According to an article by the Patriot News, NRG Energy announced that it would cease operations at its Titus Station power plant in Cumru Twp., Berks County, by April 2015. The company cited the high costs of complying with increasingly stringent environmental regulations in making the announcement. The plant employs 75 workers.
*Update* - The Reading Eagle is reporting that NRG has revised the closing date to September 1st.
In Commonwealth v. Nies, No. 5793-2012 (Pa. Ct. Com. Pl, Apr. 18, 2013), the Honorable John A. Boccabella of the Berks County Court of Common Pleas applied a somewhat rare exception to the requirement that those who do not submit to a blood test in connection with a DUI investigation are subject to enhanced sentencing requirements. This exception applies to those with a hearing impairment. In doing so, Judge Boccabella blocked the enhanced sentencing requirements for a deaf motorist who refused to submit to a blood test during a DUI investigation.
Specifically, on October 15, 2012, Muhlenberg Township Police received a call and investigated an allegedly intoxicated motorist hanging out of the window of his pickup truck in Berks County, Pennsylvania. After conversing with the Defendant, the investigating officer placed
him under arrest for suspicion of DUI. Once taken to St. Joseph Hospital, the Defendant allegedly refused to take a blood test. Consequently, when charged with DUI, the Commonwealth invoked the sentencing enhancement pursuant to 75 Pa. C.S. § 3804(c) for failure to submit to a blood test.
Although the Defendant did not contest the DUI charge, he filed a Petition for Habeas Corpus and argued that the Commonwealth could not prove that he refused to take a blood test upon request. Defendant argued that, for the sentencing enhancement of § 3804(c) to apply, the Commonwealth must show (1) that the Defendant refused the blood test, and (2) that the Defendant was aware of potential consequences of refusing the blood test. Defendant pointed out that pursuant to 75 Pa. C.S. § 1547(a), among other things, it is the police officer’s duty to inform the motorist that under the sentencing enhancement, the person’s driving and operating privileges will be suspended upon refusal to submit to the chemical testing. Furthermore, the Defendant argued that under Commonwealth v. Xander, 14 A.3d. 174 (Pa. Super. Ct. 2011), courts require a knowing and conscious refusal to submit to chemical testing for the enhanced sentencing to apply.
Here, Judge Boccabella found that the Defendant did not make a knowing and conscious refusal to submit to chemical testing. Specifically, testimony showed that the Defendant is hearing impaired. Furthermore, at the time of his questioning by the investigating officer, the Defendant’s hearing aid was on the floor of his truck.
Judge Boccabella found that, despite the fact that the investigating officer read the possible sanctions from the Commonwealth form (DL-26) during his arrest, the Defendant did not understand or hear what the investigating officer said to him. Specifically, testimony established that, during the entire investigation, the Defendant unresponsively faced ahead. Judge Boccabella further found that all of the parties involved were aware that the Defendant had a hearing disability. Nevertheless, the police officers did not take extra steps to further communicate with the Defendant to ensure his understanding of the consequences of a refusal to submit to a blood test. The officers simply read from the DL-26 form, despite the fact that it was clear that the Defendant had no idea what was being said to him. Accordingly, the Court held that the Defendant had not made a knowing refusal to submit to a blood test, and enhanced sentencing was set aside.
The United States Environmental Protection Agency is in the process of performing a routine five-year review of the status of a Superfund remediation project at the Cryochem, Inc. Superfund Site in Boyertown, Berks County. Persons interested in submitting information to the EPA to consider for its review are invited contact Vance Evans, the EPA Community Involvement Coordinator, at (215) 814-5525 or evans.vance@epa.gov.
According to the EPA website, the Pennsylvania Department of Environmental Protection has been operating and maintaining a groundwater extraction and treatment system since May 2008 to remediate volatile organic compounds, including TCA, DCA, PCE, TCE, DCE and vinyl chloride, detected in the groundwater.
Under federal regulations, EPA is required to re-evaluate the protectiveness of remedial actions at Superfund sites every five years. The last five year review of the Cryochem, Inc. Superfund Site required testing to evaluate potential risks of the volatile organic compounds in the groundwater vaporizing and migrating into residential dwellings overlying the groundwater plume.
EPA anticipates that the Five-Year Review will be available by June 2013.
The Commonwealth Court of Pennsylvania recently struck a blow against anyone who complains about the condition of Pennsylvania’s roadways and shoulders. In Bubba v. Com. of Pa. Dep’t of Transp., No. 1151 C.D. 2012 (Pa. Cmwlth. Ct., Jan. 8, 2013), a motorist, Joseph Bubba (“Bubba”), was traveling as a passenger along State Route 737 in Albany Township, Berks County, PA. The driver of the car swerved to avoid an animal, hit a drop off at the edge of the shoulder, and overturned. Following the accident, Bubba brought an action against the Department of Transportation (“DOT”) alleging that DOT allowed the shoulder to deteriorate, causing a dangerous elevation difference between the shoulder and the adjacent berm.
DOT filed a motion for summary judgment, arguing that it was entitled to sovereign immunity from Bubba’s tort claims pursuant to Pennsylvania’s Sovereign Immunity Act, 42 Pa. C.S. § 8522. The Honorable Timothy Rowley of the Berks County Court of Common Pleas agreed, finding that based on the facts presented, no exceptions existed to sovereign immunity. Bubba appealed to the Commonwealth Court arguing that DOT had a duty to maintain the shoulder immediately abutting the roadway so that it was even with the highway.
The Commonwealth Court first recognized that DOT is a Commonwealth entity that is generally immune from tort liability pursuant to the Act. The Commonwealth Court noted, however, that DOT could face exposure if: (1) Bubba could establish an action against DOT for negligence and (2) DOT’s negligent conduct fell within one of nine exceptions to sovereign immunity. See 42 Pa. C.S. § 8522(b). Based on the facts at hand, the Commonwealth Court determined that Bubba could not establish a negligence action against DOT because DOT owed no duty to maintain the berm/shoulder immediately abutting the roadway.
Specifically, the Commonwealth Court pointed to the Pennsylvania Supreme Court’s finding in Dean v. Dep’t of Transp., 751 A.2d 1130 (Pa. 2000), in which a car fishtailed in snow, left the roadway, and overturned. Plaintiff in Dean argued that DOT was negligent for failing to install a guardrail at the side of the road. The Dean Court stated that DOT’s duty of care to those using its real estate is such that DOT must ensure the condition of its property is safe for the activities for which it is regularly used, intended to be used, or reasonably foreseen to be used. Ultimately, the Dean Court held that it was the driver’s conduct that caused the car to leave the roadway and that the absence of a guardrail did not render the road unsafe for its intended use.
The Commonwealth Court also pointed to the Commonwealth Court’s opinion in Lambert v. Katz, 8 A.3d 409 (Pa. Cmwlth. Ct. 2010), which held that DOT has no duty to make roadway shoulders a certain width in anticipation that vehicles might lose control and use the shoulder to regain control. Put succinctly, shoulders are not intended for vehicular travel. DOT has no duty to groom its shoulders for vehicular travel.
Recently, the Caernarvon Township Police Department announced that it will join thirteen other police departments in the Berks County Pharmaceutical Drop Box Initiative Program. The Pharmaceutical Drop Box Initiative Program provides residents with an opportunity to safely and securely dispose of unused, unwanted, or expired medication.
The United States Environmental Protection Agency (“EPA”) does not generally regulate the disposal of household wastes such as unused medication under the Resource Conservation and Recovery Act (“RCRA”) even though the chemical make-up of medications might otherwise qualify it as a hazardous waste. According to EPA, traces of active pharmaceutical ingredients have been found in some groundwater and drinking water as a result of, at least in part, the improper disposal of unused, unwanted, or expired mediation.
For instance, medication flushed down a toilet may dissolve and be discharge directly to the groundwater through a septic system or not get completely treated by a wastewater treatment facility because of the complex nature of organic compounds in medication. EPA also explained that pharmaceutical ingredients have also been detected in leachate systems from municipal solid waste landfill as a result of household disposal in municipal trash collection.
Although unused medication may not be regulated under RCRA, there are other practical and compliance issues with medication disposal which can be addressed through a Pharmaceutical Take Back Program. EPA views incineration at regulated facilities as the preferred disposal method for medications. EPA cautions, however, that crematoria are not regulated under the Clean Air Act and should not be used to incinerate medication because they do not have environmental safeguards required to capture organic compounds from the medication that may be emitting during incineration. Therefore, there is not readily available and cost-effective public access to incineration facilities. A Pharmaceutical Take-Back Program, however, allows a local government to consolidate the medication and dispose of it at a regulated incineration facility.
In addition, the Controlled Substances Act and the Secure and Responsible Drug Disposal Act generally prohibit transferring certain controlled medications to another person for disposal unless surrendered to law enforcement. Because the Berks County Pharmaceutical Take-Back Program is managed by local police departments, people can avoid a risk of inadvertent non-compliance with these laws.
On Tuesday, November 5, 2013, Berks County voters will elect two local attorneys to fill judicial vacancies on the Berks County Court of Common Pleas. The candidates are varied in terms of their legal backgrounds; some boast of their experience representing clients in civil and municipal matters, while others point to their trial experience prosecuting and representing criminal defendants. All of the candidates cross-filed and will appear on both the Republican and Democratic primary ballots.
On March 20, 2013, the candidates traveled to Bureau of Elections in Harrisburg to participate in a lottery to determine their respective ballot positions. The candidates or their duly authorized proxies drew numbers from a hat. Following the lottery, election officials announced the following ballot orders:
Republican:
Democrat:
With the orders announced, the candidates are no doubt reassessing their chances of appearing in the general election in light of the perceived advantage for candidates earning the first ballot position, known commonly as the “ballot order effect.” In recent years, numerous studies have attempted to quantify this advantage.
In 2010, the New York University School of Law published a comprehensive article on the ballot order effect, revealing “[s]ubstantial empirical evidence point[ing] to the conclusion that ballot order effects, particularly in relatively low salience elections [e.g. judicial, municipal, and primary elections], are both statistically significant and large enough in magnitude to alter the outcomes of elections.” See Laura Miller, “Election by Lottery: Ballot Order, Equal Protection, and the Irrational Voter”, 13 N.Y.U. J. Legis. & Pub. Pol'y 373, 405 (2010).
In her article, Ms. Miller cites empirical data placing this advantage at approximately two to three percent for candidates with first ballot positioning. She argues that, in this environment of “low information rationality,” voters are susceptible to unknown biases when voting:
Substantial psychological research has established the existence of a ‘primacy effect,’ whereby individuals, when presented with a list of items, are more likely to select the first item on the list than those listed further down. . . . As a decision-maker moves down a list, she becomes less likely to generate reasons for selecting an item due to increasing fatigue and short-term memory constraints.
These human tendencies may also benefit candidates with last ballot positioning:
In addition to primacy effects, researchers have also identified a tendency to select the item listed last in a list. Recency effects might occur in the ballot context if, instead of finding positive reasons to vote for a candidate, voters instead generate reasons to vote against them. As a voter works her way down a ballot, again due to fatigue and short-term memory limitations, she might generate fewer reasons to vote against the later candidates. Additionally, voters might simply be influenced by the last name that they read on the ballot.
Ms. Miller argues that these primacy and recency effects are more likely to play out in the election context:
A voter is hypothesized to be more susceptible to order when she has no information about a race, or when she is truly ambivalent between the candidates. In other words, when a voter has less substance to base her decision on, she is more likely to select the candidate listed first (or last) in order. This also means that we should expect larger ballot order effects in ‘down-ballot’ elections that receive far less media attention, as well as in situations when traditional voting heuristics are not present, as in primary and non-partisan elections.
In sum, Ms. Miller argues that the ballot order matters. This is particularly so in primary and nonpartisan elections, where “the effect is larger both in magnitude and statistical significance for all types of candidates.”
A recent study of California municipal and school board elections confirmed Ms. Miller’s thesis, revealing that candidates listed first on the ballot are “between four and five percentage points more likely to win office than expected absent order effects.” Putting this figure into context, the statistical advantage for an incumbent candidate in U.S. elections is approximately five to eight percent. See Stephen Ansolabehere & Jim M. Snyder, Jr., The Incumbency Advantage In U.S. Elections: An Analysis Of State And Federal Offices, 1942–2000, 1 Election L. J. 315 (2002).
If the empirical data is correct, Attorneys Dimitriou Geishauser and Fudeman should expect a boost in the primary due to their respective ballot positions. The percentage advantage is somewhere between two and five percent, depending on which study results are applied. We will see after the primary whether the ballot order effect helps them gain a spot on the November ballot.
Last week, the Pennsylvania Superior Court issued an opinion reversing a decision by the Berks County Court of Common Pleas granting a motion to suppress evidence in a drug-trafficking case involving the use of a GPS tracking device. See Com. v. Burgos, No. 718 MDA 2012 (Pa. Super. Ct., Feb. 20, 2013).
In the fall of 2010, law enforcement agents from the Berks County Detectives (the “County Detectives”) arrested eight individuals suspected of marijuana and cocaine trafficking. Two of the individuals turned confidential informants and provided the County Detectives with information about their supplier. The informants identified the defendant’s picture and provided information about his activities that was corroborated by recordings obtained in separate court-ordered wiretaps. Based on the foregoing, the County Detectives obtained a warrant to place a GPS tracking device on defendant’s vehicle pursuant to Section 5761 of Pennsylvania’s Wiretapping and Electronic Surveillance Control Act (the “Wiretap Act”). See 18 Pa. C.S.A. § 5701, et seq.
The County Detectives subsequently tracked defendant to and from Georgia on a drug run. Pennsylvania State Police stopped defendant in Berks County and obtained a warrant to search the impounded vehicle, where they discovered thirty-four plastic bags of marijuana. The Commonwealth charged defendant with a number of offenses including, among other things, possession with intent to distribute.
Defendant filed his motion to suppress evidence, arguing that the County Detectives failed to obtain a warrant supported by probable cause pursuant to the Fourth Amendment. The Trial Court initially denied the motion, but reversed itself after considering a recent United States Supreme Court decision determining that the use of GPS monitoring equipment by state actors constitutes a “search” within the meaning of the Fourth Amendment, and, therefore, requires a warrant supported by probable cause. See United States v. Jones, 132 S.Ct. 945 (2012).
The Commonwealth filed an interlocutory appeal to the Superior Court, arguing that the Trial Court committed an error of law when, among other things, it found that the County Detectives failed to obtain a proper search warrant.
In reversing the Trial Court’s decision to suppress the Commonwealth’s evidence, the Superior Court found that, although the Fourth Amendment clearly applied to GPS tracking devices, the Commonwealth had lawfully obtained a search warrant for use of the device. The Superior Court noted that the County Detectives obtained a warrant under the Wiretap Act which served as the “functional equivalent” of a search warrant. Therefore, since the County Detectives complied with the Wiretap Act, they necessarily obtained a “search warrant” within the meaning of the Fourth Amendment. The Superior Court further found that the facts supported a finding of probable cause.
Interestingly, the Pennsylvania Legislature amended the Wiretap Act in October, 2012. See Act 202 of 2012. This amendment modified the standard for issuance of a warrant to require “probable cause” rather than “reasonable suspicion.” Reasonable suspicion is, of course, a lesser threshold than probable cause for purposes of the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1, 27 (1968). The prior iteration of the Wiretap Act - the one under which the Trial Court was operating - provided a lesser standard than Pennsylvania’s search warrant requirement found in Rule 203 of the Pennsylvania Rules of Criminal Procedure, which provides that “[n]o search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority in person or using advanced communication technology.” See Pa. R. Crim. P. 203.
In the spirit of the Superior Court’s decision, we say: “no harm, no foul.”
On February 6, 2013, the Hon. Jeffrey K. Sprecher of the Berks County Court of Common Pleas filed an Opinion in support of an Order granting summary judgment to a defendant in a personal injury action. See Cadena v. Latch, No. 09-11475 (Ct. Com. Pl. Berks Co., Feb. 6, 2013). According to the Court’s Opinion, the plaintiff was allegedly injured as a result of an October 2007 accident (the “Accident”). She complained of pain in her back, neck, shoulder, and left eye, and sought damages for, among other things, pain and suffering.
Plaintiff elected limited tort coverage under the automobile insurance policy and was therefore limited to economic damages (i.e., out-of-pocket expenses, loss of income, etc.) under Pennsylvania law, unless she could demonstrate that she suffered a “serious impairment of a body function.”
Approximately one month after the accident, the plaintiff consulted with an orthopedic physician. MRI tests revealed mild degenerative changes at multiple levels in her spine, but the radiographs did not reveal a traumatic injury. The orthopedic physician diagnosed her with, among other things, cervical and lumbosacral strain/sprain, radiculitis, and headaches, and discharged her from treatment on July 10, 2008, after five appointments. The plaintiff sought no further treatment. In addition to the consultations, the plaintiff underwent ten physical therapy treatments between November 27, 2007, and March 18, 2008.
In June 2011, the plaintiff underwent an Independent Medical Examination (“IME”) as part of her lawsuit. The IME report revealed pre-existing degenerative changes in the cervical and lumbar spine. The IME physician opined that there were no permanent injuries, and that the plaintiff had made a full recovery.
The defendant filed a motion for summary judgment, citing the findings from the IME report and the plaintiff’s limited tort election. The Court granted the motion and entered judgment in favor of the defendant, finding that the plaintiff had sustained no “serious injuries,” was seeking recovery only for non-economic damages, and had only selected the limited tort option on her automobile insurance policy.
The plaintiff appealed to Pennsylvania’s intermediate appellate court, the Superior Court, arguing that the Court erred when it decided that she had not suffered a threshold injury (i.e., a serious impairment of a body function) as a matter of law, thereby precluding her from seeking non-economic damages under 75 Pa. C.S.A. § 1705.
Judge Sprecher disagrees. Although the Pennsylvania Supreme Court ruled in Washington v. Baxter, 719 A.2d 733 (Pa. 1998) that the determination of whether serious injury exists should be made by the jury in all but the clearest cases, there is, nevertheless, limited latitude for a trial court to find as a matter of law that no serious injury occurred. In determining whether a “serious injury” exists, Washington requires the trial court to consider, among other things, the extent of the impairment, the length of time the impairment lasted, and the treatment required to correct the impairment.
Judge Sprecher found that this matter need not be submitted to the jury because reasonable minds could not differ that the plaintiff suffered no serious injuries. Applying the considerations set forth in Washington, Judge Sprecher pointed out that the plaintiff returned to work within a week of the time of the automobile accident. In fact, she even quit her job and opened her own accounting business. She continued to vacation with her family. Importantly, she underwent only nine months of treatment and has not visited a physician for her alleged injuries since July, 2008. She currently only suffers from sporadic pain, and her IME concluded that she recovered from all injuries suffered in the Accident.
In sum, Judge Sprecher was not convinced that the plaintiff’s ongoing aches and pains were satisfactory evidence of a serious injury, and, therefore, she could not pierce the limited tort threshold.
Courts rarely grant summary judgment in these types of cases. The uncontroverted evidence, however, showed that the plaintiff was barely slowed by her alleged injuries and only briefly underwent medical treatment. This case should be interesting to watch on appeal because, if affirmed, defendants in matters involving limited tort plaintiffs will have another arrow in their quiver in support of a dispositive motion. An affirmation with an opinion will almost certainly address the trial court’s latitude to dismiss limited tort actions where the plaintiff is alleged to have incurred some injuries, albeit not one that is sufficiently “serious.” One thing is for certain: to protect yourself, elect full tort option.
In preparing a statement supporting the determination that recusal from a bankruptcy proceeding was unnecessary, U.S. Bankruptcy Court Judge Richard E. Fehling quoted Master Sergeant Georg Hans Shultz from the television sitcom Hogan’s Heroes: “I KNOW NOTHING! NOTHING!”
Upon being assigned the bankruptcy case, Judge Fehling scheduled a status conference with the debtors and their creditors. During the status conference, Judge Fehling explained his much attenuated prior interactions with the debtors and invited the parties to anonymously request his recusal. A creditor submitted a written request for Judge Fehling’s recusal.
The creditor was concerned about potential prejudice that may have resulted from a brief encounter Judge Fehling had at some point in the late 1990’s or early 2000’s where he observed a display of the debtors’ antique toy collection that was displayed during a cocktail party attended by Judge Fehling at the debtors’ house. The creditor was concerned because the toy collection was being used to secure debt owed by one of the creditors. Judge Fehling explained that he had no recollection of any particular details about the antique toy collection other than his polite “general expression of admiration for the collection in general.” In fact, Judge Fehling explained that he had no idea whatsoever about the nature, provenance, rarity, or value of any toy individually or of the collection all together.
In addition to evaluating the appropriateness of his recusal as to his knowledge (or more accurately, lack thereof) of the antique toy collection, Judge Fehling also evaluated whether his acquaintanceship with the debtors warranted recusal. Judge Fehling evaluated Section 455 of the Bankruptcy Code as it applied to the circumstances and concluded that it did not warrant his recusal.
In evaluating the legal standard, Judge Fehling explained that section 455 of the Bankruptcy Code required a finding that “a reasonable person, knowing all of the circumstances, would harbor doubts concerning the Judge’s impartiality.” However, a judge has a duty not to recuse himself if disqualification is not appropriate.
Although Judge Fehling met with the debtors on a few occasions over the prior decade or two as a result of living within a few hundred yards of them, Judge Fehling explained that he had “no close personal relationship whatsoever with the debtors.” Therefore, Judge Fehling determined that recusal was not appropriate under these circumstances. In fact, counsel for the creditor who had requested the recusal eventually withdrew its request after fully understanding the circumstances.
A resident of the City of Reading (the “City”) claimed that the City’s recycling ordinance was preempted by the Pennsylvania Solid Waste Management Act (the “Act”), 35 P.S. § § 6018.101 et seq., as applied to the resident because he operated a solid waste hauling business. Although the resident failed to file a post-trial motion to preserve the issue for appeal, Berks County Court of Common Pleas Judge Jeffrey K. Sprecher nonetheless granted the resident the opportunity to be heard, and analyzed the potential preemption of the City's recycling ordinance.
The resident argued that the Act sets forth a framework for municipal regulation of waste management and regulation, and cited Pa. Independent Waste Haulers Ass’n v. Northumberland, 885 A.2d 1106 (Pa. Commw. Ct. 2005) for the proposition that the Act preempts a municipality, such as the City, from imposing recycling fees on him as a waste hauler.
Judge Sprecher explained that the Act only preempts municipal authorities from imposing administrative fees that applied solely to waste haulers. Because the City’s recycling ordinance was applied to the resident based on his ownership of real estate within the City, the fact that he operated a waste hauling business from that particular property had no relevance under the ordinance. Therefore, Judge Sprecher concluded, the City’s ordinance is not pre-empted by the Act because municipalities are authorized to charge a fee for the collection of recyclable materials upon private property, even if the recycling services of the municipality are not used by that property.
