Civil Rules

Posted in Civil Procedure, Court of Common Pleas

Thumbnail image for iStock_000016826286XSmall[1].jpgI previously blogged about the dramatic changes that have been made to the Montgomery County Pennsylvania Civil Rules. There will be a PBI seminar in which the Honorable Thomas DelRicci, Administrative Judge of the Civil Division, Michael Kehs Esquire, Montgomery County Court Administrator, Paul Troy Esquire and I will be presenters.  It is worth the registration if you do any civil work in Montgomery County.

Effective January 1, 2016 there is no right to Oral Argument in Pennsylvania Courts of Common Pleas

Posted in Civil Procedure, Court of Common Pleas, Pennsylvania Supreme Court, Trial Practice

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On April 4, 2014, I blogged that the Pennsylvania Supreme Court was considering rescinding Pa Rule of Civil Procedure 211 which provides in part  that “any party or the party’s attorney shall have the right to argue any motion”.

While the Pa Supreme Court did not rescind Pa Rule of Civil Procedure 211, it did revise the rule which will have the same effect of rescinding the rule.  Effective January 1, 2016 there is no longer a right to oral argument on Motions filed in Courts of Common Pleas in Pennsylvania. The revised rule eliminates all the language that is contained in the current rule and provides that it is up to the discretion of the Court whether to grant oral argument.  The commentary issued with the rule change provides that purpose of the amendment in to bring the rule into conformity with applicable case law.

Local Bar Associations should consider recommending rule changes to the local rules of civil procedure if the Bar Association considers the right to oral argument an important right. I know some counties now do not automatically grant oral argument. However, others by practice and/or procedure do grant that right.

Commonwealth Court Sets Aside 1.7 Million Dollar Judgment

Posted in Court of Common Pleas, Pennsylvania Commonwealth Court


Hopefully the Borough of West Chester hasn’t spent the money!  On July 14, 2014, the Chester County Court of Common Pleas awarded the Borough of West Chester (the “Borough”) a Judgment in the amount of $1,719,235.27 against Wyeth Pharmaceuticals (“Wyeth”). Wyeth appealed and today the Commonwealth Court vacated the Judgment and remanded for a determination whether the Borough owes Wyeth money for overcharges between 2006 and 2011.

As background, the dispute arose out of a contract that the Borough and Wyeth had which provided for a cost sharing arrangement regarding the Goose Creek Waste Water Treatment Plant.  Wyeth shut down its operations in 2006 and at that time ceased discharging wastewater.  Despite the shutdown, the Borough continued to bill Wyeth and Wyeth continued to pay the invoices amounting to hundreds of thousands of dollars.  In 2011, Wyeth gave notice to the Borough terminating the agreement and ceased paying any further invoices.

Wyeth filed a Declaratory Judgment Action in Chester County seeking an order that the contract was terminated and a Judgment that the Borough overcharged Wyeth between 2006 to 2011.  The Borough counterclaimed for 2011 and 2012 unpaid invoices.

After a bench trial, the Lower Court ruled against Wyeth and in favor of the Borough on the Borough’s counterclaim.  The Lower Court awarded the Borough Judgment in an amount in excess of 1.7 million dollars.

On appeal, the Commonwealth Court found that despite the indefinite nature of the contract that it was terminable upon notice.  The Court further gleaned the intent of the parties from the preamble to the contract.  The Court found that the intent of the parties was for each party to pay their fair share.  Based on Wyeth shutting down and discontinuing to discharge wastewater Wyeth was entitled to terminate the contract which occurred in 2011.  The Commonwealth Court vacated the 1.7 million dollar Judgment.  The Court further found that the Borough overcharged Wyeth and remanded the case for further proceedings for the Lower Court to determine the amount of the overcharges.

The final outcome is that the Borough went from being owed a 1.7 million dollar Judgment to owing Wyeth a yet to be determined sum of money.

Ferman, Clifford and Eisenberg Elected to Montgomery County Court of Common Pleas

Posted in Court of Common Pleas


On November 4, 2015 voters in Montgomery County elected Risa Vetri Ferman (“Ferman”), Daniel J. Clifford (“Clifford”) and Todd Eisenberg (“Eisenberg”) to fill three vacant positions on the Bench of Montgomery County Court of Common Pleas.  Ferman, Clifford and Eisenberg will take the Bench in January 2016.  The three vacancies are result of mandatory retirements of the Honorable Emanual Bertin (December 2014) and Joseph A. Smyth (December 2015) and Bernard A. Moore (December 2015).  It is anticipated that two of the three will be assigned to Family Court with the third being assigned to the Criminal Division.

The following, as reported in the Montgomery Bar Association Side Bar Magazine, is a summary of the background of each of the new Judges:

Risa Vetri Ferman

Risa Vetri Ferman is the first woman elected District Attorney of Montgomery County, earning her seat in November 2007 after working 15 years in the trenches as a prosecutor.  In 2011, she was re-elected for a second term.

As a prosecutor, Ferman specialized in prosecuting homicide, child abuse, domestic violence and sexual assault.  As District Attorney, she dedicated her office to protecting our most vulnerable citizens.  She was the co-founder of both Mission Kids Child Advocacy Center and Montgomery Child Advocacy Project (MCAP).  In 2011, she wrote a children’s book The Mouse Who Went Surfing Alone to teach Internet safety to children.

Across Pennsylvania, DA Ferman is a law enforcement leader.  She is the President of the Pennsylvania District Attorney’s Association and was Chair of the first Best Practices Committee.  The Supreme Court of Pennsylvania appointed her Chair of Criminal Procedural Rules Committee.

Award recognizing DA Ferman include: 2015 Montgomery County Black Law Enforcement Officers Association Lifetime Achievement Award; 2014 Girls Scouts “Take The Lead” Award; 2013 Aspen Institute’s Aspen-Rodel Fellowship in Public Leadership; 2012 L’Oreal Paris USA National Honoree/Women of Worth; 2012 Alan Lerner Child Advocacy Award-Field Center at the University of Pennsylvania.

Daniel J. Clifford

Managing partner of the Norristown Office of Weber Gallagher, Clifford was Chair of the 1,300- member Family Law Section of the Pennsylvania Bar Association in 2014 and spearheaded the award-winning “Judicial Interview of the Child” video project.  Clifford has advocated for improvements to family court and diversity in law practice.  He was honored by the Legal Intelligencer as a “2011 Diverse Lawyer of the Year” and the 2014 recipient of the Pro Bono Award from the PBA.

A graduate of the University of Baltimore School of Law, Clifford currently serves the Pennsylvania Supreme Court as both a Hearing Committee Member of the Disciplinary Board and as one of only 6 attorney members of the Domestic Relations Procedural Rules Committee.

In the Montgomery Bar, Clifford has served on the Board of Directors, the Judiciary, Nominating, Long-Range Planning, and Executive Committees and as Chair of the Family Law Section, Diversity, and Membership Committees.  He is a Zone 9 member of the PBA House of Delegates.

In his community, Clifford has served as Chair of the Springfield Township Zoning Hearing Board since 1997 and on the boards of Adoptions From the Heart and the Equality Forum.

Todd Eisenberg

Eisenberg is lead claims counsel for PECO Energy Company, handling a significant portion of the company’s civil litigation.  He was solicitor for several townships and boroughs, handling all aspects of municipal law concerns.  Eisenberg also operated his own law practice, where he handled criminal, personal injury and family law matters.  He was a staff attorney for the Defender Association of Philadelphia.

A graduate of Boston University, Eisenberg earned his law degree from Widener University School of Law and holds a Masters of Legal Letters in Trial Advocacy degree from Temple University.  He is an instructor of trial advocacy for Temple University and the National Institute of Trial Advocacy.

Eisenberg volunteers for the Montgomery County Child Advocacy Project, which provides free legal representation to children who are the victims of abuse and neglect.  He has represented many children in PFA hearings, dependency mattes, and as witness in criminal cases providing child victims with a voice.

Governor Wolf Signs Law Expanding Exceptions For Jury Duty In Pennsylvania

Posted in Civil Procedure, Court of Common Pleas, Legislation

I previously blogged on the law that passed the PA House and PA Senate which expanded the exceptions for jury duty service in Pennsylvania. On October 30th that law was signed by Governor Wolf. The law will now take effect in 60 days.

Pennsylvania Supreme Court Delays Effective Date For Rules Of Judicial Administration On Court Reporting And Transcripts

Posted in Court of Common Pleas, Pennsylvania Supreme Court, Trial Practice

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It was reported today in the Pennsylvania Bulletin that the Pa Supreme Court has delayed the effective date for implementation of the Supreme Court’s  new Rules on Court Reporting and Transcripts from  June 1, 2015 to January 1, 2017.

The Rules on Court Reporting and Transcripts are comprehensive Rules that were approved by the Pa Supreme Court on December 4, 2014. The Rules among other requirements impose minimum proficiency requirements for Court Reporters along with maximum fees that can be charged per transcript page. The Rules further impose a burden on the President Judge to monitor compliance with the rules and grant discretion to the President Judge to impose sanctions on a Court Reporter for lack of compliance.


Court Driven System Comes To Montgomery County Court Of Common Pleas

Posted in Civil Procedure, Court of Common Pleas, Discovery, Trial Practice

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Major changes will be taking effect in Montgomery County Court of Common Pleas effective January 1, 2016. On October 19, 2015, the Court entered an Order adopting Montgomery County Local Rule of Civil Procedure 200. Montgomery County will be moving from an attorney driven to a court driven system!

Montgomery County has always been an attorney driven system. So what does that mean? It means that the Court will not hold your hand, tell you what and when to do it. Furthermore, the Court does not initially establish dates for completion of discovery or trial.

Well, changes are coming to Montgomery County for all civil cases filed after January 1, 2016. Deadlines will now be automatically imposed. Cases will have to be in the trial pool in 9 months (arbitration cases) and 18 months (non-arbitration cases). If not, then a mandatory case management conference will be scheduled. At the case management conference deadlines of no more than 60 days (arbitration cases) and 120 days (non-arbitration cases) will be set for conclusion of discovery and exchange of expert reports. Thereafter, the case will be automatically placed in the arbitration or trial pool.

In order to implement the new court driven program Montgomery County has adopted a new Local Rule of Civil Procedure 200. Additionally, Local Rules of Civil Procedure 206.4 (Petitions), 1028 (Preliminary Objections), 1034 (Motion for Judgment on the Pleadings) and 1035 (Motions for Summary Judgment) have all been amended to shorten the time period for the Motions to be submitted to the Court for disposition. The amended rule also allows the Motions to be submitted to a Senior Judge for disposition.

As to cases filed prior to January 1, 2016, the current system will continue to apply.