Tort Talkers may recall previous posts here, and even an article, outlining the numerous Pennsylvania cases holding that UM/UIM rejection forms are required to follow the mandates of the applicable statute (75 Pa.C.S.A. Section 1731) to the letter in order to be upheld as valid. Here is a LINK to my article on this topic entitled "Rejecting the Rejection."
The courts that have ruled on this issue to date have strictly applied the statute to the point that the addition or deletion of even one word to the mandated form has been deemed to render the rejection form invalid. Among the courts that have followed the state court decisions in ruling in this strict manner was the Federal Eastern District Court in the case of Robinson v. Travelers Indemnity Co. of America.
That decision however was vacated and reversed late last week by the United States Court of Appeals for the Third Circuit in a non-precedential Opinion issued in in Robinson v. Travelers Indemnity Company
of America, No. 12-1888 (3rd Cir. March 21, 2013)(Rendell, Ambro, Vanaskie, J.J.)(Opinion by Rendell, J.)(marked non-precedential).
In this case, the underinsured motorist waiver form at issue contained the additional word of "motorist" in the phrase "underinsured coverage." The word "motorist" is not found in the form mandated by the statutory language.
The Claimant asserted that the
inclusion of the additional word invalidated the form under Section 1731 of the MVFRL because it
was not in specific compliance with the MVFRL. As noted above, this argument was accepted as valid by the Eastern Federal District Court which invalidated the rejection form and ruled that the Claimant was entitled to UIM coverage.
In a non-precedential Opinion, the The Third Circuit
reversed and ruled that the addition of the word "motorists" to the
form served to clarify the wording of the form. The Third Circuit stated that it did not desire to
"elevate form over substance in a hyperliteral interpretation" of the
law.
Anyone wishing to review this decision may click HERE.
I send thanks to Attorney Scott Cooper of the Harrisburg law firm of Schmidt Kramer, and Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price for bringing this decision to my attention.
Showing posts with label Judge Vanaskie. Show all posts
Showing posts with label Judge Vanaskie. Show all posts
Sunday, March 31, 2013
Thursday, June 9, 2011
Inspirational Speech by Judge Thomas I. Vanaskie of U.S. Third Circuit Court of Appeals
United States Third Circuit Court of Appeals Judge Thomas I. Vanaskie was the Keynote Speaker at the Lackawanna Bar Association's Interfaith Prayer Service on Friday, May 13, 2011, and his words were inspirational. For those of you not able to attend, below is a copy of Judge Vanaskie's remarks:
Good afternoon. It is an honor to be here with you at the annual Interfaith Prayer Service and to be with my colleagues on the Federal and State Courts for whom I have much admiration.
“Fall in love, stay in love, and it will decide everything. Love will decide what will get you out of bed in the morning, what you will do with your evenings, how you will spend your weekends, what you read, who you know, what breaks your heart and what amazes you with joy and gratitude.” Words of advice, not from Tom Vanaskie, but from Father Pedro Arrupe, and they are indeed sage words. Look at your experiences, from childhood to adulthood, and you will see how love has pervaded your being, from children at play, to teens experiencing first relationships, to marriage, to bringing up children, to your interactions with nieces and nephews, to how you love and are loved by your grandchildren.
And of course, this power of love transcends individual relationships. Those fortunate to be able to pursue a profession or vocation they love do not consider themselves at work. They don’t count the hours or watch the clock, and they are fulfilled by pursuit of their love. Not many, of course, are blessed with the ability to earn a living pursuing something they love, so they turn to other endeavors, whether it is some sport, like running, or perhaps it is tutoring, gardening, cooking, or just taking care of others. They are engaged. They are the opposite of indifference.
There is a line from a movie that strikes me when I think of this subject of the power and meaning of love. An old, grizzly tough guy played by Robert Duvall gives this advice to a young boy. He said that “sometimes the things that may or may not be true are the things a person needs to believe in the most. That people are basically good; that honor, courage, and virtue mean everything; that power and money mean nothing; that good always triumphs over evil;” and then he said, “I want you to remember this, that love…true love never dies.” He concluded that a person should believe in those things because those are the things that are worth believing in.
If you want to do good in this crazy society of ours, you must have those beliefs: that honor, courage, and virtue mean everything, and that people are basically good, and that good always triumphs over evil. America was built upon dreamers with such beliefs. We have had our share of bad and evil people. They are usually the cynics. They prey on vulnerabilities and judge on appearances. They are opinionated and judgmental. But those who share those things that are worth believing in are slow to judge, assist the vulnerable, and are optimists.
In a novel a great friend recommended to me, The Shack, a father whose four year old daughter is abducted, sexually assaulted and murdered without her body being recovered has lost his faith in a benevolent deity. The book is one of redemption of the soul as the dad returns to the shack where it is believed his daughter was murdered ten years after she went missing. There he encounters God, or as this book is written from a Christian perspective, the three persons in one God. The book contains some pearls of wisdom that are agnostic, but reflect this power that love creates. One passage I particularly think is compelling goes as follows, “relationships are never about power…one way to avoid (taking advantage of power) is to choose to limit oneself – to serve. Humans often do this in touching the infirmed and sick, in serving the ones whose minds are left to wander, in relating to the poor, in loving the very old and the very young.”
We see so many examples of love prodding a person to limit himself or herself. Justice Sandra Day O’Connor left the Supreme Court to spend time with her husband, stricken with Alzheimer’s. I saw Ruth Davies limit herself in caring for her daughter, Julia. Indeed, each and every person has at one time or another limited himself or herself as part of a true relationship.
In the words of the God figure in The Shack, “you choose to limit yourself so as to facilitate and honor that relationship. You will even lose a competition to accomplish love. It is not about winning and losing, but about love and respect.”
This limitation of oneself to build enduring relationships shows that we are all, to use a phrase close to the heart of Sondra Myers, interdependent. We have a mutual need for the talents, intellect, and hard work of each other.
Another book I read in the more distant past on the recommendation of my children was the Life of Pi. It approaches the mysteries of life and our existence through the lens of different major religions. But each religion has come to the “realization that the founding principle of existence is what we call love, which works itself out sometimes not clearly, not immediately, but nonetheless ineluctably.”
Ultimately, the work we do in the law must be premised upon those things worth believing in and on love for our fellow human beings. Those who embrace this value system recognize that we are truly interdependent and not independent creatures. And pursuing this approach often necessitates a limitation of oneself. Consider a couple examples, one historical and one current.
In 1797, John Adams, became our nation’s second President and the first of many lawyer-presidents. He was also a courageous defender of those he thought unjustly accused and the man who first penned the famous phrase, “a government of laws and not of men.” But let’s go back to 1770, 27 years before Adams became President and five years before the Revolutionary War began.
Adams was in Boston, already a leader in Massachusetts Colony’s growing resistance to British rule and especially British taxes. By 1770, Boston had about 20,000 residents plus 4,000 British soldiers sent to keep order among those unruly colonists and to collect those taxes. Tensions ran high. Late one cold winter evening, March 5, 1770, protesters gathered downtown, near a small group of soldiers. Things got loud and confusing and suddenly the soldiers shot into the crowd. Five civilians died (the Boston Massacre). The public was incensed. The atmosphere in Boston was poisonous. John Adams’ cousin, Sam Adams, one of the leaders of the Colonists, called the killings a bloody butchery and distributed a print published by Paul Revere vividly portraying the scene as a slaughter of the innocent, an image of British tyranny that would become fixed in the public’s mind.
The soldiers and their leader, Captain Tom Preston, were arrested for murder. But some people called it a riot, not a massacre, saying the soldiers had been threatened and pelted with rocks, snowballs and the like. The following day 34 year old John Adams was asked to defend the soldiers and their captain when they came to trial. No one else would take the case.
Even though John Adams was a leader in the resistance to British rule, he believed these Brits (Preston and his soldiers) deserved a defense, and he gave them a fine one. He won acquittal of the Captain by convincing a jury that the officer had not ordered his troops to fire. He defended the soldiers on grounds of self defense against a mob. Six were acquitted, two others convicted of manslaughter. The trial was the first time a judge used the phrase “reasonable doubt,” a concept our courts later found inherent in the phrase “due process of law.”
Taking their cases was a very unpopular act. During the trial, threats were made on his life and his family. John Adams’ defense in the Boston Massacre trials was a courageous example of adherence to the rule of law and defense of the rights of the accused. It showed his love for justice and, by the way, his Country. Years later, John Adams wrote that this defense, in light of so much public scorn, was one of the finest things he’d ever done for his Country.
That love for justice and adherence to the rule of law is never more important than when advocates represent unpopular clients in times of heated public controversy and times of turmoil.
Many lawyers have volunteered to test the rules of detention of Guantanamo Bay detainees and get the prisoners access to counsel and to some process and some Supreme Court rulings. In fact, of the50 largest law firms in the United Sates, at least 34 have either represented detainees or filed amicus briefs in support of detainees.
Many of these lawyers and their law firms have been attacked by leaders in the other two branches of our government. As an example, a high ranking Pentagon official in 2007, after reciting the names of some of these law firms said, “I think, quite honestly when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.”
Many of these same lawyers went to work in the Department of Justice. Members of Congress have questioned whether they should be employed by the Department after their work on behalf of detainees. At an oversight hearing, Attorney General Holder, in April of 2010, was asked by a member of the judiciary committee:
Question: So a very simple yes or no question: would you provide the names of political appointees at the department who have previously represented detainees or advocated on detainee issues?
Holder: With all due respect, Senator, and I know that your request comes from what I will call a good place. Yours was an honorable request. And the hesitance that I had, I think has been borne out by what I have seen. There has been an attempt to take the names of the people who represented Guantanamo detainees and to drag their reputation through the mud. There were reprehensible ads used to question their – in essence to question their patriotism. I’m not going to allow these kids – I’m not going to be part of that effort. And so with all due respect, their names are out there now, and the positions that they hold are out there. That’s all been placed in the public record; I am simply not going to be a part of that effort. I will not allow good decent lawyers who have followed the greatest traditions of American Jurisprudence, done what John Adams, done what our Chief Justice has said is appropriate, I will not allow their reputations to be disparaged. I will not be part of that.
So as you can see, John Adams’ legacy continues to inspire lawyers to this day. The lawyers of today, just as John Adams, are dreamers and believers in those values worth believing in; that the rule of law must predominate in tumultuous times, that virtue, honor and courage are everything, and that the good will ultimately triumph over evil by remaining good.
As former Supreme Court Justice Sandra Day O’Connor warned in the 2004 decision of Hamdi v. Rumsfeld, a case that involved an American citizen who was detained as an enemy combatant, “it is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested, and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”
Lawyers are called to follow in Adams’ footsteps, and it’s not easy. The practice of law is not a popularity contest. Rather, it is a noble profession whose aim is to do what’s right on the evidence and under the law, in spite of popular sentiment at any given time. It can involve great sacrifice, but the costs to the nation and the world, would be far greater were we to lose these ideals. Those of us who have fallen in love with this profession certainly understand that.
Thank you.
Good afternoon. It is an honor to be here with you at the annual Interfaith Prayer Service and to be with my colleagues on the Federal and State Courts for whom I have much admiration.
“Fall in love, stay in love, and it will decide everything. Love will decide what will get you out of bed in the morning, what you will do with your evenings, how you will spend your weekends, what you read, who you know, what breaks your heart and what amazes you with joy and gratitude.” Words of advice, not from Tom Vanaskie, but from Father Pedro Arrupe, and they are indeed sage words. Look at your experiences, from childhood to adulthood, and you will see how love has pervaded your being, from children at play, to teens experiencing first relationships, to marriage, to bringing up children, to your interactions with nieces and nephews, to how you love and are loved by your grandchildren.
And of course, this power of love transcends individual relationships. Those fortunate to be able to pursue a profession or vocation they love do not consider themselves at work. They don’t count the hours or watch the clock, and they are fulfilled by pursuit of their love. Not many, of course, are blessed with the ability to earn a living pursuing something they love, so they turn to other endeavors, whether it is some sport, like running, or perhaps it is tutoring, gardening, cooking, or just taking care of others. They are engaged. They are the opposite of indifference.
There is a line from a movie that strikes me when I think of this subject of the power and meaning of love. An old, grizzly tough guy played by Robert Duvall gives this advice to a young boy. He said that “sometimes the things that may or may not be true are the things a person needs to believe in the most. That people are basically good; that honor, courage, and virtue mean everything; that power and money mean nothing; that good always triumphs over evil;” and then he said, “I want you to remember this, that love…true love never dies.” He concluded that a person should believe in those things because those are the things that are worth believing in.
If you want to do good in this crazy society of ours, you must have those beliefs: that honor, courage, and virtue mean everything, and that people are basically good, and that good always triumphs over evil. America was built upon dreamers with such beliefs. We have had our share of bad and evil people. They are usually the cynics. They prey on vulnerabilities and judge on appearances. They are opinionated and judgmental. But those who share those things that are worth believing in are slow to judge, assist the vulnerable, and are optimists.
In a novel a great friend recommended to me, The Shack, a father whose four year old daughter is abducted, sexually assaulted and murdered without her body being recovered has lost his faith in a benevolent deity. The book is one of redemption of the soul as the dad returns to the shack where it is believed his daughter was murdered ten years after she went missing. There he encounters God, or as this book is written from a Christian perspective, the three persons in one God. The book contains some pearls of wisdom that are agnostic, but reflect this power that love creates. One passage I particularly think is compelling goes as follows, “relationships are never about power…one way to avoid (taking advantage of power) is to choose to limit oneself – to serve. Humans often do this in touching the infirmed and sick, in serving the ones whose minds are left to wander, in relating to the poor, in loving the very old and the very young.”
We see so many examples of love prodding a person to limit himself or herself. Justice Sandra Day O’Connor left the Supreme Court to spend time with her husband, stricken with Alzheimer’s. I saw Ruth Davies limit herself in caring for her daughter, Julia. Indeed, each and every person has at one time or another limited himself or herself as part of a true relationship.
In the words of the God figure in The Shack, “you choose to limit yourself so as to facilitate and honor that relationship. You will even lose a competition to accomplish love. It is not about winning and losing, but about love and respect.”
This limitation of oneself to build enduring relationships shows that we are all, to use a phrase close to the heart of Sondra Myers, interdependent. We have a mutual need for the talents, intellect, and hard work of each other.
Another book I read in the more distant past on the recommendation of my children was the Life of Pi. It approaches the mysteries of life and our existence through the lens of different major religions. But each religion has come to the “realization that the founding principle of existence is what we call love, which works itself out sometimes not clearly, not immediately, but nonetheless ineluctably.”
Ultimately, the work we do in the law must be premised upon those things worth believing in and on love for our fellow human beings. Those who embrace this value system recognize that we are truly interdependent and not independent creatures. And pursuing this approach often necessitates a limitation of oneself. Consider a couple examples, one historical and one current.
In 1797, John Adams, became our nation’s second President and the first of many lawyer-presidents. He was also a courageous defender of those he thought unjustly accused and the man who first penned the famous phrase, “a government of laws and not of men.” But let’s go back to 1770, 27 years before Adams became President and five years before the Revolutionary War began.
Adams was in Boston, already a leader in Massachusetts Colony’s growing resistance to British rule and especially British taxes. By 1770, Boston had about 20,000 residents plus 4,000 British soldiers sent to keep order among those unruly colonists and to collect those taxes. Tensions ran high. Late one cold winter evening, March 5, 1770, protesters gathered downtown, near a small group of soldiers. Things got loud and confusing and suddenly the soldiers shot into the crowd. Five civilians died (the Boston Massacre). The public was incensed. The atmosphere in Boston was poisonous. John Adams’ cousin, Sam Adams, one of the leaders of the Colonists, called the killings a bloody butchery and distributed a print published by Paul Revere vividly portraying the scene as a slaughter of the innocent, an image of British tyranny that would become fixed in the public’s mind.
The soldiers and their leader, Captain Tom Preston, were arrested for murder. But some people called it a riot, not a massacre, saying the soldiers had been threatened and pelted with rocks, snowballs and the like. The following day 34 year old John Adams was asked to defend the soldiers and their captain when they came to trial. No one else would take the case.
Even though John Adams was a leader in the resistance to British rule, he believed these Brits (Preston and his soldiers) deserved a defense, and he gave them a fine one. He won acquittal of the Captain by convincing a jury that the officer had not ordered his troops to fire. He defended the soldiers on grounds of self defense against a mob. Six were acquitted, two others convicted of manslaughter. The trial was the first time a judge used the phrase “reasonable doubt,” a concept our courts later found inherent in the phrase “due process of law.”
Taking their cases was a very unpopular act. During the trial, threats were made on his life and his family. John Adams’ defense in the Boston Massacre trials was a courageous example of adherence to the rule of law and defense of the rights of the accused. It showed his love for justice and, by the way, his Country. Years later, John Adams wrote that this defense, in light of so much public scorn, was one of the finest things he’d ever done for his Country.
That love for justice and adherence to the rule of law is never more important than when advocates represent unpopular clients in times of heated public controversy and times of turmoil.
Many lawyers have volunteered to test the rules of detention of Guantanamo Bay detainees and get the prisoners access to counsel and to some process and some Supreme Court rulings. In fact, of the50 largest law firms in the United Sates, at least 34 have either represented detainees or filed amicus briefs in support of detainees.
Many of these lawyers and their law firms have been attacked by leaders in the other two branches of our government. As an example, a high ranking Pentagon official in 2007, after reciting the names of some of these law firms said, “I think, quite honestly when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.”
Many of these same lawyers went to work in the Department of Justice. Members of Congress have questioned whether they should be employed by the Department after their work on behalf of detainees. At an oversight hearing, Attorney General Holder, in April of 2010, was asked by a member of the judiciary committee:
Question: So a very simple yes or no question: would you provide the names of political appointees at the department who have previously represented detainees or advocated on detainee issues?
Holder: With all due respect, Senator, and I know that your request comes from what I will call a good place. Yours was an honorable request. And the hesitance that I had, I think has been borne out by what I have seen. There has been an attempt to take the names of the people who represented Guantanamo detainees and to drag their reputation through the mud. There were reprehensible ads used to question their – in essence to question their patriotism. I’m not going to allow these kids – I’m not going to be part of that effort. And so with all due respect, their names are out there now, and the positions that they hold are out there. That’s all been placed in the public record; I am simply not going to be a part of that effort. I will not allow good decent lawyers who have followed the greatest traditions of American Jurisprudence, done what John Adams, done what our Chief Justice has said is appropriate, I will not allow their reputations to be disparaged. I will not be part of that.
So as you can see, John Adams’ legacy continues to inspire lawyers to this day. The lawyers of today, just as John Adams, are dreamers and believers in those values worth believing in; that the rule of law must predominate in tumultuous times, that virtue, honor and courage are everything, and that the good will ultimately triumph over evil by remaining good.
As former Supreme Court Justice Sandra Day O’Connor warned in the 2004 decision of Hamdi v. Rumsfeld, a case that involved an American citizen who was detained as an enemy combatant, “it is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested, and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”
Lawyers are called to follow in Adams’ footsteps, and it’s not easy. The practice of law is not a popularity contest. Rather, it is a noble profession whose aim is to do what’s right on the evidence and under the law, in spite of popular sentiment at any given time. It can involve great sacrifice, but the costs to the nation and the world, would be far greater were we to lose these ideals. Those of us who have fallen in love with this profession certainly understand that.
Thank you.
Tuesday, May 11, 2010
Federal District Judge Thomas I. Vanaskie Sworn In As Third Circuit Court of Appeals Judge
As one attorney aptly put it, it was an all-around feel good day for the members of the bench and bar in Northeastern Pennsylvania.
On Monday, May 10, 2010 history was made when Judge Thomas I. Vanaskie was ceremoniously sworn into his spot on the Third Circuit Court of Appeals by Chief Judge Theodore A. McKee.
The event was held in Judge William J. Nealon's courtroom, the Judge for whom Judge Vanaskie served as a law clerk at the beginning of his career after he graduated from the Dickinson School of Law. An overflow crowd watch by closed circuit television in two other courtrooms in the Federal Courthouse in Scranton.
This historic event, with Judge Vanaskie being only the second jurist from Northeastern Pennsylvania to rise to such a high level (the other being the late Honorable Max Rosenn), was attended by political and judicial dignitaries, including but not limited to Senator Casey and Senator Specter, Representative Kanjorski and Representative Carney, various Judges from the Third Circuit Court of Appeals and the Middle District Federal Court as well as Judges from the Lackawanna and Luzerne County Court of Common Pleas.
After he was sworn in, Judge Vanaskie put on his new robe, took his spot on the bench, and proclaimed that the "American Dream is alive and well" with his rise from blue collar roots to what is now one step below the United States Supreme Court.
For more details on the ceremony, here is a link to an article by Boris Krawczeniuk in the May 11, 2010 Scranton Times: http://thetimes-tribune.com/news/vanaskie-takes-the-oath-as-federal-appeals-judge-1.778168.
Judge Vanaskie will maintain an office in the Scranton Federal Courthouse in his new position with the Third Circuit.
On Monday, May 10, 2010 history was made when Judge Thomas I. Vanaskie was ceremoniously sworn into his spot on the Third Circuit Court of Appeals by Chief Judge Theodore A. McKee.
The event was held in Judge William J. Nealon's courtroom, the Judge for whom Judge Vanaskie served as a law clerk at the beginning of his career after he graduated from the Dickinson School of Law. An overflow crowd watch by closed circuit television in two other courtrooms in the Federal Courthouse in Scranton.
This historic event, with Judge Vanaskie being only the second jurist from Northeastern Pennsylvania to rise to such a high level (the other being the late Honorable Max Rosenn), was attended by political and judicial dignitaries, including but not limited to Senator Casey and Senator Specter, Representative Kanjorski and Representative Carney, various Judges from the Third Circuit Court of Appeals and the Middle District Federal Court as well as Judges from the Lackawanna and Luzerne County Court of Common Pleas.
After he was sworn in, Judge Vanaskie put on his new robe, took his spot on the bench, and proclaimed that the "American Dream is alive and well" with his rise from blue collar roots to what is now one step below the United States Supreme Court.
For more details on the ceremony, here is a link to an article by Boris Krawczeniuk in the May 11, 2010 Scranton Times: http://thetimes-tribune.com/news/vanaskie-takes-the-oath-as-federal-appeals-judge-1.778168.
Judge Vanaskie will maintain an office in the Scranton Federal Courthouse in his new position with the Third Circuit.
Tuesday, May 4, 2010
Judge Thomas I. Vanaskie To Be Sworn In As Third Circuit Court of Appeals Judge on Monday//Lackawanna Bar Members Are Invited To Attend Reception
The Honorable Thomas I. Vanaskie is set to be sworn in as a United States Third Circuit Court of Appeals Judge on Monday, May 10, 2010 at 12:30 p.m. in Courtroom No. 4 of the William J. Nealon Federal Building & U.S. Courthouse in Scranton, Pennsylvania.
There will be Reception to follow in Second Floor Atrium sponsored by the Lackawanna Bar Association. This event is free and open to the members of the Lackawanna Bar Association.
However, registration is required to attend. Please RSVP to Diane McClosky at 207-5606 by Thursday, May 6, 2010. Lackawanna Bar Association members who plan to attend are cautioned to arrive by 12:00 p.m. to clear security.
There will be Reception to follow in Second Floor Atrium sponsored by the Lackawanna Bar Association. This event is free and open to the members of the Lackawanna Bar Association.
However, registration is required to attend. Please RSVP to Diane McClosky at 207-5606 by Thursday, May 6, 2010. Lackawanna Bar Association members who plan to attend are cautioned to arrive by 12:00 p.m. to clear security.
Thursday, April 22, 2010
Appointment of Judge Thomas I. Vanaskie to Third Circuit Court of Appeals Confirmed
Yesterday, April 21, 2010, the United States Senate confirmed President Obama's appointment of Pennsylvania Middle District Federal Court Judge Thomas I. Vanaskie, 56, to the United States Third Circuit Court of Appeals. Judge Vanaskie is a graduate of Lycoming College and the Dickinson School of Law. After many years in private practice, he has served as a Judge in the Middle District over the past 16 years.
Judge Vanaskie's confirmation gives the Third Circuit Court of Appeals a full slate of 14 judges, but leaves the Federal Courthouse in Scranton with no full-time judge. The local federal court judges, Judge William J. Nealon, Judge Richard P. Conaboy, Judge Edwin M. Kosik, Judge James M. Munley, and Judge A. Richard Caputo, have all reached the mandatory retirement age of 70 and are supposed to work as part-time senior judges.
According to an April 22, 2010 article in Scranton's The Times-Tribune, Senator Bob Casey has advised that a panel appointed to recommend candidates for the Federal Bench in the Middle District have finished their assignment. Apparently, Senator Bob Casey and Senator Arlen Specter are now in the process of going through the panel's recommendations to determine which names to suggest to President Obama in the nomination process.
Sources:
"Vanaskie Confirmed," by Borys Krawczeniuk in the April 22, 2010 The Times-Tribune.
(http://thetimes-tribune.com/news/shamokin-native-vanaskie-ascends-to-federal-appeals-court-bench-1.739558);
"Confirmation of Vanaskie Gives 3d Circuit Full Complement," by Shannon P. Duffy in the April 22, 2010 Legal Intelligencer. (http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202448456886&src=EMC-Email&et=editorial&bu=The%20Legal%20Intelligencer&pt=TLI%20AM%20Legal%20Alert&cn=TLI_AM_LegalAlert_20100422&kw=Confirmation%20of%20Vanaskie%20Gives%203rd%20Circuit%20Full%20Complement&hbxlogin=1).
Judge Vanaskie's confirmation gives the Third Circuit Court of Appeals a full slate of 14 judges, but leaves the Federal Courthouse in Scranton with no full-time judge. The local federal court judges, Judge William J. Nealon, Judge Richard P. Conaboy, Judge Edwin M. Kosik, Judge James M. Munley, and Judge A. Richard Caputo, have all reached the mandatory retirement age of 70 and are supposed to work as part-time senior judges.
According to an April 22, 2010 article in Scranton's The Times-Tribune, Senator Bob Casey has advised that a panel appointed to recommend candidates for the Federal Bench in the Middle District have finished their assignment. Apparently, Senator Bob Casey and Senator Arlen Specter are now in the process of going through the panel's recommendations to determine which names to suggest to President Obama in the nomination process.
Sources:
"Vanaskie Confirmed," by Borys Krawczeniuk in the April 22, 2010 The Times-Tribune.
(http://thetimes-tribune.com/news/shamokin-native-vanaskie-ascends-to-federal-appeals-court-bench-1.739558);
"Confirmation of Vanaskie Gives 3d Circuit Full Complement," by Shannon P. Duffy in the April 22, 2010 Legal Intelligencer. (http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202448456886&src=EMC-Email&et=editorial&bu=The%20Legal%20Intelligencer&pt=TLI%20AM%20Legal%20Alert&cn=TLI_AM_LegalAlert_20100422&kw=Confirmation%20of%20Vanaskie%20Gives%203rd%20Circuit%20Full%20Complement&hbxlogin=1).
Tuesday, February 16, 2010
Judge Greenaway Appointment to the Third Circuit Court of Appeals Confirmed
On Tuesday, February 15, 2010, the United States Senate unanimously confirmed New Jersey Federal District Court Judge Joseph Greenaway Jr.'s appointment to the United States Third Circuit Court of Appeals.
The vote on the nomination of Pennsylvania Federal Middle District Court Judge Thomas I. Vanaskie is still pending.
The vote on the nomination of Pennsylvania Federal Middle District Court Judge Thomas I. Vanaskie is still pending.
Tuesday, October 27, 2009
Recent Unpublished Northeastern Pennsylvania IME Cases of Note
I recently posted the article “Recurring Symptoms of IME’s: Independent medical examinations have given rise to many complex issues,” 30 Pennsylvania Law Weekly 475 (May 7, 2007) outlining recent caselaw on a wide variety of issues pertaining to IME.
The following additional, recent unpublished Northeastern Pennsylvania IME cases of note were brought to my attention by Attorney Marianne J. Gilmartin of the Scranton office of Stevens & Lee. I thank Attorney Gilmartin for sending these cases my way.
In the case of Monahan v. The Manitowoc Company, Inc., et al., No. 465 - Civil - 2005 (Luzerne County, November 2, 2007), then Judge Michael T. Conahan (ahem) issued an Order without any opinion addressing the issue of how far a plaintiff should have to travel to attend a multi-day neuropsychological IME.
The Order offered two alternatives: (1) that the plaintiff travel down to the Bryn Mawr, PA office of the expert by the plaintiffs own means or by means paid for by the Defendants, or (2) that the plaintiff attend one portion of the multi-day IME with the expert at the local office of the defense counsel, followed by attendance at a second day of testing at the expert's office in Bryn Mawr, PA either by the plaintiff's own means or by means paid for by the defense.
In the separate, more recent IME case of Chisarick v. Economic Development Council of NEPA, Civil Action No. 3:CV 06 0519 (M.D.Pa. April 17, 2009), Judge Thomas I. Vanaskie issued an Order without any opinion holding that the Plaintiff was precluded from being accompanied by his attorney or any other observer at an independent psychiatric evaluation (IPE).
According to the Defendant's Brief filed in Chisarick, the issue was governed by an application of Fed.R.C.P. 35, pertaining to physical and mental examination prior to trial. Unlike the similar Pennsylvania state Rule of Civil Procedure 4010 pertaining to expert examinations, Federal Rule 35 is silent on the issue of whether counsel or a representative of the plaintiff may be present during such examinations.
The defense brief argued that a majority of Federal decisions on the issue have ruled that the presence of counsel at an independent psychiatric evaluation would taint and/or obstruct the evaluation by causing a distraction, impeding communications and creating an overall adversarial atmosphere. See Shirsat v. Mutual Pharma. Co., 169 F.R.D. 68 (E.D.Pa. 1996); Neumerski v. Califano, 513 F.Supp. 1011 (E.D.Pa. 1981); but see Showell v. Trump Taj Mahal Casino, 2000 WL 1514108 (E.D.Pa. 2000)(Plaintiff's counsel allowed to attend IPE but only if he did not interrupt and sat silently behind his client).
As noted, Judge Vanaskie chose to follow what the defense termed was the majority rule and he precluded the attorney or any representative from attending the IPE with the Plaintiff in this matter.
The following additional, recent unpublished Northeastern Pennsylvania IME cases of note were brought to my attention by Attorney Marianne J. Gilmartin of the Scranton office of Stevens & Lee. I thank Attorney Gilmartin for sending these cases my way.
In the case of Monahan v. The Manitowoc Company, Inc., et al., No. 465 - Civil - 2005 (Luzerne County, November 2, 2007), then Judge Michael T. Conahan (ahem) issued an Order without any opinion addressing the issue of how far a plaintiff should have to travel to attend a multi-day neuropsychological IME.
The Order offered two alternatives: (1) that the plaintiff travel down to the Bryn Mawr, PA office of the expert by the plaintiffs own means or by means paid for by the Defendants, or (2) that the plaintiff attend one portion of the multi-day IME with the expert at the local office of the defense counsel, followed by attendance at a second day of testing at the expert's office in Bryn Mawr, PA either by the plaintiff's own means or by means paid for by the defense.
In the separate, more recent IME case of Chisarick v. Economic Development Council of NEPA, Civil Action No. 3:CV 06 0519 (M.D.Pa. April 17, 2009), Judge Thomas I. Vanaskie issued an Order without any opinion holding that the Plaintiff was precluded from being accompanied by his attorney or any other observer at an independent psychiatric evaluation (IPE).
According to the Defendant's Brief filed in Chisarick, the issue was governed by an application of Fed.R.C.P. 35, pertaining to physical and mental examination prior to trial. Unlike the similar Pennsylvania state Rule of Civil Procedure 4010 pertaining to expert examinations, Federal Rule 35 is silent on the issue of whether counsel or a representative of the plaintiff may be present during such examinations.
The defense brief argued that a majority of Federal decisions on the issue have ruled that the presence of counsel at an independent psychiatric evaluation would taint and/or obstruct the evaluation by causing a distraction, impeding communications and creating an overall adversarial atmosphere. See Shirsat v. Mutual Pharma. Co., 169 F.R.D. 68 (E.D.Pa. 1996); Neumerski v. Califano, 513 F.Supp. 1011 (E.D.Pa. 1981); but see Showell v. Trump Taj Mahal Casino, 2000 WL 1514108 (E.D.Pa. 2000)(Plaintiff's counsel allowed to attend IPE but only if he did not interrupt and sat silently behind his client).
As noted, Judge Vanaskie chose to follow what the defense termed was the majority rule and he precluded the attorney or any representative from attending the IPE with the Plaintiff in this matter.
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