APPEALS

Somerset Legal Journal headnotes from approximately 1991 through the present.

For earlier cases, please visit the Somerset County Law Library.

 

ASSESSMENT APPEALS

 

In an assessment appeal, the procedure requires that the taxing authority first present its assessment record into evidence.  Such presentation makes out a prima facie case for the validity of the assessment in the sense that it fixes the time when the burden of coming forward with evidence shifts to the taxpayer.  Gilmour Properties v. Board of Assessment Appeals, 61 Som.L.J. 461 (2005) (Cascio, J.) 

 

The taxpayer still carries the burden of persuading the court of the merits of his appeal, but that burden is not increased by the presence of the assessment record in evidence.  Gilmour Properties v. Board of Assessment Appeals, 61 Som.L.J. 461 (2005) (Cascio, J.) 

 

A tax assessment appeal should be dismissed if it creates a different methodology for one property than what is being applied to all other properties within the same class.  Shade-Central City School District v. Somerset County Board of Assessment Appeals, et al., 65 Som.L.J. 275 (2014) (Geary, J.)

 

If an appellant wishes to propose a new valuation methodology, it must do so in an action that applies to all properties within the same class in the county.  Shade-Central City School District v. Somerset County Board of Assessment Appeals, et al., 65 Som.L.J. 275 (2014) (Geary, J.)

 

The School District’s statutory right to bring this assessment appeal remains subject to the limits of the Uniformity Clause.  Shade-Central City School District v. Somerset County Board of Assessment Appeals, et al., 65 Som.L.J. 275 (2014) (Geary, J.)

 

DISTRICT JUSTICE PROCEEDINGS

 

Pursuant to Pa.R.C.P.D.J. 1002, the time period for an appeal from a district justice's ruling commences from the date judgment was entered.  Petrunak v. Jones, 53 Som.L.J. 157. 

 

An extension of the filing period or the allowance of an appeal nunc pro tunc may be permitted in extraordinary circumstances, namely, fraud or some breakdown in the processes of the court.  Gary v. Commonwealth, 53 Som.L.J. 185 

 

Mere failure to receive the order sought to be appealed, without more, is insufficient to justify an appeal nunc pro tunc.  Gary v. Commonwealth, 53 Som.L.J. 185 

 

A party seeking leave to appeal from a summary conviction nunc pro tunc has the burden of demonstrating two things: (1) that the delay in filing his appeal was caused by extraordinary circumstances involving fraud or a wrongful or negligent act of a court official resulting in injury to that party and (2) that upon learning of the existence of the grounds relied upon for nunc pro tunc he acted promptly to seek such relief.  Commonwealth v. Wright, 54 Som.L.J. 101 (Apr. 21, 1997) (Cascio, J.) 

 

The giving of incorrect and inaccurate information to an accused by a District Justice or his or her staff may, if established, constitute a breakdown in the court's operation that warrants the allowance of an appeal nunc pro tunc.  Commonwealth v. Wright, 54 Som.L.J. 101 (Apr. 21, 1997) (Cascio, J.) 

 

A district justice is a "court official" whose fraudulent, wrongful or negligent conduct causing injury to a party would, unquestionably, implicate the integrity of the legal system.  In such a situation, there would be little hesitation to conclude that a breakdown in the court's operation had occurred.  Commonwealth v. Wright, 54 Som.L.J. 101 (Apr. 21, 1997) (Cascio, J.) 

 

Appeal periods may not be extended except in exceptional circumstances as set forth in 42 Pa.C.S.A. § 5504.  Commonwealth v. Corace, 61 Som.L.J. 340, 341 (2005) (Cascio, J.) 

 

Failure by a district justice to advise a party of the collateral consequences of a conviction is not a basis for allowing a late appeal.  Commonwealth v. Corace, 61 Som.L.J. 340, 341-342 (2005) (Cascio, J.) 

 

GENERALLY

 

Notice of Appeal from the Court of Common Pleas must be filed within 30 days after the entry of the order from which the appeal is taken.  Pa.R.A.P. 903(a) and Gary v. Commonwealth, 53 Som.L.J. 185 

 

An appeal from a final judgment of the court of common pleas does not disturb the finality of that judgment while it remains unreversed, nor will a non pros of an appeal have the effect of continuing the finality of the judgment to the date of the non pros.  The status of the parties as it existed at the precise time the final judgment was entered will be their status when the non pros is later entered in Superior Court.  Moore v. Moore, 54 Som.L.J. 229 (Aug. 21, 1997) (Cascio, J.) 

 

Appeal periods may not be extended except in exceptional circumstances as set forth in 42 Pa.C.S.A. § 5504. Commonwealth v. Corace, 61 Som.L.J. 340, 341 (2005) (Cascio, J.) 

 

Failure by a district justice to advise a party of the collateral consequences of a conviction is not a basis for allowing a late appeal.  Commonwealth v. Corace, 61 Som.L.J. 340, 341-342 (2005) (Cascio, J.) 

 

Section 754(b) of the Local Agency Law, 2 Pa.C.S. § 754(b), requires a court to affirm the agency's adjudication unless it finds that any finding of fact by the agency and necessary to support its adjudication is not supported by substantial evidence.  Smith v. Borough of Confluence, 61 Som.L.J. 354, 357 (2005) (Cascio, J.) 

 

LICENSE SUSPENSION

 

In an appeal from the suspension of an operator’s license, the Commonwealth has the burden of showing, by a preponderance of the evidence, that there is a basis for the suspension.  Commonwealth v. Ogline, 51 Som.L.J. 12  

 

The record submitted to the Department of Transportation constitutes prima facie evidence of conviction.  Commonwealth v. Ogline, 51 Som.L.J. 12 

 

The Department of Transportation improperly suspended an operator’s license where the operator was not convicted of violating 18 Pa.C.S. 6310.3.  Commonwealth v. Ogline, 51 Som.L.J. 12 

 

Where the only record presented to the court on the issue of actual sentencing order fails to include any information regarding the license suspension other than a note in the Aremarks section which indicates Ado auto papers, and in the section of the form referring to the actual sentence the offense, fine, costs and probation are identified, but nothing appears in the section designated for license suspension, there is no notice of intent to suspend the operator’s license.  Commonwealth v. Ogline, 51 Som.L.J. 12 

 

A license suspension imposed pursuant to 18 Pa.C.S.A. 6310.4 is the mandatory criminal sentence upon conviction of underage drinking, and a defendant must be afforded all normal criminal procedural protections in relation to that sentence, including notice that suspension will result before a plea of guilty may be valid, notice at the time of conviction and sentencing that a suspension will be imposed and notice to the defendant of his right to appeal from the conviction and sentence pursuant to the Rules of Criminal Procedure.  Commonwealth v. Ogline, 51 Som.L.J. 12 

 

Where an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of the adjudication up to and including any direct appeal.  Commonwealth v. Ogline, 51 Som.L.J. 12  

 

Challenging an underlying conviction is improper in a license suspension hearing as constituting an impermissible collateral attack on the underlying conviction.  Commonwealth v. Shaulis, 52 Som.L.J. 288 

 

To sustain a license suspension under section 1547 of the Vehicle Code, the Department has the burden o establishing that the driver (1) was arrested for drunken driving by a police officer who had a reasonable grounds to believe that the motorist was operating, or actually controlling or operating the movement of a motor vehicle, while under the influence of alcohol; (2) was requested to submit to a chemical test; (3) refused to do so; and (4) was warned that refusal might result in a license suspension.  Sadlon v. Commonwealth DOT, 62 Som.L.J. 1, 3-4 (2005) (Cascio, J.) 

 

To sustain a suspension of operating privileges under Section 1547 of the Vehicle Code, the initial burden rests with the Commonwealth to establish that licensee: (1) was arrested for driving under the influence by a police officer who had reasonable grounds to believe that licensee was operating or was in actual physical control of the movement of the vehicle while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to submit to a chemical test; and (4) was warned that refusal might result in a license suspension.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Upon the Commonwealth meeting its burden, the burden shifts to licensee to establish that he was not capable of making a knowing and conscious refusal or was physically unable to make the refusal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

When severe, incapacitating injuries are obvious, licensee need not present medical testimony to prove that a knowing and conscious refusal could not be made; however, if the inability to make a knowing and conscious refusal is not obvious, licensee must produce competent medical evidence to support the alleged inability to make a knowing and conscious refusal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Reasonable grounds exist when a person in the position of the police officer could have concluded that licensee was operating the vehicle while under the influence of intoxicating liquor.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

In determining whether reasonable grounds exist to conclude that licensee is in actual physical control of the vehicle while under the influence of alcohol, the arresting officer is not required to observe licensee actually operating the motor vehicle, nor does the existence of a reasonable alternative explanation of the situation preclude an arresting officer’s actual belief from being reasonable.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

For reasonable grounds to exist, the police officer need not be correct in his belief that licensee had been driving while intoxicated.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

For reasonable grounds to exist, there must be some objective evidence that licensee exercised control over the movement of the vehicle at the time he was intoxicated.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Pennsylvania law does not require the arresting officer to be the same officer that provides the Chemical Testing Warnings and witnesses a refusal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Reasonable grounds exist where the officer observes marijuana and beer bottles in the vehicle and around the accident scene and the vehicle is registered to licensee.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Reasonable grounds exist where the officer is told on multiple occasions that licensee was the driver of the vehicle and the officer smelled alcohol emanating from licensee’s person.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

A chemical test refusal is defined as anything substantially less than an unqualified, unequivocal assent to the test.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Licensee is entitled to a meaningful opportunity to satisfy and comply with the requirements of Section 1547.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

A “meaningful opportunity” contemplates more than simply being read the Chemical Testing Warnings.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

At the very least, a licensee must be conscious, have occasion to hear the reading of the Chemical Testing Warnings, and be afforded an opportunity to give (or refuse to give) consent.  A licensee has an expectation that they will be given the opportunity to hear the warnings, therefore there must exist some credible evidence that the licensee heard the reading of the Chemical Testing Warnings.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Where licensee suffered significant injuries and did not hear the reading of the Chemical Testing Warnings, licensee was not given a meaningful opportunity to give consent.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Licensee is not required to testify about his state of mind at the time he refused chemical testing in order to raise a defense of inability to make a knowing and conscious refusal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Where licensee suffers loss of consciousness; is bleeding from head; audibly moaning; visibly in pain; has a bloody, bruised and swollen face; and is unable to speak because of mouth injuries, his injuries are severe, incapacitating, and obvious.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

In license revocation cases, a reasonable degree of medical certainty is the applicable standard to apply when deciding what constitutes competent medical evidence.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

In license revocation cases, medical evidence must be unequivocal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

When presenting competent medical testimony, the medical expert must rule out alcohol as a contributing factor to licensee’s inability to offer a knowing and conscious refusal in order to satisfy licensee’s burden.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

An expert fails the reasonable degree of medical certainty standard if he testifies that the alleged cause “possibly”, or “could have” led to the result, that it “could very properly account” for the result, or even that it was “very highly probable” that it caused the result.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Where medical expert defined “unlikely” as he did not “believe that licensee was able to give informed consent”, testimony was unequivocal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Where medical expert testifies that head trauma would be the more “salient component of licensee’s presentation” and that licensee would not have been able to give consent even if alcohol was not involved, expert sufficiently ruled out alcohol as a contributing factor.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

NOTICE OF APPEAL – PRISON DISCIPLINE & SUPERVISION

 

Courts are not to superintend matters of treatment and discipline in penal institutions.  It is the responsibility of those in charge of the prison itself and those officers given supervisory powers, both state and local, to oversee and direct discipline and treatment within the penal institution.  The inquiry is limited to a determination of whether constitutional or statutory rights have been violated.  If none appears, the action must be dismissed.  Ideen v. Sobina et al. 58 Som.L.J. 443 (2000) (P.J. Fike) 

 

The administrators and officers of a penal institution have a substantial interest in maintaining prison order and discipline, and accordingly are afforded a great degree of discretion in the management of such prisons.  Ideen v. Sobina et al. 58 Som.L.J. 443 (2000) (P.J. Fike) 

 

NUNC PRO TUNC

 

In Pennsylvania, as a general rule, an appeal nunc pro tunc is only granted in civil cases where there was fraud or a breakdown in the court’s operations. Riek v. Commonwealth of Pennsylvania DOT, 64 Som.L.J. 216 (2009) (Klementik, J.)

 

The purpose of such an appeal is to vindicate the right to an appeal where it had been lost due to certain extraordinary circumstances. Riek v. Commonwealth of Pennsylvania DOT, 64 Som.L.J. 216 (2009) (Klementik, J.)

 

PRESERVATION AND WAIVER OF ISSUES

 

“If Appellant wants to preserve a claim that the evidence was insufficient, then the 1925(b) statement needs to specify the element or elements upon which the evidence was insufficient. This Court can then analyze the element or elements on appeal. The instant 1925(b) statement simply does not specify the allegedly unproven elements. Therefore, the sufficiency issue is waived.” Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008). Commonwealth v. Davis, 64 Som.L.J. 198 (2009) (Klementik, J.)

 

STATUTORY APPEALS

 

Since the rules of civil procedure are inapplicable to statutory appeals, rules of practice and procedure did not have to be enacted in strict compliance with the provisions of Rule 239.  Rather, the trial courts have had the right to enact rules and publish them to cover practice in this area of the law.  Where they have not created and published such local rules, then each trial court has been vested with the full authority of the court to make rules of practice for the proper disposition of cases before them and that the Pennsylvania Supreme Court has enforced those rules unless they violated the Constitution or laws of the Commonwealth or United States, or our statewide rules.  This general, inherent power of all courts to regulate their own practice, without control, or on the ground of expediency, has been recognized for almost one hundred and eighty years.  Commonwealth DOT v. Salvatore, 54 Som.L.J. 368 (January. 22, 1998) (Cascio, J.) 

 

In order for a local rule to apply to statutory appeals, it must so specifically state.  Former Som.R.C.P. 207, and its successor, contain no specific references.  Commonwealth DOT v. Salvatore, 54 Som.L.J. 368 (January. 22, 1998) (Cascio, J.)

 

ZONING APPEALS

 

While the decision to allow or refuse additional evidence rests within the sound discretion of the court, it is not an abuse of discretion to refuse additional evidence where the applicant fails to establish that it was refused the opportunity to be heard or that any relevant testimony that was offered was excluded by the agency below.  Somerset Hotel Assn v. Somerset Borough Planning Comm'n, 54 Som.L.J. 345 (October 4, 1995) (Shaulis, S.J.) 

 

The Municipalities Planning Code provides that if the record by the Zoning Hearing Board includes finding of fact made by a Board whose decision or action is brought for review and the Court of Common Pleas does not take additional evidence, the findings of the Zoning Hearing Board shall not be disturbed by the Court if supported by substantial evidence.  35 P.S. § 11005-A.  Somerset Hotel Assn v. Somerset Borough Planning Comm'n, 54 Som.L.J. 345 (October 4, 1995) (Shaulis, S.J.) 

 

If the decision by the Board is supported by substantial evidence, the finding of fact made by the local agency shall not be disturbed by the court.  Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.  Somerset Hotel Assn v. Somerset Borough Planning Commn, 54 Som.L.J. 345 (October 4, 1995) (Shaulis, S.J.) 

 

When the trial court takes no additional evidence, the Zoning Hearing Board is the sole judge of the credibility of witnesses and the weight to be given to their testimony. Somerset Hotel Assn v. Somerset Borough Planning Commn, 54 Som.L.J. 345 (October 4, 1995) (Shaulis, S.J.) 

 

The scope and review for the Court of Common Pleas where the court takes no additional evidence is limited to determining whether the Board committed an abuse of discretion, error of law, or made necessary factual findings that are not supported by substantial evidence.  Somerset Hotel Assn v. Somerset Borough Planning Commn, 54 Som.L.J. 345 (October 4, 1995) (Shaulis, S.J.) 

 

Where a special exception application complies with ordinance requirements, those objecting have the burden of establishing that the approval would be detrimental to the public health, safety, or general welfare.  This burden is only imposed when the applicant has demonstrated compliance with specific ordinance standards.  Somerset Hotel Assn v. Somerset Borough Planning Commn, 54 Som.L.J. 345 (October 4, 1995) (Shaulis, S.J.) 

 

Pennsylvania courts have repeatedly held that the increase in traffic or traffic congestion, undesirable effect upon competition, availability of municipal services, or scenic beauty, are not sufficient reasons to deny a special exception.  Somerset Hotel Assn v. Somerset Borough Planning Commn, 54 Som.L.J. 345 (October 4, 1995) (Shaulis, S.J.) 

 

When resolving an appeal from a decision by a Zoning Board of Adjustment, and where no additional testimony is taken, the question for the Court is whether there was an abuse of discretion or error of law.  Stonycreek Windpower, LLC v. Somerset County Board of Adjustment, County of Somerset, 61 Som.L.J. 420 (2004)(Fike, II, P.J.) 

 

In determining whether an abuse of discretion has occurred, the court must determine whether the findings made by the Board of Adjustment have been supported by substantial evidence; it is improper for a court to substitute its discretion for that of an agency, unless "the discretion is arbitrarily or fraudulently exercised or is based upon the mistaken view of the law."  Stonycreek Windpower, LLC v. Somerset County Board of Adjustment, County of Somerset, 61 Som.L.J. 420 (2004)(Fike, II, P.J.) 

 

The Pennsylvania Municipalities Planning Code–53 P.S. § 10101 et seq.–provides a landowner the right to substantively challenge the validity of a zoning ordinance by submitting to the municipal governing body a curative amendment which, if denied, is appealable to the court. 53 P.S. §§ 10609.1, 10916.1. In re: Application of Gibbs, requesting Zoning change from R-1 to R-3 in Somerset Borough, 63 Som.L.J. 368 (2007)(Klementik, J.).

 

Denial of Appellant’s request for rezoning from R-1 to R-3 is not a challenge to the validity of a zoning ordinance; the Appellant’s letter to the Somerset Borough Council was purely a request for rezoning, as it contained no challenge to the zoning ordinance itself or a proposed curative amendment. In re: Application of Gibbs, requesting Zoning change from R-1 to R-3 in Somerset Borough, 63 Som.L.J. 368 (2007)(Klementik, J.).

 

Denial by a municipal governing body of an application for rezoning is not subject to judicial review, as applications for rezoning are decided by governing bodies in their legislative role. In re: Application of Gibbs, requesting Zoning change from R-1 to R-3 in Somerset Borough, 63 Som.L.J. 368 (2007)(Klementik, J.).