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PENNSYLVANIA APPELLATE COURT DECISIONS

I. Civil Litigation A. Assumption of Risk – Skiers

Bell v. Dean, 2010 PA Super 151 (August 16, 2010) Holding: The Pennsylvania Skier's Responsibility Act, 42 Pa.C.S.A. § 7102(c), bars

recovery for damages for injuries sustained when a skier and a snowboarder collide at a recreational ski area because these types of collisions are "common, frequent and expected" and, therefore, an inherent risk of downhill skiing.

A Summary of Recent Pennsylvania Appellate Court Decisions

By Daniel J. Siegel, Esquire LAW OFFICES OF DANIEL J. SIEGEL, LLC

66 W. Eagle Road • Suite 1 • Havertown, PA 19083-1425 (610) 446-3457 • Fax (610) 471-0570 • E-mail

REPORTING DECISIONS THROUGH AUGUST 31, 2010

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FEATURED CASE:

Superior Court Orders New Trial in Products Liability Case In Lewis v. CRC Industries, Inc., No. 2358 EDA 2009 (Pa.Super., August 31, 2010), the

Pennsylvania Superior Court ordered a new trial in a hotly-contested case involving the application of New Jersey products liability law. Following a verdict for the defendant, and denial of post-trial motions, plaintiff appealed. The Law Offices of Daniel J. Siegel, LLC assisted with the preparation of the Superior Court brief, arguing that the trial court’s jury charges on New Jersey products liability law were erroneous because of critical omissions and generalized confusion by the trial judge. The Court ruled:

By charging the jury on the principles of comparative and contributory negligence and assumption of risk and by failing to limit the jury’s consideration of Lewis’s conduct, the trial court abused its discretion. It is only when “the charge as a whole is inadequate or not clear or has a tendency to mislead or confuse rather than clarify a material issue” that error in a charge will be found to be a sufficient basis for the award of a new trial. Our review of the entire record indicates that the trial court’s errors created the real danger that the jury improperly considered Lewis’s conduct in determining whether the product was designed defectively. We are, therefore, compelled to conclude that the trial court’s abuse of discretion was prejudicial and likely affected the outcome of the case.” Lewis, Slip Op. at pp. 15-16.

Click here to read the Superior Court Opinion Click here to read the Brief of the Appellant filed with the Superior Court

The Law Offices of Daniel J. Siegel, LLC Cooperated with the Law Offices of Charles Tannenbaum On This Appeal

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A SUMMARY OF RECENT APPELLATE DECISIONS BY DANIEL J. SIEGEL, ESQUIRE ____________________________________________________________________________


B. Consolidation of Actions Kincy v. Petro, No. 16 EAP 2009 (Pa., August 17,

2010) Holding: An Order consolidating actions under

Pa.R.C.P. 213(a), involving matters with a common question of law or fact or which arise from the same transaction or occurrence, does not result in the complete consolidation of the actions contemplated unless they involve the same parties, issues, and defenses. Rather, consolidation under Rule 213 does not result in the merger of pleadings or the loss of the separate identities of the actions. Justice Saylor filed a concurring opinion in which Justice Eakin joined.

C. Federal Employers Liability Act & Federal Locomotive Inspection Act Lockley v. CSX Transportation Inc., 2010 PA Super 149 (August 13, 2010)

Holding: The Federal Locomotive Inspection Act, 49 U.S.C. § 20701, et seq. (FLIA), does not create an independent cause of action for personal injuries; rather, an injured party must rely on the Federal Employers Liability Act, 45 U.S.C. §§ 51-60 to recover damages as the result of an FLIA violation.

D. Governmental Immunity Meyer v. Community College of Beaver County, No. 20 WAP 2009 (Pa., August 17, 2010)

Holding: Local agencies are not immune from all statutory causes of action, regardless whether they sound in tort or in contract. Rather, Political Subdivision Tort Claims Act, 42 Pa.C.S.A. § 8542, confers governmental immunity for conduct causing injury to a person or property, not to contract actions. Justice Orie Melvin filed a concurring opinion.

E. Pharmaceuticals - Statute of limitations Coleman v. Wyeth Pharmaceuticals., 2010 PA Super 158 (August 30, 2010)

Holding: Because there was a significant factual dispute as to when a plaintiff should have reason to suspect that there was a causal link between her condition and her ingestion of the medication at issue, the issue of plaintiff's reasonable diligence is a factual one for the jury, and summary judgment should not have been granted. In this failure to warn case involving the link between hormone replacement medication and breast cancer, the Superior Court ruled that it was for the jury to determine whether the discovery rule tolled the statute of limitations. The Court added that fact sheets, which are similar to depositions and interrogatory answers under Pa.R.C.P. 4020(d), are not binding judicial admissions.

All decisions are “hyperlinked” to the slip opinion. All you have to do is “click” (or “ctrl + click”) on the title of the case, and if connected to the Internet, your browser will open up the decision for you to read in its entirety. Try it and see!

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F. Products Liability - Design Defects Smith v. Yamaha Motor Corp., 2010 PA Super 154 (August 18, 2010)

Holding: Because the doctrines of unintended use and misuse are distinct concepts, a plaintiff's misuse of a product cannot be grounds for summary judgment in favor of a manufacturer under a design defect theory unless it is established that (1) the misuse solely caused the accident, and (2) the design defect did not contribute at all to the accident.

G. Reimbursement of Defense Costs American and Foreign Insurance Co. v. Jerry's Sport Center, Inc., No. 88 MAP 2008 (Pa.,

August 17, 2010) Holding: When a court rules that an insurer had no duty to defend its insured, the insurer is

not entitled to be reimbursed for defense costs absent an express provision in the written insurance contract. Justice Saylor filed a concurring opinion.

H. Standing Commonwealth v. Janssen Pharmaceutica, Inc. No. 24 EAP 2009 (Pa., August 17, 2010)

Holding: Pursuant to the Attorneys Act, 71 P.S. § 732-103, no party to an action, other than the Commonwealth agency involved in the action itself, may challenge the authority of the agency's legal representation. Thus, the defendant lacked standing to challenge the Commonwealth's hiring of private counsel. Justice Baer filed a concurring opinion in which Justice McCaffery joined. Justice Saylor filed a dissenting opinion.

I. Striking a Juror Lockley v. CSX Transportation Inc., 2010 PA Super 149 (August 13, 2010)

Holding: A party aggrieved by a trial court’s erroneous decision to strike a juror for cause must establish prejudice in order to be granted a new trial.

J. Sunshine Act Violation Trib Total Media Inc. v. Highland Sch. Dist., No. 1588 C.D. 2009 (Pa.Cmwlth., Aug. 5, 2010)

Holding: A government agency violated the Sunshine Act, 65 Pa.C.S §§ 701-716, when it invited local business owners to participate in an executive session for litigation purposes to discuss a property tax assessment appeal. The only persons who should be admitted to an "executive session" are those necessary to carry out the purpose of the meeting. If unnecessary third parties are present at an executive session, however, there is no confidentiality of communication, and an executive session is not appropriate.

II. Workers' Compensation A. Burden of Proof- Reinstatement of Benefits

Bufford v. Workers' Compensation Appeal Board (North American Telecom), No. 2 MAP 2009 (August 17, 2010) Holding 1: A claimant seeking reinstatement of suspended benefits must prove that his or

her earning power is once again adversely affected by his or her disability, and that such disability is a continuation of that which arose from his or her original claim. The claimant need not re-prove that the disability resulted from a work-related injury during his or her original employment. Once claimant meets this burden, the defendant employer must show that claimant's loss of earnings is not caused by the disability arising from the work injury.

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Holding 2: The act of leaving post-injury employment to accept employment with another employer for reasons unrelated to the work injury is not "fault" as contemplated by the Pieper and Stevens standards, and is therefore not a reason to bar the reinstatement of suspended benefits under Section 413(a) of the Act. The concept of "fault" in Pieper and Stevens apply only to job availability and those matters that specifically bar a claimant from reinstatement of benefits under the Act or relevant case law.

B. Compromise and Release Agreements McKenna v. Workers' Compensation Appeal Board (SSM Industries, Inc. and Liberty

Mutual Insurance Co.), No. 454 C.D. 2010 (Pa. Cmwlth., August 18, 2010) Holding: Because a Compromise and Release Agreement is not binding until it is approved

by a Workers' Compensation Judge, an employer may refuse to proceed with a C&R hearing if negotiations break down. In this case, the employer refused to proceed with a C&R unless the claimant signed an agreement stating that he would resign from and not seek re-employment with the defendant employer.

C. Expectation of Privacy Tagouma v. Investigative Consultant Services, Inc., 2010 PA Super 149 (August 13, 2010)

Holding: An injured worker receiving workers' compensation benefits does not have an expectation of privacy while praying in public because (1) he had a diminished expectation of privacy because of his worker’s compensation claim, (2) the Center at which he was praying was open to the public, and (3) he was praying directly in front of a window. Thus, the Court dismissed claims of intrusion upon seclusion and abuse of process.

D. Expert Opinions Hall v. Workers' Compensation Appeal Board (America Service Group), No. 404 C.D. 2009

(Pa.Cmwlth., August 13, 2010) Holding: When a medical provider does not mail the required records to a utilization review

organization within thirty (30) days of the request, the URO is required to find that the treatment was not reasonable or necessary.

E. Reimbursements Aston Township v. Workers' Compensation Board (McPartland), No. 2553 C.D. 2009

(Pa.Cmwlth., August 19, 2010) Holding: Reimbursement of fees and expenses from third-party settlements constitutes

compensation under the Act, and employers who overpay them should be reimbursed by the Supersedeas Fund and not directly from the claimant.

F. Termination of Benefits - Adequacy of Testimony Hall v. Workers' Compensation Appeal Board (America Service Group), No. 404 C.D. 2009

(Pa.Cmwlth., August 13, 2010) Holding: A medical expert's opinion will not support a termination of benefits if the expert

does not acknowledge the accepted work injuries and does not opine that the claimant has fully recovered from those injuries. In addition, the medical expert need not believe that a particular work injury actually occurred; rather, the opinion is competent if the expert assumes the presence of an injury and finds it to be resolved by the time of the examination.

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