PROCEDURE-CERTIFICATE OF MERIT-EXTENSION

December 14th, 2018 by Rieders Travis in Procedure

Moore v. Donato, No. 18-0677 (C.P. Lycoming November 16, 2018) Linhardt, J.  Defendants filed a notice of intention to enter judgment non pros pursuant to 1042.7.  Exactly 30 days after defendants filed their notice, plaintiff filed a motion to extend the deadline for filing certificate of merit.  There was an affidavit in testimony.   The court believed that plaintiff did not present a reasonable explanation or legitimate excuse for the delay.  The initial records were submitted to the expert witness in November 2016 for review.  Plaintiff’s motion was denied and the prothonotary was directed to enter a judgment of non pros.

PROCEDURE-CERTIFICATE OF MERIT-ARCHITECTS

November 6th, 2018 by Rieders Travis in Procedure

Kelly Sys. v. Leonard S. Fiore, 2018 PA Super, 2018, LEXIS 1162 (10/31/18) Musmanno, J.-Motion for Determination as to necessity of certificate of merit was filed by corporation. The Court declared that the corporation was not required to file a certificate of merit under Pennsylvania Rule of Civil Procedure 1042.3 in support of its Joinder Complaint to add architects as an additional defendant. The claim for monetary damages is due to defective specifications. In a joinder situation, a defendant is not asserting a claim against the additional defendant, but rather, through joining the additional defendant, he is asserting that the cause of action should be against the additional defendant and not himself. The court sees nothing in the rules that requires a defendant to admit to the claims in the plaintiff’s Complaint in order to join an additional defendant based upon sole liability. A party need not file a certificate of merit if a joinder is based on acts of negligence that are related to the acts of negligence claim by the plaintiff. If this were a contract action, it would be clear that no certificate of merit was required.…

PROCEDURE-DISCOVERY-MEDICAL RECORDS OF OTHER DEFENDANTS

November 5th, 2018 by Rieders Travis in Procedure

Peronis v. U.S., U.S. Dist. Ct. W.D. PA, 2017 (August 28, 2017)- Fischer, J.- Records sought by plaintiff are of a confidential, private nature, implicating physician-patient privilege. They are sought without the consent of the non-party or his legal guardians. The action taken by a doctor when caring for previous or similar patients are not necessary to prove a breach of the standard of care. Plaintiffs were in possession of substantial deposition testimony and all pertinent medical records. The need for cumulative, non-party medical records is not so weighty as to overcome the need for confidentiality. Motion to Compel denied.

Procedure – Jurisdiction – Diversity of Citizenship – Trusts

May 15th, 2018 by Rieders Travis in Procedure

GBforefront, L.P. v. Forefront Management Group, LLC, No. 16-3905 (E.D. Pa. April 19, 2018) Jordan, C.J. This case requires us to consider whether, in assessing diversity-of-citizenship jurisdiction under 28 U.S.C. § 1332(a), the citizenship of a traditional trust is determined differently than that of a business trust. In light of the Supreme Court’s decision in Americold Realty Trust v. Conagra Foods, Inc., 136 S. Ct. 1012 (2016), we conclude that the citizenship of a traditional trust is based only on the citizenship of its trustee. In so holding, we acknowledge that Americold Realty abrogates part of our opinion in Emerald Investors Trust v. Gaunt Parsippany Partners, 492 F.3d 192 (3d Cir. 2007), which stated that it was unnecessary to distinguish between types of trusts when determining diversity jurisdiction. Id. at 198 n.10, 205. Based on the distinction we recognize today between traditional trusts and business trusts, we will vacate the District Court order dismissing this case for lack of jurisdiction. Because the record on appeal is insufficient for us to proceed further, we will remand the case with instructions to determine whether the trusts at issue are of the traditional…

PROCEDURE-CLASS ACTION-DEFECTIVE ROOF SHINGLES-SPECIFIC DEFECT

April 12th, 2018 by Rieders Travis in Procedure

Gonzalez v. Owens Corning, 2018 U.S. App. LEXIS 6757 (3rd Cir. March 19, 2018) Hardiman, C.J.  Class action in this Third Circuit case was properly denied because there was no clear theory of the defect.  Instead of alleging a defect, to the class so it might be proved by classwide evidence, plaintiffs invited the court to equate the existence of a defect with the mere possibility that one might exist.  The problem seemed to be that many people have problems with the shingles lasting for the warranty.  The court was looking for some specific type of theory, which the court claimed was not proffered.

PROCEDURE-FORUM NON CONVENIENS-MEDICAL MALPRACTICE

January 25th, 2018 by Rieders Travis in Procedure

Paige Moody and Khalil Tomlinson v. Lehigh Valley Hospital – Cedar Crest, 2018 Pa. Super. LEXIS 28 (January 18, 2018) Bowes, J.  Wrongful death and survival action sounding in medical malpractice was filed in Philadelphia.  The trial court transferred the case to Lehigh Valley on forum non conveniens grounds.  The Superior Court reversed and remanded for further proceedings consistent with the opinion.  A 17-month-old presented at Lehigh Valley Hospital with a history of vomiting and coughing.  She came under the care of physicians there.  After further doctor and hospital visits to various doctors and Lehigh Valley Hospital, the child was transferred to Children’s Hospital of Philadelphia by helicopter.  The doctors at Children’s Hospital performed a cardiac procedure and administered an overdose of versed, 10 times the proper dose.  The child died at Children’s Hospital eight (8) days later.  The burden to transfer on forum non conveniens grounds is a heavy one.  It must be shown that the chosen forum is either vexatious or oppressive.  Vexatious means that the plaintiff’s choice was intended to harass the defendant, even at some inconvenience to the plaintiff himself.  Oppressiveness requires a detailed factual showing…

PROCEDURE-JURISDICTION-FORUM NON CONVENIENS-JONES ACT

December 21st, 2017 by Rieders Travis in Procedure

Trotter v. 7R Holdings LLC, No. 16-1967 (3rd Cir. October 12, 2017) Greenaway, Jr., C.J.  In this appeal, we must determine whether the District Court properly exercised its power to dismiss a case pursuant to the forum non conveniens doctrine when it dismissed Appellant's claims under the Jones Act, 46 U.S.C. § 30104 (2012), and general maritime laws for unseaworthiness, negligence, and maintenance and cure. We shall affirm the District Court in two steps. First, we hold that the general presumption that “[t]he possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry,” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 247 (1981), applies to these claims (a) because the remedy provided by the alternative forum is not clearly inadequate and (b) because the Jones Act does not contain a special venue provision. Second, we hold that the District Court did not abuse its discretion in exercising its forum non conveniens power (a) because the District Court correctly determined that an adequate alternative forum existed and (b) because the District Court reasonably balanced the relevant private and…

PROCEDURE-DISCOVERY-DEPOSITION-PRESENT SENSE TESTIMONY

November 22nd, 2017 by Rieders Travis in Procedure

Maben v. Magee Women’s Hospital of UPMC, No. GD-15-003793 (C.C.P. Allegheny December 12, 2016) Wettick, J.  Plaintiffs move to reconvene depositions of Emily Getty, RN and motion for sanctions.  The case is based on allegations that defendants delayed performing C-section for close to 7 hours, which caused the newly born baby to suffer spastic quadriplegia and cerebral palsy.  A nurse who was monitoring the fetal monitoring strip actually went back and deleted concerning entries and changed them to entries that would not be concerning.  Judge Wettick said that McLane did not apply here but rather his opinion in Lattaker would apply.  Judge Wettick said that defendants were misreading the claim.  The claim dealt with a fact situation in which it was not possible to place the witness in the same setting that the witness occupied at the time treatment was provided.  Nurse Getty initially testified she had no recollection of the incident, and even if she reviewed the continuous strip (which did not happen because counsel instructed her not to do so), she would have no recollection of the day in question because of the passage of time and this…

PROCEDURE-COMPLAINT-AMENDMENT TO COMPLAINT-EXCUSABLE NEGLECT OR MISTAKE

November 22nd, 2017 by Rieders Travis in Procedure

Mullin v. Balicki, et al., No. 16-2896 (3rd Cir. Nov. 6, 2017) Fuentes, C.J.  This civil rights case involved a plaintiff’s lawyer who did not timely discover that she had a document showing that prison guards not only did not help an inmate who was threatening suicide, but actually encouraged the inmate to commit suicide.  The magistrate in the lower court refused to permit the plaintiff to amend the complaint because of the lawyer’s mistake in not discovering the document.  The court, in a very thoughtful opinion, determined that the complaint amendment should be permitted, that there was not sufficient evidence of prejudice, and that there should be relation-back.  The magistrate judge’s exercise of discretion was not within the boundaries contemplated by Rule 15 or the so-called Foman factors in light of the liberal pleading regime established by the Federal Rules.  The court found that there was really no prejudice.  If the court, on remand, decides the delay was undue or that the defendants have articulated past and potential future prejudice, the court may wiosh to consider whether attaching conditions to amendment, or limiting amendment to certain claims and parties,…

PROCEDURE-VENUE-MEDICAL MALPRACTICE-PERFORMANCE OF STUDIES

October 31st, 2017 by Rieders Travis in Procedure

Wentzel v. Cammarano, 2017 Pa. Super. 233 (July 19, 2017) Stevens, P.J.E.  This medical malpractice action arises from, inter alia, the allegedly negligent failure of Philadelphia’s St. Christopher’s Hospital (“SCHC”) and its resident cardiologist Dr. Lindsay Rogers to timely transmit her diagnosis and treatment plan for Maximor based on her reading of an emergency transthoracic echocardiogram performed on the premature newborn, who was receiving neonatal intensive care at Reading Hospital, Berks County. Dr. Rogers’ diagnosis was pulmonary hypertension requiring immediate treatment or intervention, which she recommended SCHC should provide. Appellants alleged in their complaint that the resultant one-day delay in putting Dr. Rogers’ treatment plan into effect amounted to the negligent provision of health care services causing harm to Maximor. The trial court, however, sustained Appellees’ preliminary objections to venue in Philadelphia County and transferred the matter to Berks County, as it rejected Appellants’ argument that transmission of Dr. Rogers’ impressions, diagnoses, and treatment plan for immediate transfer to SCHC constituted the furnishing of “health care services” as defined under both the MCARE Act and Pennsylvania Rules of Civil Procedure implementing such legislation. Instead, the court agreed with Appellees’ position…