This article recently appeared in the January 2, 2020 edition of the Pennsylvania Law Weekly and is reprinted here with permission. Images have been added here that were not in the original article.
My year-end review article covering the top cases and trends in Auto Law matters is forthcoming.
Year-End Review: Another Year of Notable Decisions in Pa.
By Daniel E. Cummins | January 02, 2020 at 10:24 AM
A number of notable decisions were handed down over the past year by the various courts of Pennsylvania on general civil litigation issues not involving motor vehicle accident matters. Here is a sampling of decisions of note from 2019.
Attorney Work Product Doctrine
In BouSamra v. Excela Health, No. 5 WAP 2015 (Pa. June 18, 2019), the Pennsylvania Supreme Court provided its latest review of the attorney work product doctrine. The court addressed the issue of whether a law firm’s pre-litigation emails sent to a public relations firm served to waive the attorney work product doctrine.
The Pennsylvania Supreme Court concluded the work product doctrine was not waived by disclosure unless the alleged work product was disclosed to an adversary or disclosed in a manner that significantly increased the likelihood that an adversary or anticipated adversary would obtain it. This matter was remanded back to the trial court for an application of the newly articulated work product waiver analysis.
Premises Liability
Decisions handed down in 2019 served to continue the trend of courts ruling that plaintiffs cannot recover for injuries resulting from slip-and-fall events that occur while it is still snowing.
In the case of Rosatti v. McKinney Properties, No. 2017-0022 (C.P. Centre Co. Jan. 22, 2019 Grine, J.), the court entered summary judgment in favor of a defendant landowner under the Hills and Ridges Doctrine.
According to the opinion, the plaintiff slipped and fell while leaving the property while snow and freezing rain was falling.
In reviewing the defendant’s motion for summary judgment, the court in Rosatti cited to Collins v. Philadelphia Suburban Development, 179 A.3d 69, 75 (Pa. Super. 2018), and emphasized that, under the prevailing case law, “a landowner has no obligation to correct the conditions until a reasonable time after the winter storm has ended.” The court additionally noted that “a property owner does not have a duty to clear ice or snow from walkways as soon as it forms or falls. As such, summary judgment was granted.
In the case of Beauford v. Second Nature Landscaping & Construction, No. 20 16-CV-8925 (C.P. Del. Co. Nov. 19, 2018 Green, J.), the court also cited to the Collins case and held that a defendant landowner was not liable for alleged injuries suffered by a plaintiff in a slip and fall event that occurred during an active storm since the defendant had no obligation under Pennsylvania law to correct the conditions until a reasonable time after the storm ended.
Service of Process
In 2019, there was a plethora of cases that were dismissed due to a plaintiff’s failure to properly or timely complete service of original process.
The latest appellate court review of the application of the Lamp v. Heyman line of cases can be found in Sawyers v. Davis, 2019 Pa. Super. 219 (Pa. Super. Oct. 22, 2019). In Sawyers, the Pennsylvania Superior Court ruled that a trial court erred in dismissing the plaintiff’s personal injury action against a defendant motorist for improper service.
The central issue in the matter involved the Plaintiff properly serving an out-of-state defendant by way of a certified letter, return receipt requested. According to the opinion, the green return receipt card was lost by the U.S. Post Office. However, the post office did supply tracking documentation that confirmed delivery of the letter. Also produced was a scanned signature of the person who accepted the letter. There was also additional evidence presented that the defendant driver, who was a cousin of the plaintiff, otherwise had notice of the lawsuit.
The appellate court found that the technical defects at issue in this case did not warrant the dismissal of the action, particularly where it was clear that the defendant had notice of the suit and no prejudice was found.
Bad Faith
Over the past year, one recurring bad faith issue reviewed by the federal courts involved the proper pleading of a bad faith claim against an insurance company. The Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog written by Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris is an excellent resource to find the latest cases on a wide variety of bad faith issues.
One case from 2019 that involved proper pleadings in a bad faith complaint was the case of Rosenthal v. American States Insurance, No. 1:18-cv-01755 2019, M.D. Pa. March 26, 2019 Kane, J.). In Rosenthal, the court dismissed a bad faith count in a UIM case but allowed the plaintiff leave to file an amended complaint.
Generally speaking, the court in Rosenthal noted that failing to plead descriptions of what a carrier actually did or failed to do, or why they did it, can be fatal to a bad faith claim under the Federal Rules of Civil Procedure.
Judge Yvette Kane additionally held that identifying the difference between a demand and an offer alone cannot serve as the basis for claim for bad faith, absent allegations that the carrier acted unreasonably and in bad faith by making the lower offer.
As noted, despite the many faults found with the complaint, as is typical, the court in Rosenthal allowed a second bite at the apple by granting the plaintiff leave to file an amended complaint. Other cases from the past year show that the federal courts are not wont to allow more than two attempts to file a properly pleaded bad faith complaint.
For example, in the case of Moran v. USAA, No. 3:18-cv-2085 (M.D. Pa. Feb. 14, 2019 Caputo, J.), the court had previously dismissed a plaintiff’s bad faith claim without prejudice and leave to amend to correct certain issues with the complaint. However, when challenges were again made to the amended complaint that was filed, the court dismissed the action
In Moran, the court noted that the only additional pleadings added to the original complaint were facts that possibly supported the plaintiff’s evaluation of the claims presented, but no new facts were added to support the allegation that the carrier’s settlement offer was allegedly unreasonable. Nor were any new facts to show how the carrier allegedly knew or recklessness disregarded the fact that its offer was unreasonable. Further leave to amend the Complaint was not granted.
Fraternities
Last year also gave rise to a number of decisions in cases involving personal injuries at fraternities.
In Rose v. Vilmatelo, No. 2018-SU-450 (C.P. Adams Co. April 12, 2019 George, J.), the court addressed preliminary objections filed by Gettysburg College seeking the dismissal of a plaintiff’s personal injury claim arising out of allegations that the plaintiff, a college student, was injured by an allegedly inebriated participant at a fraternity function on campus.
The court dismissed the plaintiff’s complaint against the college based upon the case of Alumni Association v. Sullivan, 572 A.2d 1209 (Pa. 1990), in which it was held that college students were no longer minors, but rather adults who were capable of protecting their own self interests. As such, under that case, a college was found not to have any duties in loco parentis with respect to its students.
A motion to dismiss was also addressed in the federal court case of Piazza v. Young, No. 4:19-CV-00128 (M.D. Pa. Aug. 27, 2019 Brann, J.), which arose out of fatal injuries allegedly sustained by a student at Pennsylvania State University allegedly as a result of hazing activities in a fraternity. The court granted the motions in part and denied the motions in part.
Of note, with respect to those fraternity brothers defendants who were under the age of 21, the court allowed the claims of the plaintiff to proceed against those underaged defendants under the plaintiff’s theory of recovery to hold the defendants liable for breaching an alleged protective duty that the defendants, as fraternity members, allegedly owed to the plaintiff’s son, a fraternity pledge.
In this regard, Judge Matthew Brann refused to apply the Pennsylvania Supreme Court’s decision in the case of Kapres v. Heller, 640 A.2d 888 (Pa. 1994) in as an expansive manner as requested by those moving defendants who were under the age of 21. Under the Kapres case, the Supreme Court generally ruled that individuals under the age of 21 cannot be held liable under the social host doctrine to a guest or third party injured on the premises relative to the service of alcohol.
The court in this Piazza case refused to read the Kapres case as immunizing the fraternity defendants in this case from alleged liability for their otherwise allegedly wrongful conduct that involved the provision of alcohol. The court also noted that an expansive reading of the Kapres decision in the context of this case would not serve to further the social utility of the Pennsylvania statutes against hazing activities.
Products Liability
In the case of Davis v. Volkswagen, No. 1405 EDA 2018 (Pa. Super. July 19, 2019), the Pennsylvania Superior Court held that the Lehigh County Court of Common Pleas did not commit any error in a products liability case when it instructed the jury on both the consumer expectation test and the risk-utility test that the Pennsylvania Supreme Court established in the case of Tincher v. Omega-Flex, even though the plaintiff only litigated the case under the consumer expectation test.
The court in Davis noted that, although the plaintiff argued that the trial court judge should not have instructed the jury on both tests, Pennsylvania law under Tincher allowed jury instructions on both tests where evidence was presented by the defense at trial regarding the same. According to the opinion, the defense put in evidence that, according to the trial court and the appellate court, put the risk-utility test at issue in this crashworthiness case.
Medical Malpractice
Typically, a medical malpractice action is governed by a two-year statute of limitation. However, there may be some cases where a plaintiff does not discover an injury that is allegedly the result of medical negligence within that two-year period. Under the Medical Care Availability and Reduction of Error Act’s (MCARE) statute of repose, medical malpractice actions must be brought within seven years of alleged medical malpractice.
In the case of Yanakos v. UPMC, No. 10 WAP 2018 (Pa. Oct. 31, 2018), the Pennsylvania Supreme Court, in a 4-3 decision, ruled that MCARE’s statute of repose was unconstitutional.
The rationale of the majority opinion in Yanakos striking down the statute of repose under the MCARE Act was that the statute of repose was not substantially related to a governmental interest as was necessary to uphold the statute. The court also found that the statute of repose in the MCARE Act violated the Pennsylvania Constitution’s guarantee of open access to the courts.
Medical Marijuana
With the recent allowance of medical marijuana in Pennsylvania, a number of legal issues can be expected to arise. One area of civil litigation will involve whether a person’s use of medical marijuana can impact her status as an employee at work.
In a case of first impression called Palmiter v. Commonwealth Health Systems, No. 19-CV-1315 (C.P. Lacka. Co. Nov. 22, 2019), Judge Terrence R. Nealon addressed preliminary objections filed by employers in this employment litigation raising the issue of whether 35 P.S. Section 2103(b)(1) of the Medical Marijuana Act (MMA), which states that “no 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 due to the employee’s prescribed use of medical marijuana while not working in her place of employment.
The defendants filed preliminary objections to the complaint and asserted that the Department of Health had the exclusive authority to enforce the MMA’s provisions such that the employee’s sole remedy for her termination was to seek the assessment of a civil penalty by the Department of Health.
After his review of the law, Nealon held that there was nothing the MMA or related regulations that vests the Department of Health, or any other state agency, with the authority to enforce the act against private employers. 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 had violated 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 Section 2103(b)(1).
It remains to be seen how the allowance of the use of medical marijuana will continue to give rise to civil litigation issues going forward.
Looking Ahead
The Supreme Court of Pennsylvania has granted allocatur in the case of Bourgeois v. Snow Time, No. 768 MAL 2018 (Pa. June 25, 2019) involving a snow tubing accident. Notably, the court will address the duties owed by a snow tubing facility (previously established in Tayar v. Camelback), and whether evidence of industry standards is required to sustain a cause of action in recklessness or gross negligence.
Another future decision to watch out for will be the Pennsylvania Superior Court’s decision in the case of Fisher v. Erie Insurance Exchange, No. 1597 WDA 2018, in which the court will address whether documentation in a defense attorney’s file regarding the evaluation of a UM/UIM case is protected from discovery by the attorney-client privilege and the attorney work product doctrine.
Daniel E. Cummins is a partner in the Scranton area law firm of Cummins Law where he focuses his practice in automobile accident, premises liability, and products liability litigation matters. He also provides mediation services through Cummins Mediation Services.
