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Supreme Court Decisions 2008

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A. Appealability of Order

1. The Law Office of Douglas T. Harris, Esquire v. Philadelphia Waterfront Partners, LP, 2008 PA Super 222 (September 22, 2008)

Holding: An appellant that invokes the “colorable claim” standard for determining whether underlying Orders are collateral in nature, fails to satisfy this standard when it implicitly waived the claim of attorney-client privilege pursuant to Pa.R.A.P. 302(a) based upon counsel's failure to invoke and/or assert the privilege before the trial court. Because the Orders subject to appeal were not collateral in nature, the Court did not have jurisdiction to consider the merits of the appeals.

II. Causes of Action

A. Generally

1. Schmidt v. Boardman Co., 2008 PA Super 203 (September 2, 2008)

Holding: Emphasizing that the tort of infliction of emotional distress is a distinct and separate cause of action in Pennsylvania, the Court ruled that a bystander who witnesses injury to a close relative can recover emotional distress damages when the injured person's underlying cause of action is based on strict liability. The case also provides a detailed analysis of when a party is subject to liability under the product line exception to the general rule that a successor company does not incur the liability of the selling company.

B. Dog Bites

1. Underwood v. Wind, 2008 PA Super 158 (July 18, 2008)

Holding: In a dog bite case, jury instructions were proper that stated that: (1) the defendant was negligent per se because her dogs escaped from her property and were running free because the instructions advised jurors to consider whether the defendant's explanation for the dogs' escape was reasonable; and, (2) the dogs' actions could be considered by the jury in determining the dogs' dangerous propensities because the propensity to attack may be proven by a single incident inflicting severe injury or attack on a human being. The jury instructions constituted reversible error, however, when they failed to distinguish between the tenant “keeper of the dog” and the landlord, because the court included the phrase “or should have known” in addition to the correct standard, “knows of the presence of a dangerous animal,” when instructing the jury on the standard of care applicable to an out-of-possession landlord.

C. Medical Malpractice

1. Toney v. Chester County Hospital, 2008 PA Super 268 (November 12, 2008)

Holding: A cause of action for negligent infliction of emotional distress is restricted to four factual scenarios: (1) situations where the defendant had a contractual or fiduciary duty toward the plaintiff; (2) the plaintiff was subjected to a physical impact; (3) the plaintiff was in a zone of danger, thereby reasonably experiencing a fear of impending physical injury; or (4) the plaintiff observed a tortious injury to a close relative. Thus, a Complaint alleging that a mother was advised that her unborn child was normal and healthy, but was instead born with profound physical deformities, states a cause of action for negligent infliction of emotional distress. Conversely, the Court concluded that the facts did not support a claim for intentional infliction of emotional distress. The Court added that, as defined in Section 46 of the Restatement (Second) of Torts, a claim for intentional infliction of emotional distress has never been explicitly recognized as a cause of action by the Pennsylvania Supreme Court, although the Supreme Court has cited the section as setting forth the minimum elements necessary to sustain such a cause of action.

2. Sabo v. Worrall, 2008 PA Super 223 (September 18, 2008)

Holding: Counsel's paralegal's failure to submit a Certificate of Merit, when the statement was secured prior to the filing of the judgment of non pros, was an inadvertent mistake or oversight that constituted a reasonable explanation or legitimate excuse warranting relief from a judgment of non pros.

3. Glenn v. Mataloni, No. 264 C.D. 2008 (Pa.Cmwlth., June 4, 2008)

Holding: A trial court properly denied a motion to open a judgment of non pros when the petitioner (a pro se prisoner) failed to include in his pleading specific reasons why he needed extra time to obtain a Certificate of Merit in accordance with Pa.R.Civ.P. 1042.3.

4. Dental Care Associates, Inc. v. Keller Engineers, Inc., 2008 PA Super 143 (July 2, 2008)

Holding: An Order denying a Petition to Strike/Open Judgment of Non Pros was proper when the non pros was entered as the result of the plaintiff's failure to timely file a Certificate of Merit within the time specified under Pa.R.Civ.P. 1042.3.

D. Negligence

1. Craig v. Amateur Softball Assoc. of America, 2008 PA Super 123 (June 4, 2008 )

Holding: The defendant softball association owed no duty of care to the plaintiff, a softball player who was not wearing a helmet and suffered a head injury while playing a slow-pitch softball game. Under these circumstance, the softball player assumed the risk of injury inherent to the sport.

E. Non-Profit Organizations

1. Colmar Volunteer Fire Co. v. Dept. of State, Bureau of Charitable Organizations, No. 2023 C.D. 2007 (Pa.Cmwlth., June 5, 2008)

Holding: A volunteer fire company was required to provide Bureau of Charitable Affairs with audited financial statements for the fiscal years in question, and was prohibited from soliciting charitable contributions until it properly registered with the Bureau. In this case, the volunteer fire company's use of a professional fundraising entity for a direct mailing campaign disqualified it from the exemption for volunteer firefighter organizations under Section 6(a)(3)(ii) of the Solicitation of Funds for Charitable Purposes Act, 10 P.S. § 162.5(a) and required it to register with the Bureau of Charitable Organizations.

F. Political Subdivision Tort Claims Act

1.Stanton v. Lackawanna Energy, Ltd., 2008 PA Super 132 (June 23, 2008)

Holding: A bright yellow swing-arm gate erected by a utility on land left open without any fee and without any apparent business motive constituted “land” for purposes of the Recreational Use of Land and Water Act, 68 P.S. §§ 477-1 - 477-8, entitling the defendant to immunity under the Act.

G. Products Liability/Strict Liability

1. Commonwealth, Dept. of General Services v. U.S. Mineral Products Co., No. 75 MAP 2007 (Pa., September 26, 2008)

Holding: Because the incineration of building materials was not an intended use of the product, strict liability is not available for the harm caused by the unintended use.

III. Civil Procedure & Trial

A. Indemnification

1. Lane v. Commonwealth, Dept. of Transportation, 2008 PA Super 157 (July 17, 2008)

Holding: The defendant/general contractor was not entitled to indemnification from a defendant/ subcontractor that performed the work at the site of the injury because the jury found that the subcontractor was not negligent and, therefore, the general contractor was seeking indemnification for its own negligence. The decision affirmed that, if parties intend to include a provision in a contract that covers losses because of the indemnitee's own negligence within the scope of their indemnity agreement, they must do so in clear and unequivocal language.

B. Concurrent Claims

1. State Farm Mutual Automobile Insurance Co. v. Ware's Van Storage, 2008 PA Super 134 (June 24, 2008)

Holding: An insurer's subrogated claim for property damage reimbursement need not be joined with the insured's personal injury claim because the right to recover on each claim existed independently pursuant to Pa.R.Civ.P. 1020.

C. Judgments by Confession

1. RAIT Partnership L.P. v. E Pointe Properties I, Ltd., 2008 PA Super 225 (September 26, 2008)

Holding: A confession of judgment that includes an attorney's collection commission of 15 percent was enforceable.

D. Releases

1. Haas v. Four Seasons Campground, Inc., 2008 PA Super 136 (June 26, 2008)

Holding: A defendant that operated a camp ground in New Jersey, was incorporated in New Jersey, operated an interactive website advertising the camp ground but did not allow seasonal contract purchases to be made online, mailed brochures and newsletters to Pennsylvania residents, purchased products from Pennsylvania vendors, made a significant number of direct sales to Pennsylvania residents, and published a toll-free number, had insufficient contacts with Pennsylvania to allow Pennsylvania courts to exercise jurisdiction over the defendant when the accident occurred in New Jersey on campgrounds occupied by the plaintiff under a contract signed in New Jersey.

2. Tayar v. Camelback Ski Corp., 2008 PA Super 204 (September 18, 2008)

Holding: Addressing the enforceability of releases relating to recreational activities by commercial entities, the Court concluded that the phrase “negligence or any other improper conduct,” when used in a release of liability, without other warnings, does not clearly convey the releasor's intent to waive all claims against the facility for reckless or intentional conduct.

3. Ford Motor Co. v. Buseman, 2008 PA Super 146 (July 7, 2008)

Holding: Summary judgment is appropriate in a claim against a vehicle manufacturer and dealer when the plaintiff had previously executed a release discharging the driver of the vehicle involved in the accident and “all other persons, firms, or corporations.”

E. Standing

1. Information Systems Services, Inc. v. Platt, No. 109 MAP 2007 (Pa., August 19, 2008).

Holding: A shareholder may not maintain a cause of action in a Pennsylvania court on behalf of a foreign corporation that lacked good standing in its home state and failed to obtain a certificate of authority in Pennsylvania.

IV. Evidence

A. Character

1. Stumpf v. Nye, 2008 PA Super 122 (June 3, 2008)

Holding: Evidence of previous violence tending to show a character or a trait of character is not admissible under Pa.R.E. 404 and 405. In addition, evidence that the plaintiff pled guilty to disorderly conduct was properly excluded because guilty pleas to summary offenses and other minor matters are generally inadmissible in subsequent civil proceedings arising out of the same incident.

V. Insurance -- Motor Vehicle

A. UM & UIM Coverage -- Reduction of Limits & Stacking

1. Nationwide Insurance Co. v. Schneider, No. 11 MAP 2007 (Pa., November 19, 2008)

Holding 1. Section 1733 of the Motor Vehicle Financial Responsibility Law does not require primary underinsured motorist benefits to be exhausted before secondary coverage is implicated. Affirming the Superior Court, and stating that Section 1733 of the MVFRL “makes no mention of exhaustion of limits,” the Court noted that the claimant had followed the statutory order of priority by first pursing recovery from the insurer of the vehicle he occupied at the time of the accident, which is all that was required by Section 1733.

Holding 2: Examining consent to settle clauses in the context of UIM claims, the Court declined to determine whether a showing of prejudice is required of all insurers. Rather, the Court stated that it remains “the prevailing law of this Commonwealth under Lehman and its progeny unless and until a meritorious challenge to the rule is presented to this Court.”

B. UM & UIM Coverage -- Regularly Used Non-Owned Vehicle Exclusion

1. Government Employees Insurance Company v. Ayers, 2008 PA Super 193 (August 18, 2008)

Holding: A household vehicle exception, which precluded the claimant from stacking the UIM coverage contained in his truck's policy on top of the UIM coverage contained in his motorcycles' policy, does not violate the Pennsylvania Motor Vehicle Financial Responsibility Law or public policy.

Supreme Court Decisions 2008

I.Appellate Procedure -- Remand

Repash v. Workers' Compensation Appeal Board (City of Philadelphia), 114 C.D. 2008 (November 10, 2008)

Holding: The Workers' Compensation Appeal Board errs when it ignores a Workers' Compensation Judge's finding that a claimant was entitled to the firefighter's presumption under Section 108(o) of the Act and that, consequently, his heart disease disabled him from firefighting.

II.Compromise & Release Agreements -- Enforceability

Crawford v. Workers' Compensation Appeal Board (Centerville Clinics, Inc.), 2231 C.D. 2007 (October 10, 2008).

Holding: When a Compromise & Release Agreement contains a certification from the claimant that she is suffering from no known life-threatening or terminal illness(es) unrelated to her work injury and agrees that the C&R is null and void upon her death if not approved by a judge, the C&R was in fact null and void because the Claimant died one day before the Judge approved it.

III.Evidence -- Presumptions

Allegheny Power Service Corp. v. Workers' Compensation Appeal Board (Cockroft), 242 C.D. 2007 (July 22, 2008)

Holding: In a decision that seems destined to reach the Pennsylvania Supreme Court, the Commonwealth Court has ruled that, under Section 306(c)(23) of the Act, there is a presumption of total disability for workers with certain bilateral losses, requiring appropriate compensation without regard to a claimant's earning power. Because the employer in this case stipulated that the claimant suffered such a severe bilateral loss and the WCJ found that the claimant remained totally disabled under Section 306(c)(23), the employer was obligated to pay total disability benefits.

IV.Concurrent Benefits

YDC New Castle-PA DPW v. Workers' Compensation Appeal Board (Hedland), 230 C.D. 2008 (June 11, 2008)

Holding: A claimant who receives benefits under 61 §§ 951-952 (Act 534) is also entitled to benefits under the Workers' Compensation Act that were not paid under Act 534. Thus, a claimant is entitled to benefits for the first two days that his injury kept him out of work, despite failing to provide the employer with documentation of a medical examination on the first day of his absence as required by employer's policy, where concerns about potential abuse of employer's policies were not present under the circumstances.

V.Defenses -- Violation of Work Order

A.Scott v. Workers' Compensation Appeal Board (Ames True Temper Inc.), 647 C.D. 2008 (September 29, 2008)

Holding: The defense that a claimant violated a word order does not apply if the activity was part of the workers' job duties. Thus, an injured worker who engaged in an activity that was part of his work duties, even though the activity in direct violation of a positive work order, is entitled to benefits.

B.Bayada Nurses v. Workers' Compensation Appeal Board (Gallagher), 123 C.D. 2008 (July 29, 2008)

Holding: Minor violations of the law, such as traffic violations, are not a sufficient basis to deny benefits because of a violation of the law. Rather, the phrase, “violation of the law,” has been interpreted to mean the commission of a felony or misdemeanor. Although a summary offense may constitute a violation of the law when it is a necessary element of a felony or misdemeanor conviction, where a Claimant was cited for several summary offenses, the evidence did not establish a “violation of law” under Section 301(a) of the Act.

VI.Disfigurement

A.Dart Container v. Workers' Compensation Appeal Board (Lien), 550 C.D. 2008 (October 23, 2008)

Holding: The Workers' Compensation Appeal Board may modify a disfigurement award if the modification is explained and consistent with case law.

B.City of Pittsburgh v. Workers' Compensation Appeal Board (McFarren), 1701 C.D. 2007 (June 4, 2008)

Holding: The Workers' Compensation Appeal Board may modify a Workers' Compensation Judge's disfigurement award only if it concludes that the WCJ capriciously disregarded competently evidence by entering an award significantly outside the range of benefits most WCJs would select for a particular scar. In so doing, and to allow for meaningful appellate review, the Board must adequately explain its change in the award, including what range is acceptable under the circumstances, what most WCJs would award within that range or how the WCAB reached its conclusion that most WCJs would award greater compensation.

VII.Evidence

A.Erisco Industries, Inc. v. Workers' Compensation Appeal Board (Luvine), 657 C.D. 2008 (September 3, 2008)

Holding: An employer's failure to independently establish the required chain of custody for a worker's drug test sample in a Claim Petition precludes the employer from using the same drug test as proof in a subsequent suspension petition that the claimant's pre-injury job was unavailable because of his own misconduct.

B.Patton v. Workers' Compensation Appeal Board (Lane Enterprises, Inc.), 2363 C.D. 2007 (October 22, 2008)

Holding: An employer may overcome the presumption that a worker suffered from a work-related occupational disease under Section 301(e) of the Workers' Compensation Act, 77 P.S. §413, by presenting credible medical evidence that the Decedent did not suffer from an occupational disease.

C.Campbell v. Workers' Compensation Appeal Board, 38 C.D. 2008 (July 29, 2008).

Holding: A Workers' Compensation Judge may reject a medical expert's testimony for failure to credibly establish causation even if the Judge concludes that the opinions themselves are credible.

VIII.Fee Review

Crozer Chester Medical Center v. Dept. of Labor and Industry, 251 M.D. 2008 (September 3, 2008)

When an employer/insurer disputes its liability for an alleged work injury, an application for fee review is premature and inappropriate. What makes this case unusual is the fact that the employer had issued a Medical Only Notice of Compensation Payable that appeared to encompass the treatment under review. The Court agreed that the dispute precluded the Bureau from hearing the fee review petition.

IX.Impairment Ratings -- Modification of Benefits

A.Combine v. Workers' Compensation Appeal Board (National Fuel Gas Distribution Corporation), 539 C.D. 2008 (August 14, 2008)

Holding: Section 306(a2) of the Workers' Compensation Act requires a determination of maximum medical improvement (MMI) prior to calculating a claimant's impairment rating.

X.Judgments

United Parcel Service v. Hohider, 2008 PA Super 148 (July 7, 2008)

Holding: An employer may enter a judgment in the Court of Common Pleas based upon a WCJ's Order directing payment by an employee to an employer of a liquidated sum in satisfaction of the employer's right to subrogation. The Court notes that, although Section 428 of the Act, 77 P.S. § 921, permits only employees or dependents to enter a judgment in a court of common pleas as a result of an unpaid Order by a WCJ, precluding an employer from doing so would render the WCJ's order a nullity.

XI.Medical Expenses

Nickel v. Workers' Compensation Appeal Board (Agway Agronomy), 719 C.D. 2008 (October 22, 2008)

Holding: A healthcare provider may not collect the difference between the provider's charge (as repriced under Act 44) and the amount of a DPW lien from an employer or its workers' compensation if the provider has accepted DPW's payment as payment in full.

XII.Modification/Suspension/Termination

A.Folmer v. Workers' Compensation Appeal Board (Swift Transportation), 596 C.D. 2007 (October 22, 2008)

Holding: When there have been prior petitions to modify or terminate benefits, an employer must accept the adjudicated condition and establish a change in physical condition into to prove that claimant has recovered from a work-related injury. Although the evidence needed to establish a change of condition would differ in each case, an employee may meet its burden by proving that the claimant's symptoms lacked any objective basis.

B.National Fiberstock Corp. (Greater N.Y. Mutual Life Insurance Co.) v. Workers' Compensation Appeal Board (Grahl), 1456 C.D. 2007 (August 29, 2008)

Holding: When a claimant establishes a change in physical condition, the doctrine of res judicata does not prevent an employee from seeking a reinstatement of benefits, even if a termination petition had been granted previously.

C.Watson v. Workers' Compensation Appeal Board (Special People in Northeast and Eagle Trust Management), 1924 C.D. 2007 (May 30, 2008)

Holding 1: A Workers' Compensation Judge may terminate benefits in a claim petition, even when no termination petition is filed, when the claimant fails to establish the ongoing nature of his or her injury.

Holding 2: A claimant is not entitled to an award of litigation costs when the employer admitted its obligation to pay medical expenses, but disputed its obligation to pay indemnity benefits, and the WCJ declined to award any wage losses. Under the circumstances, the claimant did not prevail on any disputed issue before the WCJ, and is not entitled to an award of costs.

D.Paul v. Workers' Compensation Appeal Board (Integrated Health Services), 16 C.D. 2008 (June 11, 2008)

Holding: Where there has been no prior determination of a claimant's condition by a WCJ, an employer meets its burden in a termination petition when it presents evidence that the claimant had fully recovered from all of the accepted work injuries. The Court distinguishes this case from Lewis v. Workers' Compensation Appeal Board (Giles & Ransome, Inc.), 919 A.2d 922 (2007), noting that the injuries and disabilities at issue had been the subject of prior proceedings.

E.Prebish v. Workers' Compensation Appeal Board (DPW/Western Center.), 319 C.D. 2007 (July 14, 2008)

Holding: In order to terminate a Claimant's benefits, a WCJ must consider whether Claimant's physical condition has changed materially since the date of the most recent prior decision. In this case, the Court remanded the case in order for the (second or subsequent) WCJ to make a factual finding whether claimant's condition had changed after the date of the first (or most recent prior) decision by a WCJ.

XIII.Notice

A.Bullen Cos. v. Workers' Compensation Appeal Board (Hausmann), 409 C.D. 2008 (October 23, 2008)

Holding: Pursuant to Section 301(c)(1) of the Workers' Compensation Act, 77 P.S. §411(1), a worker must give notice of an occupational disease claim within 120 days from the date on which the worker discovers that the disease is job-related. Under Section 311, a claimant's discovery of a work related disease requires more than an employee's suspicion, intuition or belief.

B.Crompton Corporation v. Workers' Compensation Appeal Board (King), 2142 C.D. 2007 (August 5, 2008)

Holding: A Claimant may not be charged with the knowledge of a compensable hearing loss unless and until the claimant is so informed by a health care provider. Section 306(c)(8)(ix) of the Workers Compensation Act is not intended for determining whether Section 311 notice requirements were satisfied.

XIV.Offsets

A.Costa v. Workers' Compensation Appeal Board (Carlisle Corp.), 822 C.D. 2008 (October 14, 2008)

Holding: Under Section 204(a) of the Workers' Compensation Act, a Workers Compensation Judge must award an offset for unemployment compensation benefits when the amount is undisputed, whether the employer raises the issue or not.

XV.Subrogation

A.Stout v. Workers' Compensation Appeal Board (Pennsbury Excavating, Inc.), 1969 C.D. 2007 (May 22, 2008)

Holding: An employer has an absolute right of subrogation from a claimant's third party recovery when the claimant received compensation payments from the employer's insurer, which accepted liability for the work injury. The Court declined to rule that, under the facts presented, the employer and its workers' compensation insurer engaged in deliberate bad faith conduct in order to subvert the claimant's third party action, potentially barring its right to subrogation.

B.Gorman v. Workers' Compensation Appeal Board (Kirkwood Construction), 1926 C.D. 2007 (July 9, 2008)

Holding: An employer is entitled to payment of its subrogation lien even though the parties had entered into a Compromise and Release Agreement (C&R), which stated that there was no lien or potential lien for subrogation. In particular, the WCJ found no evidence that a potential third party action was considered by the parties when they negotiated the C&R, and determined that the parties were mistaken in the relevant subrogation lien averment. Consequently, the WCJ set aside the C&R based upon a mutual mistake.

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