Friday, September 24, 2021

Superior Court Rules That Employee Who is a Certified Medical Marijuana User Can Sue For Wrongful Termination Under Medical Marijuana Act


Tort Talkers may recall the previous blog post on the decision by Lackawanna County Court of Pleas Judge Terrence R. Nealon in the of Palmiter v. Scranton Quincy Clinic Co., in which Judge Nealon ruled that an employee terminated from her employment due to her medical marijuana use as prescribed by her medical providers may sue for wrongful termination.

As an update, it is noted that the Pennsylvania Superior Court recently affirmed Judge Nealon’s decision. The Opinion can be found at Palmiter v. Scranton Quincy Clinic Co., No. 498 MDA 2020 (Pa. Super. Aug. 10, 2021 Dubow, J., Bowes, J., Stevens, P.J.E.) (Op. by Bowes, J.).

In a case of first impression upon appeal, the Pennsylvania Superior Court ruled that an employee fired for despite their status as a certified medical marijuana user may sue for wrongful termination. The court noted that the Plaintiff could pursue a claim for wrongful discharge under the Medical Marijuana Act after her hospital employer discharged her for a positive drug test.

Anyone wishing to review a copy of this decision may click this LINK.

Source: Article-“Employees Terminated for Medical Marijuana Use May Sue: Court.” By Aleeza Furman. Pennsylvania Law Weekly (Aug. 17, 2021).

Source: Photo by Christina Winter on Unsplash.com.

Wednesday, September 22, 2021

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Recent Recklessness Decisions of Note


There continues to be a split of authority in the state trial court’s across the Commonwealth of Pennsylvania relative to the issue of whether a claim for recklessness in a personal injury case must be supported by specific averments of outrageous facts or whether such a claim can be generally pled in any case whatsoever regardless of the facts presented.

According to my research, which has been included in a proposed article submitted for possible pulication in the January of 2022 edition of the Pennsylvania Bar Association Quarterly, at least 18 county courts have ruled that while a claim of recklessness may be generally stated in a Complaint such allegations must still be supported by a sufficient set of outrageous facts in order to proceed.  The research also reveals that only at least 9 county courts have ruled that a claim of recklessness may be stated in in any case whatsoever regardless of the facts alleged.  It is also noted that there are some splits of authority within certain counties.

In its most recent decision on the issue, the Pennsylvania Superior Court affirmed a trial court's granting of preliminary objections asserted against claims of recklessness where it was found that the Plaintiff had only alleged facts in support of a negligence claim and not any facts to show any outrageous behavior on the part of the defendant.  See Valentino v. Philadelphia Triathlon, LLC150 A.3d 483, 488-489 (Pa.Super. 2016).   Notably, in Valentino, the Pennsylvania Superior Court did not even reference the dicta from Archibald v. Kemble as being of any moment on the question presented.

Below are some additional trial court decisions that have come to light:


Ulshafer v. Roth, No. S-711-21 (C.P. Schuyl. Co. Aug. 30, 2021 Miller, J.) (In an Order only, the court sustained a Defendant’s Preliminary Objections against allegations of recklessness in a motor vehicle accident case after the defense asserted that the Complaint did not have sufficient allegations of outrageous facts to support such claims.) (It is noted that Attorney Stephen T. Kopko of Cummins Law was defense counsel in this matter.) Click HERE to view this Court Order.
 


Fermin v. Sanchez, No. 1235-CV-2021 (C.P. Monroe Co. June 15, 2021 Zulick, J.) (By Order only, the court denied Defendant’s Preliminary Objections to recklessness and held that, pursuant to Archibald v. Kemble, 971 A.2d 513 (Pa. Super. 2009), recklessness is a state of mind which may be averred generally in a Complaint.) Click HERE to view this Court Order.


Benedict v. Giombolini, No. 21-CV-1134 (C.P. Lacka. Co. Aug. 18, 2021 Gibbons, J.) (Court overruled Defendant’s Preliminary Objections asserted against allegations of recklessness in a rear-end motor vehicle accident case; court relies upon Archibald v. Kemble for the proposition that an allegation of recklessness is an allegation as to a party’s state of mind which may be pled generally.) Click HERE to view this Court Opinion.


Heisler v. Harvey, No. 2021-CV-0-0273 (C.P. Leb. Co. Aug. 25, 2021, Jones, J.) (The court overruled a Defendant’s Preliminary Objections asserted against allegations of recklessness in a head-on motor vehicle accident case; the court relied upon the case of Archibald v. Kemble. The court found that the Preliminary Objections stage was too early in the matter to rule out a claim for punitive damages when the question of whether conduct is reckless or outrageous is one that is better left for after the close of discovery; as such, the court found that the Defendants attempt to rule out a punitive damages claim by requesting the court to strike language from the Complaint was premature. Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Kevin P. Foley of the Foley Law Firm in Scranton for providing me with copies of the Fermin, Benedict, and Heisler cases.




Maloney v. Murray, No. 2020-SU-000629 (C.P. York Nov. 9, 2020 Menges, J.)(The court overruled a defendant’s Preliminary Objections in a car accident case after finding that the facts asserted by the plaintiff in the Complaint were sufficient to provide the defendant with appropriate notice to defend a cause of action for recklessness.). Anyone wishing to review this case may click this LINK.

I send thanks to Attorney Carrie McConnell of the Harrisburg, PA office of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. for bringing this Maloney case to my attention.




Oathout v. Masonic Temple Assoc., No. 10892 - 2020 (C.P. Erie Co. July 15, 2020 Ridge, J.)(The court overruled a defendant’s Preliminary Objections in a slip and fall case after finding that the facts asserted by the plaintiff in the Complaint were sufficient to support recklessness claims.).
Anyone wishing to review this case may click this LINK.


I send thanks to Attorney Bruce L. Decker, Jr., of the Erie, PA office of MacDonald, Illig, Jones & Britton, LLP for bringing this Oathout case to my attention.



Source of image:   Photo by Brendan Church on Unsplash.com.

Tuesday, September 21, 2021

Post-Trial Motions Denied in Zero Verdict Personal Injury Case


In the case of Kim v. Weishaupt, No. 2018-C-1698 (C.P. Lehigh Co. Jan. 11, 2021 Johnston, J.), the court denied a Plaintiff’s post-trial motions after a defense verdict in a rear-end motor vehicle accident litigation.

According to the Opinion, at trial, the Defendant stipulated to negligence but denied causing the injuries and damages alleged by the Plaintiff. The jury returned a verdict in favor of the Defendant.

The Plaintiff filed post-trial motions asserting that he was entitled to either a new trial or judgment notwithstanding the verdict. The Plaintiff claimed that the weight of the evidence overwhelmingly established that the Defendant’s negligence caused the Plaintiff’s injuries.

After reviewing the applicable standard of review, the court noted that, a jury was entitled to believe some, all, or none of the evidence presented. The court additionally noted that, if the jury did not believe the expert testimony presented at trial, it was free to disregard such testimony. The court noted that “[f]or example, the experts base their opinions, in part, on subjective information provided by Plaintiff and, if the jury does not find Plaintiff credible, the jury is free to disregard the expert testimony.” See Op. at p. 3.

The court also noted that a jury was not obligated to resolve the question of causation in the Plaintiff’s favor simply because a Defendant had stipulated to liability. 

The court reviewed the evidence presented and stated that the jury’s decision had a reasonable relationship to the evidence presented and did not shock the judicial conscience. 

 The court otherwise noted that there was contradictory evidence regarding the existence and the cause of the Plaintiff’s injuries, which also served to support the jury's verdict.

As noted, the Plaintiff’s post-trial motions were denied.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 24, 2021).


Source of image:  Photo by Bernard Hermant on Unsplash.com.

Thursday, September 16, 2021

Fitness Center's Exculpatory Release Muscles Out Plaintiff's Claim


In the case of Urena v. L.A. Fitness, No. 20-964 (E.D. Pa. July 29, 2021, Schmehl, J.), Court granted summary judgment in a personal injury case arising out of an injury that occured at a fitness center.

The Court ruled that an exculpatory waiver agreement involving voluntary recreational activities is valid and enforceable. The Court found that the waiver did not implicate any public policy as private recreation does not implicate any public interest.

The Court additionally rejected the Plaintiff’s argument that the agreement was a contract of adhesion since the Plaintiff was under no compulsion to exercise at a gym.

Notably, the Court also ruled that a signed exculpatory clause can not be avoided by a signatory’s claim of an inability to understand English.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's Order in this case can be viewed HERE


I send thanks to Attorney James M. Beck of the Reed Smith Law Firm from Philadelphia for bringing this case to my attention.

Source of Image:  Photo by Samuel Girven on Unsplash.com.