Friday, December 26, 2008

A Summary of Recent Pennsylvania Civil Appellate Court Decisions (December 2008)

I. Appellate Procedure

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.

About the Author

Daniel J. Siegel, a Havertown, Pa. attorney, founded Integrated Technology Services. To contact Dan Siegel go to Daniel J. or email Subscribe. Dan Siegel’s office is located at 66 West Eagle Road, Suite 1, Havertown, PA 19083. He can be reached at (610) 446-3457.

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