Contracts: Exculpatory Provision Clause

May 15th, 2018 by Rieders Travis in Uncategorized

Vinson v. Fitness & Sports Clubs, 2018 Pa. Super. LEXIS 430 (May 4, 2018), McLaughlin, J. The crux of both of Vinson's issues lies in her contention that the Exculpatory Clause is invalid because it contravenes public policy. Vinson specifically asserts that her claim involves a vital matter of public health and safety. She argues that her cause of action involves the maintenance of facilities, which concerns the obvious health and safety of members of the public. To this end, she relies upon Leidy v. Deseret Enterprises, Inc., 252 Pa. Super. 162, 381 A.2d 164 (Pa.Super. 1977) (vacating grant of judgment on pleadings where plaintiffs had pleaded that exculpatory [*7]  provision in spa contract was unconscionable). The Pennsylvania Supreme Court has held that HN3 exculpatory provisions in contracts are valid where three conditions are met: "First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion." [*9]  Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2…

Constitutional law – Pennsylvania Constitution, Article I, Section 5: The free and equal elections clause, congressional redistricting

February 9th, 2018 by Rieders Travis in Uncategorized

League of Women Voters of Pa. v. Commonwealth, 2018 Pa. LEXIS 771 (February 7, 2018) Todd, J.  This case strikes down Pennsylvania’s Congressional Redistricting Act of 2011 as unconstitutional under the Pennsylvania Constitution.  The court held that while federal courts have been unable to settle on a workable standard by which to assess partisan gerrymandering claims, there is no barrier under the “great” Pennsylvania charter.  The 2011 Plan violates Article I, Section 5, Free and Equal Elections Clause of the Pennsylvania Constitution.  The court examined each one of the congressional districts in detail, as well as the electoral history.  The court held that the 2011 Plan clearly, plainly and palpably violates the Free and Equal Elections Clause of the Pennsylvania Constitution.  The historial motives of adoption of the Pennsylvania constitutional provision at issue was to prevent the dilution of the right of the people of the Commonwealth to select representatives to govern their affairs based on considerations of the region of the state in which they live, the religious and political beliefs to which they adhered. Consequently, for all of these reasons, and as expressly set forth in our Order…

STANDING-FOOTBALL TICKETS

January 3rd, 2018 by Rieders Travis in Uncategorized

Finkelman v. National Football League, No. 16-4087 (3rd Cir. December 15, 2017) Fuentes, C.J.  Football ticket purchaser for Super Bowl challenged ticket practices under New Jersey law.  What is important about this case, since the Third Circuit would defer to New Jersey courts, is that Finkelman had standing to bring the action.  The ticketholder alleged sufficient economic harm to bring a claim.  The court examined Article III standing under the Constitution.  Plaintiff bears the burden of proving standing.  Finkelman offered specific factual allegations above those described in other cases.  He alleged a causal change justifying why the NFL’s withholding of tickets set into motion a series of events that ultimately raised prices on the secondary market.  Specifically, Finkelman alleged that insiders to whom the NFL presently provides tickets are more likely to resell those tickets to third-party brokers to keep those sales anonymous, and that those brokers in turn are more likely to charge higher prices.  If more tickets were made available to fans initially, fans would be more likely than the NFL insiders are to sell to direct fan-to-fan sales, and the prices would likely be lower.  The court…

CIVIL RIGHTS-BIVENS ACTION-PRISONER LAW

October 31st, 2017 by Rieders Travis in Uncategorized

Ziglar v. Abbasi, 582 U.S. ___ (2017).  JUSTICE KENNEDY delivered the opinion of the Court, except as to Part IV–B. After the September 11 terrorist attacks in this country, and in response to the deaths, destruction, and dangers they caused, the United States Government ordered hundreds of illegal aliens to be taken into custody and held. Pending a determination whether a particular detainee had connections to terrorism, the custody, under harsh conditions to be described, continued. In many instances custody lasted for days and weeks, then stretching into months. Later, some of the aliens who had been detained filed suit, leading to the cases now before the Court. The complaint named as defendants three high executive officers in the Department of Justice and two of the wardens at the facility where the detainees had been held. Most of the claims, alleging various constitutional violations, sought damages under the implied cause of action theory adopted by this Court in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). Another claim in the complaint was based upon the statutory cause of action authorized and created by Congress under Rev.…

MEDICAL MALPRACTICE-NURSING HOME

August 24th, 2017 by Rieders Travis in Uncategorized

Crew v. Penn Presbyterian Med. Ctr., 2017 Phila. Ct. Com. Pl. LEXIS 188 (June 30, 2017) Lachman, J. On March 16, 2012, the Plaintiffs Decedent Essie Crew was admitted to Park Pleasant Health Care Facility for nursing care, rehabilitation, physical, occupational, and speech therapy. At the time of her admission, a Park Pleasant nurse noted that Ms. Crew's skin was intact. Around April 23, 2012, Ms. Crew began to experience a loss of skin integrity. On or before May 10, 2012, Ms. Crew developed sacral wounds, bilateral contractures of her upper and lower extremities, and urinary tract infections. Trial began on October 14, 2016, and the jury delivered its verdict on October 27, 2016. The jury found that Penn Hospice was not negligent and did not answer the causation or damages questions on the verdict slip. Plaintiff filed a timely post-trial motion (PTM) challenging Judge Ceisler's grant of summary judgment and various alleged trial errors committed by the trial judge. The trial judge limited her review of the PTM to the alleged trial errors. The trial judge denied the PTM and entered judgment on the jury's verdict on February 15, 2017.…

CIVIL RIGHTS-JOB DISCRIMINATION-RACE

August 24th, 2017 by Rieders Travis in Uncategorized

Castleberry v. Sti Group, 2017 U.S. App. LEXIS 12611 (3rd Cir. July 14, 2017) Ambro, C.J.  Castleberry and Brown brought suit asserting that their termination was racially motivated, citing to various examples of discrimination such as remarks made at the workplace and unfair work treatment.  The District Court dismissed their complaint.  Because Plaintiffs state plausible claims of employment discrimination, we reverse and remand. Castleberry and Brown were hired by STI Group in March 2010 as general laborers and supervised by managers from both STI Group and Chesapeake. Shortly after being assigned to a particular worksite, the only other African-American male on the crew was fired. Plaintiffs allege that, when they arrived at work on several occasions, someone had anonymously written “don't be black on the right of way” on the sign-in sheets. They also assert that although they have significant experience working on pipelines (and more so than their non-African-American coworkers), they were only permitted to clean around the pipelines rather than work on them. They claim that, when working on a fence-removal project, a supervisor told Castleberry and his coworkers that if they had “nigger-rigged” the fence, they would…

PRODUCTS LIABILITY-TINCHER

May 24th, 2017 by Rieders Travis in Products Liability, Uncategorized

Renninger v. A&R Machine Shop, 2017 Pa. Super. 98 (April 11, 2017) Stabile, J.  On May 25, 2007, Appellant Dennis Renninger was at work in the Clarion, Pennsylvania plant of his employer, Commodore Homes (“Commodore”), a manufacturer of modular homes, when he sustained a serious injury to his foot. While under construction, each modular home moves along an assembly on wheeled casters attached to its underside. Mr. Renninger was injured when a caster ran over his foot. Appellants sued Appellees A&R Machine Shop (“A&R”) and Cass Hudson Company (“Cass Hudson”) as the designers, manufacturers and suppliers of the casters. Appellants alleged causes of action for strict products liability, negligence, breach of implied warranty, and loss of consortium causes of action, claiming the casters should have included toe guards. The case proceeded to a June 22-25, 2015 jury trial on Appellants’ strict products liability/design defect claim.  The jury returned a defense verdict, finding Cass Hudson did not supply a defective product. Appellants filed timely post-trial motions on June 30, 2015. The trial court denied those motions on November 3, 2015. The verdict was reduced to judgment on November 12, 2015, and…

Late Night Crash Closes Route 15

February 29th, 2016 by Rieders Travis in Uncategorized

MONTGOMERY - David W. Hester, 65, of Montgomery, was flown to Geisinger Medical Center in Danville after his vehicle crashed into a utility pole Sunday afternoon at the intersection of Routes 54 and 15, state police reported late Sunday night. Hester was driving west on Route 54 when he hit a mailbox, then drove over a bump in the road that sent him airborne, according to state police. He hit a curb in a parking lot, then drove onto Route 15 across the highway into the southbound lane, according to state police. Hester's vehicle continued off the road and struck a utility pole, police reported. Hester suffered serious injuries and was flown by medical helicopter to Geisinger, according to state police. A nursing supervisor at Geisinger declined to release information about Hester's condition. Route 15 was temporarily closed in both directions, due to the power lines being down, according to the state Department of Transportation. A detour was in effect for both lanes until 8 p.m. when PennDOT reported that cars traveling north could use the route. Trucks, however, still had to follow the detour, as did all southbound traffic.…

New FDA Warning on Levaquin Peripheral Neuropathy Risk Leads to New Lawsuits

November 14th, 2014 by Rieders Travis in Uncategorized

Following a recent update to the warning label by the FDA about the risk of peripheral neuropathy from Levaquin, it appears likely that a large number of product liability lawsuits will be filed by former users  of the popular antibiotic who have been suffering nerve problems for years. Levaquin is one of the most frequently prescribed antibiotics in hospitals across the United States. Prior to introduction of generic equivalents in 2011, brand-name Levaquin generated more than $1.3 billion in sales each year and the drug was prescribed more than 430 million times worldwide. Levaquin is part of class of antibiotics known as fluoroquinolones, which also include Cipro, Avelox and other medications. However, Levaquin has been the best-selling member of this class in recent years. Last year, the FDA issued a drug safety communication to announce that is requiring the manufacturer of Levaquin and the manufacturers of other fluoroquinolones to change their warning labels about the risk of peripheral neuropathy problems which can cause users to experience severe pain, burning, tingling, numbness, weakness and sensory impairments. While prior warnings suggested that reports of Levaquin neuropathy problems were rare and often resolve…