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CONSTITUTIONAL LAW-FIRST TERM-THE NUMBER RIGHTS-FREEDOM TO ASSOCIATE

April 23rd, 2019 by Rieders Travis in Constitutional Law

Adams v. Governor of Del. 2019 U.S. App. LEXIS 10618 (April 10, 2019) Fuentes, J.-James R. Adams is a resident and a member of the State Bar of Delaware. For some time, he has expressed a desire to be considered for a judicial position in that state. Following the announcement of several judicial vacancies, Adams considered applying but ultimately chose not to because the announcement requires that the candidate be a Republican. Because Adams was neither a Republican nor a Democrat, he concluded that any application he submitted would be futile. Adams brings this suit against the Governor of the State of Delaware to challenge the provision of the Delaware Constitution that effectively limits service on state courts to members of the Democratic and Republican parties. Adams claims that under the Supreme Court’s precedent in Elrod v. Burns and Branti v. Finkel, a provision that limits a judicial candidate’s freedom to associate (or not to associate) with the political party of his or her choice is unconstitutional. The Governor argues that because judges are policymakers, there are no constitutional restraints on his hiring decisions and he should be free to…

What the “Truck Driver Shortage” in PA Says About the Trucking Industry

April 17th, 2019 by Rieders Travis in Truck Accidents

Truck Driver Shortage
The trucking industry is hurting, causing problems for all motorists. There is a shortage of truck drivers across the country; and while it might seem that fewer trucks on the road should lead to fewer accidents, the result is the opposite.  In Pennsylvania, as well as other states, the high demand for truckers means that drivers who are less experienced and less qualified are being hired, which can lead to an increased number of crashes. Truck drivers and the motor carriers that hire them have a responsibility to follow the rules to keep our highways safe.  They must drive carefully and avoid problems caused by driver fatigue, driver failure due to health issues, alcohol and drugs, and vehicle failure due to improperly maintained or neglected maintenance. However, the shortage of truck drivers means some new employees are not as well trained or vigilant. This situation makes our highways more dangerous, as any crash involving large trucks is likely to be devastating and result in serious injuries or death. According to the Insurance Institute for Highway Safety, 3,986 people died in large truck crashes in 2016. If you or a loved one…

NEGLIGENCE-SLIP AND FALL-MEDICAL EXPERT

April 17th, 2019 by Rieders Travis in Negligence

Wright v. Residence Inn by Marriott 2019 Pa. Super LEXIS 330 (April 9, 2019) Kunselman, J.-Superior Court reversed trial court in refusing to admit plaintiff’s sole medical expert. The objection to the testimony was that plaintiff’s expert was precluded because the case was so specialized. Marriott argued the doctor was not sufficiently qualified in orthopedic surgery since he was simply an internist. The doctor who was plaintiff’s expert practiced for 37 years and rotated through all specialties including orthopedic surgery. He had been on the staff of at least two hospitals. He had been qualified previously. It was prejudice to not let him testify. The case was sent back for trial. 

PROCEDURE-JURISDICTION-MEDICAL DEVICES

April 17th, 2019 by Rieders Travis in Procedure

Freeman Maurice Vaughan v. Olympus Am. 2019 Pa. Super. LEXIS 334 (April 10, 2019) McLaughlin, J.-Lower court reversed in dismissing the case for change of venue. One of the defendants, Olympus America sought dismissal based on forum non conveniens. The lower court abused its discretion in moving the case to North Carolina. Further, Olympus had sufficient contacts in Pennsylvania. This case involved a device where Olympus allegedly had a duty to ensure and an effective and validated reprocessing protocol is disseminated to medical facilities and professionals. Despite of its redesign of the scope, Olympus took no action to update the reprocessing protocol and thus failed to provide end users of the redesigned scope an effective and validated protocol. If Olympus wanted or needed to disseminate information about changes to the reprocessing protocol, it would do so through a related company, Olympus Corporation of America. The court found sufficient contacts and also found that there was no reason to disturb venue. 

What are ELDs, and Why are Truckers Angry About Them?

April 12th, 2019 by Rieders Travis in Truck Accidents

On December 18, 2017, the electronic logging device (ELD) rule took effect, requiring commercial long-distance drivers to install electronic tracking devices in their vehicles. The ELD mandate applies to most Commercial Motor Vehicle (CMV) drivers, more than 3.5 million across the country. While the ELDs make it easier to track hours and miles traveled and are supposed to make roads safer by keeping long-distance drivers from driving while fatigued, many drivers are angry about them. Truckers feel that the rules actually make their driving situation worse, lower their productivity, make it more difficult to find places to sleep and park, and even encourage speeding and reckless driving that may increase the chances of a crash. Any crash involving largely trucks is likely to be devastating and result in serious injuries or death. According to the Insurance Institute for Highway Safety, 3,986 people died in large truck crashes in 2016. Trucks often weigh 20-30 times as much as passenger cars and have greater ground clearance, which can result in smaller vehicles winding up underneath trucks. If you or a loved one has suffered injury or someone has died in a truck…

AMERICANS WITH DISABILITIES ACT-“REGARDED AS” THEORY-JURY VERDICT IN CIVIL RIGHTS

April 8th, 2019 by Rieders Travis in Miscellaneous

Robinson v. First State Cmty. Action Agency, 2019 3rd Cir. LEXIS 9503 (April 1, 2019) Fuentes, J.-Tamra Robinson was told by her manager Karen Garrett that her work performance was so poor that “you either don’t know what you’re doing, or you have a disability, or [you’re] dyslexic.” Taking Garrett’s words seriously, Robinson, who had never before considered the possibility she might have a disability, decided to undergo testing for dyslexia. She sent Garrett an evaluation that concluded that Robinson had symptoms consistent with dyslexia, and requested certain accommodations from the manager of human resources. She was told that any diagnosis she received would not prevent her from performing her work in a satisfactory manner, and she was advised to focus on improving her performance. Weeks later, she was fired. During the litigation in the District Court between Robinson and her former employer, First State Community Action Agency, Robinson acknowledged that she could not prove she was dyslexic. She proceeded on a different theory, that she was perceived or regarded as dyslexic by her employer and was therefore entitled to a reasonable accommodation the same way someone who was dyslexic…

PROCEDURE-FOREIGN SOVEREIGN IMMUNITIES ACT OF 1976-SERVICE

April 8th, 2019 by Rieders Travis in Procedure

Republic of Sudan v. Harrison, 2019 U.S. LEXIS 2293 (March 26, 2019) ALITO, J.-This case concerns the requirements applicable to a particular method of serving civil process on a foreign state. Under the Foreign Sovereign Immunities Act of 1976 (FSIA), a foreign state may be served by means of a mailing that is “addressed and dispatched … to the head of the ministry of foreign affairs of the foreign state concerned.” 28 U.S.C. §1608(a)(3). The question now before us is whether this provision is satisfied when a service packet that names the foreign minister is mailed to the foreign state’s embassy in the United States. We hold that it is not. Most naturally read, §1608(a)(3) requires that a mailing be sent directly to the foreign minister’s office in the minister’s home country. 

INSURANCE-FINANCIAL RESPONSIBILITY LAW-EXCESS COVERAGE-UMBRELLA POLICY-UNDERINSURANCE

April 5th, 2019 by Rieders Travis in Insurance

Warrick v. Empire Fire & Marine Ins. Co., 2019 U.S. Dist. LEXIS 49716 (March 25, 2019) Kenney, J.-Plaintiff Richard Warrick brings an action for breach of contract and bad faith against Defendant Empire Fire and Marine Insurance Company for denying his claim of underinsured motorist coverage following an accident in November 2016 with an allegedly underinsured motorist. Plaintiff claims that Defendant is liable to Plaintiff based on Plaintiff’s purchase of Supplemental Liability Protection from Enterprise Leasing Company of Philadelphia, LLC, to whom Empire Fire and Marine Insurance Company issued an excess policy. Even if Empire had not separately excluded underinsured motorist coverage, it would be excluded from the MVFRL’s requirement that it provide underinsured motorist coverage or that it use the written rejection form because it is an excess policy and not subject to the requirements of the MVFRL. 

EVIDENCE-SPOLIATION-ADVERSE INFERENCE

April 5th, 2019 by Rieders Travis in Evidence

Marshall v. Brown’s IA 2019, Pa. Super LEXIS 279 (March 27, 2019) Bowes, J.-Harriet Marshall appeals from the July 10, 2017 judgment in favor of Appellee Brown’s IA, LLC, and alleges that she is entitled to a new trial because the trial court erred in refusing to give an adverse inference instruction based on Appellee’s spoliation of videotape evidence. We vacate the judgment and remand for a new trial. As we stated in Mt. Olivet, supra, at 1269 (quoting Nation-Wide Check Corp. v. Forest Hills Distributors, Inc., 692 F.2d 214, 218 (1st Cir. 1982)), “[s]poliation sanctions arise out of ‘the common sense observation that a party who has notice that evidence is relevant to litigation and who proceeds to destroy evidence is more likely to have been threatened by that evidence than is a party in the same position who does not destroy the evidence.’” Ms. Marshall asked the court for the least severe spoliation sanction, an adverse inference instruction. On the facts herein, it was warranted, and the court abused its discretion in refusing the charge. Judgement vacated. Case remanded for a new trial. Jurisdiction relinquished. 

STATUTE OF LIMITATIONS-NEGLIGENCE-MAINTENANCE OF STORM WATER MANAGEMENT SYSTEM PREVENTING RUN-OFF

April 4th, 2019 by Rieders Travis in Statute of Limitations

Kowalski v. TOA Pa. 2019 Pa. Super LEXIS 281 (March 27, 2019) Bowes, J.-The Superior Court affirmed the entry of judgment on trespass claim against Condo Association, reversed the order of nominal damages and remanded for new trial as to the damages on the Condo Association’s cross claim against TOA. Brian Kowalski owned property downhill from Liberty Hill’s Condominiums. Mr. Kowalski sued for surface water run-off. Mr. Kowalski said that the trial court erred in concluding that his breach of contract and negligence claims were barred by the statute of limitations. The trial court’s termination that the breach of contract claim expired in 2011 and was therefore barred by the four year statute of limitations was sustained. Likewise, the two year statute of limitations for negligence was sustained. The record did not evidence a permanent change or permanent injury to Mr. Kowalski’s property as the result of the increased surface water flowing from the Liberty Hills Development. The Superior Court affirmed the trial court’s entry of judgment against the Condo Association because of a continuing trespass that included an overflowing pond they didn’t do anything about. The trial court determined…

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