State Supreme Court Ruling A Second Win For Local Law Firm

November 24, 2017

WILKES-BARRE — The Pennsylvania Supreme Court ruling this week that held city police did not have the right to seize a vehicle from the driveway of a hit-and-run suspect without a warrant represents the second time in five months a local law firm has prevailed before the state’s highest court.

“I think that’s pretty significant for any law firm, but for a Luzerne County law firm to have that type of success in the Supreme Court of Pennsylvania, I think is remarkable,” said Peter Paul Olszewski Jr., a managing partner of Scartelli Olszewski, P.C. “The truth is, most lawyers go an entire career and never get a chance to argue in the Supreme Court, let alone to do well. And here in a few months in 2017, we’ve had two enormous victories for clients that not only help our clients but changed the law of Pennsylvania, in a good way for people.”

In an opinion handed down Wednesday, the state Supreme Court ruled that warrantless searches and seizures of vehicles that are parked in residential driveways are only permissible when police have probable cause and there are exigent circumstances.

The decision in the law firm’s favor was the result of a years-long legal battle over the admissibility of the Ford F-350 Super Duty Diesel owned by hit-and-run suspect Daniel Loughnane, 45, of Hanover Twp., who is accused of running over and killing Rebecca McCallick, 19, while on his way home from the Gentleman’s Club 10 strip club in Wilkes-Barre Twp. on July 24, 2012.

Police seized the pickup from Loughnane’s driveway without a warrant more than two weeks after McCallick’s death, claiming they were concerned someone could move the vehicle or rain could wash away evidence.

The Supreme Court’s ruling held that without exigent circumstances “the concern about the inherent mobility of the vehicle does not apply” because a vehicle parked in a residential driveway is likely to remain or return there. The justices sent the case back to Pennsylvania Superior Court to review whether Luzerne County Judge Michael T. Vough was correct when he ruled in March 2014 that no exigent circumstances existed for the seizure.

The other recent victory the law firm had before the state Supreme Court came in June. That case, out of Montour County, involved a dispute between patient Megan L. Shinal and Dr. Steven A. Toms regarding whether she was properly informed about the risks and alternatives to a surgery to remove a recurrent non-malignant brain tumor.

Toms argued that while a doctor must get informed consent from a patient, the doctor does not have to personally supply all of the information — in Shinal’s case a physician assistant also provided information about the procedure during a phone call.

But the Supreme Court held in June that doctors cannot rely upon a subordinate to disclose information needed to get informed consent.

“Without direct dialogue and a two-way exchange between the physician and patient, the physician cannot be confident that the patient comprehends the risks, benefits, likelihood of success, and alternatives,” the justices wrote.

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