Ten Years After — Court Dismisses Complaint after LONG period of inactivity (PA)

I may be dating my musical tastes with this post, but the 1970’s rock band, Ten Years After, once had a hit single, called “I’d Love to Change the World.”   Well, if a plaintiff is looking to change the world for his client, he better not let his claim sit still for 10 years… which is what happened in Erie County, Pennsylvania, the Superior Court of Pennsylvania.

In July 2007, Golab v Knuth was commenced after Golab was injured in a May 2005 automobile accident.  The parties exchanged pleadings and discovery and the case was scheduled for trial in October 2009.  However, the case was never certified and therefore never proceeded to trial, prompting the trial court to publish a Termination Notice in October 2015.

The Termination Notice was published in the Erie County Legal Journal and informed the parties that the case would be terminated due to lack of docket activity, pursuant to Pa.R.J.A. 1901, unless the parties appeared at a November 30, 2015 hearing and showed good cause as to why the case should not be terminated. There was no Erie County Local Rule in effect at the time to govern implementation of Pa.R.J.A. 1901.

Neither party nor their respective counsel appeared at the November hearing, and thus the trial court terminated the case in December 2015.  In November 2016, Golab filed a motion to reinstate the case citing various health issues to both she and her attorney, as well as arguing that neither she nor her attorney ever received notice of the Termination Notice.  The court reinstated the case on November 30, 2016, over an objection by Knuth.  Knuth subsequently filed a motion for reconsideration to reinstate the Termination Order in December 2016.  In March 2017, the trial court granted Knuth’s motion and reinstated the Termination Order, terminating the case.

Golab then moved to reinstate the case, which the trial court denied.  Golab appealed the court’s denial of her motion to reinstate, arguing that: 1) the trial court erred in dismissing the case in December 2015 without first enacting a Local Rule to implement Pa.R.J.A. 1901; 2) the one-time publication in the Erie County Legal Journal did not constitute adequate notice of the Termination Notice; and 3) the trial court erred in failing to make findings of fact as to the whether good cause for the lack of activity was shown.

The Superior Court of Pennsylvania affirmed the trial court’s order, because a plaintiff has an affirmative duty to prosecute her action within a reasonable time and it is the plaintiff, not the defendant, who bears the risk of not acting within a reasonable time to move a case along.  In response to the three issues brought by Golab in her appeal, the Superior Court explained that the lack of a local rule implementing Pa.R.J.A. 1901 did not render the trial court powerless to proceed under said rule, and that the publication of the Termination Notice was sufficient under Rule 1901.  Additionally, the trial court was not required to conduct an evidentiary hearing concerning the reasons for Golab’s delay, particularly when the docket was inactive for nearly seven (7) years.  This prolonged back-and-forth saga is a helpful reminder for clients and attorneys both to remain cognizant and vigilant to ensure that their cases are actually brought to a resolution.

The chorus of the Ten Years After song, which you may have heard, goes, “I’d love to change the world… but I don’t know what to do.”   For purposes of this case, you need to at least do something to avoid a dismissal.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

Lengthy, “Deliberate” Deliberations Are Not Cause for a Mistrial (PA)

On December 8, 2017, the Superior Court of Pennsylvania affirmed a defense verdict on appeal in Berry v. Dickson et al. Plaintiff Berry sued several defendants, alleging negligent maintenance of a building after a piece of ceiling collapsed and injured Berry.  The jury ultimately returned a verdict for the defendants and Berry appealed on the issue that the jurors were deadlocked and that the trial court erred by instructing them to return to deliberations.

After an exhaustive three days of deliberations, the trial judge dismissed the jury and told them to return on Monday after the weekend.  He instructed them that if they were unable to return a verdict on Monday due to being “hopelessly deadlocked” that he would then declare a mistrial.  On Monday morning, the jurors requested to hear the charges re-read and then returned a defense verdict late in the afternoon.  The plaintiff appealed, arguing that the trial judge effectively coerced the jury after instructing them to resume deliberations after they indicated twice before that they were unable to reach a verdict.

The amount of time that a jury is kept together is a matter of discretion for the trial judge and will only be reversed for abuse of discretion or if there is evidence that the judge coerced the jury.  Issues to look at are the charges, the complexity of the issues, the amount of testimony, the length of trial, and the solemnity of the trial.

In the instant case, the Superior Court found that the issues were complex in that the plaintiff alleged injuries to his spine and other parts of his body.  In addition, the jury had to consider testimony from three fact witnesses and two experts.  The court also noted that the jury mentioned that they were deadlocked but not “hopelessly deadlocked”.  As such, the court affirmed the defense verdict.

This case demonstrates the importance of handling a jury during trial and to provide them with adequate jury instructions, and allowing them to deliberate appropriately.  The alternative to this verdict would have been a mistrial, and likely, a retrial within a few months.   While the plaintiff was obviously displeased with the result, lengthy deliberation is a function of the justice system, and not a grounds for reversal.  In fact, the word “deliberation” is a derivative of the word, “deliberate,” which means measured or cautious. Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.


Worker Denied UIM Benefits Under Regular Use Exception (PA)

In Reeves v. The Travelers Co. the United States District Court for the Eastern District of Pennsylvania evaluated whether the “regular use exception” applied. The regular use exception excludes coverage for bodily injuries sustained while occupying or when struck by any motor vehicle a person owns or that is furnished or available for regular use, but that vehicle is not insured under the same policy.

Plaintiff was injured when he was hit by another driver as he was driving his employer’s truck as he regularly did to a work site. After settling a personal injury claim against the other driver, he sought to claim underinsured motorist benefits from his mother’s personal insurer, Travelers. Travelers denied coverage to Plaintiff, invoking the regular use exception. Plaintiff filed suit alleging breach of contract and bad faith in handling his claim and Travelers filed a motion for summary judgment.

In Plaintiff’s opposition, he argued that the regular use exception should not apply in his case because he performed his core duties outside of the truck in which he was riding and was only allowed to drive three out of the seventeen employer’s vehicles. The Court determined that the “regular use exception” was often applied where an insured was traveling to a job site where work would be performed outside of the vehicle, as well as to passengers as well as drivers of non-owned vehicles.

The Court ruled that the terms of the policy were valid, enforceable, and unambiguous; and therefore, found that Travelers properly denied coverage for Plaintiff’s accident and was not in breach of contract. The Court also ruled that there was no basis for finding that Travelers acted in bad faith as it investigated and denied Plaintiff’s claim on the basis of a reasonable reading of the Policy and applicable law within four weeks of being notified of the claim.

Thanks to Chelsea Rendelman for her contribution to this post and please write to Mike Bono with any questions.

Pirelli Prevails Using Plaintiff’s Conduct in PA Products Matter

In Pennsylvania strict products liability cases, defendants are not permitted to introduce evidence of a plaintiff’s negligence. To prove a strict-liability cause of action, the plaintiff must prove: (a) the product was defective, (b) that it was defective when it left the defendant’s hands, and (c) that the defect caused harm—a plaintiff’s negligence is not relevant to a product defect. However, a plaintiff’s conduct may be offered by the defense to establish that an accident was solely the result of the user’s conduct, and not related to the product defect. This evidence proves causation and not negligence.

The thin line between presenting evidence of plaintiff’s conduct to prove negligence or to rebut the element of causation was at the center of Anderson v. Pirelli Tire, LLC. In Anderson, the plaintiff’s wife died in a motorcycle accident when the tire blew out. Pirelli Tire, LLC manufactured the motorcycle’s tire and plaintiff asserted a strict liability claim arguing that the tire had a manufacturing defect. Crucially, plaintiff argued that he noticed a “blemish” on the tire on the day of the accident; plaintiff’s theory was that a foreign object got inside the tire during the manufacturing process, and that the tire left Pirelli’s plant with the defect. Pirelli argued that plaintiff was at fault because the tire was under-inflated and overloaded resulting in over-deflection, which caused the accident.

The conduct at issue were the steps taken by the plaintiff to ensure their safety on the motorcycle, the air pressure of the tire, and the weight carried on the motorcycle at the time of the trip. The plaintiff argued this was inadmissible because it was evidence of the plaintiff’s negligence, but the court permitted the evidence on the theory that it went to impeach the plaintiff’s testimony and that it went to causation. First, in respect to impeachment, the plaintiff testified that he took safety courses and that he reviewed a checklist before riding the motorcycle. Pirelli argued that given that training, the plaintiff would have taken the tire to the shop if he in fact noticed a “blemish.” Second, in respect of causation, Pirelli argued that plaintiff’s failure to inflate the tire caused the blow out, not a defective tire.

On appeal, the Superior Court upheld the trial court’s ruling since Pirelli offered the evidence properly—only to prove causation and not negligence. The court also relied on the trial court’s jury instructions, which highlighted that the jury could only consider the evidence for the purposes of impeachment and causation.

Thanks to Ellis Palividas for his contribution to this post and please write to Mike Bono with any questions.

WCM Shares the Holiday Spirit

On November 30, 2017, WCM Counsel Colleen Hayes and Associate Hillary Ladov, both of the Philadelphia office, helped make the holidays a little brighter for the children supported by Turning Points for Children with a donation at the annual Philadelphia Bar Association Young Lawyers Division Holiday Party. Colleen serves as the liaison for the Philadelphia Association of Defense Counsel and Hillary was recently elected Financial Secretary for the Young Lawyers Division Executive Committee. Turning Points for Children is the leading social service agency in Philadelphia, offering programs that help families in raising safe, healthy, educated, and strong children by partnering with caregivers to develop and strengthen protective qualities and by offering them the tools, skills, and resources needed to ensure their children’s optimal development.

For more information about this post please e-mail Bob Cosgrove.

Expert Not Needed to Overcome Summary Judgment (PA)

The Pennsylvania Superior Court recently vacated two orders of summary judgment following review of the trial court’s determination regarding the existence of a genuine issue of material fact.  In Medsger v. Hawaiian Tan, No. 1635 WDA 2016,  Nov. 20, 2017, the Superior Court held that the trial court’s granting of summary judgment for defendants was erroneous, and vacated the orders as well as remanding the case for trial.

The case arose from an incident in which defendant Matkovich, a patron of Hawaiian Tan salon, was turning left onto a highway after exiting the salon.  Plaintiff Medsger was traveling on his motorcycle northbound on the highway.  While turning onto the highway, Matkovich’s vehicle collided with Medsger, causing serious injuries to Medsger.  At the time of the collision, there were five temporary yard signs advertising Hawaiian Tan’s business that were located along the highway between the exit Matkovich was using and the entrance to the highway.  Plaintiff alleged that Hawaiian Tan was negligent in placing the sings too close to the highway in violation of local ordinances.  Plaintiff also alleged that the property owner of the building in which Hawaiian Tan was located was negligent by permitting Hawaiian Tan to erect and maintain the signs too close to the highway.

The trial court granted summary judgment in favor of Hawaiian Tan and the property owner, concluding that Plaintiff failed to present a prima facie case that the placement of the advertising signs contributed to the accident by blocking Matkovich’s view of the highway.  In granting defendants’ motions for summary judgment, the trial court rejected an affidavit by Plaintiff’s son which attached several photographs depicting the location of the signs.  The trial court ruled that the affidavit was an unscientific recreation of the accident scene and that it lacked assurance that it accurately reflected Matikovich’s viewpoint at the time of the accident; thus failing to raise a genuine issue of fact as to whether the sign placement impaired Matkovich’s view of the highway.

On appeal, the Superior Court applied a de novo standard of review as to the presence of a genuine issue of fact.  In reversing the trial court’s granting of summary judgment, the Superior Court stated that, under Pennsylvania law, credibility and weight of witness testimony are not proper considerations at summary judgment stage, but rather that they fall under the purview of the jury.  The Superior Court further stated that, when viewing the facts in the light most favorable to Plaintiff (the non-moving party), the information and photographs contained in the affidavit created a genuine issue of fact.  The court noted that, at the summary judgment stage, it was irrelevant whether Plaintiff’s son qualified as an expert witness, and that Plaintiff was entitled to introduce the photographs and have the jury weigh the credibility of the affidavit.  In its opinion, the PA Superior Court provides a concise and helpful articulation of the Pennsylvania standard for summary judgment, while also citing the specific examples of layperson’s affidavits and photographs from the scene of an accident.

The reality is, this decision is likely good news for plaintiffs in PA, who are seeking to avoid incurring expert witness fees at the motion stage.  Thanks for Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.


New Trial Ordered for Prejudicial Remark by Plaintiff’s Counsel (PA)

On November 16, 2017, the Superior Court of Pennsylvania ordered a new trial in Buttaccio v. American Premier Underwriters, Inc.  after  plaintiff’s counsel made prejudicial comments and violated a preclusion order during the underlying trial.  The court also decided on several other evidentiary issues.

In the underlying case, plaintiff Mike Buttaccio, brought a claim against his former employers alleging occupational injuries and resulting economic damages.  Buttaccio was a repairman for Penn Central and Conrail for around forty years.  He alleges that his years of heavy work resulted in career-ending shoulder, knee, and carpal tunnel injuries.  The jury found for Buttaccio for $600,000.  The defendants appealed on the issues of: 1) should the plaintiff’s liability expert should have been excluded; 2) should a new trial be ordered since plaintiff’s counsel violated a preclusion order and made prejudicial comments; and 3) should evidence of other claims been admitted.

Appellants argued that plaintiff’s ergonomics expert should have been excluded since his methods were not generally accepted in the field and he failed to objectively measure factors.  In Pennsylvania, a person qualified as an expert may testify if: 1) their knowledge is beyond that of the average person; 2) their testimony will help the trier of fact; and 3) their methodology is generally accepted.  Upon review, the Superior Court agreed with the trial court and found that the expert’s testimony was admissible since it was based on his decades’ worth of experience, education, and on publications from NASA, OSHA, and the Federal Railroad Administration.  In addition, it found that the computer program that the expert used to measure factors was generally accepted in the field.

The Superior Court did agree, however, with the appellants’ second argument that a new trial should be ordered.  During trial, the court granted defendants’ motion to preclude any mention by plaintiff that there was inadequate manpower during his work.  Despite this, plaintiff’s counsel made numerous statements on the record mentioning an alleged inadequate manpower.  The Superior Court also granted a new trial on the basis that the trial court failed to properly instruct the jury and/or grant a mistrial when plaintiff’s counsel mentioned that two other employees were killed during a cross-examination.  The court argued that this statement highly inflammatory and could serve to prejudice the jury against the defendants.

This case demonstrates the importance of going into trial with an overall plan when it comes to evidence.  As seen above, by properly preserving issues, whether through pre-trial or evidentiary motions or objections during trial, counsel can limit the plaintiff’s case by cutting off certain evidentiary avenues. This can then set up the case for a dismissal or for a new trial.  Thus, by properly analyzing the evidence and what you think plaintiff’s counsel will try to introduce, one can set up the case for an endgame with a favorable defense verdict or dismissal.  Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

Worker Entitled to Compensation If Pre-Existing Condition Aggravated at Work (PA)

A work related injury is compensable under Pennsylvania workers compensation laws even if it is an aggravation of a pre-existing condition such as osteoarthritis.  In Brand Energy Services, LLC v. Worker’s Compensation Appeal Board , an employer appealed an award by a workers compensation judge arguing that causation had not been established for aggravation of bi-lateral carpal tunnel syndrome, osteoarthritis and other conditions.

The employee, a union carpenter, was employed to build, modify and dismantle scaffolding for the employer’s clients.  His employer was paid by the foot for the scaffolding erected.  The employee had been working days.  When he was transferred to a night shift, his work assignment increased from eight hour shifts to ten to twelve hour shifts.  He worked thirteen days in a row and had only one day off.  Not only was he expected to work longer hours, but to meet the needs of the plant where he was working, they had to erect more scaffolding per shift.  He testified that in an eight hour shift, the workers would assemble 300 leg feet of scaffolding.  In the night shift, he was building between 1000 and 1200 leg feet.

The worker’s hands became swollen under this new work regimen.  He sought treatment for his hands, as they continued to be numb, swollen, and tingly.  His doctor diagnosed work-related bilateral carpal tunnel syndrome, osteoarthritis, and left scapholunate advanced collapse (SLAC) wrist.   When the worker submitted a note from his family practice to his supervisor outlining his diagnoses, he was laid off.

On appeal from the workers compensation tribunal, the Court faced two issues: (1) whether the doctor’s testimony was equivocal as to the causal connection between the work and the work-related aggravation of underlying conditions; and (2) whether the doctor had a sufficient understanding of the work, and consequently, a proper factual foundation for a medical opinion such that his opinion was competent.

In terms of the former question, the court held the causal connection was a question of law and worker’s burden to present unequivocal medical testimony.  At issue was whether the doctor’s use of “probable” with respect to causation of one of three diagnoses rendered the entire opinion insufficient to support any award.  The court disagreed with the employer’s argument in this regard.  It found that the doctor’s testimony as to the aggravation of carpal tunnel syndrome and osteoarthritis was sufficiently supported.  However, because the doctor testified that there was a “probable SLAC wrist,” that diagnosis was insufficiently proven.

In terms of the latter question, the Court considered Pennsylvania case law that held proffered medical opinion can be rendered incompetent if the medical professional does not have a complete grasp of the patient’s work, such as if the medical profession demonstrates a lack of knowledge as to his or her patient’s tasks.  While the Employer argued the doctor did not have a complete grasp of the job duties, the Court rejected its argument because the doctor reviewed his patient’s testimony and took a history from him.  Given this testimony, the Court considered the doctor competent to render an opinion.

Thanks to Lauren Berenbaum for her contribution.

For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com.

OSHA Violation not Applicable to Produce Market Forklift Mishap (PA)

In Pennsylvania, in determining whether a duty exists in a negligence action, a court may look to a “legislative enactment or an administrative regulation” for the standard of conduct of a reasonable person. To that end, Pennsylvania courts sometimes rely on regulations by the Occupational Safety and Health Administration (“OSHA”), which is part of the US Department of Labor, to determine whether an employer has a duty in a negligence claim—after all, part of its mission is to assure safe working conditions by setting and enforcing standards.

The question in Kovacevich v Regional Produce Cooperative Corporation was whether a policy in OSHA’s Field Inspection Reference Manual constituted an “administrative regulation,” thereby triggering a duty of care on defendant Regional Produce Cooperative Corporation (“RPCC”). Defendant RPCC is a management company that operated a wholesale produce market. Plaintiff was a tenant leasing space in the market. In February 2013, one of plaintiff’s co-workers drove a pallet jack full of fruit “forks first” into plaintiff’s back, causing serious injuries.

The plaintiff relied on an OSHA regulation that provides that an employer must train and certify operators of powered industrial trucks, such as forklifts. Although RPCC did not employ the forklift operator, plaintiff argued that the market was a multi-employer worksite; per OSHA policy, more than one employer may be citable for a hazardous condition that violates an OSHA standard if they are a “controlling employer.” According to plaintiff’s theory, since RPCC owned the market where industrial trucks operate, it had a duty to ensure operators were trained and certified.

At the close of trial, the judge entered a nonsuit in favor of defendant RPCC, finding that a jury could not reasonably hold RPCC liable on its OSHA-based theory of premise liability. On appeal, the Superior Court affirmed the trial court’s ruling. The Superior Court relied on Supreme Court precedent which distinguishes between administrative regulations (which set standards of care) and guidance documents (which describe enforcement policies). The Superior Court deemed the “controlling employer” policy was not a regulation but an OSHA compliance directive and the directive’s intent was to guide OSHA regulators in dealing with multi-employer worksites by giving them the power to cite numerous employers for a violation if they have some level of control or responsibility over the worksite.

Historically, courts have only applied the “controlling employer” directive to construction sites, where there are numerous contractors and subcontractors and here the court was not persuaded to extend the application to a produce market.

Thanks to Ellis Palividas for his contribution to this post and please write to Mike Bono for more information.

Pennsylvania Statutory Bad Faith Claims Cannot Be Maintained Against Insurance Agent

A Pennsylvania Court recently ruled that a plaintiff-insured could not maintain a claim for statutory bad faith against an insurance agent, since Pennsylvania’s bad faith statute only governed the conduct of insurers.

In Fertig v. Kelly, plaintiff was involved in a motor vehicle accident and sued the driver of the other vehicle, the plaintiff’s insurance carrier, and the plaintiff’s insurance agent.  Plaintiff alleged his insurer and agent acted in bad faith in investigating and evaluating his claim.  In determining whether the plaintiff could sustain his claim for bad faith against his insurance agent, the court first determined the allegations asserted against the agent did not meet the standard required to constitute bad faith under the Pennsylvania statute.  Moreover, the court concluded that even if the plaintiff’s allegations were sufficient to meet the bad faith standard, Section 8371 only applied to bad faith conduct of an insurer, as that term was defined by the statute.

If you are defending a bad faith claim on behalf of an insurance agent, this case can serve as the basis to dismiss the complaint early on in the litigation process.

Thanks to Colleen Hayes for her contribution to this post.