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Commonwealth v. Orie: Appellate Review of a Trial Court’s Pretrial Determination that a Double Jeopardy Challenge is Frivolous

Commonwealth v. Orie, No. 31 WM 2011 (Pa. June 23, 2011)

Resulting from her alleged use of government employees for campaigning purposes, Senator Orie was charged with theft of services, conflict of interest, criminal conspiracy, and tampering with or fabricating physical evidence. During jury deliberations in the criminal trial, the Common Pleas Court declared a mistrial because of purportedly forged defense exhibits.

After a new trial date was set, Orie filed a motion with the trial court to bar retrial on double jeopardy grounds, which the court denied as “frivolous” in an opinion and order.

Orie filed a Petition for Review of the trial court’s frivolous determination with the Pennsylvania Superior Court. The Superior Court issued only an order in which it stated that under Commonwealth v. Brady, “an interlocutory appeal is unwarranted where the double jeopardy claims are deemed frivolous and review may be obtained on direct appeal.”

Orie then filed a Petition for Review of the Superior Court’s order with the Pennsylvania Supreme Court. The Court treated it as a Petition for Allowance of Appeal and granted it in part to address two issues: Whether the Superior Court should review the trial court’s determination that the double jeopardy motion is ”frivolous,” and whether a retrial should be barred on double jeopardy grounds.

The Court vacated the Superior Court’s order that denied Orie’s Petition for Review of the trial court’s determination of frivolousness and remanded the case directing the Superior Court to address the petition’s merits.

The Pennsylvania Supreme Court noted that not all cases seeking appellate review of a determination of frivolousness require a stay. The Court clarified the appellate procedure that has caused much confusion since the Brady opinion:

  • A defendant whose pretrial double jeopardy challenge was dismissed as frivolous by the trial court has a right to appeal the determination of frivolousness by a Petition for Review to the Superior Court.
    • The Superior Court must focus on the trial court’s frivolousness finding and shall not answer the underlying question of whether the trial court abused its discretion in declaring a mistrial. But it can address the underlying question to the extent necessary to reach a conclusion on the trial court’s determination of frivolousness.
        • If the Superior Court upholds the trial court’s finding of frivolousness, a defendant may file a Petition for Allowance of Appeal with the Pennsylvania Supreme Court.


      • If the Superior Court overturns the trial court’s finding of frivolousness, a defendant may file a notice of appeal as of right.
  • If a defendant seeks a stay, he must do so in the Superior Court in accordance with the ordinary stay procedure.

The court announced that further refinement may be made after a referral to the Criminal Procedural and Appellate Procedural Rules Committees.

Update: On August 31, 2011, the Pennsylvania Superior Court issued an opinion affirming the trial court’s finding of frivolousness.

Lesher v. Law Offices of Mitchell N. Kay: Letters from Attorney Violated the Fair Debt Collection Practices Act

Lesher v. Law Offices of Mitchell N. Kay, No. 10-3194 (3d Cir. June 21, 2011)

The Kay law firm sent Lesher two letters on lawyer letterhead concerning his home equity debt. Both letters contained these disclaimers on the back:

This communication is from a debt collector and is an attempt to collect a debt. Any information obtained will be used for that purpose.

At this point in time, no attorney with this firm has personally reviewed the particular circumstances of your account.

Lesher sued the Kay law firm in the District Court for the Middle District of Pennsylvania under the Fair Debt Collection Practices Act. Finding that the letters were false and misleading, the district court granted summary judgment to Lesher and awarded him $1,000. The Kay law firm appealed this decision to the Third Circuit.

Because a grant of summary judgment is a question of law, the Third Circuit exercised a de novo standard of review. [The question of whether Kay’s letters are false and misleading in violation of the FDCPA is a mixed question of law and fact. The Court noted that the district court proceeded as if it were a question of law, and neither party challenged this or the application of a de novo standard of review on appeal. -cv]

The Court began by identifying the FDCPA as a remedial statute that should be interpreted broadly and applying the least sophisticated debtor standard in its analysis.

The Court found that the disclaimer that the letters were “from a debt collector” is merely a statutorily required notification that does not nullify the implication that the letter is from an attorney. It pointed out that the roles of attorney and debt collector are not mutually exclusive.

It further found that the disclaimer stating, “[a]t this point in time, no attorney with this firm has personally reviewed the particular circumstances of your account,” was ineffective because it completely contradicted the message on the front of the letter that an attorney had been retained to collect a debt.

[W]e believe that it was misleading and deceptive for the Kay Law Firm to raise the specter of potential legal action by using its law firm title to collect a debt when the firm was not acting in its legal capacity when it sent the letters.

In affirming the district court, the Third Circuit concluded that Kay’s letters falsely implied that an attorney was acting in his legal capacity. It stated that upon receiving the letters, the least sophisticated consumer may reasonably believe that an attorney reviewed the file and determined legal action may be required.

How to Cite to Pennsylvania Legal Sources

These are sample citations to legal sources in Pennsylvania according to the Bluebook. Pennsylvania courts choose different citation formats for some sources, and I have included them below in red:


  • Pennsylvania Constitution

Pa. Const. art. IX, § 2


  • Pennsylvania Supreme Court

Commonwealth v. Williams, 832 A.2d 962 (Pa. 2003)

  • Pennsylvania Superior Court

Commonwealth v. Basinger, 982 A.2d 121 (Pa. Super. Ct. 2009)

Commonwealth v. Basinger, 982 A.2d 121 (Pa. Super. 2009)

  • Pennsylvania Commonwealth Court

Wilson v. Marrow, 917 A.2d 357 (Pa. Commw. Ct. 2007)

Wilson v. Marrow, 917 A.2d 357 (Pa. Cmwlth. 2007)


  • Pennsylvania Consolidated Statutes

1 Pa. Cons. Stat. § 102 (<year>)

1 Pa.C.S. § 102

Pennsylvania Consolidated Statutes is the official codification and has 79 titles. Commonly cited titles include: Title 18 (Crimes Code), Title 20 (Probate, Estates and Fiduciaries Code), and Title 23 (Domestic Relations Code).

Citing to this official compilation is preferred over citing to Purdon’s Pennsylvania Consolidated Statutes Annotated (Pa. Cons. Stat. Ann. or Pa.C.S.A.), which is West’s annotated version.


  • Pennsylvania Code

1 Pa. Code § 1.2 (<year>)

1 Pa. Code § 1.2


  • Pennsylvania Rules of Civil Procedure

Pa. R. Civ. P. 51

Pa.R.C.P. 51

  • Pennsylvania Rules of Criminal Procedure

Pa. R. Crim. P. 102

Pa.R.Crim.P. 102

  • Pennsylvania Rules of Appellate Procedure

Pa. R. App. P. 101

Pa.R.A.P. 101

*Important note regarding Pennsylvania statutes and regulations:

Unlike many states, Pennsylvania’s statutes are not in a “Code.” The Pennsylvania Code contains regulations, not statutes. This is a point of confusion for many (lawyers and non-lawyers alike), particularly those out of state.

Viera v. Life Insurance Company of North America: “Satisfactory to Us” Language Requires a De Novo Standard of Review of an ERISA Plan Administrator’s Decision

Viera v. Life Insurance Company of North America, No. 10-2281 (3d Cir. June 10, 2011)

Viera’s husband died three hours after a tragic motorcycle accident.  She submitted a claim to LINA under his accidental death and dismemberment policy.

LINA found that her husband’s use of a blood thinner complicated his medical treatment, and therefore it was a contributing cause of his death. It concluded that his accident was excluded under the policy and denied her claim.

Viera administratively appealed by letter to LINA, who affirmed its decision to deny benefits.

Viera then filed an ERISA action in the Court of Common Pleas of Philadelphia County, and LINA removed it to District Court for the Eastern District of Pennsylvania.  The district court granted LINA’s motion for summary judgment concluding that LINA did not abuse its discretion by denying Viera’s claim. Viera appealed this decision to the Third Circuit.

Because all of the matters presented to the Third Circuit were questions of law (grant of summary judgment, determination of the proper standard of review of an ERISA plan administrator’s decision, and contract interpretation), it exercised a de novo standard of review over each issue.

The district court had applied an abuse of discretion standard of review to LINA’s decision because of the following language in the policy:

Written or authorized electronic proof of loss satisfactory to Us must be given to Us at Our office, within 90 days of the loss for which claim is made.

Looking to the circuit courts that specifically addressed “satisfactory to us” language, the Third Circuit found that the First, Eighth, and Tenth Circuits have held that this language in a policy is sufficient to insulate a plan administrator’s decision from a de novo standard of review.  In a footnote, the Court noted that it “appeared” as though the Fourth, Sixth, and Eleventh Circuits also leaned toward an abuse of discretion standard.

But, the Court was persuaded by the Second, Seventh, and Ninth Circuits which apply a de novo standard.  Agreeing with these circuits and citing a Seventh Circuit case, the Third Circuit stated that for an abuse of discretion standard of review to apply, a plan must “communicate the idea that the administrator not only has broad-ranging authority to assess compliance with pre-existing criteria, but also has the power to interpret the rules, to implement the rules, and even to change them entirely,” and a single phrase like “satisfactory to us” is generally not enough for an insured to distinguish between plans that do and do not confer discretion on an administrator.

Turning to LINA’s policy, the Court said that its language does not clearly alert insureds that LINA has discretionary power and specifically does not indicate whether “satisfactory to Us” means “electronic proof of loss [in a form] satisfactory to Us” or “electronic proof of loss [substantively and subjectively] satisfactory to Us.”  The Court resolved this ambiguity against LINA.

The Court pointed out that “magic words” are not required to reserve discretion, but quoting another Seventh Circuit case, the Third Circuit offered this solution to plan administrators:

If an administrator wishes to insulate its decision to deny benefits from de novo review, we suggest that it adopt the following “safe harbor” language: “Benefits under this plan will be paid only if the plan administrator decides in [its] discretion that the applicant is entitled to them.”

Finally, the Court addressed LINA’s Medical Condition Exclusion provision which states:

[B]enefits will not be paid for any Covered Injury or Covered Loss which, directly or indirectly, in whole or in part, is caused by or results from . . . [s]ickness, disease, bodily or mental infirmity, bacterial or viral infection or medical or surgical treatment thereof, except for any bacterial infection resulting from an accidental external cut or wound or accidental ingestion of contaminated food.

Viera argued that the comma after the word “infirmity” allows coverage for those under medical treatment for bodily infirmities (use of blood thinner for atrial fibrillation).

Finding that sufficient indicia of contrary meaning existed to overcome Viera’s reading, which was based on the last antecedent rule, the Court concluded that Viera’s interpretation was unreasonable.

The Court remanded the case for the district court to determine if LINA properly denied Viera’s claim.

Plain English in Pennsylvania

I was recently appointed Vice Chair of the Plain English Committee of the Pennsylvania Bar Association by the PBA’s president, Matthew J. Creme, Jr.

I am very excited about this leadership position to promote plain English in the law and look forward to working with the Chair, Jan Matthew Tamanini, and the other members of the committee and bar association.

Posts about the use of plain English in legal writing and drafting will be added to this blog under the new category “Plain English.”  Please return for more information about this topic!