Interlocutory Appeal Allowed in Case of Alleged Employment Discrimination For Medical Marijuana Use

Tort Talkers may recall the recent Tort Talk post regarding the case of Palmiter v. Commonwealth Health Systems, No. 19-CV-1315 (C.P. Lacka. Co. 2019 Nealon, J.), in which the court addressed the right of an employee to bring an action against her employer under allegations that the employer had improperly terminated the employee for being certified as a medical marijuana user by her treating doctor and discriminating against the employee on that basis.

Under a more recent December 31, 2019 decision in the same case, Judge Terrence R. Nealon, in this matter involving issues of first impression, allowed the Defendants to proceed with an interlocutory appeal.

This more recent decision is notable not only for the issues of first impression but also for the court’s review of the law surrounding the standards by which a trial court will review a request for permission to file an interlocutory appeal on a given issue.

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

Case of First Impression Decided by Judge Nealon on Medical Marijuana Issue in Civil Litigation Context

Addressing a case of first impression in the case of Palmiter v. Commonwealth Health Systems, Inc., No. 19-CV-1315 (C.P. Lacka. Co. Nov. 22, 2019 Nealon, J.), Judge Terrence R. Nealon reviewed Preliminary Objections filed by employers in this employment litigation raising a novel issue that has not yet been addressed by any state or federal court in Pennsylvania, that being the question of whether §2103(b)(1) of the Medical Marijuana Act (“MMA”), 35 Pa. S. §10231.2103(b)(1), which states that “[n]o employer may discharge… or otherwise discriminate or retaliate against an employee…solely on the basis of such employee’s status of an individual who is certified to use medical marijuana” creates a private cause of action for a medical assistant who was terminated by her health care employers for prescribed use of medical marijuana while not working in her place of employment.

The Defendants noted that the Department of Health has the exclusive authority to enforce the MMA’s provisions such that the employee’s sole remedy for her termination should be to seek the assessment of a civil penalty by the Department of Health.

After his review of the law, Judge Nealon held that there was nothing the MMA or any related regulations that vests the Department of Health, or any other state agency, with the authority to enforce the Act against private employers that have not chosen to voluntarily take part in the program.

The court also noted that the anti-discrimination provisions in the act would be rendered meaningless if an aggrieved employee could not pursue a private cause of action and seek to recover compensatory damages from an employer that violates the MMA.

As such, the court recognized an implied right of action under the act and, therefore, denied the employers’ demurrer to the employee’s private cause of action based upon §2103(b)(1).

In other decisions of note in this case, Judge Nealon did sustain demurrers to claims for invasion of privacy/intrusion on seclusion based upon the employee’s contention that her employers discovered the identity of her treating physician from their review of her medical records.

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

Judge Minora Reviews Current Status of At Will Employment Law

Facing an Employment At Will situation?  Click HERE for a thorough Opinion by Judge Carmen D. Minora in the case of Krutulis v. Community Medical Center, No. 2009 - CV - 1474 (C.P. Lacka. Co. June 4, 2015 Minora, J.), for the current status of Pennsylvania law on this issue (including the public policy exception to the rule).

In this matter, Judge Minora granted summary judgment in favor of an employer-hospital and against an employee-nurse-plaintiff relative to the discharge of the nurse from her employment.

In the end, the law remains that an at-will employee may be discharged for any reason or no reason.

No Respondeat Superior Liability For Criminal Acts of Employees

In its recent decision in the case of Spitsin v. WGM Transportation, 2014 Pa.Super. 162 (Pa. Super. July 29, 2014 Ford Elliott, P.J.E., Lazarus, J., Wecht, J.) (Op. by Wecht, J.), the Pennsylvania Superior Court agreed that an employer was not liable for a cab driver’s assault of a non-paying passenger where the record revealed that the employee used excess and dangerous force in an effort to collect the fare.  

According to the Opinion, after a taxi ride, the Plaintiff attempted to flee and avoid paying a fare after a taxi ride when he was restrained by a bystander and then kicked and punched by the taxi driver.   The Plaintiff was transported to a nearby hospital where a diagnostic study revealed a hairline fracture of his jaw.  

The Plaintiff sued WGM Transportation, the employer of the taxi driver, on a theory of respondeat superior. 

The employer filed Preliminary Objections arguing that an employer was not liable for an assault and battery by an employee upon another as such conduct was beyond the scope of the employment.  The employer also noted that the employee committed an act involving the use of force which was excessive and so dangerous as to leave the employer totally without responsibility.

The trial court sustained the Preliminary Objections of the employer and dismissed the Plaintiff’s respondeat superior claim.   The Superior Court affirmed it.

Judge David N. Wecht
Pennsylvania Superior Court

In his Superior Court Opinion, Judge David N. Wecht reiterated the law of the doctrine of respondeat superior that an employer may indeed be liable for the acts of its employees committed during the course of and within the scope of employment.   The court noted, however, that where an employee commits an act involving the use of force which was excessive and so dangerous as to be totally without responsibility or reason, the employer was not responsible under such circumstances.  

According to the record, a bystander had restrained the Plaintiff as he attempted to flee and there was nothing in the record indicating that the bystander’s restraint was insufficient to keep the Plaintiff at bay until the fare could be collected by the taxi driver or until the police could be summoned to take control.  

The court agreed that, when the taxi driver punched and kicked the Plaintiff while he was being held on the ground and unable to defend himself, the taxi driver departed from the scope of his employment in that there is no evidence that the employer instructed its taxi drivers to attack restrained and vulnerable passengers who refuse to pay their fares.  

The Superior Court ultimately ruled that the trial court was correct in finding, as a matter of law, that the Plaintiff had failed to state a claim upon which relief could be granted for vicarious liability against the employer under the circumstances presented.

Anyone wishing to read this Opinion in the Spitsin case may click this LINK  

It is noted that Pennsylvania Superior Court Judge David N. Wecht will be a featured presenter at the upcoming Tort Talk Expo 2014 set to take place on September 26, 2014 at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania. 


Click HERE to view the Agenda for the CLE seminar and, if interested in attending, please click HERE to Register online, or contact me at dancummins@cmcast.net.

 

Judge Nealon of Lackawanna County Finds No Waiver of Immunity by Employer Through Indemnification Clause

In his recent February 25, 2014 Opinion and Order, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the issue of an employer's waiver of tort immunity by way of an indemnification clause in a contract in the case of Fritz v. Versacold Logistics, LLC, et al., No. 2012 - CV - 700 (Lacka. Co. Feb. 25, 2014 Nealon, J.).

In this premises liability slip and fall personal injury matter, a commercial landowner defendant joined its trucking company contractor as an additional defendant based upon an indemnification clause in their motor carrier transportation contract.

The additional defendant trucking company filed a motion for summary judgment arguing that it was immune from liability on the grounds that the plaintiff was its employee at the time of the subject incident and had received worker's compensation benefits from the additional defendant's worker's compensation carrier.  The additional defendant trucking company also asserted the indemnification clause in the contract did not contain language that was specific enough to avoid the immunity afforded to the trucking company under the Worker's Compensation Act.

The commercial landowner countered the additional defendant's motion for summary judgment with an argument that there were issues of fact as to the identity of the plaintiff's employer, as well as by arguing that the indemnification provision in the parties' contract enabled the landowner to seek contribution or indemnity from the trucking company.

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon granted the additional defendant trucking company's motion for summary judgment after finding that judicial admissions in the landowner's pleadings had established that the plaintiff was indeed an employee of the trucking company. 

The court also reviewed the law on the validity of indemnification clauses and found that the language in the clause at issue in this matter did not satisfy the requirements under the Worker's Compensation Act to allow for a waiver of the immunity afforded by that Act.  More specifically, the contract language of the clause at issue did not expressly refer to tort claims by the additional defendant's employees resulting from the landowner defendant's negligence.



Anyone wishing to review Judge Nealon's Opinion in the Fritz case may click this LINK.

For other decisions by Judge Nealon on the validity of an indemnification clause, click HERE and HERE.


Source of image:  www.appraiseractive.com

Specificity Needed in Indemnification Agreement to Waive Employer Immunity in Personal Injury Litigation

In his recent decision in the case of Genevich v. TSE Inc., No. 09 - CV - 5119 (C.P. Lacka. Co. May 17, 2013 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the issue of the specificity required in an indemnification agreement to waive employer immunity in a personal injury litigation.

In Genevich, a laborer who was injured in a construction site accident filed a personal injury suit against the project’s general contractor.  The general contractor joined the laborer’s employer based upon an indemnification clause contained in its subcontractor agreement. 

The employer filed a motion for summary judgment in which the employer of the injured party asserted that the indemnification provision in the subcontractor agreement was insufficient to waive its tort immunity under the Worker’s Compensation Act so as to make employer liable for indemnification or contribution for injuries suffered by its employee. 

After reviewing the record before it, the court ruled that since the indemnification clause did not expressly state that the subcontractor agreed to indemnify the general contractor from liability for the general contractor’s own negligence which resulted in harm to the subcontractor’s employees, the clause lacked the specificity required by 77 P.S. §481(b) for the subcontractor to waive its employer immunity under the Worker’s Compensation Act. 

Accordingly, since the subcontractor cannot be liable for indemnification or contribution under the facts and the indemnification clause presented in this case, the court granted the employer's motion for summary judgment.

Anyone desiring a copy of this decision may contact me at dancummins@comcast.net.

Judge Carmen D. Minora of Lackawanna County Court of Common Pleas Addresses Negligent Hiring/Supervision Issues

In his recent decision in the case of Delvecchio v. St. Joseph’s Center, No. 2003-Civil-2950 (C.P. Lacka. 2011 Minora, J. ), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas reviewed the law pertaining to negligent supervision claims in a case in which the Plaintiff accused the employer, St. Joseph’s Center, of negligently supervising its employee with respect to that employee’s care of a mentally disabled patient. According to the opinion, this matter stems from allegations of sexual assault against the patient by an employee of the Defendant, St. Joseph’s Center.

The case came before the court by way of the Defendant’s summary judgment on various issues, including an argument that the actions of the employee were outside the scope and course of the employee’s employment and that there was no factual basis to support a claim of negligent supervision.

After setting out the applicable law in great detail on the various claims presented, Judge Minora ultimately ruled that the Plaintiff would be allowed to proceed to the jury on the claim of vicarious liability against the employer given the factual issues presented.

The court also denied the Defendant employer’s Motion for Summary Judgment on the issue of negligent supervision over the employee.

The court also allowed the Plaintiff’s claim for punitive damages to proceed to a jury as well.

Judge Minora did grant the Defendant’s Motion for Summary Judgment on the issue of negligent hiring of the employee as there was no evidence that the employer knew or should have known, at the time of hiring, that the employee would harm a third party. The record before the court revealed that the employer had completed a criminal background check and obtained a child abuse clearance on the employee.

The decision by Judge Minora in the case of Delvecchio v. St. Joseph’s Center serves as a nice primer on the liability of employers for the acts of their employees causing injury and damages to third persons. Anyone desiring a copy of this decision may contact me at dancummins@comcast.net.