A Summary Of Recent Appellate Decisions &Amp; Rules Changes

Submitted by: Daniel Siegel

Pennsylvania State Court Decisions

1.0Civil Litigation & Procedure

1.1Arbitration/Jurisdictional Limits

*Superior Court of Pennsylvania

?Robert Half International, Inc. v. Marlton Technologies, Inc.

2006 PA Super 145 (June 20, 2006)

Holding:Because the monetary limits for compulsory arbitration are jurisdictional, when a defendant files a counterclaim seeking an amount in excess of the jurisdictional limits for compulsory arbitration, the arbitration program is immediately divested of jurisdiction in the matter. This is an en banc decision of the Superior Court.

1.2Causes of Action Asbestos-Related Diseases

*Superior Court of Pennsylvania

?Estate of Abrams v. Pneumo Abex Corp..

2006 PA Super 136 (June 9, 2006)

Holding:Affirming its prior en banc decision adopting the two disease rule in Marinari v. Asbestos Crop., Ltd., 612 A.2d 1021 (Pa.Super 1992), the Court holds that the diagnosis of lung cancer, even if it occurs years after a diagnosis of nonmalignant asbestos disease, triggers the running of the two year statute of limitations in asbestos cases. The two disease rule applies even if one or more of the defendants named in the second action was not named as defendant in the first action.

1.3Causes of Action Claims Against Municipalities

*Commonwealth Court of Pennsylvania

?Warner v. Lawrence.

No. 1929 C.D. 2005 (June 2, 2006)

Holding:A charter school formed under the Charter School Law, 24 P.S. 17-1701-A 17-1751-A is entitled to the same immunity as political subdivisions and local agencies receive under the Political Subdivision Tort Claims Act, 42 Pa.C.S. 8541-8542.

*Commonwealth Court of Pennsylvania

?Murphy v. City of Duquesne.

No. 2284 C.D. 2005 (May 5, 2006)

Holding:There is no cause of action against a municipality and its individual police officers for failing to investigate and prosecute criminal activity with the degree of zeal satisfactory to the plaintiff.

1.4Causes of Action Slip & Fall Claims/Hills & Ridges

*Superior Court of Pennsylvania

?Harvey v. Rouse Chamberlin, Ltd.

2006 PA Super 130 (June 2, 2006)

Holding:When the condition of land is influenced by human intervention, e.g., the plowing of snow, a defendant is not insulated from liability pursuant to the hills and ridges doctrine.

1.5Delay Damages

*Supreme Court of Pennsylvania

?Touloumes v. E.S.C. Inc.

No. 33 MAP 2004 (June 19, 2006)

Holding:Pa.R.Civ.P. 238 does not authorize an award of delay damages in breach of contract actions involving damage to property.

1.6Disqualification of Counsel/Appealability of Orders

*Supreme Court of Pennsylvania

?Vaccone v. Syken

No. 30 EAP 2005 (June 19, 2006)

Holding:An Order disqualifying trial counsel in a civil case is an interlocutory order, which is not subject to immediate appeal.

1.7Medical Malpractice

*Superior Court of Pennsylvania

?Vogelsberger v. Magee-Womens Hospital of UPMC Health System

2006 PA Super 146 (June 21, 2006)

Holdings:(1) Pa.R.Civ.P. 1042.72 does not prohibit a plaintiff from taking an immediate appeal from an order granting a new trial on non-economic damages following plaintiff s rejection of remittitur. Pursuant to Pa.R.A.P. 311(6), once an order for a new trial is entered under these circumstances, the plaintiff may take an immediate appeal from the order granting a new trial.

(2) Pursuant to the MCARE Act, 40 P.S. 1303.515, and Pa.R.Civ.P. 1042.72, a trial court may grant remittitur when the damage award is excessive because it deviates substantially from what could be reasonable compensation. The standard for remittitur in medical malpractice actions differs, however, from the traditional remittitur standard, which requires a verdict to be so excessive as to offend the conscience and judgment of the Court before a Court may grant remittitur.

?Forrester v. Hanson

2006 PA Super 137 (June 9, 2006)

Holding:Pa.R.Civ.P. 1006(a.1), which requires that medical malpractice actions be filed only in a county in which the cause of action arose, does not apply to cases in which a medical malpractice claim was not filed in the original Complaint, but arises solely from a Joinder Complaint. Consequently, an order transferring the case to county where the malpractice allegedly occurred, as pleaded in the Joinder Complaint, should be reversed.

1.8Motor Vehicle Claims

*Superior Court of Pennsylvania

?Bennett v. Mucci

2006 PA Super 133 (June 6, 2006)

Holding:The limited tort threshold applies when the insured is injured in an accident while in the vehicle for which he or she procured limited tort coverage even if, at the time of the accident, the insured was operating the vehicle for commercial purposes and not as a private passenger motor vehicle

.

1.9Procedural Issues

1.91Sanctions/Non Pros

?Sahutsky v. Mychak, Geckle & Welker, P.C.

2006 PA Super 110 (May 12, 2006)

Holding:The entry of a judgment of non pros is an appropriate sanction when counsel fails to respond to discovery requests, letters from opposing counsel relating to discovery, a motion to compel discovery, a Rule Returnable issued by the trial and an Order of the trial court compelling answers to discovery.

1.10Spoliation of Evidence

*Superior Court of Pennsylvania

?Creazzo v. Medtronic, Inc.

2006 PA Super 152 (June 27, 2006)

Holding:Dismissal of the Complaint is appropriate in a products liability action in which plaintiff bears the responsibility for preservation of the product.

2Workers Compensation

2.1Course of Employment/Home Office

*Commonwealth Court of Pennsylvania

?Verizon Pennsylvania, Inc. v. Workers Compensation Appeal Board (Alston)

No. 1804 C.D. 2005 (May 31, 2006)

Holding:A claimant is entitled to compensation for an injury that occurs when the claimant is working for her employer at her home, where she regularly worked two days per week while away from the employer s official place of business. In this circumstance, claimant is furthering the business of the employer.

2.2Limitations on Claims

*Supreme Court of Pennsylvania

?Romaine v. Workers Compensation Appeal Board (Bryn Mawr Chateau Nursing Home)

No. 62 EAP 2004 (June 22, 2006)

Holding:When calculating the three (3) year statute of limitations under 413(a) of the Act, 77 P.S. 771-772, which applies to reinstatement and other petitions (See, e.g., Penn Beverage, below), the only date of import is the date on which the last payment check is received. That date constitutes the last payment of compensation provided the check is honored and payment relates back to the date of its receipt.

*Commonwealth Court of Pennsylvania

?Penn Beverage Distributing Co. v. Workers Compensation Appeal Board (Rebich)

No. 1698 C.D. 2004 (June 27, 2006)

Holding:The three (3) year statute of limitations under 413(a) of the Act, 77 P.S. 771-772, applies to claims seeking to add a permanent scar to a Notice of Compensation Payment or an otherwise previously accepted work injury. Consequently, a claim petition seeking disfigurement benefits must be filed with three years after the date of the most recent payment of compensation. This decision also applies to petitions seeking to add a new injury arising as a direct result of an injury for which an employer has assumed liability.

2.3Mental/Mental Injury Claims

*Commonwealth Court of Pennsylvania

?Kennelty v. Workers Compensation Appeal Board (Schwan s Home Service, Inc.)

No. 2357 C.D. 2005 (May 31, 2006)

Holding:A claimant who suffers psychological injuries as the result of being robbed at gunpoint on multiple occasions while in the course of delivering food and collecting payments from customers is entitled to compensation for those injuries, which constitute legally sufficient abnormal working conditions. In the Opinion, President Judge Colins states that this Court is unprepared to accept that our society has deteriorated to the point where a holdup at gunpoint does not constitute an abnormal working condition for a food delivery person.

Revised Pa. Rule of Civil Procedure 1311.1

Effective July 1, 2006, the Pennsylvania Supreme Court has increased to $25,000.00 (from $15,000.00) the maximum amount of damages recoverable in the trial of an appeal from the Award of Arbitrators in the event the plaintiff files the requisite Stipulation to Limitation of Monetary Recovery at least thirty (30) days from the date the appeal is first listed for trial.

An Interesting Ethics Opinion

In Formal Opinion 06-439, Lawyer s Obligation of Truthfulness When Representing a Client in Negotiation: Application to Caucused Mediation, the American Bar Association Standing Committee on Ethics and Professional Responsibility has concluded that, under Model Rule 4.1, in the context of a negotiation, including a caucused mediation, a lawyer representing a party may not make a false statement of material fact to a third person. However, statements regarding a party s negotiating goals or its willingness to compromise, as well as statements that can fairly be characterized as negotiation puffing, are ordinarily not considered false statements of material fact within the meaning of the Model Rules.

About the Author: Daniel J. Siegel, a Havertown, Pa. attorney, founded

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