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Editor’s Note: This is the fourth in a series of year-end articles on the Philadelphia legal scene. A fifth article, which appears below, focuses on significant events and decisions in Commonwealth Court in 2007. In addition to the turbulence surrounding Judge Michael T. Joyce’s indictment in an alleged insurance fraud scheme and his subsequent decision not to seek retention, the court will lose a number of experienced appellate judges. Although voters elected three new members in the 2007 election, the Superior Court will lose Judges Debra Todd and Seamus P. McCaffery as they ascend to seats on the state Supreme Court. Joyce dropped his retention campaign shortly after he was indicted, Judge Robert C. Daniels was appointed to fill former Judge Joseph A. Del Sole’s seat and Judge Joseph A. Hudock will take senior status. Additionally, Senior Judge Justin M. Johnson will retire at the end of the year. Joyce faces trial in federal court on charges of mail fraud and money laundering. Prosecutors allege Joyce lied about being injured in a minor car accident in 2001 to fraudulently collect $440,000 in settlements from two insurance companies. Joyce’s announcement in August that he would end his campaign for a second term and resign at the end of the year added a last-minute wrinkle to the 2007 election: Joyce’s seat would be up for grabs, bringing the number of slots at stake to three. To fill Joyce’s seat, voters would choose between two candidates selected by the state Democratic and Republican committees. In the end, voters chose three women: Republicans Cheryl Lynn Allen, an Allegheny County Common Pleas judge, and Jacqueline O. Shogan, senior counsel in Thorp Reed & Armstrong’s complex civil litigation group, and Democrat Christine Donohue, a shareholder and practice manager in the litigation section of Buchanan Ingersoll & Rooney. They defeated Philadelphia Common Pleas Judge John M. Younge and Allegheny Common Pleas Judge Ron Folino, both Democrats, and Republican Dauphin Common Pleas Judge Bruce F. Bratton. Judges Correale F. Stevens, Joan Orie Melvin and John L. Musmanno won retention bids. Amid the waves of change, the court issued numerous noteworthy opinions. MVFRL As in years past, Pennsylvania’s Motor Vehicle Financial Responsibility Law provided a number of issues of first impression for the court’s consideration. In Erie Insurance Exchange v. Weryha, the court ruled that the separated father of a boy killed by a motorist cannot get underinsured motorist benefits under his motor vehicle policy because his son did not reside with him. Writing for the unanimous three-judge panel, Superior Court Senior Judge Patrick R. Tamilia said that even though the boy’s separated parents had joint custody of him, he could not be claimed under his father’s underinsured motorist policy because the boy lived full-time with his mother and did not physically live with his father, did not attend school near his father’s residence and did not regularly spend the night at his father’s residence. The court noted that it is not yet a settled matter in Pennsylvania law if minors living under a joint-custody order can be considered residents of both of their parents’ households. But the court said it was clear in this case that the boy did not reside with his father and could not be considered a relative under the Erie Exchange policy. In Burdick v. Erie Insurance Group, the majority of a Superior Court panel found an insurer’s exclusion of off-road motorcycles from UM/UIM coverage doesn’t violate the state’s auto insurance law or public policy. Helen and Ivan Burdick, injured after colliding with a dirt bike driven by an uninsured minor, asked the Superior Court to decide whether a car insurance policy that excludes liability for a collision with an off-road recreational vehicle from UM/UIM coverage violates the MVFRL. Writing for the majority, Senior Judge Patrick R. Tamilia found the language of Erie’s policy to be clear and unambiguous, requiring the court to give it full effect. He also cited three Superior Court opinions rejecting similar claims for coverage for liability involving vehicles not intended for highway use. Judge Joan Orie Melvin joined in the majority opinion. In his dissent, McCaffery wrote that although he agrees with the majority that the dirt bike is unambiguously excluded from Erie’s definition of an uninsured motor vehicle, he disagrees that the exclusion is permissible under the facts of the case. The MVFRL broadly defines uninsured motorist coverage and uninsured vehicles, but makes no exceptions for uninsured vehicles that are “designed primarily for use mainly off road.” Child Pornography In a pair of cases that dealt with computerized child pornography, the court addressed questions of possession and privacy. In Commonwealth v. Diodoro, an en banc panel of the court reversed an earlier three-judge panel’s unanimous decision that a Delaware County man could not be charged with possession of child pornography merely because his computer had automatically saved it to his Internet browser’s cache file. Anthony Diodoro, who freely admitted that he viewed at least 30 images of child pornography, argued that he never possessed them, according to the court’s opinions. Judge Richard B. Klein, who authored the first panel’s opinion and dissented to the en banc panel’s majority opinion, wrote that the fact that the images were automatically saved to an Internet cache file on Diodoro’s computer is not enough to show that he did anything but view them, considering there was no evidence that he knew they were automatically saved to the file. Klein said the court must look at whether there is ambiguity in the definition of “possesses or controls.” He said the Legislature didn’t include the word “viewing” in the statute and the judges shouldn’t write it in. Judge Correale F. Stevens wrote the majority opinion for the en banc panel. “[Diodoro's] actions of operating the computer mouse, locating the Web sites, opening the sites, displaying the images on his computer screen, and then closing the sites were affirmative steps and corroborated his interest and intent to exercise influence over, and, thereby, control over the child pornography,” Stevens said. He added that while Diodoro was viewing the pornography, he had the ability to download, print, copy or e-mail the images. In Commonwealth v. Sodomsky, a three-judge panel reversed a Berks County Common Pleas judge’s decision granting a suppression motion for a man whose collection of child pornography was spotted by Circuit City workers installing a DVD drive on his computer. The panel concluded that Kenneth Sodomsky had no reasonable expectation the purported child porn files on his personal computer would remain private when he took it in for an upgrade in October 2004. “Contrary to the trial court’s conclusion, if [Sodomsky] exposed the video contents of his computer to Circuit City employees, he abandoned his privacy interest in those computer contents because those employees were members of the public,” Judge Mary Jane Bowes wrote. “If [Sodomsky] knowingly published his computer video files to members of the public, he had no reasonable expectation, under the applicable law, that the video files would not be disseminated to other individuals, including police.” The Superior Court first issued a decision in Commonwealth v. SodomoskyAug. 9, but the opinion in that case referenced Commonwealth v. McCree, a decision that was reversed by the Pennsylvania Supreme Court in May. The appellee’s request for re-argument was granted Sept. 21, and the court reissued a second opinion Dec. 5 with similar conclusions to its August decision. In the latest opinion, the panel of Judges Mary Jane Bowes, John T. Bender and Senior Judge Robert E. Colville again reversed the ruling of Berks County Common Pleas Judge Jeffrey K. Sprecher that granted a suppression motion. Colville filed a concurring opinion. Medical Malpractice The realm of medical malpractice also provided fertile ground for new case law in the Superior Court. In Stever v. Antonowicz, the court held a doctor can’t be held liable for a third party’s injuries as a result of a patient’s medication-related car crash. The plaintiffs alleged Joseph L. Antonowicz was negligent for prescribing the antidepressant Lexapro for Crystal M. Ickes when he knew she was receiving doses of methadone and suffered from a seizure disorder, which was exacerbated by the medication. The three-judge panel found Blair County Common Pleas Judge Timothy M. Sullivan correctly distinguished the factual scenario in his opinion, captioned Stever v. Antonwicz, from one where the state Supreme Court held a doctor has a duty of care to a third party. Judges John L. Musmanno, Mary Jane Bowes and Justin M. Johnson decided the case. Reversing a Philadelphia judge, a Superior Court panel ruled that a Northeast Philadelphia woman shouldn’t have been required to file a certificate of merit when she sued a local hospital after alleging she was sexually assaulted by an orderly while a patient there. In Smith v. Friends Hospital, Philadelphia Common Pleas Judge Jacqueline F. Allen had entered a non pros in favor of the hospital after Traine Smith failed to file a certificate of merit along with her complaint. But a majority of the panel in Smithconcluded that under state law and civil procedure rules, certificates of merit are only needed when a medical defendant’s professional actions are at issue. Smith’s complaint had accused Friends Hospital of corporate negligence and negligent supervision. Next: Stories on the year that was in the state Supreme Court and the Eastern District of Pennsylvania. •

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