The Pennsylvania Supreme Court is set to hear arguments mostly on criminal issues as the fall 2017 argument session gets underway, but the seven-member court is also expected to hear a handful of arguments regarding civil matters, ranging from how nonlawyer consultants should be paid to the limits of the vehicle exception when it comes to governmental immunity.
Arguments are set to begin Tuesday and continue Wednesday in room 456 of Philadelphia’s City Hall. According to the schedule, the court is expected to hear arguments in six cases on Tuesday, and five on Wednesday.
The justices are scheduled to hear arguments Tuesday afternoon over how law firms should pay nonlawyers.
In SCF Consulting v. Barrack, Rodos & Bacine, the Supreme Court is set to hear whether an alleged fee-splitting agreement between a law firm and a nonlawyer outside consultant was proper.
In a nonprecedential ruling issued last July, a Superior Court panel ruled 2-1 that a consultant to Philadelphia securities litigation firm Barrack, Rodos & Bacine was not entitled to an allegedly promised cut of the firm’s profits from cases he worked on because that type of fee-splitting agreement violates state ethics rules.
According to the opinion, SCF Consulting alleged it was induced by Barrack Rodos to work exclusively on the firm’s behalf in securities class actions in exchange for both a fixed annual consulting fee and a 5 percent cut of any profits gained from cases SCF worked on.
SCF alleged that the firm subsequently refused to make the profit-share payments, however, according to the opinion. Following discovery, the firm moved for summary judgment and Philadelphia Court of Common Pleas Administrative Judge Gary S. Glazer granted the motion, finding that the fee-sharing aspect of the alleged payment arrangement ran afoul of Rule 5.4.
Superior Court Senior Judge James J. Fitzgerald III, writing for the majority, said the alleged arrangement in which Scott C. Freda—SCF Consulting’s sole member—was to receive 5 percent of the firm’s annual profits generated by cases he assisted with violated Rule 5.4, which bars, with few exceptions, attorneys from sharing legal fees with nonlawyers.
In Balentine v. Chester Water Authority, the justices are set to hear arguments over whether a municipal agency can be held liable for damages caused by the involuntary movement of a government vehicle.
Last year, the Commonwealth Court determined that it could not be, and found that the motor vehicle exception to governmental immunity under Pennsylvania’s Political Subdivision Tort Claims Act did not apply to an accident in which an allegedly negligently parked Chester Water Authority truck was struck. The vehicle subsequently pinned and killed Edwin Omar Medina-Flores.
According to the Commonwealth Court’s opinion, Victoria Balentine, individually and as administrator of Medina-Flores’ estate, filed a complaint against the CWA, Michael Roland and Wyatt Roland. The complaint asserted that Charles Mathues negligently parked a CWA truck that Wyatt Roland negligently and recklessly struck, causing the truck to pin Medina-Flores, resulting in his death. The CWA filed a motion asserting immunity from liability under the Tort Claims Act, and Balentine said her claims fell within exceptions to immunity. The trial court granted the CWA’s motion and dismissed all claims against it.
“Involuntary movement of a vehicle does not include ‘operation’ for purposes of the motor vehicle exception to governmental immunity,” Commonwealth Court Judge Anne E. Covey wrote for the 2-1 majority.
Criminal and Disciplinary
Early on Tuesday, the justices are expected to consider a first-impression issue of whether autopsy reports are testimonial evidence. That argument comes in the case Commonwealth v. Brown, after the Superior Court in May 2016 determined that “an autopsy report is testimonial when the death was sudden, violent, or suspicious in nature, or was the result of other than natural causes.”
The Tuesday argument session is set to begin with a public censure of attorney James Tone, who, according to the Disciplinary Board, missed a public reprimand that had been initially scheduled for the spring.
The Disciplinary Board’s censure recommendation said Tone was charged in 2015 for professional misconduct in connection with two clients. He had been ordered to appear for a reprimand, but failed to pay costs, or to provide proper documentation that he’d paid back his former client. The reprimand was pushed back to April, but he failed to appear on time, or give good cause as to why he was late, the recommendation said.