Every 18 months the president Judge of Montgomery County Court of Common Pleas issues the judicial assignments.  In recent years there have been few changes in assignments.  This year is no exception.  The only changes that have been made this year are that Judge Carluccio is moving from criminal to civil, Judge Rogers from civil to criminal and Judge Bertin from family to civil.

The new judicial assignments take effect June 30, 2014 and below are the assignments:

Civil Division

Honorable Thomas M. Del Ricci (Civil Administrative Judge)

Honorable Emanuel A. Bertin

Honorable Thomas C. Branca

Honorable Carolyn T. Carluccio

Honorable Richard P. Haaz

 Criminal Division

Honorable William J. Furber, Jr. – President Judge

Honorable William R. Carpenter- Criminal Administrative Judge

Honorable Steven T. O’Neill

Honorable Thomas P. Rogers

Honorable Garrett D. Page

Honorable Wendy Demchick-Alloy

Honorable Gary S. Silow

Honorable Cheryl  L. Austin

 Family Division

Honorable Rhonda Lee Daniele

Honorable Stephen R. Barrett

Honorable Kelly C. Wall- Family Administrative Judge

Honorable Patricia E. Coonahan

Honorable Gail A. Weilheimer

Honorable Steven C. Tolliver

 Orphans Court

Honorable Stanley R. Ott

Honorable Lois E. Murphy

 Juvenile Court

Honorable Joseph A. Smyth

 Contact Information for the Judges and their Chambers can be found at http://www.montcopa.org/index.aspx?NID=1396

            Today the Pennsylvania Superior Court reversed a lower court decision granting summary judgment dismissing a case in which Robert J. Thompson was injured while assisting in a fireworks show.  The Defendant argued that Thompson assumed the risk of injury and moved for summary judgment based upon the assumption of the risk doctrine.

\           On appeal the Pa Superior Court reversed the lower court and remanded for the case to proceed to trial.  In its ruling the Court found that there was a dispute of fact as to the size of diameter of the mortar tubes used in the show. The Court further found that the question of whether the Plaintiff assumed the risk was a jury question.

            Today the Pa Superior Court reversed a lower court decision and struck a quantum meruit claim for attorney’s fees. The case involved a dispute between two law firms regarding a fee from a personal injury lawsuit.

             The Court found that there was a contract that governed the situation and that the contract foreclosed any quantum meruit claims.  The Court further found that the law firm was entitled to compensation pursuant to the contract and receive two-thirds  of the fee from a personal injury lawsuit.

            The Pa Superior Court remanded the case for the lower court to calculate the revised fee. In a footnote the Pa Superior Court commented that they would not calculate the fee since that was the job of the Lower Court. The Court reminded the parties and the Lower Court that the Pa Superior Court was an error correcting court and in essence they were leaving the math to the Lower Court.

            Today the Pennsylvania Supreme Court issued a 59 page decision on a personal income tax issue. If you practice tax law, which I do not, the case will be of interest to you.

            The language in the case that should be of interest to trial attorneys is found on the last two pages of that decision.  There the Court found that the Appellant waived an issue since they did not include the issue in the statement of issues presented.  The Court found that Pa R.A.P. 2116 (a) “is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby.”

            Next time you submit a brief on appeal make sure you compare your statement of issues to what is included in your brief.  Otherwise, the issue is waived. That was the result in this case.

            On a regular basis the Pennsylvania Appellate Courts post opinions, with the most opinions being posted by the Pennsylvania Superior Court.  The Commonwealth Court delineates an opinion as “reported” as compared to the Superior Court’s delineation of “published” and “unpublished”. See my previous post regarding the Superior Court rules on referencing “unpublished” opinions.            

            Today the Commonwealth Court posted two reported zoning decisions, one affirming the lower court and another reversing the lower court.  The Pennsylvania Superior Court posted twelve unpublished decisions.  

            Today the Pennsylvania Superior Court found that an asbestos claim was barred by a statute of repose.  The Plaintiff had argued that pursuant to the Abrams case, the Pennsylvania Supreme Court had found that there was no statute of repose in Asbestos.  The Pa Superior Court disagreed.

            In this case, the applicable statute of repose was found at 42 Pa C SA section 5536 which barred any claim filed more than 12 years after completion of construction of an improvement to real property.   The Pa Superior Court found that this statute prevailed and that the dicta in the Abrams case did not compel a different result.  The Court further found that if there is to be an exception to this statute for Asbestos cases that is within the purview of the legislature not the Courts.

            Thus, the Pa Superior Court revised the lower court decision and set aside a jury verdict. 

            The Pennsylvania Superior Court recently issued a decision on an issue of first impression in the Commonwealth of Pennsylvania. The case dealt with the duty and ultimate liability of a valet service when a car is returned to an allegedly intoxicated patron.

            In this case, an alleged intoxicated patron was given keys to his car and then drove away and was involved in an accident that resulted in his death.  The PA Superior Court found that there was a mutual bailment and that the valet service was bound to turn over the keys to the patron when he demanded his keys. As the valet service had no right to retain the car they could not be found liable for returning the car. 

            While the Superior Court noted sympathy for the loss of life, the Court found as a matter of law that the Valet service was not liable.

            The Pennsylvania Supreme Court has put to rest any arguments that can be made for the disclosure of attorney communications with expert witnesses or draft reports.  First there was the Barrick case, which I previously posted on.  The Pa Superior Court found that the communications were not discoverable. That ruling was brought into question when the Pa Supreme Court granted allocator.  However, the Court affirmed the Pa Superior Court this past April and found that those communications were not discoverable.

            Now, to completely shut the door the Pa Supreme Court has issued an order amending Pa rule of civil procedure 4003.5 which deals with discovery of expert testimony and reports. Pursuant to the amendment the Court added the following language:

“A party may not discover the communications between

another party’s attorney and any expert who is to be identified pursuant to subdivision (a)(1)(A) or from whom discovery is permitted under subdivision (a)(3) regardless of the form of the communications, except in circumstances that would warrant the disclosure of privileged communications under Pennsylvania law. This provision protects from discovery draft expert reports and any communications between another party’s attorney and experts relating to such drafts”

            So, unlike Federal Court, in Pennsylvania Courts, you cannot obtain copies of correspondence with an expert or a copy of any of their draft reports.  It is a good rule and protects the candor and the relationship between counsel and experts.

            Hopefully, this scenario does not happen very often.  Specifically, you sell a home where there was previously a murder suicide.  Well, it happened in the case Milliken v. Jacono.

            I previously blogged on the Pa Superior Court Decision where the court found no duty to disclose. When the Pa Supreme Court accepted the case we wondered whether the Court would now impose such a duty.

            The Pennsylvania Supreme Court in a short and precise decision affirmed the Pa Superior Court. The Court in a case of first impression found that in Pennsylvania that Psychological stigmas are not material defects that require disclosure by a seller.  Again, I do not know that this decision has many practical implications. However, it would make a great law school exam question.

I pleased to share with you the following post from my colleague J.Benjamin Nevius, Esquire who practices in our Chester County Office.

Last week, the Pennsylvania Superior Court issued an opinion in Pollina v. Dishong, 2014 PA Super 153 (Pa. Super. Ct. 2014), holding that neither the Pennsylvania Peer Review Protection Act, 63 Pa.C.S.A. § 425.1 et seq., nor the doctrine of judicial privilege, will insulate a physician against negligence claims arising from a failure to exercise due care in the peer review process.

In 2010, Pennsylvania’s Bureau of Program Integrity (“BPI”) received a complaint from a disgruntled former employee of a dental practice located in Johnstown, Pennsylvania.  The employee alleged that the practice and its proprietor (together, the “Provider”), had engaged in fraudulent billing practices with respect to Pennsylvania’s Medical Assistance program (“MA”) – also known as Medicaid.  BPI, which frequently retains medical professionals to perform peer review services in connection with fraud investigations, retained Arthur Kravitz, DMD to assist with the investigation.

Dr. Kravitz attended an unannounced inspection of the Provider, interviewed employees, and reviewed 78 patient files.  At the conclusion of his investigation, Dr. Kravitz issued a report opining among other things, that the Provider over-prescribed medications and performed unnecessary dental procedures.  As a result of Dr. Kravitz’s findings, BPI referred the matter to the Pennsylvania Attorney General (“AG”) for further handling.  In October 2011, BPI suspended MA payments to the Provider during the pendency of the investigation, as required by law.

The Provider appealed to the Bureau of Hearings and Appeals (“BHA”), another bureau within the DPW, seeking to reinstate the MA payments.  Both the BHA and AG ultimately concluded that there was insufficient evidence to support the fraud allegations and, in April 2012, BPI reinstated the MA payments.  By that time, however, the damage had already been done.  The Provider sustained substantial economic loss as a result of the suspension, and had terminated all but three essential employees.

The Provider subsequently sued Dr. Kravitz for failure to exercise due care in his investigation.  Dr. Kravitz filed preliminary objections, arguing that he is entitled to peer review immunity and/or judicial privilege because he rendered his opinions in the course of a judicial or quasi-judicial proceeding.  The Superior Court refused to extend immunity to Dr. Kravitz for many reasons, the biggest being that the allegations did not pertain to the substance of Dr. Kravitz’s professional opinions, but rather the care used in investigating the allegations against the Provider.

Citing LLMD of Michigan, Inc. v. Jackson-Cross Co., 740 A.2d 186, 191 (Pa. 1999), the Superior Court held:

[T]he goal of ensuring that the path to truth is unobstructed and the judicial process is protected, by fostering an atmosphere where the expert witness will be forthright and candid in stating his or her opinion, is not advanced by immunizing an expert witness from his or her negligence in formulating that opinion.  The judicial process will be enhanced only by requiring that an expert witness render services to the degree of care, skill and proficiency commonly exercised by the ordinarily skillful, careful and prudent members of their profession.

The decision demonstrates the exposure physicians face in performing peer review services, particularly when an opinion could mean termination or suspension of MA payments to a medical provider.  Physicians offering peer review services to BPI and other review organizations (including insurance carriers) should review coverage to ensure they are adequately protected against risk.

     On April 23, 2014, I served as a commentator for the PCN network for the Pennsylvania Superior Court en banc arguments. One of the cases that I provided commentary was the case John J. Dougherty v. Karen Heller Yesterday the Superior Court issued a decision denying an appeal filed by John Dougherty a/k/a Johnny Doc.

      Appellant John Dougherty, is the business manager of the International Brotherhood of Electrical Workers Local 98. He is also a former candidate for the Pennsylvania Senate. Dougherty brought a defamation action against Appellee Karen Heller, a writer for The Philadelphia Inquirer.  

       This Superior Court appeal involved a discovery dispute regarding a videotaped deposition to be taken of Dougherty. Keller notified Dougherty of his videotaped deposition at her counsel’s office, which he attended. Once there he refused to give his videotaped deposition when Keller’s counsel would not agree not to disseminate the video to any third party absent court permission. Keller filed a motion to compel Dougherty’s videotaped deposition and for costs and fees related to the previous deposition.

        Dougherty in turn filed a motion for protective order. On April 10, 2012, the trial court denied Dougherty’s Motion for protective order and granted the motion to compel but denied the request for fees. The result was that Dougherty was to appear for his deposition without any limitations on the videotape’s use. Dougherty then appealed the order as a collateral order to the Pa Superior Court.

        The issues on appeal were as follows:

1. Whether the orders are appealable as collateral orders? Or whether Dougherty was required to appeal at the end of the case?
2. Whether the trial court erred in failing to find that Doughtery had a privacy interest which warranted the entry of a protective order prohibiting the public disclosure of the videotape deposition?

        Yesterday the Pa Superior Court denied Johnny Doc’s appeal. First they found that under the collateral order doctrine they did have jurisdiction. Second, they found that Johnny Doc failed to establish a compelling privacy interest which warranted the sealing of the videotape deposition.

            I previously posted on this blog a decision by the Pa Superior Court in which the Court found that the implied warranty of habitability applied to subsequent purchasers of a home.

            As expected the Pa Supreme Court has struck down that ruling and reversed the Pa Superior Court. In doing so the Court reasoned that the implied warranty of habitability is grounded in contract law and a subsequent purchaser would not have privity of contract. Thus the warranty could not apply to a subsequent purchaser. The Court further found that public policy reasons might compel the legislature to change the law but do not compel the Pa Supreme Court to extend such a warranty to subsequent purchasers.

            On August 18, 2014, the Pennsylvania Supreme Court reiterated the standards in Pennsylvania for transfer of venue.  In doing so, the Court reversed the decision of the Pa Superior Court and affirmed the decision of the Philadelphia Court of Common Pleas Judge to transfer venue to Dauphin County.

            As Background, Residential Warranty Corporation and Integrity Underwriters filed suit in Dauphin County against Alexander Bratic and Joseph Proko ( “Bratic and Proko”). The case ended when Bratic and Proko winning on a Motion for Summary Judgment. Thereafter, Bratic and Proko filed a lawsuit in Philadelphia against Residential Warranty Corporation and Integrity Underwriters and their attorneys ( the “Defendants”) for wrongful use of civil proceedings and common-law abuse-of-process.

The Defendants filed a motion to transfer venue to Dauphin County pursuant to Pa.R.C.P. 1006 (d)1) for forum non conveniens. The Philadelphia Court of Common Pleas granted the Motion for the following reasons:

1.       The original claim which resulted in this lawsuit took place in Dauphin County;
2.       All the Defendants are from Dauphin County;
3.       Each of the Defendants’ 8 witnesses live over 100 miles from Philadelphia and are engaged in business activities which make their ability to appear at trial in Philadelphia County far more burdensome then in Dauphin County
4.       The sole connection to Philadelphia is that Defendants occasionally conducted business in Philadelphia.

On appeal the Pa Superior Court initially affirmed the Lower Court.  After re-argument before the Court en banc, the Pa Superior Court reversed the lower Court finding that the Defendants did not carry their burden of demonstrating that trial in Philadelphia would be oppressive or vexatious.

On appeal the Pa Supreme Court reversed the Pa Superior Court and found that the Pa Superior Court improperly substituted its judgment for that of the Court of Common Pleas. The Court found that the trial court is vested with considerable discretion when ruling on a Motion to transfer venue and “if there exists any proper basis for the trial court’s decision to transfer venue, the decision must stand.”

The Pa Supreme Court found that there was ample evidence in the record to support the trial court’s decision to transfer venue. While the Defendant has the burden of proof they need not show “near-draconian consequences” as suggested by the Superior court. They just need to show that trial would be more than inconvenient in Philadelphia. Based upon the record the trial court did not abuse its discretion.    

 On September 18, 2014, the Pa Supreme Court issued an Order adopting amendments to Pa Rule of Evidence 611. Rule 611 applies to the presentation of witnesses. 

The Amendment revises subpart C which addresses when leading questions are permissible. Leading questions are generally permissible on cross examination and on direct examination of a hostile witness or an adverse party.

The amendment, which takes effect immediately, adds the following language to subpart C(2), or examination of a hostile witness or adverse party:

        ”A witness so examined should usually be interrogated by all other parties as to whom the witness is not hostile or adverse as if

under redirect examination”

The amendment basically codifies the practice in some Courts. It also eliminates any confusion since some may argue that they are also entitled to leading questions.

Today the Pennsylvania Commonwealth Court issued two decisions involving Sovereign Immunity defenses asserted by governmental entities. In the two decisions the Court affirmed a grant of summary judgment and reversed the grant of summary judgment based upon the defense of Sovereign Immunity.

In Falor v. Southwest Pennsylvania Water Authority, Falor sued claiming that the Water Authority was negligent in failing to turn off the water to her vacant property. Falor had requested that the water be turned off. The water company went to the property but since it appeared as if the water was for 2 properties the worker decided not to turn the water off. However, neither the water company nor the water notified Falor that they had not turned off the water.  Falor believing that the water had been turned off also turned off the gas. The pipes froze and burst then causing significant damage to her property.  The Commonwealth Court affirmed the lower Court’s ruling that under the Pennsylvania Political Tort Claims Act that the water company was immune from liability, despite their negligence, and that there was no applicable exception that applied to the facts of that case.

In Taylor v. Northeast Bradford School District, Taylor was injured when she tripped over a room divider in a gym.  The lower court as in Falor granted summary judgment based upon the defense of sovereign immunity.  The Commonwealth Court reversed finding that there needed to be evidence in the record to support a finding that the divider was personal property as compared to real estate. While the lower court made such a finding it was not supported by the record. Accordingly, the decision was reversed and remanded for the lower court to consider evidence on whether the divider was a fixture and thus real estate or whether it was personal property.  

On October 28, 2014, the Pa Supreme Court issued one of many orders in which they denied a Petition For Allowance of Appeal. In this case, Cordes, v. Associates of Internal Medicine, the Supreme Court refused to take a case that was viewed by the Pa Superior Court as a case of first impression in Pennsylvania. Whether a Judge can rely upon a prospective jurors statement that they can be fair when there is a pre-existing relationship between a juror and one of the parties in the case.

I previously blogged on the Superior Court decision. In summary the Pa Superior Court vacated a defense jury verdict since the trial judge should have struck one or more jurors for cause.  The result of the Pa Supreme Court’s refusal to hear the case is that the case is remanded for a new trial.  As I indicated in my previous post, this was an odd case.  Usually, trial judges are very cautious and will strike jurors for cause if there is a pre-existing relationship. In this case the court did not. As result, much time and money was wasted.

            On November 19, 2014 the Pennsylvania Supreme Court issued a decision in Zauflik v. Pennsbury School District in which the high court found that Pennsylvania’s $500,000 local agency limit of liability was constitutional.

            As background, Ashley Zauflik sustained severe life changing injuries when she was struck by a school bus owned by Pennsbury School District and driven by one of their employees.  Pennsbury School District like all other school districts are considered local agencies and are granted immunity from liability under the Political Subdivision Tort Claims Act.  There are limited exceptions to the act which permit a lawsuit against a local agency. The applicable exception in this case was “negligent operation of a motor vehicle”.

            The Political Subdivision Tort Claims Act also provides a maximum limit of liability for a local agency of $500,000. Prior to trial Pennsbury admitted to liability and agreed to tender the statutory limit of liability of $500,000. The Plaintiff refused the offer and the case proceeded to a jury trial whereby the jury issued a verdict in favor of the Plaintiff for over 14 million dollars. Pennsbury filed a post-trial motion to mold the verdict in accordance with the statutory limit of liability and the trial judge granted the Motion molding the verdict to $502,661.63 which included delay damages.  The Plaintiff appealed and the Commonwealth Court affirmed.

            The Pa Supreme Court granted allocator to review whether the statutory cap was constitutional, whether it violated the Equal Protection Clause and whether it violated the Separation of Powers.  The Pa Supreme Court in lengthy analyses which included a detailed history of governmental immunity in Pennsylvania found that the cap limit was constitutional, did not violate equal protection or the separation of powers. While the Court had empathy with the Plaintiff who suffered life changing injuries, the Court opined that it was up to the legislature to change the law not the Court. Accordingly, the Commonwealth Court decision was affirmed which resulted in the 14 million dollar judgment being reduced to $502,661.63.

            I recommend that you keep the decision handy in case you have a case involving the Political Subdivision Tort Claims Act. The case provides a detailed history of the law and the common law that preceded the statute.

        On November 19, 2014, the Pa Supreme Court issued a 137 page opinion on the state of products liability law in Pennsylvania.  In summary the Court ruled as follows:

• The Court declined to adopt the Restatement (Third) Torts: Products Liability:
• The Court’s previous decision in Azzarello v. Black Brothers Company, is overruled;
• A Plaintiff in a products liability case must prove that the product is in a “defective condition” and the Plaintiff could  prove it by showing either:
  • The danger is unknowable and unacceptable to the average or ordinary consumer, or that
  • A reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions;

• The burden of production and persuasion is by a preponderance of the evidence;
• Whether a product is in a defective condition is a question of fact ordinarily submitted to the finder of fact;
• The question is removed from the jury’s consideration only where it is clear that reasonable minds could not differ on the issue;
• The trial judge is relegated to the role of determining issues of law.

This case is a must read if you handle or defend product liability cases.

            Recently, the Pennsylvania Supreme Court granted a Petition for allowance of appeal in a non-compete case.  It is a standard case, whereby the non-compete was not signed contemporaneously with the start of employment. Thus, since there was no new consideration or benefits conferred upon the employee, both the lower court and the Superior Court found that the non-compete was unenforceable for lack of valuable consideration.

            Sounds like a simple case, so why did the Pa Supreme Court grant the Petition for Allowance of Appeal.  As background, the employer raised an interesting argument to avoid the lack of valuable consideration. The employer argued that the Uniform written Obligations Act does not require new consideration if the magical language “Intend to be legally bound” was in the agreement. In this case that language was in the agreement.

            The Pa Superior Court affirmed the Lower Court and found that the magical language did not cure the lack of valuable consideration. In doing so the Pa Superior Court did analyses of the Uniform Written Obligations Act along with prior case law in which the Pa Supreme Court found that a contract under seal did not negate the requirement to have valuable consideration to enforce a non-compete.

            The Pa Supreme Court granted the Petition for Allowance of Appeal on the following issues:

• Did the Superior Court misconstrue the Uniform Written Obligations Act?
• Did the Superior Court erroneously rely upon contract under seal cases?
• Did the Superior Court impermissibly amend the Uniform Written Obligations Act under the guise of interpreting it?

Based upon the foregoing, it would appear that the Pa Supreme Court is not going to change the law in Pennsylvania requiring new valuable consideration for non-competes to be enforceable. It appears that the Pa Supreme Court will be ruling on the Pa Superior’s Court’s interpretation of the Uniform Written Obligations Act and/or the case law on Contracts under seal. However, stay tuned since you never know. 

Last week, the Pennsylvania Superior Court issued an interesting decision involving the enforceability of an unsigned agreement to arbitrate.

In Bair v. Manor Care of Elizabethtown PA, LLC, plaintiff, Sylvia Bair, brought a wrongful death lawsuit against Manor Care in the Lancaster County Court of Common Pleas alleging institutional abuse and/or neglect resulting in the death of her elderly mother, Martha Edwards.  Manor Care filed preliminary objections to the complaint seeking to compel arbitration pursuant to a standalone “Voluntary Arbitration Agreement” signed by Ms. Bair on behalf of her mother at the time of admission pursuant to a power of attorney.

The agreement contained blanks on the first page for the insertion of the names of the contracting parties and the date – none of these blanks was completed.  Further, the agreement provided that, “arbitration is described in the voluntary arbitration program brochure,” a copy of which was to be “attached and made part of th[e] agreement.”  The brochure, however, was not attached.

The agreement also provided, in bold capital letters, that:  “THE PARTIES CONFIRM THAT EACH OF THEM UNDERSTANDS THAT EACH HAS WAIVED THE RIGHT TO TRIAL BEFORE A JUDGE OR JURY AND THAT EACH CONSENTS TO ALL OF THE TERMS OF THIS VOLUNTARY AGREEMENT.”  Following this paragraph, there were signature lines for Ms. Edwards, Ms. Bair in both her representative capacity and in her individual capacity, and for a Manor Care representative.  Ms. Bair signed the agreement as Ms. Edwards’s legal representative, but only in her representative capacity.  The signature line for a Manor Care representative was left blank.

The trial court determined that the arbitration agreement was unenforceable because, among other things, a representative of Manor Care failed to sign the agreement.  Manor Care filed an immediate appeal as of right to the Superior Court arguing that a signature is not required to enforce an agreement, and “certainly not [by] the party attempting to enforce it.”

In affirming the trial court, the Superior Court recited long-standing precedent that, for an arbitration agreement to be enforceable, parties must demonstrate “in a clear and unmistakable manner [an agreement] to arbitrate their disputes.” After reviewing the facts, the Superior Court determined that the arbitration agreement lacked essential terms such as “the names of the contracting parties, the date of the agreement, and the brochure describing the arbitration process, which was expressly made part of the agreement.”  Further, the Superior Court determined that the agreement “expressly required the signatures of both parties.”  Notwithstanding the fact that it was Manor Care and not Ms. Bair that sought to enforce the agreement, the Court held that Manor Care’s failure to sign the agreement demonstrated an absence of a mutual agreement to arbitrate by Manor Care.

The lesson of this decision is that individuals and businesses seeking to enforce arbitration agreements should be careful to fill in the blanks and sign on the dotted line.