Transcript ANNUAL UPDATE OF THE LAW - Rieders, Travis, Humphrey

ANNUAL UPDATE OF THE
LAW
Lycoming Law Association
March 19, 2014
12:00 p.m. – 1:00 p.m. - Holiday Inn, Williamsport
Presented by: Clifford A. Rieders, Esq.
Rieders, Travis, Humphrey, Harris, Waters,
Waffenschmidt & Dohrmann
161 West Third Street
Williamsport, PA 17701
Phone: 570-323-8711
Fax: 570-567-1025
Email: [email protected]
www.riederstravis.com
NEGLIGENCE ISSUES
By: Clifford A. Rieders, Esq.
2
BOLE V. ERIE INSURANCE EXCHANGE
50 A.3D 1256 (PA. 2012)
JUSTICE EAKIN
• An uninsured motorist negligently crashed his car
during a hurricane. While responding to the scene,
a volunteer firefighter drove over a bridge that
collapsed, suffering severe injuries.
• Rescuer used appropriate care in responding, did
not act “rashly nor had he unnecessarily exposed
himself to danger.”
• Rescue doctrine did not impose liability on uninsured
motorist for damages from bridge collapse which
was superseding cause; disapproving Superior
Court cases to the contrary.
By: Clifford A. Rieders, Esq.
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BOLE V. ERIE INSURANCE EXCHANGE
50 A.3D 1256 (PA. 2012)
JUSTICE EAKIN
• The question in arbitration for underinsurance motorist
benefits is whether the rescue doctrine allows a volunteer
firefighter responding to a crash to recover his
underinsured motorist benefits in spite of a finding that his
injuries were the result of a superseding cause, a bridge
collapse.
• The rescue doctrine provides that it is not contributory
negligence for a plaintiff to expose himself to danger in a
reasonable effort to save a third person or the land or
chattels of himself or a third person from harm. Thus the
rescue doctrine permits injured rescuers to recover when
their recovery would otherwise be barred by the strict
application of the defense of contributory negligence.
By: Clifford A. Rieders, Esq.
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BOLE V. ERIE INSURANCE EXCHANGE
50 A.3D 1256 (PA. 2012)
JUSTICE EAKIN
• The next question is whether the rescue doctrine
bars application of the principal of superseding
causes: that is, is a tortfeasor liable for all injuries a
rescuer suffers during the rescue, even when the
injuries are caused by an unforeseeable superseding
cause?
• We hold the rescue doctrine will not make an
original tortfeasor liable for injuries attributable to a
superseding cause and we disapprove of any
language to the contrary in Superior Court cases.
By: Clifford A. Rieders, Esq.
5
BOLE V. ERIE INSURANCE EXCHANGE
50 A.3D 1256 (PA. 2012)
JUSTICE EAKIN
• The rescue doctrine establishes a causal link between
“the tortfeasor and the rescuer’s injury” because it is
reasonable that a rescuer may be injured while rendering
aid.
• But, tortfeasor is not a guarantor of the rescuer’s safety.
• “[H]arm that is not reasonably foreseeable is not the
responsibility of the tortfeasor.”
• Bridge collapse was superseding cause; It was “not
reasonable to foresee a bridge more than three miles
away, on the rescuer’s own property, would collapse
and injure” the rescuer. Bole, 50 A.3d at 1260-1261.
(citations omitted)
By: Clifford A. Rieders, Esq.
6
KEFFER V. BOB NOLAN’S AUTO SERVICE, INC.
59 A.3D 621 (PA. SUPER. 2012)
STEVENS, P.J.
• Van rear-ended tow truck as it turned into median
strip turn-around for emergency and authorized
vehicles to make a U turn. Van crossed median,
struck the guardrail rolled over and trapped driver
inside, sustaining serious injuries.
• Tow truck driver was not negligent, his employer was
not liable for negligent training of driver; auto club
not vicariously liable or negligent
By: Clifford A. Rieders, Esq.
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MIRABEL V. MORALES
57 A.3D 144 (PA. SUPER. 2012)
PANELLA, J.
• As a passenger on a bus, plaintiff sustained injuries
from the bus collision with a van. Jury awarded
damages. Superior Court Granted a new trial.
• Jury instruction on choice of ways doctrine (which
still exists despite comparative negligence) was not
supported by evidence.
• Choice of ways doctrine requires 1) safe course 2)
dangerous course and 3) facts which put
reasonable person on notice or actual knowledge
of danger. In this case there was no evidence that
proceeding straight was free of obstruction and
would have been safe.
By: Clifford A. Rieders, Esq.
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MIRABEL V. MORALES
57 A.3D 144 (PA. SUPER. 2012)
PANELLA, J.
• The doctrine states for a person having the choice
of two ways, one which is perfectly safe, and the
other of which is subject to risks and dangers,
voluntarily chooses the latter and is injured, is guilty
of contributory negligence and cannot recover.
By: Clifford A. Rieders, Esq.
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MIRABEL V. MORALES
57 A.3D 144 (PA. SUPER. 2012)
PANELLA, J.
• The doctrine applies in the following circumstances
• 1. No evidence established that proceeding straight down
Cumberland was a safe alternative.
• 2. Rather there must be evidence establishing that
Cumberland was free of obstructions that would allow
Schulgen to proceed safely down it.
• 3. The jury instruction probably misled the jury because it
implied the availability of a safe alternative, one not
established by evidence which may have affected the
jury’s calculus when determining liability.
By: Clifford A. Rieders, Esq.
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MIRABEL V. MORALES
57 A.3D 144 (PA. SUPER. 2012)
PANELLA, J.
• Discussing wealth and size of Comcast in closing was
reversible error.
• Jury instruction on choice of ways doctrine was not
supported by evidence.
By: Clifford A. Rieders, Esq.
11
LONGWELL V. GIORDANO
57 A.3D 163 (PA. SUPER. 2012)
STRASSBURGER, J.
• Tenant sued landlord and contractor after a slip and fall on asphalt
pavement where his shoe caught the edge of a drop-off.
• Court applied Restatement (Second) of Torts § 360, Parts of Land
Retained in Lessor’s Control Which Lessee is Entitled to Use.
• Comment b provides in part: “the lessor remains liable to him
notwithstanding his knowledge of the existence of the condition.”
• Court could not say “as a matter of law that a reasonable man would
regard it as foolhardy to walk along the … driveway at night knowing
that the area was poorly lit and that there was a drop off,” nor that
tenant failed to exercise reasonable care.
• Genuine issue of material fact exists. Longwell, 57 A.3d at 168-169
By: Clifford A. Rieders, Esq.
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LONGWELL V. GIORDANO
57 A.3D 163 (PA. SUPER. 2012)
STRASSBURGER, J.
• Court noted that “[t]he risk must be perceived, and
the risk must be faced voluntarily.” Longwell, 57 A.3d
at 170 (citation for quote omitted)(emphasis added
by Court) for assumption of the risk to apply.
• The doctrine did not bar recovery. Even though the
tenant was aware that “the drop-off posed a
threat,” “he could not see the drop-off,”” was
mistaken as to where” it was and “thought he left a
margin of error.”
• The court concluded that the tenant “subjectively
saw himself as avoiding harm.” Id. (emphasis by
court)
By: Clifford A. Rieders, Esq.
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LONGWELL V. GIORDANO
57 A.3D 163 (PA. SUPER. 2012)
STRASSBURGER, J.
• The pavement contractor did not owe a duty to the
tenant.
• Under the Restatement (Second) of Torts § 385, the
contractor’s work would have had to make a
dangerous condition “in a manner unlikely to be
discovered by the possessor[.]”
• The landlord was aware of the drop-off both before
and after the contractor paved the driveway.
By: Clifford A. Rieders, Esq.
14
SHINER V. RALSTON
64 A.3D 1 (PA. SUPER. 2013)
PER CURIAM
• Plaintiff driver who was injured in an automobile accident
brought suit against estate of defendant driver of car
that had struck plaintiff’s vehicle.
• Trial court granted Summary Judgment for Defendant
and his employer, holding that the collision was the result
of a sudden unforeseeable medical emergency. The trial
court had held that Defendant was entitled to judgment
as a matter of law under the sudden emergency
doctrine.
• Court held that the trial court improperly confused the
“sudden emergency doctrine” with the “sudden medical
emergency defense.”
By: Clifford A. Rieders, Esq.
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SHINER V. RALSTON
64 A.3D 1 (PA. SUPER. 2013)
PER CURIAM
• The sudden emergency doctrine, relates to the standard
of conduct of a driver who although driving in a prudent
manner, is confronted with a sudden or unexpected
event which leaves little or no time to apprehend the
situation and act accordingly, and therefore should not
be subject to liability because another more prudent
action may have been available. This doctrine is a
standard of conduct and need not be pled.
• The sudden medical emergency doctrine is an
affirmative defense, which is often pled as a sudden loss
of consciousness or incapacitation. It must be pled as
new matter and proven by the defendant. This is the
defense that is potentially applicable in this case.
By: Clifford A. Rieders, Esq.
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SHINER V. RALSTON
64 A.3D 1 (PA. SUPER. 2013)
PER CURIAM
• Trial court improperly placed the burden on the plaintiff to
disprove the loss of consciousness was sudden and
unexpected, rather than on Defendant to prove it
affirmatively.
• In summary judgment, burden on Defendant to show that
there was no material issue of fact. Defendant failed to prove
his affirmative defense under the sudden medical emergency
doctrine.
• The evidence offered to prove that Decedent’s cardiac
syncope was unforeseen (medical records and witness
testimony of his condition) and was insufficient for summary
judgment purposes because there could have been evidence
outside of the medical records of a condition and witnesses
could be found not credible by a jury.
• Grant of summary judgment was reversed.
By: Clifford A. Rieders, Esq.
17
WRIGHT V. EASTMAN
63 A.3D 281 (PA. SUPER. 2013)
WECHT, J.
• Pedestrian’s estate sued motorist based on
negligence claim after motorist struck pedestrian on
roadway.
• Appellant (pedestrian) appealed from order
granting summary judgment to Appellee (driver).
By: Clifford A. Rieders, Esq.
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WRIGHT V. EASTMAN
63 A.3D 281 (PA. SUPER. 2013)
WECHT, J.
• Court reversed grant of Summary Judgment on
appeal.
• “It is not for the trial court to assess whether
Pedestrian’s testimony was credible. . . .This is
precisely why the jury must be permitted to assess
credibility. We also may not do so because it would
not be mandatory for the jury, even if it credited
Driver’s testimony regarding the distance at which
he observed Decedent, to conclude that was the
earliest moment at which he could have observed
Decedent.”
By: Clifford A. Rieders, Esq.
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WRIGHT V. EASTMAN
63 A.3D 281 (PA. SUPER. 2013)
WECHT, J.
• Court held that the trial court intruded on the province of
the jury by evaluating the facts and dismissing the expert
reports.
• “Such circumstantial evidence could lead a jury to
conclude that Appellee’s breach of duty was a
proximate cause of Decedent’s death.”
By: Clifford A. Rieders, Esq.
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CORNELIUS V. ROBERTS ET. AL.
71 A.3D 345 (Pa. Cmwlth. 2013)
P COLINS, J.
• Decedent’s estate sued operator of speeding car,
police officer and Harrisburg City Police Bureau after
police car hit decedent’s car during a police chase.
• Plaintiff-Decedent alleged that officer operated car
in a negligent manner during the chase and that the
Police Bureau was negligent in failing to properly
train and supervise the officer.
• Defendants argued that a local agency and its
police employees do not owe a common law duty
to innocent bystanders during police pursuits of
fleeing subjects.
By: Clifford A. Rieders, Esq.
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CORNELIUS V. ROBERTS ET. AL.
71 A.3D 345 (Pa. Cmwlth. 2013)
P COLINS, J.
• In Jones v. Chieffo, 700 A.2d 417 (Sup. Ct. Pa. 1997), the
Pennsylvania Supreme Court had previously held that
negligent or criminal acts of fleeing suspects do not, as a
matter of law, constitute a superseding cause that
prevents a jury from finding negligent acts by police
officers a substantial factor in causing innocent
bystanders harm.
• In Aiken v. Borough of Blawnox, 747 A.2d 1282, 1285 (Pa.
Cmwlth 2000), the Commonwealth Court had previously
held that a local agency and its employees owe a
common law duty to innocent bystanders in operation of
a police vehicle during police pursuits of fleeing suspects.
By: Clifford A. Rieders, Esq.
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CORNELIUS V. ROBERTS ET. AL.
71 A.3D 345 (Pa. Cmwlth. 2013)
P COLINS, J.
• The court held that the General Assembly did not
intend to remove all parties injured by negligent
operation of a police vehicle during a police pursuit
from the class of individuals able to recover under
the Tort Claims Act, but for innocent bystanders to
remain eligible to recover from a local agency and
its employees, if injured in a police pursuit.
• Court affirmed the decisions of the trial court and
agreed that it was impossible to say with certainty
that the actions of the Officer in operating his police
vehicle in pursuit of the fleeing car was not a
substantial factor in causing decedent’s injuries.
By: Clifford A. Rieders, Esq.
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WRONGFUL BIRTH
By: Clifford A. Rieders, Esq.
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SERNOVITZ V. DERSHAW
57 A.3D 1254 (PA. SUPER. 2012)
DONOHUE, J.
• Parents brought wrongful birth and wrongful life action after
their son was born with familial dysautonomia.
• Because their child was at increased risk for the disease, they
underwent testing. Defendants failed to inform them that
mother was a carrier and mother was informed that she tested
negative for all mutations for which she was tested.
• Upon learning son’s diagnosis, both parents learned that they
must be carriers but were “not given the opportunity to
determine whether they should terminate the pregnancy.
• Superior Court concluded that 42 Pa.C.S.A. § 8305 which
prohibits wrongful birth and wrongful life actions is
unconstitutional because the manner in which it was enacted
violated article II, Section 3, violating the single subject rule.
By: Clifford A. Rieders, Esq.
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MEDICAL MALPRACTICE
By: Clifford A. Rieders, Esq.
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THIERFELDER V. WOLFERT
52 A.3D 1251 (PA. 2012)
CHIEF JUSTICE CASTILLE
• A general practitioner who provided some
“incidental mental health treatment” to patient had
no duty to refrain from sex with patient; that “higher
standard” of duty was limited to mental health
specialists.
• Husband and wife sought treatment from general
practitioner for “libido problems.”
• Wife was also treated for attention deficit disorder.
By: Clifford A. Rieders, Esq.
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THIERFELDER V. WOLFERT
52 A.3D 1251 (PA. 2012)
CHIEF JUSTICE CASTILLE
• Doctor and patient - wife engaged in a year long consensual
sexual relationship which began after wife considered doctor
to be her hero and to have “cured” her.
• Court accepted for purposes of its decision that mental health
specialists would owe a duty to refrain from sexual contact with
their patients and that Pennsylvania’s Medical Practice Act of
1985, §§422.1-422.5a “does not support concept of different
duties for physicians who provide the same care.”
• Transference phenomenon is therapeutic model for mental
health specialists which they know or should know makes
patients particularly vulnerable to sexual exploitation.
• General practitioners increasingly advise on mental health and
prescribe medication for emotional conditions but do not
provide the kind of therapeutic treatment provided by a
mental health specialist which includes transference.
By: Clifford A. Rieders, Esq.
28
COOPER EX REL COOPER V. LANKENAU HOSP.
51 A.3D 183 (PA. 2012)
BAER, J.
• Patient alleged medical battery for Cesarean
section after twenty-seven weeks of pregnancy
despite patient’s refusal of consent.
• In a medical battery/lack-of-consent case, plaintiff
need not prove any intent to harm the patient.
Proving an intention surgery or “touching” satisfied
the “offensive contact” element.
• Court concluded that the jury instruction was
acceptable, but suggested that the Committee for
Proposed Standard Jury Instructions to consider
clearer instructions, which it did.
By: Clifford A. Rieders, Esq.
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SCAMPONE V. HIGHLAND PARK CARE CENTER
57 A.3D 582 (PA. 2012)
CHIEF JUSTICE CASTILLE
• Jury verdict found nursing home facility was both
corporately and vicariously liable for resident’s death.
• Staff failed to conduct ordered DUI testing, to ensure that
the resident was consuming sufficient fluids and food,
and falsified records to show that medications or
treatment were provided when it was not.
• The administrators temporarily increased staff for state
inspections.
• Despite significant symptoms, the resident was denied
nursing care for nineteen days before she died.
• Dehydration and malnutrition caused resident’s fatal
heart attack.
By: Clifford A. Rieders, Esq.
30
SCAMPONE V. HIGHLAND PARK CARE CENTER
57 A.3D 582 (PA. 2012)
CHIEF JUSTICE CASTILLE
• Superior Court remanded for new trial; Pa Supreme
Court affirmed, remanded and held “that a nursing
home and affiliated entities are subject to potential
direct liability for negligence, where the requisite
resident-entity relationship exists to establish that the
entity owes the resident a duty of care[.]”
• “[A] corporation may owe duties of care directly to
a plaintiff separate from those of its individual
agents, such as duties to maintain safe facilities, and
to hire and oversee competent staff.”
By: Clifford A. Rieders, Esq.
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SCAMPONE V. HIGHLAND PARK CARE CENTER
57 A.3D 582 (PA. 2012)
CHIEF JUSTICE CASTILLE
• That a corporation acts through agents does not
preclude “hailing a corporation into court on direct
liability tort claims.”
• There is no immunity or exemption from direct
liability, which is an exception to “the general rule
that an entity must meet the obligations it incurs in
functioning.” Court declined invitation to recognize
a judicial immunity for nursing homes.
By: Clifford A. Rieders, Esq.
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SCAMPONE V. HIGHLAND PARK CARE CENTER
57 A.3D 582 (PA. 2012)
CHIEF JUSTICE CASTILLE
• Rejected argument that Thompson created a corporate
cause of action only against hospitals.
• Inquiry is not whether an entity is similar to a hospital.
• “The relevant question is whether the legal principles
explicated in Thompson, or elsewhere in our decisional
law, apply to describe appellants’ legal duty or
obligations to Ms. Scampone, given the considerations
which pertain.” 57 A.3d 605.
• In essence the question is whether there was sufficient
evidence of a relationship with the entities to establish
that duties of care exist under the Restatement Section
323 or the Althaus factors. Case remanded for that
determination.
By: Clifford A. Rieders, Esq.
33
PASSARELLO V. GRUMBINE
2014 WL 502490 (PA. FEB. 7, 2014)
MCCAFFERY, J.
• Parents of deceased child brought medical malpractice
action against child’s treating physician and her
employer.
• The court affirmed that an “error in judgment” jury
charge should not be given in a medical malpractice
case because “error in judgment instructions pose
palpable and substantial risks of confusing juries with
respect to the standard of care.”
By: Clifford A. Rieders, Esq.
34
PASSARELLO V. GRUMBINE
2014 WL 502490 (PA. FEB. 7, 2014)
MCCAFFERY, J.
• The Superior Court’s decision in Pringle v. Rapaport, holding
that the “error in judgment” jury instructions should not be
given in medical malpractice cases applied retroactively.
The court required a new trial.
• The Court held that the plaintiffs had preserved the objection
by arguing that the trial court should only give the medical
malpractice charge in the Pa. Suggested Standard Jury
Instructions, which specifically rejects the error in judgment
charge.
By: Clifford A. Rieders, Esq.
35
HALL V. EPISCOPAL LONG TERM CARE
54 A.3D 381 (PA. SUPER. 2012)
STEVENS, P.J.
• Evidence of understaffing was sufficient to support
claim for corporate negligence.
• Issue of punitive damages should go to jury.
• Evidence similar to that presented in Scampone
sufficient for punitive damages, i.e., acted in an
outrageous fashion with reckless disregard to the
rights of others and/or created an unreasonable risk
of harm to the resident by chronic understaffing,
manipulated staffing around state inspections,
falsified records. The resident went entire months
without a bath and “was left to lie in her own filth.”
By: Clifford A. Rieders, Esq.
36
CATLIN V. HAMBURG
56 A.3D 914 (PA. SUPER. 2012)
OLSON, J.
• Negligent sterilization resulted in fetus with congenital
abnormalities at 19 ½ weeks which was voluntarily
terminated and resulted in total hysterectomy.
• An Expert, board certified in obstetrics and gynecology
since 1978, testified that “standard of care requires that
when a surgical technique is seen to fail during a surgery,
or when a more secure technique is available to
accomplish the same goal, then the surgeon should
perform the more secure and safer surgical procedure.”
• Essentially since the Filshie clip on right fallopian tube
slipped prompting the performance of a modified
Polmeroy procedure, the same should have been done
on the left fallopian tube but was not.
By: Clifford A. Rieders, Esq.
37
CATLIN V. HAMBURG
56 A.3D 914 (PA. SUPER. 2012)
OLSON, J.
• That expert’s failure to cite medical literature did not
render his opinion inadmissible or speculative.
• The expert opinion was not required to rule out all
conceivable causes of the pregnancy, which goes
to weight of evidence.
• Also trial court erred in limiting damages to 2 week
postnatal period because there was no birth in this
case; it was error to equate situation to wrongful
birth.
By: Clifford A. Rieders, Esq.
38
OSBORNE V. LEWIS
59 A.3D 1109 (PA. SUPER. 2012)
OLSON, J.
• LASIK surgery performed June 1, 2000. August 2004,
patient complained of decreased vision which was
confirmed. After seeing doctors and specialists,
patient was told that the LASIK surgery caused his
vision loss.
• Patient filed malpractice claim on July 24,, 2007.
• Court held the medical malpractice claim was
barred by the seven-year statute of repose of the
Mcare Act, 40 P.S. § 1303.513.
By: Clifford A. Rieders, Esq.
39
OSBORNE V. LEWIS
59 A.3D 1109 (PA. SUPER. 2012)
OLSON, J.
• Court noted that the seven-year statute of repose
was one of the ways that the McCare Act was to
address the crisis of professional liability insurance.
• “A cause of action accrues when a plaintiff could
first maintain the action to successful conclusion.
“ Citation omitted. 59 A.3d 1114.
• In this case, the cause of action arose only after the
negative effects of the LASIK surgery were
ascertainable, late 2003 or 2004. As a result, the
statute of repose applied.
By: Clifford A. Rieders, Esq.
40
OSBORNE V. LEWIS
59 A.3D 1109 (PA. SUPER. 2012)
OLSON, J.
• The 7 year statute of repose barred the action even
though the action could not have been brought
before 2003, 2004.
• The statute mandates that no medical malpractice
claim “may be commenced seven years from the
date of the alleged tort or breach of contract.” 40
P.S. § 1303.513
• It was undisputed that the tort or breach of contract
occurred on the date of surgery, June 1, 2000, which
was more than seven years prior to the filing of the
claim.
By: Clifford A. Rieders, Esq.
41
OSBORNE V. LEWIS
59 A.3D 1109 (PA. SUPER. 2012)
OLSON, J.
• Fraudulent concealment does not apply to toll the
statute of repose, 40 P.S. § 1303.513.
• Mcare Act specifially provides for the doctrine of
fraudulent concealment to apply in cases of
wrongful death or survival actions.
• The absence of such an express provision for other
circumstances evidences legislative intent that the
fraudulent concealment exception does not apply
to claims addressed by subsection (a).
By: Clifford A. Rieders, Esq.
42
BUCKMAN V. VERAZIN
54 A.3D 956 (PA. SUPER. 2012)
BENDER, J.
• Patient brought medical malpractice claim after
undergoing sigmoid colectomy and colostomy.
• Discovery revealed conflicting statements by the
physician as to why he performed the surgery in the
manner he did.
• As a result, plaintiff submitted discovery request for
the medical records of all sigmoid colectomy and
similar procedures by doctor in five preceding years,
allowing for the redaction of all identifying
information of the non-party patients.
By: Clifford A. Rieders, Esq.
43
BUCKMAN V. VERAZIN
54 A.3D 956 (PA. SUPER. 2012)
BENDER, J.
•Superior Court reversed the granting of the motion to
compel because the inquiry was not relevant. Doctor’s
actions when operating on other patients was not
probative of what his actions were when caring for this
patient.
•What the doctor “knew or believed to be the standard of
care is of no moment” and was only intended to counter
doctor’s erroneous employment of the “error in
judgment” rule as defense.
•Court reiterated that the standard of care is objective
and either met or not. It “does not allow consideration of
the subjective state of mind of the doctor when he or she
undertakes to treat a patient.”
By: Clifford A. Rieders, Esq.
44
SAYLER V. SKUTCHES
40 A.3D 135 (PA. SUPER. 2012)
OTT, J.
•This case involved the calculation of attorney fees where the
plaintiff suffered a delay in breast cancer diagnosis and without
access to funds from judgment on appeal lacked access to
further treatment pending appeal and died approximately a
year and four months after the jury award but prior to appellate
review.
•§ 509 only refers to attorney fees by stating that “future
damages for medical or other related expenses shall be paid
as periodic payments after payment of the proportionate share
of counsel fees and costs based upon the present value of the
future damages awarded pursuant to this subsection.”
(emphasis by the court) 40 P.S. 1303.509(b)(1).
By: Clifford A. Rieders, Esq.
45
SAYLER V. SKUTCHES
40 A.3D 135 (PA. SUPER. 2012)
OTT, J.
•Court held that § 509 of the MCARE Act, 40 P.S. 1303.509, did
not authorize additional attorney fees and that the attorney
fees are calculated based on the present value of the
patient’s future damages at the time of death rather than on
the potential award. Appeal Denied by Pennsylvania Supreme
Court at 54 A.3d 349 (Pa. Oct 05, 2012) (Table, NO. 360 MAL
2012).
•The “American Rule” precludes recovery of attorney fees from
the adverse party “unless there is express statutory
authorization, a clear agreement of the parties, or some other
established exception.” (citation omitted)
By: Clifford A. Rieders, Esq.
46
SAYLER V. SKUTCHES
40 A.3D 135 (PA. SUPER. 2012)
OTT, J.
• A significant fact in Sayler was that the plaintiff died prior
to the calculation of attorney fees. As a result, liability for
future damages already terminated pursuant to 40 P.S.
1303.509(b)(3).
• Under those circumstances, the court viewed attorney
fees based on future damages as an addition to the jury
award, requiring express statutory authorization.
• In many cases, however, the question of when the future
damages will terminate remains unknown at the time of
the attorney fee calculation. Attorney fees based upon
a percentage of this unknown amount can be viewed as
a percentage of the jury award rather than as an
additional cost imposed upon an adverse party.
By: Clifford A. Rieders, Esq.
47
SAYLER V. SKUTCHES
40 A.3D 135 (PA. SUPER. 2012)
OTT, J.
• The court did not discuss the potential for conflict of
interest (See my commentary for JICIV §14.150)
between attorneys and plaintiffs nor the authority from
other jurisdictions which analyzed similar medical
malpractice statutes.
• Court’s conclusion is said to be consistent with the
declaration of MCARE Act “to limit jury awards in
medical malpractice suits in order to ensure affordable
health care premiums.”
• No consideration of incentivizing defendants to delay
treatment pending appeal expediting death of patient
prior to entry of judgment, as occurred in this case.
By: Clifford A. Rieders, Esq.
48
NICHOLSON-UPSEY V. POTTSTOWN HOSPITAL COMPANY
SUPERIOR COURT NO. 2923 EDA 2013
PAJ Amicus
•In the court below, Judge Bernstein found that he
had calculated attorney’s fees properly.
•Saylor vs. Skutches was distinguished.
•Total verdict $65,004,670.
•How to apply §509(b) of the MCARE Act to
determine counsel fees.
By: Clifford A. Rieders, Esq.
49
NICHOLSON-UPSEY V. POTTSTOWN HOSPITAL COMPANY
SUPERIOR COURT NO. 2923 EDA 2013
• Future medical expenses reduced to present value is
$29,793.338.
• Counsel is entitled to one-third (1/3) of this pursuant
to contingent fee agreement.
By: Clifford A. Rieders, Esq.
50
NICHOLSON-UPSEY V. POTTSTOWN HOSPITAL COMPANY
SUPERIOR COURT NO. 2923 EDA 2013
• Defendant’s position is that they are only obligated
to purchase an annuity, exclusive of attorney’s fees,
in the amount of $12,478,013.34. Defendant claims it
is on this figure which plaintiff’s counsel’s fee should
be calculated.
• The cost of a life insurance policy is exceptionally
different from the present value of awarded
medical payments as continually defined by the
Supreme Court.
By: Clifford A. Rieders, Esq.
51
NICHOLSON-UPSEY V. POTTSTOWN HOSPITAL COMPANY
SUPERIOR COURT NO. 2923 EDA 2013
• Nothing in the MCARE Act mandates the purchase of an annuity.
• A defendant may create a self-directed funding plan with safeguard sufficient
to be approved by the Court.
• Saylor v. Skutches does not apply because plaintiff had died and there were no
future medical expenses to be paid.
• In Saylor, the Superior Court held that where the plaintiff died before judgment
was entered, counsel fees could be determined on the basis of medical
expenses already accrued.
• In Saylor, the actual medical cost for the care the plaintiff had received
between verdict and death had been precisely determined at the time
attorney’s fees were calculated.
• There were no future medical costs to be reduced to present value.
• The MCARE Act requires that attorney’s fees be calculated after all future
medical expenses contained in the verdict are reduced to present value.
By: Clifford A. Rieders, Esq.
52
NICHOLSON-UPSEY V. POTTSTOWN HOSPITAL COMPANY
SUPERIOR COURT NO. 2923 EDA 2013
•Damage calculation.
1. Present value of future medical expenses
awarded by the jury is $29,793,338.
2. Add damages awarded which do not require
reduction to present value in the amount of
$13,500,000.
3. Add in delay damages of $2,515,901.
4. Total awarded: $45,809,239.
5. Plaintiff’s attorney’s fees for future medical
portion of the recovery are $9,931,113.
By: Clifford A. Rieders, Esq.
53
NICHOLSON-UPSEY V. POTTSTOWN HOSPITAL COMPANY
SUPERIOR COURT NO. 2923 EDA 2013
• The judge did not say who pays the attorney’s fees,
whether it comes out of plaintiff’s verdict or whether
defendant pays it.
• That issue has been briefed before the Superior
Court.
By: Clifford A. Rieders, Esq.
54
RENNA V. SCHADT, M.D.
64 A.3D 658 (PA. SUPER. 2013)
BOWES, J.
• The claim was that a surgeon deviated from the
standard of care in performing a fine-needle
aspiration biopsy instead of a computed
tomography guided core biopsy on two lesions in
the right breast.
• Superior Court affirmed that trial court permitting a
pathologist and an oncologist to render expert
testimony with respect to the standard of care
applicable to a surgeon. The lower court did not err
in failing to grant a new trial or remittitur.
By: Clifford A. Rieders, Esq.
55
BELL V. WILLIS
80 A.3D 476 (PA. SUPER. 2013)
EMERY J.
• Patient brought malpractice action against
chiropractors, and was replaced by administratrix
following patient’s death.
• Court of Common Pleas entered judgment for
chiropractor following grant of chiropractor’s
motion to exclude administratratix’s lack of informed
consent, wrongful death and survival claims.
By: Clifford A. Rieders, Esq.
56
BELL V. WILLIS
80 A.3D 476 (PA. SUPER. 2013)
EMERY J.
• Superior Court affirmed, chiropractors were not
required to obtain patient’s informed consent prior
to performing cervical neck manipulations /
mobilizations on her.
• Two year statute of limitations for administratrix’s
survival action began to run at patient’s death, at
the latest, pursuant to 42 Pa. C.S.A. Section 5524(2).
• A lack of informed consent cannot lie against a
chiropractor for performing chiropractic
manipulations because they are non-surgical
procedures.
By: Clifford A. Rieders, Esq.
57
BRADY V. URBAS
80 A.3D 480 (PA. SUPER 2013)
COLVILLE, J.
• Patient brought negligence action against podiatrist
after having various surgeries performed on her toe which
failed to resolve her medical problem, and patient’s
husband brought loss of consortium count.
• Superior Court vacated verdict that podiatrist was not
negligent and that evidence as to patient’s consent to
her surgeries was irrelevant and thus, inadmissible.
• The court further held that the trial court’s error in
admitting irrelevant evidence as to patient’s consent to
her surgeries and risks associated with those surgeries was
not harmless.
By: Clifford A. Rieders, Esq.
58
HEALTH AND SAFETY – BENEVOLENT GESTURE
MEDICAL PROFESSIONAL LIABILITY ACT
• In October 2013, the Pennsylvania legislature passed
and Governor Tom Corbett signed Senate Bill 379,
new legislation that makes certain “benevolent
gestures” on the part of medical practitioners
inadmissible in court as evidence of malpractice.
• The legislation defines benevolent gestures as “[a]ny
action, conduct, statement or gesture that conveys
a sense of apology, condolence, explanation,
compassion or commiseration emanating from
humane impulses.”
By: Clifford A. Rieders, Esq.
59
HEALTH AND SAFETY – BENEVOLENT GESTURE
MEDICAL PROFESSIONAL LIABILITY ACT
• The legislation still permits a patient to introduce
evidence of a health care provider’s admissions of
fault or negligence. Specifically, the act permits
evidence to be admitted that constitutes “ . . . a
communication, including an excited utterance,
which also includes a statement or statements of
negligence or fault pertaining to an accident or
event.”
By: Clifford A. Rieders, Esq.
60
TRESPASS
By: Clifford A. Rieders, Esq.
61
LAKE V. HANKIN GROUP
79 A.3D 748 (PA. CMWLTH. 2013)
COVEY, J.
• Property owners brought action against uphill
landowners, developer and engineering firm
alleging violations of Clean Streams Act, Clean
Water Act and continuing trespass, among other
causes of action to recover damages from flooding
caused by development of uphill property.
• Court held that because property owners’ action to
recover damages was for a continuing trespass,
rather than a permanent trespass, the claim was not
subject to any statute of limitations that would have
applied to a claim for damage associated with a
permanent change in the land.
By: Clifford A. Rieders, Esq.
62
LAKE V. HANKIN GROUP
79 A.3D 748 (PA. CMWLTH. 2013)
COVEY, J.
• Plaintiff alleged a cause of action which constituted a
continuing trespass, where flooding of plaintiff’s property
was occasional and caused consequential, not direct or
immediate injury to the land.
• Among the factors courts have considered in
determining whether a trespass is continuing or
permanent are ascertainability, or predictability of the
injury involved, and the regularity of incidents of overflow
(whether frequently and predictably or intermittent).
• Restatement of Torts Section 162 focuses on the
permanence of the change to the physical condition of
plaintiff’s land, rather than the permanence of the
defendant’s structure that allegedly causes the injury.
By: Clifford A. Rieders, Esq.
63
LAKE V. HANKIN GROUP
79 A.3D 748 (PA. CMWLTH. 2013)
COVEY, J.
• Therefore, the court concluded that the trial court
erred in considering the Plaintiffs’ claim to be time
barred.
• Further the court found that the former uphill land
owner was liable in violation of the Clean Streams
Law, even though they no longer had an ownership
interest in that property.
By: Clifford A. Rieders, Esq.
64
INSURANCE
By: Clifford A. Rieders, Esq.
65
STATE FARM FIRE & CASUALTY CO. V. DECOSTER
67 A.3D 40 (PA. SUPER. 2013)
WECHT, J.
• Insurer sought declaratory judgment that it had no
duty to defend or indemnify insured who shot house
guest while intoxicated, based on exclusionary
clause in homeowner’s insurance policy. Court
granted summary judgment to the insured and
guest. The insurer appealed.
• “As long as the complaint alleges an injury which
may be within the scope of the policy, the insurer
must defend its insured until the claim is confined to
a recovery the policy does not cover.
By: Clifford A. Rieders, Esq.
66
STATE FARM FIRE & CASUALTY CO. V. DECOSTER
67 A.3D 40 (PA. SUPER. 2013)
WECHT, J.
• Court affirmed trial court’s holding that the policy
did not relieve State Farm of its duty to defend
insured against injured person’s claims. The claim is
potentially within the scope of the policy, therefore
insurer was not relieved of its duty to defend and
trial court was proper in granting summary judgment
for the insured. There was no basis by which State
Farm, the insurer, could claim that the policy
excluded coverage of a duty to defend negligent
or reckless actions.
By: Clifford A. Rieders, Esq.
67
STATE FARM FIRE & CASUALTY CO. V. DECOSTER
67 A.3D 40 (PA. SUPER. 2013)
WECHT, J.
• The critical inquiry in determining whether there is a
duty to indemnify is whether the insured’s conduct
was “intentionally wrongful” under tort law.
• There was a genuine issue of material fact as to
whether insured’s conduct was intentionally
wrongful under tort law, precluding Summary
Judgment, and reversing the trial court on the
indemnification issue.
By: Clifford A. Rieders, Esq.
68
BABCOCK & WILCOX CO. V. B&W NUCLEAR & ENVIRONMENTAL SERVICES, INC.
76 A.3D 1 (PA. SUPER. 2013)
WECHT, J.
• Liability insurer brought declaratory judgment action
against insureds with respect to coverage for
nuclear energy hazards at two nuclear fuel
processing facilities.
• Superior Court held that when an insured tenders a
defense subject to a reservation of rights to contest
coverage, the insured may chose to accept the
defense or decline the insurer’s tender of a qualified
defense to tender its own defense.
By: Clifford A. Rieders, Esq.
69
BABCOCK & WILCOX CO. V. B&W NUCLEAR & ENVIRONMENTAL SERVICES, INC.
76 A.3D 1 (PA. SUPER. 2013)
WECHT, J.
• The duty of an insurer to defend is a distinct
obligation, separate and apart from the insurer’s
duty to provide coverage.
• Pennsylvania counterbalances the insurer’s broad
obligation to defend even claims as to which
coverage may not apply, by providing the insurer
the option of defending subject to a reservation of
its right later or simultaneously to contest coverage.
• To defend subject to a reservation does not, without
more, constitute a breach of a repudiation of the
contract of insurance.
By: Clifford A. Rieders, Esq.
70
BABCOCK & WILCOX CO. V. B&W NUCLEAR & ENVIRONMENTAL SERVICES, INC.
76 A.3D 1 (PA. SUPER. 2013)
WECHT, J.
• Pennsylvania cases have protected an insurer’s right
to control the defense, even when tendered subject
to a reservation of right.
• Cooperation clause prohibition against settling
without the insurer’s consent forbids an insured from
settling only claims for which the insurer
unconditionally assumes liability under the policy.
• The insurer’s reservation of the privilege to deny the
duty to pay relinquishes to the insured control of the
litigation, almost as if the insured had objected to
being defended under reservation.
By: Clifford A. Rieders, Esq.
71
BABCOCK & WILCOX CO. V. B&W NUCLEAR & ENVIRONMENTAL SERVICES, INC.
76 A.3D 1 (PA. SUPER. 2013)
WECHT, J.
• When an insurer tenders a defense subject to a
reservation, the insured may choose either of two
options. The insured may accept the defense, in which
event it remains bound to the terms of the consent to
settlement provision of the underlying policy. Should the
insured choose this option, the insurer retains full control
of the litigation and the insured’s sole recourse against
the insurer is in the bad faith standard articulated by the
Pa Supreme Court in Cowden.
• Alternatively, the insured may decline the insurer’s tender
of a qualified defense and furnish its own defense, at the
insurer’s expense. In this event, the insured retains full
control over its defense, including the option of settling
the underlying claim under the terms it believes best.
By: Clifford A. Rieders, Esq.
72
CADENA V. LATCH
78 A.3D 636 (PA. SUPER. 2013)
MUNDY, J.
• Appellant filed complaint for non-economic
damages for injuries sustained in motor vehicle
accident.
• Trial court had previously granted Appellee’s motion
for summary judgment dismissing all claims with
prejudice on the grounds that she did not sustain a
“serious injury.”
• On appeal court held that there was a genuine
issue of material fact for the jury as to whether
motorist suffered a serious injury, precluding
summary judgment.
By: Clifford A. Rieders, Esq.
73
CADENA V. LATCH
78 A.3D 636 (PA. SUPER. 2013)
MUNDY, J.
• Pa C.S.A. Section 1705 for Election of Tort Opinions
states, in pertinent part:
• (d) limited tort alternative – Each person who elects
the limited tort alternative remains eligible to receive
compensation for economic loss sustained in a
motor vehicle accident as the consequence of the
fault of another person pursuant to applicable tort
law. Unless the injury sustained is a serious injury,
each person who is bound by the limited tort action
shall be precluded from maintaining action for any
non-economic lass . . .
By: Clifford A. Rieders, Esq.
74
CADENA V. LATCH
78 A.3D 636 (PA. SUPER. 2013)
MUNDY, J.
• The Motor Vehicle Code defines a serious injury as “[a]
personal injury resulting in death, serious impairment of
bodily function or permanent serious disfigurement.” This is
generally a jury determination.
• Factors to be considered to determine whether an injury
from a motor vehicle accident is “serious” under an
exception to waiver of non-economic damages arising from
plaintiff’s election of limited tort insurance: 1) the extent of
the impairment; 2) the length of time the impairment lasted;
3) the treatment required to correct the impairment; and 4)
any other relevant factors.
• An impairment from a motor vehicle accident need not be
permanent be be “serious” under statutory exception to the
waiver of non-economic damages arising from plaintiff’s
election of limited tort insurance.
By: Clifford A. Rieders, Esq.
75
O’CONNELL V. PROGRESSIVE INS. CO.,
79 A.3D 1134 (PA. SUPER. 2013)
BENDER, J.
• Mother and estates of father and son killed in automobile
accident sued underinsured motorist insurer, alleging
breach of contract and bad faith premised on denial of
UIM benefits.
• The Superior Court held that permissive driver’s liability for
injuries sustained in single car accident did not trigger
UIM coverage under mother and father’s automobile
policy.
• The status of mother, father and son as class one insured's
did not insulate them from the clear and unambiguous
terms of the policy, and thus, any expectation of
additional UIM coverage based on permissive driver’s
liability was unreasonable.
By: Clifford A. Rieders, Esq.
76
O’CONNELL V. PROGRESSIVE INS. CO.,
79 A.3D 1134 (PA. SUPER. 2013)
BENDER, J.
• The fact that the permissive driver owned another vehicle
insured by an unrelated policy was not relevant to any
claim of UIM benefits under mother and father’s policy.
• The vehicle was excluded from coverage under the socalled “family car exception,” when car was in a one-car
collision and thus, did not trigger UIM coverage.
• Under the particular UIM policy, coverage was only
available when the tortfeasor’s liability for injury was
dependent on the tortfeasor’s ownership, maintenance
or use of an underinsured vehicle, and the injuries
sustained did not arise out of the driver’s ownership,
maintenance or use of his own vehicle.
By: Clifford A. Rieders, Esq.
77
GROSSI V. TRAVELERS PERSONAL INS. CO.
79 A.3D 1141 (PA. SUPER. 2013)
MUNDY, J.
• Insured brought claim against insurer alleging bad
faith handling of underinsured motorist (UIM) claim.
• Court of Common Pleas found for insured. On
appeal, Superior Court affirmed finding that insurer
had acted in bad faith was supported by the
record, that insurer’s bad faith justified award of
punitive damages and that punitive damages
award was not constitutionally disproportionate.
By: Clifford A. Rieders, Esq.
78
GROSSI V. TRAVELERS PERSONAL INS. CO.
79 A.3D 1141 (PA. SUPER. 2013)
MUNDY, J.
• 42 Pa. C.S. Section 8371 states that in an action
arising under an insurance policy, if the court finds
that an insurer has acted in bath faith, the court
may award interest on the claim from the date the
claim was made in an amount equal to 3%, as well
as punitive damages.
• Pennsylvania law requires that “the utmost fair
dealing should characterize the transaction
between an insurance company and the insured.”
Dercoli v. Pennsylvania Nat. Mut. Ins. Co., 554 A.2d
906 (Pa. 1989).
By: Clifford A. Rieders, Esq.
79
GROSSI V. TRAVELERS PERSONAL INS. CO.
79 A.3D 1141 (PA. SUPER. 2013)
MUNDY, J.
• To succeed under a claim of 8371, the insured must
show that “the insurer did not have a reasonable
basis for denying benefits under the policy and that
the insurer knew of or recklessly disregarded its lack
of reasonable basis in denying the claim.”
By: Clifford A. Rieders, Esq.
80
NEGLIGENCE –
PUBLIC UTILITIES
By: Clifford A. Rieders, Esq.
81
ALDERWOODS (PENNSYLVANIA) V. DUQUESNE LIGHT
52 A.3D 347 (PA. SUPER. 2012)
MUSMANNO, J.
• After vehicle crashed and broke a utility pole, the
Electric Company restored service to the pole. It
then connected a building and energized the
connectors. Then it turned on power to the building.
Soon afterwards, a fire began in an electrical panel
in a locked basement of that building.
• Citing Wivagg v. Duquesne Light Co., 73 D.& C.2d
694 (Allegheny Co. 1975)court agreed it is
foreseeable that “when a primary line breaks loose
and contacts low-voltage lines, the customer’s
electrical equipment can be shorted out and
compromised.
By: Clifford A. Rieders, Esq.
82
ALDERWOODS (PENNSYLVANIA) V. DUQUESNE LIGHT
52 A.3D 347 (PA. SUPER. 2012)
MUSMANNO, J.
• The Althaus test for duty weighs five factors:
• 1. the relationship between the parties; - favored plaintiff
• 2. the social utility of the conduct; - slightly favored Plaintiff
• 3. the nature of the risk imposed and the foreseeability of the
harm incurred; - favored plaintiff
• 4. consequences of imposing a duty;
• 5. public interest.
By: Clifford A. Rieders, Esq.
83
ALDERWOODS (PENNSYLVANIA) V. DUQUESNE LIGHT
52 A.3D 347 (PA. SUPER. 2012)
MUSMANNO, J.
• “Not utility’s practice to enter property and inspect equipment.
Expert opined that had they done so prior to reenergizing the single
phase service would have revealed the electrical damages …”
• Duty to inspect or at a minimum warn the customer, under the
facts alleged, does not place an undue burden upon the electric
company.
• The only building attached to the broken pole;
• Public interest: does not tip scales either way: safe manner,
prompt restoration of service.
• Causes of action sounding in negligence: duty, breach of duty,
breach caused damages.
• An appeal has been granted in this case by the Pennsylvania
Supreme Court, but has not yet been decided.
By: Clifford A. Rieders, Esq.
84
ARBITRATION
By: Clifford A. Rieders, Esq.
85
SETLOCK V. PINEBROOK PERSONAL CARE
56 A.3D 904 (PA. SUPER. 2012)
MUNDY, J.
• Personal care retirement center transported its resident to
her doctor appointment by one of its assistants in one of
the retirement center’s wheel chairs. The wheel chair did
not have a footrest in place, despite it originally having
one.
• As the assistant pushed resident through the medical
offices, she told the resident to “lift her feet” because
there was no foot rest. Resident told assistant to be
careful, apparently unable to lift her feet. No safety
harness or similar device was used .
• Resident’s feet became entangled, catapulting her
through the air, landing on her head and face while
striking the floor. She suffered severe injuries which
required hospitalization and ultimately killed her.
By: Clifford A. Rieders, Esq.
86
SETLOCK V. PINEBROOK PERSONAL CARE
56 A.3D 904 (PA. SUPER. 2012)
MUNDY, J.
• Court refused to compel arbitration because the “wrongful
death action is a distinctly different cause of action from
anything contemplated by the terms of the residential
agreement[.]”
• “[A]rbitration agreements are to be strictly construed and such
agreements should not be extended by implication.”
• Agreement provided for center assistance for visits to a
physician, provided rates for that assistance and provided for
arbitration for any dispute arising from the contract.
• Nothing in the contract provided for medical care or
distinguished between on or off premises.
• Payment schedule for transporting residents does not
encompass all claims sounding in tort that arise from
transportation.
By: Clifford A. Rieders, Esq.
87
WALTON V. JOHNSON
66 A.3D 782 (PA. SUPER. 2013)
OTT, J.
• Kindred Hospital (Defendant) appeals from an order
entered into overruling its preliminary objections
which sought to enforce an arbitration agreement
between it and Plaintiff.
• Defendant Hospital claims the trial court erred in
finding that Plaintiff’s mother was acting as her
agent when she signed a Voluntary Dispute
Resolution Agreement (ADR Agreement),
mandating arbitration for any disputes involving
Plaintiff’s hospital stay. Mother signed paperwork
while plaintiff was in a coma following complications
from gastric bypass surgery.
By: Clifford A. Rieders, Esq.
88
WALTON V. JOHNSON
66 A.3D 782 (PA. SUPER. 2013)
OTT, J.
• Types of agency relationships:
• Express authority – principal deliberately and specifically
grants authority to agent to act on certain matters
• Implied authority – agents actions are “proper, usual and
necessary” to carry out express authority.
• Apparent Authority – principal by words or conduct
causes people who the agent deals with to believe the
agent has authority to act.
• Authority by Estoppel – principal fails to take reasonable
steps to disavow the third party of their belief that the
purported agent was authorized to act on behalf of the
principal.
By: Clifford A. Rieders, Esq.
89
WALTON V. JOHNSON
66 A.3D 782 (PA. SUPER. 2013)
OTT, J.
• To prevail on a claim of agency by estoppel, Defendant
hospital must prove by a preponderance of the
evidence that 1) there was some carelessness or
negligence on the part of Plaintiff that allowed the
Defendant Hospital to rely on the waiver, or 2) Plaintiff did
not take reasonable steps, knowing that Defendant
Hospital was relying on the waiver to correct their belief.
• Here court held that Defendant was unable to show that
Plaintiff knew or should have known her mother had
signed away her legal rights. Thus, the court held that
Defendant cannot prevail on an assertion of agency by
estoppel.
• Court affirmed the order overruling the Defendant’s
preliminary objections.
By: Clifford A. Rieders, Esq.
90
KNIGHT V. SPRINGFIELD HYUNDAI
81 A.3D 940 (PA. SUPER. 2013)
DONOHUE, J.
• Reversed decision of trial court throwing out Beverly Knight’s
case against Springfield Hyundai.
• Knight signed a Buyer’s Order which had an arbitration
agreement in it.
• Knight also signed a retail installment sales contract which
contained an integration clause.
• The car was defective, and ultimately repossessed without
warning.
• Pursuant to the Motor Vehicle Finance Act, if a buyer is
purchasing a vehicle installment sale, the contract must be in
writing and shall contain all of the agreement between buyer
and seller.
• When a buyer makes a purchase of a vehicle by installment
sale, the RISC subsumes all other agreements relating to sale.
By: Clifford A. Rieders, Esq.
91
KNIGHT V. SPRINGFIELD HYUNDAI
81 A.3D 940 (PA. SUPER. 2013)
DONOHUE, J.
• The Buyer’s Order contained an arbitration agreement but
RISC did not. Thus we conclude there was no enforceable
arbitration agreement.
• Gist of the action doctrine does not apply. The doctrine does
not preclude an action in tort simply because it resulted from a
breach of a contract. To be construed as a tort, the wrong
ascribed to defendant must be the gist of the action, the
contract being collateral.
• The alleged representations by the dealer occurred prior to the
signing of the contract.
• These are not masked claims for breach of contract; the gist of
the action is in tort and the contract is collateral.
• Economic loss of doctrine does not apply. Claims at issue are
statutory brought pursuant to UTPCPL and do not operate to
bar Knight’s UTPCPL claims.
By: Clifford A. Rieders, Esq.
92
SOVEREIGN IMMUNITY
By: Clifford A. Rieders, Esq.
93
RODRIGUEZ V. COM., DEPT. OF TRANSP.
59 A.3D 45 (PA. CMWLTH. 2013)
LEAVITT, J.
• Motor vehicle accident occurred when a vehicle
traveling east lost control and crossed over a 30 foot
wide grass median and collided into a vehicle
traveling west. Passenger was killed and estate
brought claim against Penn DOT for failing to erect a
median barrier to prevent crossover accidents
between opposing bound traffic.
• Court held that there was no exception to sovereign
immunity for PennDot’s failure to erect a median
barrier.
By: Clifford A. Rieders, Esq.
94
RODRIGUEZ V. COM., DEPT. OF TRANSP.
59 A.3D 45 (PA. CMWLTH. 2013)
LEAVITT, J.
• Court followed seminal case dealing with sovereign
immunity and highways, Dean v. Department of
Transportation, 751 A2d 1130 (2000).
• Svege v. Interstate Safety Services Inc., 862 A.2d 752
(Pa.Cmwlth. 2004) and Quinones v. Department of
Transportation, 45 A.3d 467 (Pa. Cmwlth. 2012)
establish that PennDOT has no duty to erect median
barriers to prevent crossover accidents.
By: Clifford A. Rieders, Esq.
95
IREY V. DEPARTMENT OF TRANSPORTATION
72 A.3D 762 (PA. CMWLTH. 2013)
BROBSON, J.
• Driver brought action for negligence against
Department of Transportation (DOT), alleging that
DOT’s negligence in allowing water to accumulate
on a state highway caused the driver to lose control
of his car and sustain permanent injuries.
• The court reversed the jury verdict and remanded
for a new trial.
• The court held that the jury inappropriately
considered the driver’s contributory negligence in
determining whether Defendant DOT’s negligence
was a factual cause of the injured driver’s harm.
By: Clifford A. Rieders, Esq.
96
IREY V. DEPARTMENT OF TRANSPORTATION
72 A.3D 762 (PA. CMWLTH. 2013)
BROBSON, J.
• The jury’s finding that Defendant DOT’s negligence
was not a factual cause of the harm to the driver
was against the weight of the evidence.
• There is no evidence that suggests that the standing
water was not a factual cause of the accident.
• The court agreed with Plaintiff’s request that jury
should have been asked to incorporate a
contributory negligence approach in determining
whether DOT’s negligence caused Plaintiff’s harm.
By: Clifford A. Rieders, Esq.
97
SHAW V. THOMAS JEFFERSON UNIV.
80 A.3D 540 (PA. CMWLTH. 2013)
MCCULLOUGH, J.
• Pedestrian brought action against university and
city, alleging injury as a result of fall on university
sidewalk.
• Court held that genuine material issue of fact as to
whether defect in sidewalk is trivial precluded
summary judgment.
By: Clifford A. Rieders, Esq.
98
WORKER’S COMPENSATION
IMMUNITY
By: Clifford A. Rieders, Esq.
99
SHAMIS V. MOON
81 A.3D 962 (PA. SUPER. 2013)
OLSON, J.
• Summary judgment granted to Geppert Brothers because trial court
said that it was a statutory employer of Shamis.
• Shamis was run over by a dump truck operated by Geppert.
• Geppert claimed it was immune from civil liability because M.L. Jones
that employed Shamis loaned him to Geppert Brothers.
• Statutory employer is a master who is not a contractual or a commonlaw one but is made one by the Workers’ Compensation Act.
• To the statutory employer, the following must be present:
• An employer who is under contract with an owner or one in
position of an owner;
• Premises occupied by or under the control of such employer
• A subcontractor made by such employer;
• Part of the employer’s regular business entrusted to such
subcontractor;
• An employee of such subcontractor.
By: Clifford A. Rieders, Esq.
100
SHAMIS V. MOON
81 A.3D 962 (PA. SUPER. 2013)
OLSON, J.
• Borrowing employer is common law master of
borrowed employee and is not based upon the
Workers’ Compensation Act.
• There is a genuine issue of material fact as to
whether the right of controlling the manner of Mr.
Shamis’s performance of the work ever passed to
Geppert Brothers.
• Right of control must also extend to the manner of
performing it.
• There is evidence that Geppert Brothers controlled
the project and that Mr. Shamis never passed under
Geppert Brother right of control with regard to the
work to be done and the manner of performing it.
By: Clifford A. Rieders, Esq.
101
PRODUCT LIABILITY
By: Clifford A. Rieders, Esq.
102
REOTT V. ASIA TREND, INC.
55 A.3D 1088 (PA. 2012)
JUSTICE BAER
• Buyer of a tree stand was injured when the tree
stand collapsed which was indisputably a substantial
factor in causing buyer’s injuries.
• The Superior Court noted that there was a jury
question as to whether his “setting the stand”
maneuver of bobbing up and down on his toes
entailed a high degree of risk of injury or death,
there was no evidence that this maneuver could
have caused the collapse in the absence of a
defect.
By: Clifford A. Rieders, Esq.
103
REOTT V. ASIA TREND, INC.
55 A.3D 1088 (PA. 2012)
JUSTICE BAER
• Pa. Supreme Court affirmed and held that allegedly
reckless use of tree stand was an affirmative defense
to strict liability that must be pleaded and proven
that conduct was so reckless as to constitute sole or
super case of injuries, abrogating Berkebile v. Brantly
Helicopter Corp., 337 A.2d. 893
• Reversed on issue of causation and remanded for
new trial limited to issue of damages.
By: Clifford A. Rieders, Esq.
104
HOVIS V. SUNOCO, INC.
64 A.3D 1078 (PA. SUPER. 2013)
WECHT, J.
• Current gasoline station owners brought action
against prior owner pursuant to the Storage Tank
and Spill Prevention Act, seeking to recover
damages for cleanup costs and diminution in
property value that arose from leaking underground
storage tanks.
• Suit was commenced under Section 1305(c) of the
Storage Tank and Spill Prevention Act.
• Trial court granted summary judgment for
Defendant Sunoco on the basis that it was not an
owner or operator for the purpose of the Tank Act.
By: Clifford A. Rieders, Esq.
105
HOVIS V. SUNOCO, INC.
64 A.3D 1078 (PA. SUPER. 2013)
WECHT, J.
• Tank Act provides that the owner or operator of a storage tank
and the landowner or occupier whose land a storage tank is or
was located, shall not allow pollution resulting from, or a
release to occur from a storage tank.
• Tank Act defines an “owner” as 1) in the case of a storage tank
in use . . . any person who owns or has ownership interest in a
storage tank used for the storage, containment, use or
dispensing of regulated substances; or 2)in the case of an
underground storage tank, the owner holding regulated
substances on or after Nov. 8, 1984 and the owner of all times
regulated substances were removed when removal occurred
prior to Nov. 8, 1984.
• The Tank Act defines an “operator” as any person who
manages, supervises, alters, controls or has responsibility for
operation of a storage tank.
By: Clifford A. Rieders, Esq.
106
HOVIS V. SUNOCO, INC.
64 A.3D 1078 (PA. SUPER. 2013)
WECHT, J.
• Court held that it was clear from the plain language
of the statute that Sunoco was neither an owner or
operator under the Tank Act and affirmed the lower
court’s grant of Summary Judgment for defendant
Sunoco.
By: Clifford A. Rieders, Esq.
107
LANCE V. WYETH
2014 WL 260309 (PA. JAN. 21, 2014)
SAYLOR, J.
• Estate of a patient who died after taking the prescription
diet drug Redux brought an action against the
manufacturer for products liability on the basis that the
drug was unsuitable for public consumption.
• The Court of Common Pleas entered summary judgment
for the manufacturer and the Superior Court affirmed in
part and reversed in part.
• The Pennsylvania Supreme Court reversed in part and
affirmed in part, holding that the estate was not limited to
making a claim for a manufacturing defect and failure to
warn, and thus, the court could have properly
considered the argument that the drug had a design
defect.
By: Clifford A. Rieders, Esq.
108
LANCE V. WYETH
2014 WL 260309 (PA. JAN. 21, 2014)
SAYLOR, J.
• A manufacturer with actual or constructive
knowledge that a drug is too dangerous to be used
by anyone violates its duty to ensure that warning
remains adequate during any period of time during
which thereafter it continues to market the
commodity.
• A manufacturer’s negligent conduct may occur at
any stage in the marketing process, including but
not limited to, the initial design of the drug, the
failure to investigate information about the risks that
the drug poses, and its decision to continue selling
the drug.
By: Clifford A. Rieders, Esq.
109
LANCE V. WYETH
2014 WL 260309 (PA. JAN. 21, 2014)
SAYLOR, J.
• The court differed with Wyeth’s position with respect
to comment k. The court noted that comment k is a
facet of strict liability under the Restatement Section
which may not readily translate into the negligence
area, particularly given the distinct treatment of
strict liability versus negligence in the Azzarello
decision, 391 A.2d 1020 (Pa. 1978).
By: Clifford A. Rieders, Esq.
110
PRE-EMPTION
By: Clifford A. Rieders, Esq.
111
MUTUAL PHARMACEUTICAL CO., INC. V. BARTLETT
133 S. CT. 2466 (2013)
ALITO, J.
• Plaintiff sustained significant injuries as a result of taking
an inflammatory pain reliever medication manufactured
by Defendant, generic pharmaceutical company.
• Plaintiff brought state court action against generic
defendant to recover for her injuries. The action was
removed to federal court.
• After jury awarded $21.06 in compensatory damages on
design defect claim, manufacturer moved for judgment
as a matter of law and for a new trial. These motions
were denied and the manufacturer appealed. The First
Circuit affirmed. Supreme Court, as per Justice Alito,
reversed.
By: Clifford A. Rieders, Esq.
112
MUTUAL PHARMACEUTICAL CO., INC. V. BARTLETT
133 S. CT. 2466 (2013)
ALITO, J.
• The Federal Food Drug & Cosmetic Act (FDCA) requires
manufacturers to gain FDA approval before marketing
any brand or generic drug. Once a drug is approved,
FDA regulations prevent a manufacturer from making
any major changes to the qualitative or quantitative
formulation of the drug, including active ingredients or in
the specifications provided in the approved application.
21 CFR Section 314.70(b)(2)(i).
• New Hampshire state statute imposes on manufacturers
“duty to design [their products] reasonably safely for uses
which [they] can foresee.” Plaintiff sued asserting this
statute.
By: Clifford A. Rieders, Esq.
113
MUTUAL PHARMACEUTICAL CO., INC. V. BARTLETT
133 S. CT. 2466 (2013)
ALITO, J.
• Supreme Court held that because redesign is impossible
under the federal statute governing generic drug
manufacture, this comes into conflict with the state
statute, and thus imposes a conflict between state and
federal law which the court resolved by holding that the
federal generic drug law pre-empts the state law
defective design claim under the New Hampshire
Statute.
• In PLIVA Inc. v. Mensing, the Supreme Court previously
held that federal generic drug law pre-empts state
failure-to-warn claims.
• Here, the court followed PLIVA, and reached the same
decision, holding that federal generic drug law preempts state law design defect claims.
By: Clifford A. Rieders, Esq.
114
MUTUAL PHARMACEUTICAL CO., INC. V. BARTLETT
133 S. CT. 2466 (2013)
ALITO, J.
• Court decided that federal law (generic drug law) preempts
state law. Because Mutual was unable to change sulindac’s
composition as a matter of federal law and basic chemistry,
New Hampshire’s design defect cause of action effectively
required Mutual to change the labeling to provide stronger
warnings.
• However, PLIVA v. Mensing held that generic drug
manufacturers are preempted and prohibited from
independently changing drug labels.
• Accordingly, state law imposed a duty on Mutual not to
comply with the federal law, which violates the Supremacy
Clause. Thus, the court found preemption.
• Dissenting opinions (two) argued that the stop selling theory
was valid so there was no preemption because Mutual court
have simply stopped selling the dangerous drug.
By: Clifford A. Rieders, Esq.
115
ZIMMERMAN V. NORFOLK SOUTHERN CORP.
706 F.3D 170 (3RD CIR. 2013)
SMITH, CIRCUIT JUDGE
• Motorcyclist approached railroad crossing in the
dark with obstructed view of the tracks at less than
76 feet away, motorcyclist tried to abruptly stop
when it saw train approaching. His brakes locked,
causing him to collide headfirst with the locomotive,
leaving him partially paralyzed.
• Motorcyclist brought “failure to warn; failure to
maintain safe crossing; failure to ensure that the
crossing device complied with federal regulations
and punitive damages.”
• Many railroad regulations pre-empt state law claims.
By: Clifford A. Rieders, Esq.
116
ZIMMERMAN V. NORFOLK SOUTHERN CORP.
706 F.3D 170 (3RD CIR. 2013)
SMITH, CIRCUIT JUDGE
• FRSA did not exempt failure to warn claim based upon
excessive speed because 49 C.F.R. § 213.9 creates a
federal standard of care providing speed limits on
different types of tracks.
• Accident report was privileged, but other accident
reports were not.
• FRSA pre-empted failure to warn for misclassification of
tracks.
• FRSA did not pre-empt failure to maintain safe crossing
area and fact issue precluded summary judgment.
• FRSA pre-empted claim for negligence per se.
By: Clifford A. Rieders, Esq.
117
BREACH OF CONTRACT
By: Clifford A. Rieders, Esq.
118
EMPIRE TRUCKING CO., INC. V. READING ANTHRACITE COAL CO.,
71 A.3D 923 (PA. SUPER. 2013)
WECHT, J.
• Trucking company brought action against coal business
for breach of contract and tortious interference with
contract, alleging that the defendant failed to pay for
hauling services and caused other businesses to refuse to
pay.
• The court affirmed the trial court’s ruling that, based on
the evidence, there was a contract in place between
the plaintiff and subcontractors.
• The court further affirmed that evidence supported that
defendant intended to harm plaintiff by interfering with
plaintiff’s contractual relations with its subcontractors in
order to lower the cost of hauling coal.
By: Clifford A. Rieders, Esq.
119
EMPIRE TRUCKING CO., INC. V. READING ANTHRACITE COAL CO.,
71 A.3D 923 (PA. SUPER. 2013)
WECHT, J.
• Finally, the court affirmed that plaintiff’s punitive
damages award was not disproportionate to the
compensatory damages award.
• The elements of tortious interference with a contractual
relationship are 1) the existence of a contractual
relationship between complainant and third party; 2) an
intent on the part of defendant to harm the plaintiff by
interfering with that contractual relationship; 3) the
absence of privilege or justification on the part of the
defendant; and 4) the occasioning of actual damages
as a result of defendant’s conduct.
By: Clifford A. Rieders, Esq.
120
EMPIRE TRUCKING CO., INC. V. READING ANTHRACITE COAL CO.,
71 A.3D 923 (PA. SUPER. 2013)
WECHT, J.
• Element of claim for tortious interference of contract,
regarding intent on the part of the defendant to harm
the plaintiff by interfering with the contractual
relationship, requires proof that the defendant acted for
the specific purpose of causing harm to the plaintiff.
• Courts require a showing of both harm and improper
conduct by the defendant in a cause of action for
tortious interference with contract, because some
intentionally harmful conduct is done at least in part for
the purpose of protecting some legitimate interest which
conflicts with that of the plaintiff.
By: Clifford A. Rieders, Esq.
121
EMPIRE TRUCKING CO., INC. V. READING ANTHRACITE COAL CO.,
71 A.3D 923 (PA. SUPER. 2013)
WECHT, J.
• The standard for awarding punitive damages in
Pennsylvania is that such damages may be
awarded for “conduct that is outrageous, because
of the defendant’s evil motive or his reckless
indifference to the rights of others.”
• Under Pennsylvania law, the size of a punitive
damages award must be reasonably related to the
State’s interest in punishing and deterring the
particular behavior of the defendant and not the
product of arbitration or unfettered discretion.
By: Clifford A. Rieders, Esq.
122
CONTRACT – WARRANTY OF
HABITABILITY
By: Clifford A. Rieders, Esq.
123
CONWAY V. CUTLER GROUP, INC.
57 A.3D 155 (PA. SUPER. 2012)
MUNDY, J.
• Second purchaser sued home builder for breach of
the implied warranty of habitability after discovery of
a water leak.
• Court decided an issue of first impression that the
warranty of habitability extended beyond first
purchaser to second purchaser of home.
• An appeal has been granted in this case by the
Pennsylvania Supreme Court but has not yet been
decided.
By: Clifford A. Rieders, Esq.
124
UTCPC
By: Clifford A. Rieders, Esq.
125
MILLIKEN V. JACONO
60 A.3D 133 (PA. SUPER. 2012)
FORD ELLIOTT, P.J.E.
• Buyers sued sellers of house for failure to disclose that
a murder/suicide occurred in the house in 2006.
• Claim included fraud and misrepresentation
regarding sale of property without disclosure of
murder/suicide which took place, breach of the
Real Estate Seller Disclosure Law, negligent
Representation, Fraud and a violation of the Unfair
Trade Practices Act.
• Court concluded that murder/suicide was not a
material defect as provided under RESDL, 68 Pa.
C.S.A. § 7102.
By: Clifford A. Rieders, Esq.
126
MILLIKEN V. JACONO
60 A.3D 133 (PA. SUPER. 2012)
FORD ELLIOTT, P.J.E.
• Court characterized psychological disclosures as being
“massive expansion” in the character of physical disclosures
required by RESDL.
• Because sellers did not conceal or fail to disclose a material
defect under RESDL, Court concludes sellers could not be liable
for fraud even though expert testimony was that the value of
the house was diminished and buyer testified they would not
have purchased home had they known.
• Court concluded that buyers were not liable for negligent
misrepresentation relying on the fact that sellers had no duty to
disclose the murder/suicide.
• Court also concluded that no claim satisfied the catch-all
provision of UTPCPL because sellers did not engage in any
deceptive conduct.
• Bender, J., filed a dissenting opinion which was joined by
Mundy and Wecht.
By: Clifford A. Rieders, Esq.
127
REIMBURSEMENT/MEDICAID
ISSUES
By: Clifford A. Rieders, Esq.
128
U.S. AIRWAYS V. MCCUTCHEN
133 S.CT 633, (2012)
KAGAN, J.
•U.S. Airways ERISA plan paid medical bills in
connection with an automobile accident.
•Neither “unjust enrichment” nor “double recovery”
prevent reimbursement or require the plan to pay a
share of the attorney’s fees incurred in securing the
funds from a third party.
•The clear terms of a plan were controlled.
By: Clifford A. Rieders, Esq.
129
U.S. AIRWAYS V. MCCUTCHEN
133 S.CT 633, (2012)
KAGAN, J.
• In this case, U.S. Airways demanded reimbursement
of its money without any deduction for attorney’s
fees.
• The agreement is the measure of the parties’
equities, so that if a contract abrogates the
common-fund doctrine, the insurer is not unjustly
enriched by claiming the benefit of its bargain.
• Given the unequal bargaining strength of the
parties, and that there is no bargaining which occurs
on behalf of the employee, the decision is
breathtaking.
By: Clifford A. Rieders, Esq.
130
U.S. AIRWAYS V. MCCUTCHEN
133 S.CT 633, (2012)
KAGAN, J.
•McCutchin was fortunate in that his plan was silent
on the allocation of attorney’s fees.
•In those circumstances, the common-fund doctrine
provides the appropriate default.
•U.S. Airways or anyone else can depart from the well
established common fund rule by drafting its
contract to say so.
By: Clifford A. Rieders, Esq.
131
U.S. AIRWAYS V. MCCUTCHEN
133 S.CT 633, (2012)
KAGAN, J.
•If a plan can be amended to address attorney’s
fees in the reimbursement situation and they do so,
people will not bring cases and the insurance
companies will not get their money back.
•The court oddly states: “When the next McCutchen
comes along, he is not likely to relieve U.S. Airways of
the cost of recover.”
By: Clifford A. Rieders, Esq.
132
WOS, SECRETARY, NORTH CAROLINA DEPT. OF HEALTH V. E.M.A
133 S.CT. 1391 (MARCH 20, 2013)
KENNEDY. J.
• Federal statute prohibits States from attaching a lien on the
property of a Medicaid beneficiary to recover benefits paid by
the State on the beneficiary’s behalf.
• The anti-lien provision pre-empts State’s efforts to take a
portion of a Medicaid beneficiary’s tort judgment or
settlement not designated as payment for medical care.
• North Carolina has a statute requiring that up to one-third of
any damages recovered by a beneficiary for a tortious injury
be paid to the State to reimburse it for payments made for
medical treatment on account of the injury.
• The conclusive presumption is pre-empted.
• The defect in the statute is that it sets no process for
determining what portion of a beneficiary’s tort recovery is
attributable to medical expenses.
By: Clifford A. Rieders, Esq.
133
QUANTUM MERUIT
By: Clifford A. Rieders, Esq.
134
SHAEFER ELECTRIC & CONSTRUCTION V. MANTIA
67 A.3D 8 (PA. SUPER. 2013)
MUNDY, J.
• Contractor filed mechanics’ lien against
homeowners and sued them for damages under
breach of home improvement contract, or
alternatively under theory of quantum meruit.
• The Court of Common Pleas granted the
homeowners’ preliminary objections in the nature of
a demurrer, dismissing the contractor’s complaint
with prejudice and striking the mechanics’ lien. The
contractor appealed.
• Superior Court reversed and remanded on appeal.
By: Clifford A. Rieders, Esq.
135
SHAEFER ELECTRIC & CONSTRUCTION V. MANTIA
67 A.3D 8 (PA. SUPER. 2013)
MUNDY, J.
• To prevail under theory of quantum meruit, a plaintiff
must prove three elements: 1) benefits conferred on
defendant by plaintiff; 2) appreciation of such
benefits by defendant; 3) acceptance and
retention of such benefits under such circumstances
that it would be inequitable for defendant to retain
benefit without payment of value.
By: Clifford A. Rieders, Esq.
136
SHAEFER ELECTRIC & CONSTRUCTION V. MANTIA
67 A.3D 8 (PA. SUPER. 2013)
MUNDY, J.
• Court held that quantum meruit recover is clearly
contemplated by section 517.7(g) of HICPA.
• While the contract is invalid and unenforceable for home
improvement contract under 517.7(a), the Court held
that appellant could still seek recovery under quantum
meruit under 517.7(g). This was intended as a fallback by
the General Assembly in drafting the statute where no
valid contract exists.
• Court held that HICPA did not preclude contactor from
recovery under theory of quantum meruit, reversing trial
court’s decision.
• An appeal has been granted in this case by the
Pennsylvania Supreme Court but has not yet been
decided.
By: Clifford A. Rieders, Esq.
137
TRUSTS AND ESTATES
By: Clifford A. Rieders, Esq.
138
IN RE SMALING
80 A.3D 485 (PA. SUPER. 2013)
LAZARUS, J.
• After testator’s son admitted will to probate,
testator’s widow filed filed a petition to probate
after discovered will.
• Superior Court held that testator’s widow
adequately preserved for appellate review her
claims challenging the weight of the evidence.
• Court further held that evidence was insufficient to
support finding that testator lacked testamentary
capacity when he executed after discovered will.
• Finally, court found that evidence supported that
testator’s widow exerted undue influence over
testator.
By: Clifford A. Rieders, Esq.
139
IN RE SMALING
80 A.3D 485 (PA. SUPER. 2013)
LAZARUS, J.
• A will contest must by clear and convincing evidence,
establish a prima facie showing of undue influence by
demonstrating that 1) the testator suffered from a
weakened intellect; 2) the testator was in a confidential
relationship with the proponent of the will; and 3) the
proponent receives a substantial benefit from the will in
question.
• Testamentary capacity exists when the testator has
intelligent knowledge of the natural objects of his bounty,
the general composition of his estate, and what he or she
wants done with it, even if the memory is impaired by
age or disease.
By: Clifford A. Rieders, Esq.
140
DISCRIMINATION
By: Clifford A. Rieders, Esq.
141
UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER V. NASSAR
133 S.CT. 2517 (2013)
KENNEDY, J.
• Physician of middle eastern descent brought Title VII
action against state university, alleging that he was
constructively discharged from university faculty
position because of racially and religiously
motivated harassment by superior, and that
university retaliated against him for complaining of
alleged harassment.
• Justice Kennedy held that Title VII retaliation claims
must be proved according to traditional principles
of “but for” causation.
• Justice Ginsberg dissented in a 5-4 decision.
By: Clifford A. Rieders, Esq.
142
UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER V. NASSAR
133 S.CT. 2517 (2013)
KENNEDY, J.
• An employee who alleges status based
discrimination under Title VII need not show a causal
link between the injury and wrong is so close that the
injury would have not occurred but for the act. It
suffices instead to show that the motive to
discriminate was one of the employer’s motives,
even if the employer also had other lawful motives.
By: Clifford A. Rieders, Esq.
143
UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER V. NASSAR
133 S.CT. 2517 (2013)
KENNEDY, J.
• Question in this case is whether the lessened
causation standard articulated above is applicable
to claims of unlawful employer retaliation under 42
USC Section 2000e-3(a).
• The Court, as per Justice Kennedy, held in a 5-4
ruling that Title VII retaliation claims must be proved
according to traditional principles of but-for
causation, abrogating its prior decision in Smith v.
Xerox Corp.
By: Clifford A. Rieders, Esq.
144