Tayar went snow tubing at the Camelback ski resort, where employees would send each rider down the hill with a push. After her fifth run, another snow tuber struck Tayar as she was climbing off her snow tube. She suffered a fractured leg from the collision that required surgery.

At the outset, Tayar signed Camelback’s required release of liability that contained the following language:

CAMELBACK SNOW TUBING ACKNOWLEDGMENT OF RISKS AND AGREEMENT NOT TO SUE THIS IS A CONTRACT – READ IT I understand and acknowledge that snow tubing, including the use of lifts, is a dangerous, risk sport and that there are inherent and other risks associated with the sport and that all of these risks can cause serious and even fatal injuries. I understand that part of the thrill, excitement and risk of snow tubing is that the snow tubes all end up in a common, runout area and counter slope at various times and speeds and that it is my responsibility to try to avoid hitting another snowtuber and it is my responsibility to try to avoid being hit by another snowtuber, but that, notwithstanding these efforts by myself and other snowtubers, there is a risk of collisions.

***

IN CONSIDERATION OF THE ABOVE AND OF BEING ALLOWED TO PARTICIPATE IN THE SPORT OF SNOWTUBING, I AGREE THAT I WILL NOT SUE AND WILL RELEASE FROM ANY AND ALL LIABILITY CAMELBACK SKI CORPORATION IF I OR ANY MEMBER OF MY FAMILY IS INJURED WHILE USING ANY OF THE SNOWTUBING FACILITIES OR WHILE BEING PRESENT AT THE FACILITIES, EVEN IF I CONTEND THAT SUCH INJURIES ARE THE RESULT OF NEGLIGENCE OR ANY OTHER IMPROPER CONDUCT ON THE PART OF THE SNOWTUBING FACILITY.

Tayar filed a personal injury lawsuit in the Monroe County Court of Common Pleas against Camelback and its employee who had been pushing the snow tubers down the slope. The trial court granted summary judgment to Camelback and its employee, finding that all of Tayar’s claims were barred by the release that she had signed. Tayar appealed to the Pennsylvania Superior Court, which reversed the trial court’s decision. Camelback and its employee then appealed to the Pennsylvania Supreme Court.

The Pennsylvania Supreme Court looked at the Restatement (Second) of Torts’ definition of “reckless disregard” and the Pennsylvania Crimes Code definition of “recklessly” and concluded that recklessness requires a “conscious action or inaction” that relates it more closely to intentional conduct than ordinary negligence and therefore deserves the same prohibition in releases of liability.

The Court stated that permitting recklessness would remove any incentive to act with even a minimal amount of care and that would jeopardize the health, safety, and welfare of people. It found a dominant public policy against releases of reckless conduct, even in voluntary, recreational settings involving private parties. The Court noted that its decision was in line with many other states that have addressed this issue.

The Court affirmed the Pennsylvania Superior Court’s order to reverse summary judgment, in part, on the ground that the release was against public policy and remanded the case to the trial court for further proceedings.

Investigating an armed robbery that resulted in the loss of ten dollars, plainclothes police officers exited a gold car with tinted windows wielding their weapons as they approached D.S. They told him to put his hands in the air and get against the nearby gate. They patted him down and requested information including his name, address, and age. D.S. said his name was D.B. and swore. At no time did they identify themselves as law enforcement or inform D.S. that he was the subject of an investigation. An officer handcuffed D.S. then threw him onto the ground and kicked him.

D.S. was arrested and charged with disorderly conduct and furnishing false information to law enforcement. The juvenile court in Allegheny County dismissed the disorderly conduct charge and ordered that D.S. enter a juvenile treatment facility.

D.S. appealed his adjudication of delinquency to the Pennsylvania Superior Court. Finding that D.S. was informed about the officers’ identity and purpose from the “totality of the circumstances,” it affirmed. D.S. then appealed to the Pennsylvania Supreme Court.

Section 4914 of the Pennsylvania Crimes Code addresses furnishing false identification to law enforcement authorities:

(a) Offense defined.–A person commits an offense if he furnishes law enforcement authorities with false information about his identity after being informed by a law enforcement officer who is in uniform or who has identified himself as a law enforcement officer that the person is the subject of an official investigation of a violation of law.

The Court found that the language of the statute was clear and free from ambiguity. It stated that nothing suggested that the legislature intended that a person’s knowledge could be derived from surrounding circumstances. Noting that the word “informed” could have a broader meaning in other contexts, the Court said the word was linked to the law enforcement officer, clearly indicating the legislature’s intent that the information must come directly from him.

Because the officers did not identify themselves or state that D.S. was the subject of a criminal investigation, the Pennsylvania Supreme Court reversed, finding that the evidence was insufficient to support his adjudication of delinquency.

Wisneski ran over a fallen bicyclist with his vehicle. Although he realized after looking at his rear view mirror that he had hit a body, and not a speed bump as he originally thought, Wisneski did not stop or notify police. The bicyclist had been struck by more than one vehicle and died.

Wisneski was charged with failure to stop at an accident, failure to comply with a duty to give information and render aid, and failure to immediately notify the police.

He filed a habeas corpus petition seeking dismissal of the charges asserting that the Commonwealth cannot prove that the bicyclist was alive when he struck him. Concluding that the statutes required the victim be alive at the time of the accident, the Indiana County Court of Common Pleas granted Wisneski’s petition, and the Pennsylvania Superior Court affirmed. The Commonwealth appealed to the Pennsylvania Supreme Court.

Because statutory interpretation is a question of law, the Pennsylvania Supreme Court exercised a de novo standard of review.

Section 3742 of Pennsylvania’s Vehicle Code addresses accidents involving death or personal injury:

(a)  General rule.–The driver of any vehicle involved in an accident resulting in injury or death of any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of section 3744 (relating to duty to give information and render aid). Every stop shall be made without obstructing traffic more than is necessary.

Noting that the statute does not define “accident,” the Court concluded that its meaning is broad, and duration cannot be determined. The Court also pointed out that involvement does not require that a person cause the accident.

The Court found that the plain meaning of the word “injury” is also broad. The Court stated that the legislature intended for a person to stop if he damaged someone’s property, such as a bicycle. Therefore, the duty to stop certainly exists if a person damaged someone’s body, whether alive or dead.

Reversing the Superior Court, the Pennsylvania Supreme Court found that “injury” encompasses damage to a dead body, so all the obligations under the statutes apply even when the victim is deceased.

Miller, a child under 14 years of age, was named sole beneficiary of her father’s life insurance policy valued at $356,000.

After Miller’s father died, his sister, who served as administratrix of his estate, petitioned the Beaver County Court of Common Pleas Orphans’ Court as Miller’s “next friend” to appoint her own attorney as the guardian of the child’s estate. Her petition did not include Miller’s mother’s consent or reason why she did not consent as required by Pennsylvania Orphans’ Court Rule 12.5 (b)(3).

Despite Mother’s objections, the court appointed this attorney as limited guardian and directed that the child’s funds be placed into a trust. The petition contained the proposed irrevocable trust agreement in which the attorney was the settlor, Father’s sister was named “Family Trustee,” and a bank was designated “Corporate Trustee.” 

Mother appealed to the Pennsylvania Superior Court, which agreed with the trial court that she lacked standing. She then appealed to the Pennsylvania Supreme Court.

The Pennsylvania Supreme Court examined and reaffirmed its 1853 decision in Senseman’s Appeal, a case with a similar fact pattern in which the Court found that a “father had a right to be heard in matters related to an appointment of a limited guardian for his child.” The Court also addressed its 1889 decision in Appeal of Corwin, which held that a petition for the appointment of a guardian for a minor child should not be presented without notice to the parent.

The Court found the express requirements of Orphans’ Court Rule 12.5 consistent with these longstanding cases and contemplated a parent’s involvement and participation in such judicial proceedings.

Turning to the principles of standing, the Court explained that a person has standing only if he is aggrieved, which is demonstrated by showing “a substantial, direct and immediate interest in the proceedings.”

Concluding that Mother met all the requirements for standing, the Pennsylvania Supreme Court remanded the case to the Pennsylvania Superior Court.

Twice in one week, Hart, a 35-year-old man living in a residential area, offered two neighborhood boys a ride to school or at least as far as the local grocery store. Hart neither ordered their entry nor enticed them. The children declined on both occasions.

Hart was then charged with harassment, stalking, and attempted luring of a child into a motor vehicle. After a bench trial in the Delaware County Court of Common Pleas, he was convicted on four counts of attempted luring and sentenced to 18 months’ probation. As a result of his conviction, Hart was required to register as a sex offender for ten years under Pennsylvania’s Megan’s Law.

Hart appealed to the Pennsylvania Superior Court. Relying on its 1994 Commonwealth v. Figueroa decision, the Superior Court affirmed Hart’s conviction. Hart then appealed to the Pennsylvania Supreme Court.

Section 2910 of the Pennsylvania Crimes Code addresses luring a child into a motor vehicle:

(a) Offense.–Unless the circumstances reasonably indicate that the child is in need of assistance, a person who lures or attempts to lure a child into a motor vehicle or structure without the consent, express or implied, of the child’s parent or guardian commits a misdemeanor of the first degree.

(b) Affirmative defense.–It shall be an affirmative defense to a prosecution under this section that the person lured or attempted to lure the child into the structure for a lawful purpose.

Because statutory interpretation is a question of law, the Pennsylvania Supreme Court exercised a de novo standard of review.

Noting that neither the current nor previous versions of Section 2910 defined “lure,” the Court first turned to two apparently contradictory 1994 Pennsylvania Superior Court opinions: Commonwealth v. Adamo and Commonwealth v. Figueroa.

In Adamo, the Superior Court found that enticement beyond an offer of a ride to a child is necessary to constitute a lure. But shortly after in Figueroa, it held that an offer of a ride without more was sufficient.

The Court then looked at dictionary definitions of “lure” and concluded that luring requires inducement beyond the mere offer of a ride.

Rejecting Figueroa and concluding that Hart’s actions of offering rides without inducement did not constitute attempts to lure, the Pennsylvania Supreme Court reversed Hart’s conviction.

While living in New Jersey, the Fogels purchased car insurance from Amica Mutual Insurance Company. The Fogels moved to Pennsylvania and notified Amica of their permanent relocation, but before Amica issued a new policy, the Fogels were involved in a fatal car accident.

In a New Jersey state court, Amica sought a declaration that New Jersey substantive law, which would limit the amount owed to the Fogels, applied to the insurance policy. The case was removed to the federal court in New Jersey, which on its own motion transferred the case to the District Court for the Middle District of Pennsylvania.

The district court granted Amica’s motion for summary judgment after using Pennsylvania’s choice-of-law rules to conclude that New Jersey substantive law applied. The Fogels appealed to the Third Circuit.

The Third Circuit exercised a de novo standard of review over the grant of summary judgment and the choice-of-law issue.

Initially, the Court found an actual conflict between the two states — only Pennsylvania allows stacking (combining the policy limits of all covered vehicles even though a collision involved just one), and unlike New Jersey, it does not permit insurers to offset underinsured motorist benefits.

The Court explained that in diversity of citizenship cases, a federal court generally applies choice-of-law rules from the state in which it sits. But when a case is transferred, either on motion from a defendant or plaintiff, the choice-of-law rules from the transferor state are used instead. Having found that the 1990 United States Supreme Court case of Ferens v. John Deere also requires that choice-of-law rules from the prior state be used in sua sponte transfers, the Court concluded that New Jersey’s choice-of-law rules should be applied in this case.

The Court then proceeded to its analysis based on New Jersey’s choice-of-law rules focusing on the principal location of the insured risk and governmental interest. The Court determined that Pennsylvania substantive law should be applied to the Fogels’ insurance policy because once Amica was notified of the Fogels’ move, the parties’ justified expectations were that the insured risk was located in Pennsylania, and Pennsylania’s underlying policy interest outweighs that of New Jersey.

The Court reversed and remanded the case for the district court to enter summary judgment on behalf of the Fogels on the choice-of-law issue.

Such poor drafting is no surprise considering that state laws and secondary sources relying on them promote legalese to lawyers and laymen.

Here is a plain English version of a notarial certificate similar to what I use, which includes all of the substance without unnecessary wordiness and redundancies contained in old-fashioned versions:

This short, straightforward notarial certificate supplies the document title, location, date, signer’s name, notary public’s title, and space for his signature and stamp. It also clearly conveys that the signer executed the document in the presence of a notary public and acknowledged it.

Like many other statutes and rules providing sample forms, Pennsylvania’s (outdated) Uniform Acknowledgment Act merely requires that the language used be similar in substance.

The 2010 Revised Uniform Law on Notarial Acts, which the American Bar Association approved in August 2011, includes sample forms with improved language. With a small amount of time and effort, lawyers can clearly and concisely draft notarial certificates that contain all of the necessary elements.

*See the 1991 article, Plain English Acknowledgment Forms, published in the Michigan Bar Journal.

Johnson sold one bundle of heroin packets to an undercover officer on June 16 and June 30. He then sold him two bundles on July 6 in separate sales. Before the last transaction, Johnson received the bundle from a man who had just retrieved it from the glove box of a parked Buick. Johnson was arrested, and the heroin stored in the Buick was later seized.

After a bench trial in the Philadelphia Court of Common Pleas, Johnson was found guilty of conspiracy, possession, and possession with intent to deliver. When calculating the total weight of heroin for sentencing purposes, the trial court included the heroin from all four sales and the heroin found in the other man’s Buick. Also considering Johnson’s previous conviction for possession with intent to deliver, the court applied the mandatory minimum sentence and sentenced him to three years’ imprisonment.

Section 7508 of the Pennsylvania Crimes Code addresses mandatory minimum sentencing for drug trafficking:

(a)  General rule.–Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply:

(7) A person who is convicted of violating section 13(a)(14), (30) or (37) of The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance or a mixture containing it is heroin shall, upon conviction, be sentenced as set forth in this paragraph:

(i) when the aggregate weight of the compound or mixture containing the heroin involved is at least 1.0 gram but less than 5.0 grams the sentence shall be a mandatory minimum term of two years in prison and a fine of $5,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense: a mandatory minimum term of three years in prison and $10,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity;

* * * *

Johnson appealed to the Pennsylvania Superior Court. The court found that the heroin sold on June 16 and June 30 should not have been used in the calculation, but affirmed based on its finding that Johnson constructively possessed the heroin found in the Buick, and the combined weight for the three bundles still exceeded one gram. Johnson then appealed to the Pennsylvania Supreme Court.

Unlike the lower courts, the Pennsylvania Supreme Court concluded that Johnson did not constructively possess the heroin seized from the Buick because no evidence suggested that he had joint control over it or the ability or intent to exercise dominion over that heroin. The Court noted that no evidence showed any connection between Johnson and the Buick at all. Johnson was never observed in or near the Buick. He did not own the Buick, have a key or remote entry device, or have any ability to enter the passenger side or trunk. The court observed that Johnson had his own car, and only the man who retrieved the bundle from the Buick had a set of keys.

The Court also rejected the Commonwealth’s alternative theory of conspiratorial liability. The Court found no evidence of an ongoing conspiracy between Johnson and the Buick’s owner beyond that single transaction.

Because evidence was insufficient to show that Johnson constructively possessed the heroin from the Buick or that he engaged in a conspiracy, the Court found that the bundle was improperly included in the trial court’s calculation. Without that bundle, the total weight of heroin did not exceed one gram, therefore the imposition of the mandatory minimum sentence was improper. The Pennsylvania Supreme Court reversed and remanded for resentencing.