Upcoming Changes to the Pennsylvania Rules of Appellate Procedure

According to content in a recent edition of the Pennsylvania Bulletin, there are some changes to the Pennsylvania Rules of Appellate Procedure set to go into effect in January of 2025.

The Rule changes can be viewed at this LINK.

Federal District Court Addresses Jurisdictional Issues and also References Fair Share Act

In the case of Tanibajeva v. Skytop Lodge Corp., No. 3:23-CV-01846 (M.D. Pa. Sept. 3, 2024 Mehalchick, J.), the court granted in part and denied in part a Motion to Dismiss on jurisdictional issues in a case involving a zipline accident at a resort in the Poconos.

The court noted that the Plaintiff would be allowed to complete discovery in order to determine proper jurisdiction. 

Judge Mehalchick noted that, while a single shipment of a product in Pennsylvania is ordinarily not enough to confer specific personal jurisdiction, discovery in this case might reveal more significant contacts.

The court also noted that stream of commerce is not a valid jurisdictional theory. 

The court otherwise found that the Defendant in this case did not have regular and systemic Pennsylvania business.

However, the court found that the Plaintiff’s position on the jurisdiction issue was not frivolous. Accordingly, as noted, the court allowed for jurisdictional discovery to be completed.

In this Opinion, Judge Mehalchick also addressed the applicability of the Fair Share Act. 

The court noted its assessment that, under recent Pennsylvania case law, the Fair Share Act does not apply unless the Plaintiff’s potential comparative negligence is at issue. Accordingly, the court found that the allegations of joint and several liability by the Plaintiff were proper in this case. Judge Mehalchick also stated that, based upon her review of the Complaint, there did not appear to be a basis for an argument of comparative negligence.

The court also ruled that Pennsylvania law does not recognize a separate cause of action for willful and wanton misconduct or reckless indifference.

Judge Mehalchick also found the Plaintiff’s express warranty claims failed to plead that the Plaintiff purchased any product from the Defendants.  As such, that claim was dismissed.

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 the Reed Smith law firm for bringing this case to my attention.

Philadelphia County Case Transferred To Delaware Under Doctrine of Forum Non Conveniens

In the case of Gravenor-Reutter v. Acme Markets, Inc., June Term, 2023 No. 2390 (C.P. Phila. Co. April 9, 2024 Bright, J.), the court issued a Rule 1925 Opinion to the Superior Court outlining the reasons in support of the trial court’s granting of the Defendant’s Motion to Dismiss this Philadelphia County case based upon the doctrine of forum non conveniens regarding the slip and fall event that occurred at an Acme in the State of Delaware.

The trial court noted that its Order dismissing the matter should be affirmed where the accident at issue occurred in Delaware, where the Defendant had merely minimal contacts in Pennsylvania, and where Delaware was a viable alternative forum for the Plaintiff’s lawsuit.

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


Source: “The Legal Intelligencer Weekly Case Alert” www.Law.com (Aug. 29, 2024).

Court Precludes Discovery From Grand Rounds Conference by Peer Review Committee in Med Mal Case

In the case of Houwelingen v. Milton S. Hershey Medical Center, No. 1:22-CV-01388 (M.D. Pa. Aug. 21, 2024 Wilson, J.), the court denied a Motion to Compel in the medical malpractice case.

At issue was the discoverability of a PowerPoint presentation from a grand round conference.

According to the Opinion, a grand round conference involves patient-specific presentations at a medical facility which include the retrospective review of the care those patients received. Grand round presentations are used to evaluate the quality and efficiency of the healthcare those patients received and also review how to improve such treatment.

The court ruled, after an in camera review, that the Defendant hospital’s grand rounds PowerPoint presentation was protected from discovery under Pennsylvania Peer Review Protection Act.

In so ruling, the court noted that protected peer review committees need not specifically have the words “peer review” in their title, nor must they limit themselves to solely conducting peer review functions, in order to secure the protections of the act.

The court noted that the patient discussion portions of the grand rounds presentations involved professional healthcare providers assessing and critiquing the care provided by other such professionals.

The court also noted that the fact that the participants in the meeting received continuing medical education credits did not preclude a finding that the information sought in discovery was afforded the protection of Peer Review Act.

Anyone wishing to review this decision may click this LINK.

Trial Court Refuses To Allow Defense Counsel to Attend Neuropsychological IME

In the case of Healey v. Scranton Hospital Company, LLC, No. 2023-CV-1793 (C.P. Lacka. Co. Oct. 2, 2024 Nealon, J.), Judge Nealon ruled, in a medical malpractice case that a defense attorney is not permitted to attend a neuropsychological examination that the defense had scheduled for a Plaintiff.

The court found that Pa. R.C.P. 4010, regarding physical and mental examinations in civil litigation matters, only grants the Plaintiff’s counsel the right to attend such an examination of the Plaintiff.

Judge Nealon noted that, “if the Supreme Court of Pennsylvania deemed it appropriate or necessary for defense counsel to have a corresponding right to attend a Rule 4010 examination, it could have stated so” in the Rule.

Given that Rule 4010 does not reference any right for a defense counsel to attend a medical examination set up for litigation purposes, Judge Nealon denied the defense motion in which the defense sought permission to attend the examination.

In his Opinion, Judge Nealon also cautioned that it would be inappropriate for a plaintiff's attorney interfere with the examination or obstruct the doctor's interview of the plaintiff, sanctions could be warranted.  The Judge also cautioned that, if the plaintiff's attorney acted inappropriately at the examination, the plaintiff's attorney even ran the risk of being disqualified from continuing as counsel for the plaintiff based upon the advocate-witness rule in Rule 3.7 of the Rules of Professional Conduct.

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

I send thanks to Attorney Bruce Zero of the Scranton, PA law firm of Powell, Zero & Mundy for bringing this case to my attention.

Save the Date: November 14, 2024 - Lackawanna Pro Bono Gala

 

LINK For the Third Circuit's Decision on Household Exclusion in Mid-Century Ins. Co. v. Werley

 One of yesterday's Tort Talk blog posts was on the case of Mid-Century Ins. Co. v. Werley, No. 23-1822 (3d. Cir. Sept. 5, 2024 Krause, J., Chung, J., and Randell J.) (Op. by Rendell, J.), the Third Circuit Court of Appeals upheld the application of a household exclusion in a UIM case.  

The Link was not set up on that post -- the Link has been corrected below.  Judge Marjorie Rendell's name was incorrectly spelled and that has been corrected as well.

Here is the LINK to that decision.

Apologies for any confusion or consternation caused by these errors.