Link for the Marhunova v. Fitler Constr. Group Case

Here is the LINK  for the case of Marhunova v. Fitler Constr. Group, May Term, 2022, No. 01520 (C.P. Phila. Co. Dec. 24, 2024 Foglietta, J.), which was highlighted in yesterday's Tort Talk blog post.  In this case, the trial court rejected a challenge by a Defendant to a $68.5 million dollar verdict in a case involving a construction site accident that resulted in the death of the Plaintiff construction worker.

Apologies for any confusion or consternation caused by the Link not being included in yesterday's post.

Thanks for reading Tort Talk.

Multi-Million Dollar Jury Verdict Upheld By Philadelphia Court

In the case of Marhunova v. Fitler Constr. Group, May Term, 2022, No. 01520 (C.P. Phila. Co. Dec. 24, 2024 Foglietta, J.), the trial court rejected a challenge by a Defendant to a $68.5 million dollar verdict in a case involving a construction site accident that resulted in the death of the Plaintiff construction worker.

According to the Opinion, the Plaintiff's decedent fell from the fifth floor of a building to his death.  Among the claims presented was that the Plaintiff's decedent was not presented with fall protection equipment.

In reviewing post-trial motions, the trial court judge wrote in his Rule 1925 Opinion that the Plaintiff had presented sufficient evidence to support the jury's verdict.  The court noted that the Plaintiff had presented sufficient evidence to enable the jury to make a determination as to who the alleged general contractor on the job was and who, therefore, was responsible for the provision of safety equipment on the site. 

In response to the challenges to the amount of the award, the court otherwise held that there was no evidence that the jury's award resulted from bias, impartiality, prejudice or ill will.  The court instead found that the verdict was supported by the evidence presented and that the verdict was not grossly excessive under the circumstances and, therefore, did not shock the court's conscience.

Anyone wishing to review this decision may click this LINK.

Source:  Article - "Phila. Judge Upholds $68.5M Verdict Over Construction Worker's Death" by Aleeza Furman of The Legal Intelligencer (Dec. 27, 2024).

Source of above image:  Photo by Sylvia Brazzoduro on www.unsplash.com.

Court Addresses Proper Damages Recoverable in a Medical Malpractice Action Involving An Older Retired Adult

In the case of Williams v. Glenmaura Senior Living at Montage, LLC, No. 21-CV-1494 (C.P. Lacka. Co. Nov. 4, 2022 Nealon, J.), Judge Terrence R. Nealon addressed the proper damages recoverable and the supporting evidence required in a medical professional liability action involving the death of a retired older adult.

In particular the court addressed this issue in terms of a Plaintiff’s effort to seek to recover damages under the Wrongful Death Act, 42 Pa. C.S.A. §8301, and the Survival Act, 42 Pa. C.S.A. §8302.

After outlining what types of damages are available to be recovered under each of these elements of avenues of damagers,

After reviewing the record before him, the court found that, since the Plaintiff had not produced an expert report to provide the jury with evidence of the effect of productivity and inflation over time, the applicable discount rate required by the law, and the decedent’s personal maintenance cost, for food, clothing, shelter, medical attention, and some recreation, the Plaintiff could not satisfy her burden of proof under the law in order to advance and sustain a claim in the Survival action for the decedent’s loss of earnings or income.

The court further found that the Plaintiff’s intended use of the decedent’s adjusted gross income as the measure of his estate’s recoverable economic damages would erroneously include forms of income that did not arise from the decedent’s intellectual or body laborer and, as such, are not proper items of damages under the Survival Act.

Accordingly, the court ruled that the Defendant’s Motion In Limine to preclude the Plaintiff from pursuing any type of claim for loss of earnings/income at the trial of the case was granted.

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

Trial Court Directs Defense Forensic Economist Expert To Issue An Amended Expert Report To Comport With Law on Damages or Be Precluded From Testifying At Trial

In the case of Van Auken v. Saud, No. 20-CV-4717 (C.P. Lacka. Co. April 29, 2022 Nealon, J.), the court addressed several Motion In Limine issues in a medical malpractice action.

This medical malpractice action arose out of a claim against an emergency room physician who allegedly failed to diagnose and treat a minor’s aortic dissection which caused the minor’s death one day later.

The Plaintiff’s filed a wrongful death action seeking damages for their own losses and, in that regard, the parents advanced a claim for the pecuniary value of the services that the decedent would have provided to them. In the survival action, the decedent’s estate sought to recover damages for the decedent’s loss of her future earnings, minus her personal maintenance expenses, during her estimated work life expectancy.

The Plaintiffs filed a Motion In Limine against the opinion of the Defendants Forensic Economists in that the expert excluded health insurance from the fringe benefits calculations for the decedent’s loss of future earnings based upon a rationale that the decedent’s family members did not lose health insurance as a result of the minor’s death. 

The Plaintiffs also objected to the defense forensic economist expert’s inclusion of transportation cost and personal care products and services cost in the estimation of the decedent’s personal maintenance expenses to be deducted against the decedent’s loss of future earnings. The Plaintiffs asserted that Pennsylvania law does not recognize those types of cost as components of a decedent’s personal maintenance expenses.

In addressing this Motion In Limine, the court found that the defense economist expert fundamentally misconstrued the damages recoverable under the Wrongful Death and Survival Act and, as such, the court directed the Defendant’s expert to issue an amended report that complies with Pennsylvania law by including health insurance benefits in the fringe benefits estimation and by excluding the cost for transportation and personal care products and services from the personal maintenance expenses computation. The court held that, if the Defendant failed to submit such an amended report, the expert would be precluded from testifying at trial.

On a separate Motion In Limine filed by the Plaintiffs, the Plaintiffs asserted that the defense medical liability expert witness who expressed opinions regarding the complexities of the treatment involved and the difficulty in recognizing an aortic dissection in pediatric patients, did not opined that any physician complied with or deviated from the applicable standard of care. As such, the Plaintiffs asserted that the medical liability expert witnesses opinions were not relevant to the issues presented.

The court rejected this Motion In Limine filed by the Plaintiff after finding that the opinions expressed and the observations made by the defense pediatric cardiothoracic surgeon were relevant to the medical issues to be considered by the jury. The court also found that this expert possessed the requisite qualification to testify on those medical issues presented. As such, the Plaintiff’s Motion In Limine in this regard was denied.


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

Judge Terrence R. Nealon Addresses Claims of Recklessness Under MCARE Act

In the case of Doughitt v. Saber Health Care Group, LLC, No. 20-CV-3136 (C.P. Lacka. Co. April 22, 2021 Nealon, J.), the court addressed issues regarding claims of punitive damages in a medical malpractice action involving Wrongful Death and Survival claims.

This case was brought by an estate and daughter of a former nursing home resident under a medical professional liability claim alleging corporate and individual negligence and recklessness by the Defendants which allegedly resulted in the nursing home resident’s death.

In the Complaint, the Plaintiff confirmed that she was seeking damages under the Wrongful Death Act and the Survival Act, including demands for compensatory and punitive damages.

The Defendants filed Preliminary Objections in the nature of a demurrer seeking to strike the claims for punitive damages on the grounds that those claims were insufficient as a matter of law under §505(a) of the medical care availability and reduction of error (MCARE) Act, 40 P.S. §1303.505(a).

Judge Nealon noted that §505(a) of the MCARE Act is consistent with other Pennsylvania case law governing punitive damages in that the Act provides that punitive damages are recoverable for a healthcare provider’s “willful or wanton conduct or reckless indifference to the rights of others.”

Reiterating his previous rationale as stated in other decisions regarding claims of recklessness, Judge Nealon noted that, although wanton and willful misconduct and recklessness are considered under the law to be conditions of the mind such that they may be averred generally pursuant to Pa. R.C.P. 1019(b), the court found that the Plaintiff in this matter still alleged sufficient facts in any event that would factually support a finding of wanton or reckless indifference by the Defendant’s in any event.

More specifically, the court noted that the Plaintiff alleged that the Defendant’s intentionally increased a number of infirm residents with complex health conditions in order to increase their governmental reimbursements, knowingly establish staffing levels that were insufficient, repeatedly ignored staff reports regarding alleged alarming increases in infections and illnesses within the facility, and other allegations.

Judge Nealon went on to note that, generally speaking, in a Survival action, the decedent’s estate is permitted to pursue claims that the decedent could have asserted if he or she had lived. In contrast, the Wrongful Death action is brought by specified relatives of the decedent to compensate those surviving family members for the losses that they have sustained as a result of the decedent’s death.

The court noted that, consequently, the decedent’s estate may recover punitive damages in a Survival action if the decedent could have recovered those types of damages had he or she survived. However, under Pennsylvania, punitive damages are not recoverable in a Wrongful Death action.

As such, the court sustained the Defendant’s demurrer to the punitive damages claims only with respect to the Plaintiff’s punitive damages claims asserted in the Wrongful Death action. The Defendant’s demurrer was overruled in all other respects.


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

Pennsylvania Supreme Court Addresses Standards for Survival and Wrongful Death Claims

In the case of McMichael v. McMichael, No. 50 and 51 WAP 2019 (Pa. Nov. 18, 2020 Todd. J.), the Pennsylvania Supreme Court addressed the issue of whether a trial court abused its discretion in denying a Motion for a New Trial following a jury award of $0 in damages on one of the elements of damages in a wrongful death action. 

According to the Opinion, the Plaintiffs entered in a lease with a Defendant under which the Defendant was to install a natural gas pipeline on the Plaintiff’s property. The lease required that Defendant to hire a company owned by the Plaintiff to perform tree clearing on the property in preparation for the installation of the pipeline.

That landscaping company hired the Plaintiff’s nephew and others to perform the work. While the nephew/decedent was supervising the tree clearing process, he was struck by a tree and fatally injured.

A lawsuit was filed and the case proceeded to trial. The jury ultimately awarded the decedent’s estate $225,000.00 in survival damages, which was reduced to $135,000.00 to reflect the jury’s finding that the decedent was 40% negligent. The court awarded $0 on the wrongful death claim.

Upon review, the Pennsylvania Superior Court concluded that the trial court had erred in denying a new trial with respect to the non-economic damages award. The case was remanded for a new trial limited to the issue of non-economic damages to be potentially awarded to the Plaintiff.

In its decision, the Pennsylvania Supreme Court provides a nice distinction between survival damages and wrongful death damages.

With regards to the jury’s verdict of $0 in damages for the wrongful death claim, the court noted that it was undisputed that the Plaintiff did not present any evidence of medical, funeral, or estate administrative expenses. The court noted that the Plaintiff’s potential recovery in this regard was therefore limited to the loss of the decedent’s services. The court noted that the Plaintiff had produced evidence in this regard in terms of how the decedent performed home repairs, mowed the lawn, did most of the cooking, and drove his wife to work when the weather was bad. 

It was noted, however, that neither the wife nor any economic expert retained, testified as to an estimate as to the value of these contributions or services, or the cost of hiring somebody else to perform these tasks. 

The Pennsylvania Supreme Court noted that, in the absence of any evidence as to the economic value of these contributions, the jury would have been forced to engage in speculation regarding the value of these services. 

As such, the Pennsylvania Supreme Court agreed with the trial court’s denial of any new trial for any economic damages. 

However, as noted, the request for a new trial with respect to the non-economic damages relative to the wife’s loss of her husband of thirty (30) years was granted.

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

Justice Mundy's Concurring and Dissenting Opinion can be viewed HERE.

Justice Dougherty's Dissenting Opinion can be viewed HERE

Superior Court Affiims That Discovery Rule Does Not Extend Statute of Limitations in Wrongful Death/Survival Actions (Non-Precedential)

Tort Talkers may recall the prior Tort Talk post on the decision of Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in the case of Estate of Marsh v. Lizza, No. 2106-CV-2812 (C.P. Lacka. Co. March 1, 2017 Nealon, J.) in which the court granted Preliminary Objections of a Defendant in a case where a Plaintiff attempted to substitute another party in a reissued Writ of Summons without the consent of the opposing parties or court and beyond the applicable statute of limitations in this wrongful death and survival action.  

As an update, it is noted that the Pennsylvania Superior Court has affirmed the trial court’s decision in a non-precedential Opinion under the caption of Marsh v. Lizza, No. 532 MDA 2017 (Pa. Super. Feb. 13, 2018 Olson, J., Dubow, J., and Strasberger, J.) (Non-Precedential Mem. Op. by Olson, J.).

Notably, in affirming the trial court’s decision, the Pennsylvania Superior Court agreed that the 2-year statute of limitations applicable to wrongful death and survival actions under 42 Pa. C.S.A. §5524(2) may not be extended by the discovery rule, and that the latest date on which the statute of limitations begins to run for wrongful death and survival claims is the date of the decedent’s death.  

Accordingly, the Superior Court found that, as a matter of law, the trial court properly sustained a Defendant’s Preliminary Objections and struck the Complaint.  

 Anyone wishing to review the Pennsylvania Superior Court's Non-Precedential Decision in this case may click this LINK.

A Primer on Complaint Drafting by the Superior Court

In the case of Bouchon v. Citizen Care, Inc., 2017 Pa. Super. 379 (Pa. Super. Dec. 6, 2017 Stabile, Olson, Strassburger, J.J.) (Op. by Stabile, J.), the Pennsylvania Superior Court provided lessons on the proper drafting of a Complaint in a civil litigation matter.  

Among the tips provided by the Superior Court in this decision is that a Plaintiff must plead claims separately against each Defendant.   The court noted that only claims against jointly liable Defendants may be pled together under certain circumstances.  The court noted that pleadings claims against separate and distinct Defendants together makes it impossible for each Defendant to properly respond.   As such, the court noted that multiple use of “and/or” and references to “Defendants” globally  render the Complaint unanswerable and are, therefore, improper.  

The court also noted that a Plaintiff is required to denominate the claims as wrongful death claims or survival actions in the Complaint.    The court noted that the nature of each claim must be specifically identified under Pa. R.C.P. 1019.  Moreover, wrongful death and survival actions are required to be labeled as such under Pa. R.C.P. 1020.  

The court additionally noted that wrongful death and survival actions must be brought by a personal representative of the deceased, and not merely by a statutory beneficiary.  

The court otherwise noted that claims of negligence, corporate negligence, and vicarious liability are separate causes of action.   It was additionally noted that “Damages” is not a proper separate cause of action.  

In the end, the court did provide the Plaintiff with another opportunity to amend and refile their Complaint.   

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

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

Party May Not Substitute Another Party in a Reissued Writ of Summons Without Consent of Opposing Parties or Leave of Court

In his recent decision in the case of Estate of Marsh v. Lizza, No. 2016-CV-2812 (C.P. Lacka. Co. March 1, 2017 Nealon, J.), Judge Terrance R. Nealon of the Lackawanna County Court of Common Pleas addressed a Plaintiff’s attempt to substitute another party in a reissued Writ of Summons without the consent of the opposing parties or the court.

According to the Opinion, the Plaintiff commenced this wrongful death and survival action against her sister alleging negligent conduct which allegedly caused their mother’s death on July 28, 2013.  

The initial Writ of Summons and the three (3) ensuing reissued Writs of Summons identified the mother’s estate as the named Plaintiff.   Without securing the Defendant’s consent or seeking leave of court, the Plaintiff changed the identity of the named Plaintiff sua sponte on the fourth reissued Writ by substituting himself individually for his mother’s estate.

The Defendant-sister filed Preliminary Objections asserting that a party cannot substitute a different party as the Plaintiff under Pa. R.C.P. 1033 without first obtaining the consent of all parties or leave of court.   The Plaintiff’s sister sought to strike the amended Writ of Summons that was served upon her as well as the Complaint that was subsequently filed.

In reply, the Plaintiff contended that the acceptance and filing of the amended Writ of Summons by the Lackawanna County Clerk of Judicial Records constituted approval by the court under Rule 1033.   The Plaintiff also asserted that the Complaint could substitute a new Plaintiff without the Defendant’s consent or leave of court since the two (2) year statute of limitation period had not yet expired due to the operation of the “discovery rule” which allegedly extended that limitation.  

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon rejected the Plaintiff’s contention and sustained the Defendant’s Preliminary Objections.   In so ruling, the court noted that the Clerk of Judicial Records serves a purely ministerial, administrative role with respect to civil filings and lack the authority to evaluate the merits of a litigant’s pleadings or to decline to accept and process a party’s filing.   Since the Clerk of Judicial Records did not possess or exercise any judicial powers, the court found that the Clerk did not have any authority under any statute or rule of court to grant leave of court to amend the pleadings under Rule 1033 in order to substitute a different named Plaintiff.  

Judge Nealon also ruled that, inasmuch as the two (2) year statute of limitations applicable to wrongful death and survival actions under 42 Pa. C.S.A. §5524(2) may not be extended by the discovery rule, the Plaintiff’s Complaint was filed after the two (2) year statute of limitations had expired such that the Plaintiff was not at liberty to substitute a new party in that pleading absent the consent of all parties or leave of court.  

Accordingly, the court ruled that the amended Writ of Summons and the Complaint filed in this case were both nullities for substituting a different party and, therefore, the Defendant’s Preliminary Objections seeking to strike those pleadings was sustained.  

Anyone wishing to read this Opinion by Judge Nealon may click this LINK.

UPDATE:  Judge Nealon's decision was affirmed by the Pennsylvania Superior Court on February 3, 2018 in a Non-Precedential Decision that can be viewed HERE.

Superior Court Upholds Waiver Form in Wrongful Death/Survival Action Claim

In its recent decision in the case of Valentino v. Philadelphia Triathlon, LLC, No. 3049 EDA 2013 (Pa. Super. Nov. 15, 2016)(en banc) (Op. by Olson, J.), the Pennsylvania Superior Court ruled that summary judgment was properly entered against a wrongful death claim based upon the decedent’s execution of a liability waiver.  

This matter arose out an incident during which the Plaintiff’s decedent participated in a triathlon in Philadelphia.  The decedent signed a waiver form when he signed up to participate in the event.  

During the event, the decedent never completed the swimming portion of the competition and his body was recovered from the Schuylkill River on the day after the incident.  

The decedent’s widow pursued wrongful death and survival claims.  

The trial court initially sustained Defendant’s Preliminary Objections, ruling that the Plaintiff had failed to plead reckless or intentional conduct by the Defendant.  

The trial court later granted summary judgment on the remaining claims, finding them to be barred by the liability waiver executed by the decedent.   On appeal, the Plaintiff challenged all of the trial court’s decisions.  

The Superior Court affirmed the trial court’s rulings in sustaining the Defendant’s Preliminary Objections to the Plaintiff’s claims of punitive damages.   The court noted that punitive damages are only proper for a Defendant who had a subjective appreciation of the risk of harm to the Plaintiff and acted, or failed to act, in conscious disregard of that risk.

Here, the court found that the Plaintiff’s Complaint merely alleged inadvertence, mistake, or error in planning and supervising the triathlon course.  

With respect to the trial court’s entry of summary judgment, the Superior Court found no genuine issues of material fact with regards to the decedent’s execution of the Waiver Agreement.   The court also rejected the Plaintiff’s contention that the Defendant’s alleged reckless or intentional conduct defeated the decedent’s waiver of liability.  In this regard, the Superior Court noted that the trial court had previously ruled that the Plaintiff had failed to assert viable reckless or intentional conduct claims.  

The Superior Court also rejected the Plaintiff’s argument that the decedent’s waiver did not waive the decedent’s separate wrongful death claim.   The court ruled that wrongful death claims, while belonging solely to a decedent’s heir, are still derived from the same conduct that caused the decedent’s death.  Accordingly, the liability waiver was found to also extend to the wrongful death claim because such action requires tortuous conduct and was therefore subject to the same substantive defenses, such as the decedent’s execution of a liability waiver as to the decedent’s own tort claim.  

Anyone wishing to review a copy of the Majority's decision may click this LINK.

 

Judge Kate Ford Elliott's Concurring and Dissenting Opinion can be viewed HERE.

 

 

For another Superior decisions previously entered in this same case, click this LINK.

 

To view other Tort Talk posts on cases involving Waiver of Liability Forms, click HERE

 

 

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (December 6, 2016)

 

Judge Williamson of Monroe County Keeps Nursing Home Personal Injury Case in Court in Light of 'Unconsionable' Arbitration Clause

In the Monroe County Court of Common Pleas case of Santiago v. Whitestone Health Care Group, LLC, No. 5281 Civil 2015 (C.P. Monroe Co. Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas addressed various issues surrounding an arbitration agreement in a lawsuit between a decedent’s family and a nursing home facility.  

The central issue before the court is whether the trial court lacked jurisdiction over the matter due to an arbitration agreement entered into by the parties when the decedent moved into the nursing home.  The court denied the Defendant’s Preliminary Objections and rejected the argument that the trial court lacked jurisdiction.  

Judge David J. Williamson
Monroe County

In so ruling, Judge Williamson noted that arbitration clauses in contracts are not applicable to wrongful death actions. 

As such, the court found that the Defendants failed to show that either the patient/decedent signed the arbitration agreement or that an agency relationship existed between the patient/decedent and the person who signed the arbitration agreement, who was the decedent’s daughter.  

Judge Williamson stated that there can be no “knowing waiver” of a right to a jury trial by a patient who is unable to review and sign such a document such as the decedent herein who presumably was not competent to sign the document.  

Rather, for an agent to sign and bind the patient, the agent must have the authority to do so by righting or by acts or by conduct clearly implying an agency relationship.  Finding that the Defendant’s failed to present any such evidence that the daughter was authorized to bind her mother to the arbitration agreement and the resulting waiving of a right to a jury trial, the court found that the Defendants failed to meet their burden of proof on the issue of an agency relationship.  

Judge Williamson reiterated that the arbitration agreement cannot apply to the wrongful death claim and also ruled that the survival claim should not be severed.  

The court therefore found that the Defendants were barred from enforcing the arbitration agreement given that the matter before the court involved both wrongful death and survival claims.   See Op. at 3-4 citing Taylor v. Extendicare Health Facilities, Inc., 1313 A.3d 317 (Pa. Super. 2015), allocator granted, 122 A.3d 1036 (Pa. 2015).  

Judge Williamson reasoned that the Pennsylvania courts have ruled that a wrongful death action, under Pennsylvania statutory law, is a matter in which the trial court maintains jurisdiction even in the face of a valid binding arbitration agreement because a wrongful death claim accrues after the decedent’s death with beneficiaries who are not a party to arbitration agreement.   Here, Judge Williamson stated that even if the Defendants argue that the decedent’s daughter is a beneficiary who signed the arbitration agreement, the daughter was not a party to the arbitration agreement as she allegedly signed on behalf of the patient/decedent.  

Judge Williamson also noted that Pennsylvania cases have upheld a finding that a survival action should not be severed from a wrongful death action for purposes of arbitrating the survival action alone.   Accordingly, the court found that the arbitration agreement had no binding effect in this case on either the wrongful death or the survival action.

Lastly, the court found that the arbitration agreement before it was unconscionable in that it was unreasonably favorable to the drafter of the agreement.  

For these reasons, the court overruled the Defendant’s Preliminary Objections and allowed the case to remain within the Monroe County Court of Common Pleas as opposed to arbitration.  

 

Anyone desiring a copy of this decision may contact me at dancummins@comcast.net.  I send thanks to Attorney David A. Miller, Esquire of the Frackville, Pennsylvania office of Michael J. O’Connor and Associates, LLC for bringing this case to my attention.  

 

 

 

Impact of Waivers Executed By Decedent in Wrongful Death Claims Revisited by Superior Court

In its recent decision in the case of Valentino v. Philadelphia Triathlon, LLC, No. 3049 EDA 2013 (Pa. Super. Dec. 30, 2015 Ford Elliot, P.J.E., Olson, and Wecht, JJ.) (Opinion by Ford Elliot, P.J.E.), the Pennsylvania Superior Court addressed issues surrounding waiver or release forms as applied to wrongful death claims.  

This matter arose out an incident during which the Plaintiff’s decedent participated in a triathlon in Philadelphia.  The decedent signed a waiver form when he signed up to participate in the event.

During the event, the decedent never completed the swimming portion of the competition and his body was recovered from the Schuylkill River the day after the incident.  

Wrongful death and survival claims were pursued by the decedent’s widow.   The case was eventually concluded at the trial court level by way of the entry of a summary judgment based upon the waiver executed by the decedent. The Plaintiff’s estate appealed.  

On appeal, the Superior Court reviewed Pennsylvania law with respect to punitive damages claims and found that the trial court properly dismissed such claims at the Preliminary Objections stage given that the Plaintiff had alleged facts supporting claims for ordinary negligence.   Given that there were no facts to support a claim of outrageous behavior or conscious disregard for the risks confronted by triathlon participants, the appellate court ruled that the trial court properly dismissed the Plaintiff’s allegations of outrageous conduct and, therefore, had also properly struck the claim for punitive damages.  

On the waiver/release issue, upon which the trial court had granted summary judgment, it was noted that only the Plaintiff’s decedent had signed a release or waiver form when entering the competition.  

On appeal, the Plaintiffs initially argued, in part, that a Plaintiff cannot contractually waive liability for reckless or intentional conduct and that, as a result, any waiver executed in this case was invalid.  

The Pennsylvania Superior Court noted that, since it had already determined in this matter that the Plaintiff did not state valid claims involving reckless or intentional conduct, the Plaintiff’s contention in this regard could not serve to disturb the trial court’s ruling.  

The Plaintiff also asserted that, pursuant to the prior appellate court decision in the case of Pisano v. Extendicare Homes, Inc., 77 A.3d 651 (Pa. Super. 2013), appeal denied, 86 A.3d 233 (Pa. Super. 2014), cert. denied, 134 S.Ct. 2890 (2014), a decedent’s waiver is ineffective as to third-party wrongful death claims. 

The appellate court found that the Plaintiff’s argument regarding the Pisano case to be dispositive.  The court determined that the Plaintiff’s widow could maintain a wrongful death cause of action and is not bound by the decedent’s release given that the Plaintiff pursuing the case was not a signatory of that waiver form.  

Similar to the finding in the Pisano case, the court ruled that a waiver form was not binding on the representative of the decedent’s estate as wrongful death claims are not considered to be derivative of the decedent’s rights under Pennsylvania law.   Rather, the right of action belongs to the statutory wrongful death claim claimants, not the decedent.

In the court in this Valentino case went on to note, as explained in the Pisano decision, that, in Pennsylvania, survival and wrongful death actions are separate and distinct and that wrongful death lawsuits are not merely derivative of the rights of the decedent.  

Accordingly, following the Pisano case, the Valentino court concluded that the decedent’s release agreement/waiver form signed when entering the competition did not bind the Plaintiff’s widow/representative of his estate and did not preclude her from bringing a wrongful death action.  

Rather, as confirmed by Pisano, the wrongful death action is an independent cause of action, created by statute, and is not to be considered to be derivative of the decedent’s rights at the time of death.   The release agreement/waiver form was noted to only be between the decedent and the competition and was found to have no effect on the decedent’s non-signatory heirs, including the Plaintiff’s decedent’s widow, who brought this lawsuit.  

As such, the underlying claim was allowed to proceed.

 

Anyone wishes to review the majority Opinion of Superior Court Judges Ford Elliot and Wecht, may click this LINK.

The dissenting Opinion of Judge Olson can be viewed HERE. 

 I send thanks to Attorney James Beck of the Philadelphia office of Reed Smith for bringing this case to my attention.