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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.

NEGLIGENCE-SLIP AND FALL

December 12th, 2018 by Rieders Travis in Negligence

Koziar v. Rayner, 2018 Pa. Super. 331 LEXIS 1312 (December 7, 2018) Strassburger, J.  This case involved a cleaning lady who fell on property of the owner.  The jury found negligence, but that it was not a factual cause of the harm suffered by the cleaning lady.  The court granted a new trial.  There was never any agreement in this case that the cleaning lady suffered any injuries at all.  The homeowners vigorously challenged causation and presented ample evidence of other conflicting causes of the injury.  Therefore, the jury had the right to reject factual cause.

PRODUCTS LIABILITY-FRYE

December 6th, 2018 by Rieders Travis in Products Liability

Pledger v. Janssen Pharms., Inc., 2018 Superior Ct., LEXIS 1167 (October 31, 2018) Strassburger, J.-This case is another, gynecomastia verdict of 2.5 million dollars against the pharmaceutical manufacturer. The defendant was Janssen Pharmaceuticals and Johnson & Johnson. The court said that Frye did not prevent the doctor from testifying. The gynecomastia was caused by Risperdal. The doctor can make the diagnosis who testified based on photographs alone. This case is consistent with other similar decisions on the same subject. Differential diagnosis is a generally accepted methodology. 

STATUTE OF LIMITATIONS-CONSTITUTIONAL LAW-SEARCH & ARREST

December 6th, 2018 by Rieders Travis in Constitutional Law

Tam Thah Nguyen v. Commonwealth of Penna; Bromberg, 2018 U.S. Dist. 2-15-cv-05082 (October 2018) Bibas, J.-A claim that a search was unconstitutional accrues when the officer conducts the search, not when a court later declares it unconstitutional. So the statute of limitations runs from the time of the search, not the time of the court decision. Here, Tam Thanh Nguyen sued Pennsylvania State Trooper Jared Bromberg for a 2012 search and arrest, but only after a 2015 Pennsylvania court decision held that search unconstitutional. Nguyen’s suit thus arrives more than a year late and is time-barred, so we will affirm. 

WORKERS’ COMPENSATION-SUBROGATION-COOPERATION OF EMPLOYEE

November 28th, 2018 by Rieders Travis in Workers' Compensation

Hartford Ins. Group v. Kamara, 2018 Pa. LEXIS 6033 (Pa. S.Ct. November 21, 2018) Baer, J.  This appeal presents the issue of whether a workers’ compensation insurance carrier may bring a third-party action against an alleged tortfeasor on behalf of an injured employee to recoup the amount paid in workers’ compensation benefits where the employee did not independently sue the tortfeasor, did not join in the insurer’s action, and did not assign her cause of action to the insurer. Reaffirming the well-settled proposition that the right of action against the tortfeasor remains in the injured employee, we hold that, unless the injured employee assigns her cause of action or voluntarily joins the litigation as a party plaintiff, the insurer may not enforce its statutory right to subrogation by filing an action directly against the tortfeasor. Accordingly, we vacate the judgment of the Superior Court and reinstate the order of the trial court, which sustained the preliminary objections filed by the tortfeasor and dismissed the insurer’s complaint with prejudice. Under these circumstances, we find it apparent that sanctioning a workers’ compensation carrier to pursue litigation of the injured employee merely by…

DAMAGES-ECONOMIC LOSS DOCTRINE-EMPLOYEE SENSITIVE PERSONAL INFORMATION STORED BY EMPLOYER ON INTERNET ACCESSIBLE COMPUTER SYSTEM

November 28th, 2018 by Rieders Travis in Miscellaneous

Dittman v. UPMC, 2018 Pa. LEXIS 6051 (Pa. S.Ct. November 21, 2018) Baer, J.  We granted discretionary review in this matter to determine whether an employer has a legal duty to use reasonable care to safeguard its employees’ sensitive personal information that the employer stores on an internet-accessible computer system. We also examine the scope of Pennsylvania’s economic loss doctrine, specifically whether it permits recovery in negligence for purely pecuniary damages. For the reasons discussed below, we hold that an employer has a legal duty to exercise reasonable care to safeguard its employees’ sensitive personal information stored by the employer on an internet-accessible computer system. We further hold that, under Pennsylvania’s economic loss doctrine, recovery for purely pecuniary damages is permissible under a negligence theory provided that the plaintiff can establish the defendant’s breach of a legal duty arising under common law that is independent of any duty assumed pursuant to contract. As the Superior Court came to the opposite conclusions, we now vacate its judgment. We conclude that the lower courts erred in finding that UPMC did not owe a duty to Employees to exercise reasonable care in collecting…

CONFLICTS OF LAW-CHOICE OF LAW-FORUM SELECTION CLAUSE-INTENDED THIRD PARTY BENEFICIARY TO THE CONTRACT

November 28th, 2018 by Rieders Travis in Miscellaneous

In re McGraw-Hill Global Educ. Holdings, LLC, 2018 U.S. App. LEXIS 32931 (3d Cir. November 21, 2018) Smith, C.J.  These consolidated mandamus petitions require us to decide whether two professional photographers bringing separate copyright infringement actions are bound by a forum selection clause in contracts they did not sign. We conclude that the photographers are not bound because they are not intended beneficiaries of the agreements, nor are they closely related parties. Our conclusion means that one District Court got it right, and the other got it wrong. But mandamus is an extraordinary remedy. Because the erring District Court’s mistakes were not clear or indisputable, we decline to issue the writ. A non-signatory may be bound by a contractual forum selection clause if he is an intended third-party beneficiary to the contract. DuPont, 269 F.3d at 195 (citing Coastal Steel Corp., 709 F.2d at 202–04). The New York Court of Appeals has adopted the Restatement (Second) of Contracts for determining third-party beneficiary status. Subaru Distribs. Corp. v. Subaru of Am., Inc., 425 F.3d 119, 124 (2d Cir. 2005) (citing Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., 485 N.E.2d 208,…

Find out How Pennsylvania Hospitals Fare in New Survey

November 26th, 2018 by Rieders Travis in Medical Malpractice

Find out How Pennsylvania Hospitals Fare in New Survey
Too many patients are injured in hospitals, where safety standards are often below those in other industries. In fact, more than 1,000 Americans die each day from preventable hospital errors, according to The Leapfrog Group, an organization that collects and reports hospital data and gives hospitals a grade of A to F for patient safety. These ratings make a difference. Hospitals given a B rating by Leapfrog had a 9 percent higher risk of avoidable death than A hospitals; C hospitals had a 35 percent higher risk; and the risk in D and F hospitals was 50 percent higher. Recently, Leapfrog has come out with new safety grades for hospitals across the country, including Pennsylvania, grading hospitals on how well they prevent accidents and errors. Examining them can help you find the hospital where you are least likely to suffer mishaps such as getting an infection or the wrong medication or dose, being allowed to fall while groggy, having a surgical tool left inside, or receiving substandard discharge instructions – all of which can be a cause of hospital malpractice. Leapfrog has its drawbacks.  It needs to be understood that Leapfrog gets…

Parking Shortages in Pennsylvania Plague Truckers and Endanger Motorists

November 19th, 2018 by Rieders Travis in Car Accidents, Truck Accidents

Parking Shortages in Pennsylvania Plague Truckers and Endanger Motorists
The shortage of legal parking spots for truckers is endangering everyone driving on Pennsylvania highways. On the Pennsylvania Turnpike alone, there is a deficit of 890 parking spots for trucks; as a result, frustrated truckers have been leaving their vehicles wherever they can find room, usually alongside the highways.  This creates problems for both truckers and motorists who have to navigate a maze of large vehicles parked where they do not belong.  In addition, trucks pulling back onto the road from unsafe parking can easily cause crashes. Since the Pennsylvania Turnpike is a popular route for many commercial drivers, the need to address the parking deficit is crucial for the safety of all drivers. The situation has become so bad that the Pennsylvania Turnpike Commission is finally attempting to deal with the issue and discussing the need to create more parking areas for trucks. Other interstate roads crisscross Pennsylvania including Route 80, Route 81 and new roads running north and south through Williamsport Pennsylvania.   Some of these roads have little or no areas for parking or even refueling of trucks. Any crash involving largely trucks is likely to be devastating…

CONDEMNATION-GAS LINES

November 15th, 2018 by Rieders Travis in Miscellaneous

Transcon. Gas Pipe Line Co. v. Permanent Easements for 2.14 Acres, 3d Cir. 2018 LESIX 30669 (October 30, 2018) Roth, J. Congress may grant eminent domain power to private companies acting in the public interest. This appeal requires us to determine the limits on Congress’s grant of eminent domain power to private companies building gas lines under the Natural Gas Act (NGA), 15 U.S.C. §717f(h). The NGA gives natural gas companies the power to acquire property by eminent domain, but it provides only for standard eminent domain power, not the type of eminent domain called “quick take” that permits immediate possession. The District Court granted a preliminary injunction to Transcontinental Gas Pipe Line Company, which effectively gave the company immediate possession of certain rights of way owned by appellant landowners. The landowners claim that granting immediate possession violated the constitutional principle of separation of powers because the taking of property by eminent domain is a legislative power and the NGA did not grant “quick take.” We disagree and hold that the District Court’s order did not violate the principle of separation of powers because Transcontinental properly sought and obtained the…

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