Sexual Assault Testimony

Cosby's arguments seeking to overturn the results of the 2018 sexual assault trial are set to kick off the session, with the case set to be heard 9:30 a.m. Dec. 1.

The justices in June agreed to take up Cosby's appeal, granting allocatur on two issues—whether the trial court improperly admitted the testimony of several women who claimed Cosby sexually assaulted them decades ago, and whether a purported agreement between Cosby and a former Montgomery County district attorney to not press charges against the comedian in 2005 barred a subsequent administration from prosecuting Cosby nearly a decade later.

In the spring of 2018, a Montgomery County jury found Cosby guilty of three counts of aggravated indecent assault, based on Andrea Constand's allegations that he sexually assaulted her in 2004. He was ultimately sentenced to three-to-10 years in state prison.

In December, a three-judge Superior Court panel denied Cosby's efforts to overturn that verdict, saying, in a 94-page opinion, that the comedian's sentence should stay in place.

Cosby's case raised unusual questions given the large number of additional accusers, and a purported nonprosecution agreement from when the allegations against him first surfaced. But the appellate court stood by the Montgomery County Court of Common Pleas' decisions on those issues.

A main focus of Cosby's appeal has been that the trial court erred in allowing five women who have accused him of sexual assault to testify at trial, in addition to Constand, whose allegations against him formed the basis of the criminal case. Cosby was found guilty of drugging Constand and sexually assaulting her at his home in 2004.

Another recurring issue in the prosecution, which is set to now come before the justices, stems from an alleged agreement he entered into with prosecutors more than a decade ago.

Shortly after the charges against him were filed, Cosby filed a petition for writ of habeas corpus, arguing that his attorneys in 2005 had an enforceable agreement with the District Attorney's Office that he would not be prosecuted in exchange for Cosby testifying in a related civil lawsuit. Bruce L. Castor Jr. was district attorney at that time, and he made a public announcement when his office chose not to bring charges against Cosby based on Constand's allegations.

Current District Attorney Kevin Steele reopened the case and brought charges after portions of the civil deposition Cosby gave in 2005 and 2006, in which Cosby admitted to giving a woman drugs in order to have sex with her, became public.

Castor testified at a hearing in February 2016 about that petition, and said he made a binding promise in 2005 that Cosby would not be prosecuted. But after two days of testimony and argument, Judge Steven T. O'Neill ruled in prosecutors' favor, denying Cosby's petition to have the charges dismissed. O'Neill's order said a credibility judgment was inherent in his ruling.

Brian W. Perry, now of Tucker Arensberg, was listed as Cosby's attorney of record on the docket. Perry, of Harrisburg, was previously the founder and managing partner of Perry Shore Weisenberger & Zemlock.

Stacking Insurance Coverage

The last argument session Dec. 1 is set to focus on intra-policy stacking of uninsured motorist benefits under the state's Motor Vehicle Financial Responsibility Law.

Arguments in the case, Donovan v. State Farm Mutual, come before the justices after the U.S. Court of Appeals for the Third Circuit requested they take up the issue following a federal district court decision holding that a waiver signed by an insured did not waive the right to aggregate or "stack" the limits of coverage for underinsured benefits between two separate policies.

The case stems from an accident plaintiff Corey Donovan was involved in while riding his motorcycle. After the carrier for the tortfeasor tendered their full $25,000 policy, Donovan sought underinsured coverage from his motorcycle policy with State Farm, as well as coverage under his mother, Linda Donovan's policy, which extended underinsured motorist coverage to "resident relatives."

State Farm denied this claim, stating that Linda Donovan's policy did not allow for additional coverage of Corey Donovan because she previously had signed a waiver declining stacked UIM benefits under her policy. The district court granted summary judgment in favor of the Donovans, holding that the waiver signed by Donovan did not waive inter-policy stacking.

The justices specifically agreed to hear arguments on whether the signing was sufficient to waive coverage, how the plaintiff's household vehicle exclusion might come into play and how the coordination-of-benefits provision in the auto policy could factor into the issue.

Corporate Veil

The first case set to be argued Dec. 2 focuses on how Pennsylvania's strong presumption against piercing the corporate veil should come into play. According to Kang Haggerty & Fetbroyt's Edward T. Kang, the case, Mortimer v. McCool, could radically change the state of play when it comes to advancing corporate veil piercing theories.

The case stems from a dram shop lawsuit where the plaintiffs sought to recover from an affiliated corporation that was not a defendant at trial.

During the arguments, the justices are set to consider, "Whether, in this matter of first impression, the Supreme Court should adopt the 'enterprise theory' or 'single entity' theory of piercing the corporate veil to prevent injustice when two or more sister companies operate as a single corporate combine."

According to Kang, the theory, which has not been adopted in Pennsylvania, would "allow a plaintiff to reach the assets of one or more affiliated corporations of the debtor when those 'corporations share common ownership and are, in reality, operating as a corporate combine.'"

READ MORE:

• Bill Cosby Wins a Case – Against His Insurer
• Judicial View on 'Arising Out Of' Exclusion in Bill Cosby Policy
• Cosby's Coverage Dispute Has Ramifications for Many Policyholders