Procedure

July 23rd, 2019 by Rieders Travis in Procedure

PROCEDURE-CLASS ACTION-FOREIGN MEDICAL STUDENTS

Russell v. Educ. Comm’n for Foreign Med. Graduates, 2021 U.S. App. LEXIS 28960 (3rd Cir. September 24, 2021) (Restrepo, C.J.). Third Circuit reversed this case, saying class action should not have been granted because the factors were not rigorously examined. This case involved graduates of foreign medical schools who wished to be accepted to United States medical-residency program. They must have graduated with certain requirements, including United States medical licensing exam. This case involved investigation of irregular behavior. There is a commission that decides whether there has been irregular behavior. The court found this one person’s issue did not support a class action.

PROCEDURE-AMENDMENT-RELATION BACK-STATUTE OF REPOSE

SEPTA v. Orrstown Fin. Servs., 2021 U.S. App. LEXIS 26503 (September 2, 2021) (Ambro, C.J.).  Statutes of limitations, as their name suggests, limit the amount of time in which a plaintiff can bring a particular claim. Once the limitations period has expired, a plaintiff who has not already filed suit is ordinarily out of luck. But statutes of limitations are subject to various carveouts and exceptions. Statutes of repose are statutes of limitations’ more severe cousins. They “protect[] the defendant from an interminable threat” of a lawsuit by “creat[ing] an absolute bar on a defendant’s temporal liability.” Cal. Pub. Emps.’ Ret. Sys. v. ANZ Sec., Inc., 137 S. Ct. 2042, 2050 (2017) (internal quotation marks omitted) (hereinafter “CalPERS”). “[S]tatutes of repose pursue similar goals as do statutes of limitations (protecting defendants from defending against stale claims), but strike a stronger defendant-friendly balance.” In re Exxon Mobil Corp. Sec. Litig., 500 F.3d 189, 199–200 (3d Cir. 2007). Thus statutes of repose are not as flexible as statutes of limitations. See, e.g., CalPERS, 137 S. Ct. at 2055 (holding that statutes of repose are not subject to equitable tolling). We must decide whether Rule 15(c) of the Federal Rules of Civil Procedure, which provides a carveout more commonly applied to statutes of limitations, also applies to statutes of repose. We are persuaded that Rule 15(c) allows amendment of a pleading after the expiration of a repose period here—subject to the Rule’s ordinary constraints—because the Rule’s “relation-back” doctrine leaves the legislatively mandated deadline intact and does not disturb any of the defendants’ vested rights to repose in this case. We therefore affirm the District Court’s decision to allow amendment.

While we agree that a repose statute’s purpose is to give defendants protection after a certain amount of time, it does not defeat that purpose for a plaintiff to bring an action within the time allotted—even if the plaintiff later amendsthe precise form of its pleadings. SEPTA brought its action initially within the applicable repose periods. And we reiterate that, under Rule 54(b), reinstatement of dismissed claims cannot constitute the filing of a new action until a court has decided all claims against all parties to the initial action.

Rule 15(c) encourages courts to decide cases on the merits, rather than a technicality, if a plaintiff merely seeks to amend a timely filed complaint after the statutory deadline has expired. While Defendants insist this principle conflicts with the protection from liability afforded by statutes of repose, we see no such conflict. Moreover, district courts retain discretion to deny plaintiffs leave to amend outside the repose period if the circumstances of a particular case would make amendment unjust. Thus statutes of repose themselves are no barrier to relation back under Rule 15(c) here.

PROCEDURE-VENUE-FORUM NON CONVENIENS

Doe v. Bright Horizons Children’s Ctr., LLC, 2021 Pa. Super. LEXIS 572; 2021 PA SUPER 183 (September 10, 2021) (Bowes, J.).  Jill and John Doe (“Parents”), as parents and legal guardians of Jack Doe, a minor, appeal from the August 27, 2020 order transferring the underlying case from Philadelphia County to Berks County based on forum non conveniens.  After thorough review, we affirm.

In this case, in contrast to Moody v. Lehigh Valley Hosp.-Cedar Crest, 179 A.3d 496, 502 (Pa. Super. 2018), the trial court appropriately considered the totality of the record evidence, including the residency of various witnesses, the distance between Berks County and the Philadelphia City Hall, and the impact of travel time and teacher absence from the Daycare on its operation and the children.  Our review of the certified record confirms the accuracy of the trial court’s recitation of the relevant facts and testimony.  We therefore discern a reasonable evidentiary basis for the trial court’s order transferring venue. Hence, we affirm.

PROCEDURE-PRELIMINARY INJUNCTION-LITTLE LEAGUE-COVID-19-ARBITRARY CAPRICIOUS STANDARD

Needville Little League v. Little League Baseball, No. 21-0801 (C.P. Lycoming August 17, 2021) (Linhardt, J.).  Judge Linhardt found that arbitrary and capricious standard was satisfied in connection with disqualifying two teams where people tested positive for COVID-19 because other teams were allowed to play and kids were allowed to self-administer tests!  However, Linhardt, who always seems to rule in favor of the big guy (hospital, Little League, Textron) found that there was no way to put Humpty Dumpty back together again.  The court credited the representation of defendant’s witnesses, as it always seems to, that adding two new teams at this date would be burdensome.  In granting the injunction, Little League would be required to make many affirmative accommodations through scaling changes, staffing relocation, housing alternatives, and adjustments to COVID-19 protocols to accommodate two additional teams.  In other words, it was too much trouble to provide a remedy to those who were clearly wronged.

PROCEDURE-PRIVILEGE-ATTORNEY-CLIENT-PRIVILEGE LOG

Carlino East Brandywine, L.P. v. Brandywine Village Associates, 2021 Pa. Super. 147 (July 23, 2021) (Stabile, J.).  This case involved a civil action against Brandywine defendants and Attorney Prince alleging causes of action for breach of contract, tortious interference with existing contractual relationship and prospective business relations, and abuse of process.  The question concerned a prospective contract with Giant Food and other possible tenants.  Carlino alleged, with respect to Brandywine defendants and Attorney Prince, that they engaged in abuse of process by making false and baseless statements in court and before the Pennsylvania Department of Environmental Protection to interfere with Carlino’s application to secure approval of the Carlino Shopping Center.  At issue was a discovery dispute concerning 48 separate document requests.  The requests, on their face, sought production of attorney-client communications with Attorney Prince and included work product shared by Prince with other appellants.  The requests also sought Attorney Prince’s investigation, comments and responses.  One question was whether the Brandywine defendants waived attorney-client privilege and work product protection.

The court discussed a number of jurisdictional issues and decided, among other things, that it would not become involved with preliminary objections.  However, the court said that assertion of the privilege was appropriate.  While the failure to produce the privilege log per se is not a proper basis for the trial court to find waiver of privilege, the trial court did appropriately proceed to examine whether privileges were waived based upon pleadings and deposition testimony.  The request for attorney-client communications was unambiguous.  An in camera is not necessary where requests clearly on their face invoke the privilege.  The request in this case asked for attorney-client communications and made it unnecessary to identify protected documents at that time.  Appellants, through their pleadings, invoked the affirmative defense of reliance on advice of counsel.  The question is whether this effectuated a blanket waiver of the privilege.  The court discussed the privilege in that connection and said the scope of waiver must be determined by the extent to which the privileged material has been placed at issue.  Privilege waivers do not waive the attorney-client privilege or work product doctrine as to all material counsel may possess, but rather there must be an issue-specific analysis of the waiver.  It seems to me we run into this reliance upon counsel quite a bit, even in med mal cases.  The court also discussed attorney work product and what it is.  The protection belongs to the attorney, not the client.  Work product is codified in Pennsylvania Rule of Civil Procedure 4003.3.  Documents ordinarily protected by attorney work product may be discoverable if the work product itself is relevant to the underlying action.  To overcome the work product privilege, either an attorney’s mental impressions, conclusions, opinions, memoranda, notes, summaries, legal research or legal theories must be directly relevant to the action.  The court here had to determine whether waiver of work product protection occurred when appellants asserted reliance on advice of counsel as a defense.  In that scenario, the attorney’s actions must be looked at.  In sum, the court found that a party must produce a useful privilege log identifying all attorney-client communication responsive to communications requested throughout the document production request.  Upon receipt of that log, the trial court may conduct an in camera inspection, if necessary.

PROCEDURE-DECLARATORY JUDGMENT ACT-DISCRETIONARY JURISDICTION

Dianoia’s Eatery, LLC v. Motorists Mut. Ins. Co., 2021 U.S. App. LEXIS 24644 (August 18, 2021) (Smith, C.J.).  In this case, there was a lawsuit concerning insurance for COVID-19 losses by restaurants.  There was diversity jurisdiction.  The court determined whether, as a discretionary matter, the federal court should abstain from hearing the declaratory judgment action because of issues concerning state law.  The court looked at the following factors: (1) likely that a federal court declaration will resolve the uncertainty of obligation which gave rise to the controversy; (2) fifth factor – general policy of restraint when the same issues are pending in state court; (3) third factor – public interest in settlement of the uncertainty of obligation.  The district courts all correctly rejected the insurer’s contention that the restaurant’s complaints were for legal relief “masquerading” as declaratory relief.  In weighing factors relevant to the exercise of discretion under the DJA, the courts either misinterpreted the factors, failed to squarely address the alleged novelty of state law issues, or did not create a record that was sufficient for review.  The Third Circuit vacated the orders on appeal and remanded for a new consideration under DJA and other factors.  Roth dissented.  Roth thought there should be automatic abstention just because the issues were unique and unusual.

PROCEDURE-INTERVENTION-INSURANCE COMPANY

Bogdan v. Am. Legion Post 153 Home Ass’n, 2021 Pa. Super. LEXIS 388 (June 23, 2021) (Bender, P.J.E.)  Underwriter sought to intervene in a Dram Shop Action for the purpose of securing a special jury verdict form and answers to interrogatories to allow a clear determination of the basis for the jury’s verdict, in order to assist with subsequent coverage determinations regarding indemnification in the declaratory judgment action brought by the insurance company.  The underwriters argued that a general jury verdict would not allow the underwriters to determine whether there is insurance coverage for this Dram Shop action.  The underwriters explained that some counts are not covered by the liquor liability policy.  The underwriters claimed that a verdict slip which differentiates between different counts and damage components is necessary.  Underwriters only sought to intervene in relation to the verdict slip and the underlying action is still in the discovery stage.  Plaintiff in American Legion PA objected to the underwriter’s petition to intervene.  The lower court denied underwriter’s petition to intervene.  After deciding that the matter was properly before the court, the order was reversed and the case remanded.  In denying underwriter’s petition, the lower court abused its discretion.

PROCEDURE-FORUM NON CONVENIENS-CONSOLIDATED RAIL CORPORATION

Stevens v. Penn Central Corp., 2021 Pa. Super. LEXIS 207 (April 15, 2021) (Stevens, P.J.E.) Appellant Paul K. Stevens (“Mr. Stevens”) appeals from the order granting the motion filed by Appellees Penn Central Corporation a/k/a American Premier Underwriters, Inc. (“American Premier”), Consolidated Rail Corporation (“Consolidated Rail”), and CSX Transportation, Inc. (“CSX Transportation”) (collectively “Appellees”) to dismiss Mr. Stevens’ complaint filed in the Court of Common Pleas of Philadelphia County based on the doctrine of forum non conveniens, for re-filing in a more appropriate forum. After a careful review, we affirm.

Recently, in Ficarra v. Consolidated Rail Corporation, 242 A.3d 323 (Pa.Super. 2020), this Court examined the holdings of Wright , supra , and Robbins, supra.

In Ficarra, the record before the trial court demonstrated that none of the plaintiffs resided in Pennsylvania, and all of the plaintiffs worked for the railroad companies outside of Pennsylvania from 1953 to 2012. In its motion to dismiss, the railroad companies averred none of the potential fact witnesses or sources of proof resided in Pennsylvania; the railroad companies would be unable to avail themselves of compulsory process for attendance of unwilling non-Pennsylvania witnesses; there would be a high cost of obtaining attendance of willing out-of-state witnesses; a fact-finder in Pennsylvania would be unable to view easily the plaintiffs’ work premises; and there would be a burden on Pennsylvania courts, taxpayers, and jury pool. Ficarra, supra.

Based on the record, we find no abuse of discretion. The trial court properly weighed the private and public factors using the correct evidentiary burden. Ficarra, supra. Thus, we affirm the order granting Appellees’ motion to dismiss. As this Court has previously recognized, it is within the trial court’s discretion to weigh some factors more heavily than others and weighing the factors is not “an exercise in counting numbers.” Bochetto v. Dimeling, Schreiber & Park, 151 A.3d 1083 (Pa. Super. 2016). See Hovatter v. CSX Transportation, Inc., 193 A.3d 420, 424 (Pa. Super. 2018) (holding that, in reviewing orders dismissing an action under the doctrine of forum non conveniens, if there is any basis for the trial court’s decision, the decision must stand).

PROCEDURE-REMAND

Grant v. UPMC Pinnacle Hospitals, 2021 U.S. Dist. LEXIS 73393 (M.D. Pa. April 16, 2021) (Rambo, J.) In order for the FTCA to trigger exclusive federal jurisdiction, the Government must certify that the defendant at issue is a federal employee who was working within the scope of their employment at the time they engaged in the alleged tortious conduct.

The Dauphin County Court of Common Pleas had subject-matter jurisdiction over the third-party claim against Dr. Dalal at the time it was filed, therefore giving this court derivative, subject-matter jurisdiction over that claim upon removal.

Here, Plaintiffs’ state law claims substantially predominate. First, concerning the scope of state and federal issues, state law controls almost entirely. While the FTCA gives the federal courts exclusive federal jurisdiction, “we must apply state substantive law to determine liability under the FTCA”—thus, other than the question of jurisdiction, virtually no questions of federal law are applicable here. LaLoup v. United States, 92 F. Supp. 3d 340, 347 (E.D. Pa. 2015). This is amplified by the fact that Plaintiffs argue, and Defendants do not contest, that almost every party in this suit is involved because of state law claims. De Asencio, 342 F.3d at 311 (“Predomination under section 1367 generally [does not concern] the number of parties involved. But the disparity in numbers . . . may be so great that it becomes dispositive.”). Second, regarding the terms of proof, this factor weighs in favor of Plaintiffs. For Plaintiffs’ claim to succeed, they must prove, under Pennsylvania law, the standard of care, deviation from it, causation, and damage. If they fail on any part of this, the UPMC Defendants will have no claim against Dr. Dalal. If they succeed on all of this, it may, in and of itself, negate or prove Dr. Dalal’s liability before any legal action against Dr. Dalal herself is prosecuted. Thus, the level of proof involved in this case is almost exclusively governed by the state law claims. Third, the comprehensiveness of the remedies also leans in favor of Plaintiffs. Plaintiffs’ state-law remedies address their damages.

The court will not, however, remand the case to state courts. While this court retains exclusive jurisdiction over the FTCA claim, it finds that the most judicially efficient method for resolving this dispute is for Plaintiffs’ state law claims to be dismissed without prejudice, giving Plaintiffs the option to proceed in state court.

For the reasons outlined above, Plaintiffs’ motion will be denied in part and granted in part. All claims will be dismissed without prejudice except for the UPMC Defendants’ third-party claim against the United States. The third-party claim will be stayed until resolution of the state law claims.

PROCEDURE-AFFIRMATIVE DEFENSES-GOOD FAITH

Greenspan v. Platinum Healthcare Group, 2021 U.S. Dist. LEXIS 48884 (March 16, 2021) (Wolson, J.)  All too often, the Court reviews answers littered with affirmative defenses unmoored from the facts of the case. When the Court confronts lawyers about these offending filings, the lawyers say, almost universally, that they asserted affirmative defenses prophylactically in order to avoid a waiver. That answer has superficial appeal. After all, what lawyer wouldn’t want to be diligent and preserve all possible defenses for his client? But dig even a little bit deeper, and the answer reveals a serious problem: the Federal Rules of Civil Procedure do not allow for that approach. Instead, Rule 11 demands a lawyer have a good faith basis that there is evidentiary support for every assertion in a pleading. That requirement applies to affirmative defenses just like other assertions in a pleading. When lawyers ignore that obligation, they violate Rule 11.

This is one such case. But unlike most of the cases before the Court, Defendants Platinum Health at Westgate, LLC, Vintage Healthcare PA LLC, Platinum PA Holdings *2 LLC, 2050 Old West Chester Pike, LLC, and Jacob Karmel (collectively, “Platinum Health”) have doubled down on their approach, claiming that because they engaged their counsel late, he did not have to have factual support for the affirmative defenses that he asserted on their behalf. Their claim flies in the face of Rule 11. The Court will therefore impose sanctions under Rule 11 by striking the affirmative defenses from their answer.

The assertion of prophylactic affirmative defenses is not harmless. It expands discovery in the case and makes it harder to get cases to resolution. A plaintiff’s lawyer faced with a multitude of prophylactic affirmative defenses has to serve interrogatories to ferret out the factual basis for each defense. If there is not such a basis, the plaintiff’s counsel either has to file a motion or persuade defense counsel to withdraw that defense. All for a defense that should not have been in the case in the first place. Permitting such a practice would not help “secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. It would do just the opposite by adding to the proceedings.

Pleadings are not an opportunity for lawyers to throw things against the wall and see what sticks. Rule 11 requires lawyers to give some thought to the assertions that they include in pleadings before they file them. Platinum Health and its counsel did not do that here. The Court therefore imposes sanctions and strikes Platinum Health’s affirmative defenses.

PROCEDURE-SERVICE OF COMPLAINT-DUE DILIGENCE

Gussom v.Teagle, 2021 Pa. LEXIS 1218 (March 25, 2021) (Baer, J.)  The Pennsylvania Rules of Civil Procedure (“Rules”) allow a plaintiff to commence a civil action by filing either a praecipe for a writ of summons or a complaint. Pa.R.C.P. 1007. The Rules require a plaintiff to serve the defendant with original process within 30 days after the issuance of a writ or the filing of a complaint. Pa.R.C.P. 401(a). If the plaintiff does not effectuate service within that time period, she can praecipe for reissuance of the writ or reinstatement of the complaint. Pa.R.C.P. 401(b)(1). So long as the plaintiff files her writ or complaint before the expiration of the statute of limitations applicable to her cause of action, the original filing, as well as any subsequent reissuances or reinstatements, tolls the statute of limitations.

“In the seminal case of Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), this Court sought to end abuses of process by plaintiffs who tolled the statute of limitations by filing a writ of summons, had the writ repeatedly reissued, and deliberately failed to notify the defendant of the pending litigation.” McCreesh v. City of Philadelphia, 888 A.2d 664, 665 (Pa. 2005). “This process, while technically compliant with the Rules of Civil Procedure, nonetheless defeated the purpose of the statute of limitations, which is to protect defendants from stale claims.” Id. Thus, in Lamp, this Court held that “a writ of summons shall remain effective to commence an action only if the plaintiff then refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion.” Lamp, 366 A.2d at 889. This “Lamp rule” applies equally to actions commenced by way of the filing of a complaint.

We refined the Lamp rule in Farinacci v. Beaver County Industrial Development Authority, 511 A.2d 757, 759 (Pa. 1986), holding that “Lamp requires of plaintiffs a good faith effort to effectuate notice of commencement of the action.” In addition, Farinacci clarified that: (1) the plaintiff carries an evidentiary burden of proving that she made a good-faith effort to ensure that notice of the commencement of an action was served on the defendant, McCreesh, 888 A.2d at 672; and (2) “[i]n each case, where noncompliance with Lamp is alleged, the [trial] court must determine in its sound discretion whether a good-faith effort to effectuate notice was made[,]” Farinacci, 511 A.2d at 759.

In the present matter, the Superior Court affirmed a trial court order that dismissed a plaintiff’s complaint based upon the plaintiff’s failure to serve timely her complaint upon the defendant despite the fact that the plaintiff’s actions did not amount to intentional conduct. This Court granted allowance of appeal to address whether the Superior Court’s decision conflicts with Lamp and its progeny. For the reasons that follow, we answer this question in the negative. More specifically, consistent with the Superior Court’s decision, we hold that a trial court has the discretion to dismiss a complaint when a plaintiff fails to offer proof that she diligently attempted to serve process on a defendant in a timely manner and there is no evidence to indicate that the defendant had actual notice of the commencement of the action in the relevant time frame, regardless of whether the plaintiff acted or failed to act intentionally. Because the Superior Court reached the correct result in this matter, we affirm that court’s judgment.

In sum, Lamp and its progeny require a plaintiff to make a good-faith effort in diligently and timely serving process on a defendant. When a defendant presents a factual dispute as to whether a plaintiff fulfilled this duty, the plaintiff carries an evidentiary burden to demonstrate that she met her good-faith mandate. If a plaintiff presents credible evidence that she made this attempt at service, then she fulfills her requirement to prove good faith. If a plaintiff does not present such evidence, then she has failed to satisfy her evidentiary burden, regardless of whether her actions (or inaction) were intentional, unintentional, or otherwise. However, pursuant to McCreesh, a trial court should not punish a plaintiff by dismissing her complaint where she is able to establish that her improper but diligent attempts at service resulted in the defendant receiving actual notice of the commencement of the action, unless the plaintiff’s failure to serve process properly evinced an intent to stall the judicial machinery or otherwise prejudiced the defendant.

PROCEDURE-JURISDICTION-VENUE-DOING BUSINESS RULE

PROCEDURE-JURISDICTION-VENUE-DOING BUSINESS RULE- Ford Motor Co. v. Montana Eighth Judicial District Court, Ford Motor Company v. Adam Bandemer, 2021 U.S. LEXIS 1610 (March 25, 2021) (Kagan, J.)  In each of these two cases, a state court held that it had jurisdiction over Ford Motor Company in a products liability suit stemming from a car accident. The accident happened in the State where suit was brought. The victim was one of the State’s residents. And Ford did substantial business in the State—among other things, advertising, selling, and servicing the model of vehicle the suit claims is defective. Still, Ford contends that jurisdiction is improper because the particular car involved in the crash was not first sold in the forum State, nor was it designed or manufactured there. We reject that argument. When a company like Ford serves a market for a product in a State and that product causes injury in the State to one of its residents, the State’s courts may entertain the resulting suit.

PROCEDURE-NEW MATTER-CONNOR OJBECTIONS

Stetts v. Camacho, C.C.P. Lycoming No. 20-0860 (Feb. 24, 2021) (Linhardt, J.)  A prior decision in Allen v. Lipson was affirmed.  Upon review, the Court determines that Defendant’s New Matter raises largely “boilerplate” defenses to the pleadings without supportive facts. The Court therefore SUSTAINS Plaintiff’s Preliminary Objections IN PART. The Court STRIKES paragraphs 24 through 30 and paragraphs 34 through 42 of Defendant’s New Matter. Defendant shall be without prejudice to seek leave of Court to amend New Matter, when and if appropriate, once further discovery has been conducted. Such requests for amendment will be liberally granted. The Court further holds that paragraphs 31 through 33 of Defendant’s New Matter, which aver violations of various provisions of the PMVFRL, are sufficiently specific as to the material facts relied upon to enable Plaintiff to adequately respond. Therefore, these provisions shall not be stricken. Plaintiff shall file a Reply to paragraphs 31 through 33 of Defendant’s New Matter within twenty (20) days of the date of this ORDER. IT IS SO ORDERED this 24th day of February 2021.

PROCEDURE-DISCOVERY-TEMPLATES AND MACROS-MEDICAL MALPRACTICE

DelGuercio v. Tio, C.P. Lackawanna No. 19 CV 3604 (November 16, 2020) (Nealon, J.)  The plaintiffs in this medical malpractice liability case have filed a motion seeking to compel production of the “templates and macros” used by the defendant-physician in creating the electronic medical record (“EMR”) at issue in this case.  The parties have submitted their supporting and opposing memoranda of law, and in compliance with our Order of October 7, 2020, unredacted copies of the lists of templates and macros retrieved from the defendant-hospital’s EMR were submitted for an in camera review.  The court granted in part and denied in part the request after a lengthy discussion concerning what the case was about and after the in camera review.  The court required production of paragraph concerning precautions advised upon discharge regarding when to return to the ER or follow up with PCP on an outpatient basis, the vital signs reviewed at triage and the contents of initial orders.  The remaining paragraphs concerning instances in which the patient is unable to provide review of symptoms due to clinical condition do not have to be produced.  Range of motion of patient’s extremities and neurological examination have to be produced.  The court meticulously went through each of what has to be produced and what did not have to be produced.

PROCEDURE-NEW MATTER-PO’S

Barnes v. Williamsport Petroleum, No. 20-0092 (C.P. Lycoming October 22, 2020] Linhardt, J.  This opinion, relying upon our case of Allen v. Lipson, says that the majority opinion in Allen v. Lipson remains sound.  It is inequitable to put the onus on plaintiffs to conduct excessive discovery to disprove a factually unsupported allegation rather than requiring the defendants who asserted the allegation to marshal the facts to support it.  The only alteration that revised Rule 1030 presents to this calculus is that defendants are no longer required to plead assumption of the risk, comparative negligence or contributory negligence with the new matter to preserve those claims, which only lessens the pleading burden upon defendants.

PROCEDURE-JURISDICTION-REMOVAL-TIMING OF REMOVAL TO FEDERAL COURT

Bolger v. Utermohlen, 2020 U.S. Dist. LEXIS 165133 (E.D. Pa. September 10, 2020) Wolson, J.  Plaintiff sued tortfeasor and underinsured carrier in same case in the Philadelphia Court of Common Pleas.  The Philadelphia court granted POs in part.  The court severed plaintiff’s UIM claim against State Farm and transferred her remaining claims to the Bucks County Court of Common Pleas.  The UIM claim against State Farm remained in Philadelphia County.  State Farm then removed the case against it to federal court.  This decision abrogated the “voluntary-involuntary” rule.  This is a rule that said a case that is not initially removable cannot become removable except by a voluntary act of the plaintiff, such as amendment of the pleadings or voluntary dismissal of the non-diverse defendant.  This court says that such a rule violates the 1949 amendments to 28 U.S.C. § 1446(b)(3).  Therefore, once the Philadelphia court separated the cases, State Farm could remove to federal court.  Any other reading violates the clear wording of the statute.

PROCEDURE-MISTRIAL-SUA SPONTE

Temple v. Providence Care Center, 2020 Pa. LEXIS 3841 (S. Ct. July 21, 2020) Wecht, J.  The Superior Court was reversed where it upheld sua sponte mistrial granted by Court of Common Pleas.  This was a bifurcated jury trial.  The jury found Providence was negligent and reckless and awarded $2 million in compensatory damages.  The jury awarded $250,000 in punitive damages in a bifurcated proceeding.  The trial court in part granted motions for new trial because of the staffing, star rating and closing argument issues.  Provident did not preserve its right to request a mistrial.  In each case, when an objection came up Providence attorney made a strategic choice to continue the trial rather than ask for a mistrial.  The Pennsylvania Supreme Court found that a trial court may exercise its sua sponte authority only in truly exceptional circumstances.  A trial court should make a ruling only where “exceedingly clear error” results in “manifest injustice”.  That “exceedingly clear error” should be of a constitutional structure nature, and “manifest injustice” must be of such a magnitude as to amount to a severe deprivation of a party’s liberty interest.  Although these requirements are more difficult to prove than the “interest of justice” standard, we reject the notion that today’s decision will result in the “virtual elimination of the sua sponte power.”  If the court determines that the above-noted conditions are met, the court can still declare a new trial sua sponte based upon that recognized but unpreserved error.

PROCEDURE-SERVICE OF PROCESS-LAMP RULE

Flanigan v. The Ellwood City Hospital, No. 30007 of 2017 (C.P. Lawrence February 6, 2019) Cox, J.  Plaintiff reached age of majority June 18, 2015.  The statute of limitations expired June 18, 2017.  The attorney, on June 16, 2017, filed a praecipe for writ of summons.  There was no sheriff’s return docketed against defendant Grudziak.  There was one attempt at service.  No additional sheriff’s return indicated service until October 27, 2017, a gap of 3-1/2 months where Grudziak was served through an agent of UPMC Risk Management.  The court found that the statute of limitations was not tolled.  The matter should have been raised in new matter and it was not, but that issue was never raised.  After a writ of summons is issued, a plaintiff has 30 days to serve the writ.  After the initial 30-day period, the writ may be reissued any number of times and the tolling effect is continued along with the reissuance of the writ.  The continued tolling, however, occurs only so long as a good faith effort is made to effectuate service.  Plaintiff frequently asked his attorney to serve Gruziak.  An attorney’s neglect or malpractice is no excuse.  The client is bound by the actions of his attorney.  Over 3 months’ delay between commencement of the action and actual service is not a technical misstep.

PROCEDURE-SERVICE

PROCEDURE-SERVICE- Frick v. Fuhai Li, 2019 Pa. Super. LEXIS 1255 (December 23, 2019) Stevens, J.  Under the Lamp decision, plaintiffs made sufficient effort to serve defendants, something like five times.  Their effort was in good faith.  The civil rules required that original process be served within 30 days of the filing of a complaint. The complaint may be reinstated at any time and any number of times under Pennsylvania Rule of Civil Procedure 401(b)(2).  The mere filing of a complaint is sufficient to toll applicable statute of limitations but does not preserve claims in perpetuity.  Lamp v. Heyman, 366 A.2d 882 (1976).  For a complaint to remain effective, a plaintiff must refrain from the course of conduct which serves to stall in its tracks the legal machinery which he has set in motion.  Further, plaintiffs are to comply with local practice as to the delivery of the complaint to the sheriff for service.  Lamp requires plaintiffs to exercise good faith effort to effectuate notice of commencement of an action.  Plaintiff attempted to serve defendant Li with multiple amended complaints through the sheriff’s offices.  A writ of summons was filed April 27, 2017, which tolled the statute of limitations.  The initial complaint and the fourth amended complaint was filed on December 4, 2017. A sheriff service process receipt from the affidavit of return shows a service date of June 28, 2017.  Sheriff’s service was attempted five (5) times with no contact or response to business cards left by the sheriff.  In addition, plaintiffs filed numerous praecipes to reissue the writ of summons and the complaint between the first filing of the complaint on April 27, 2017 and its fourth amended version on December 4, 2017.  Also on December 4, 2017, plaintiff filed a motion for special or for alternative service.  Further, there is no prejudice here.

PROCEDURE-FORUM NON CONVENIENS

McConnell v. B. Braun Medical, Inc., 2019 Pa. Super. LEXIS 1031 (October 16, 2019) Pellegrini, J. The Appellant, Beonca Maria McConnell (McConnell), appeals the order of the Court of Common Pleas of the Philadelphia County (trial court) dismissing her products liability suit against B. Braun Medical Inc. (BMI); B. Braun Interventional Systems, Inc. a Delaware Corporation (BIS); and B. Braun Medical S.A.S., a French Corporation (B. Braun France) (collectively, the Braun Defendants), on the ground of forum non conveniens. McConnell argues that the trial court abused its discretion because the Braun Defendants failed to show that Pennsylvania is an inconvenient forum for her claims. For the reasons below, we vacate the order dismissing her case.

Because the burden of establishing the factors of forum non conveniens lies with the Braun Defendants, it was up to them and not McConnell to show that Pennsylvania is less convenient than another available forum. The trial court could not assume facts that are not contained in the certified record or otherwise put the burden on McConnell to show that private and public factors support keeping this case in Pennsylvania. Nor could the trial court focus exclusively on this case’s remoteness from Pennsylvania without weighing them against the relevant circumstances which link this case to Pennsylvania. If it does so, it is an abuse of discretion.

The trial court could not find that it would be inconvenient or undesirable for a Pennsylvania court to apply the law of another jurisdiction without evidence that the law of the two forums is materially different in some way or cumbersome for a judge in that forum to apply. See id. at 551 (“[T]here is no basis upon which to conclude that the law determined to be applicable is beyond the ken of a Philadelphia trial judge.”).

The trial court abused its discretion because it gave no weight to many relevant factors and too much weight to irrelevant ones. The Braun Defendants, as the parties moving for dismissal, did not carry their burden of showing why a trial in Pennsylvania would be inconvenient. Because the trial court misapplied the law and the circumstances of this case do not warrant dismissal, the order on review must be reversed. See Vaughan, 208 A.3d at 77 (“In sum, faced with private and public factors that clearly support Vaughan’s choice to proceed in Philadelphia, we conclude there were not weighty reasons to disturb [plaintiff’s] choice of forum.”). However, because the issue of transfer from Philadelphia County to Lehigh County is not before us, the Braun Defendants’ pending motion may be considered by the trial court on remand. Order vacated; case remanded. Jurisdiction relinquished. 

PROCEDURE-PRELIMINARY INJUNCTION-TRADE SECRETS

Allied Environmental Service v. Roth, 2019 Pa. Super. LEXIS 1096 (October 29, 2019) Bowes, J. Customer lists are not necessarily trade secrets entitling a party to a preliminary injunction. It must be shown that the asset deserves protection as a trade secret.  Testimony at the injunction hearing demonstrated that Allied’s relationship with its clients was neither permanent nor exclusive.  Allied failed adequately to show that a preliminary injunction was necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages.

PROCEDURE-SUGGESTION OF DEATH

York County dismissed a medical malpractice case because although a suggestion of death was filed by one of the parties two months after decedent’s death and letters of testamentary were issued in New Jersey appointing a personal representative, plaintiff appellant delayed for over a year in presenting the substitution motion to the court under §3375 of 20 Pa. C.S.A. Trial court abused its discretion when it granted the motion to abate and dismiss the underlying medical malpractice cause of action. It is clear the statute requires that an estate be raised, letters of administration be issued, and a personal representative be appointed within one year of the suggestion of death being filed. The actual timing of the substitution of the personal representative in the underlying action is not governed by 3375. The substitution was filed and stamped within one year of decedent’s death even though the motion to substitute is not governed by the time limitation of §3375. Sweda vs. Univ. of PA, 2019 U.S. App. LEXIS 13284

PROCEDURE-JURISDICTION-MEDICAL DEVICES

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. 

PROCEDURE-FOREIGN SOVEREIGN IMMUNITIES ACT OF 1976-SERVICE

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. 

PROCEDURE-CERTIFICATE OF MERIT-EXTENSION

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

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. The defendant joining the additional defendant is not required to file a certificate merit in order to join an architect as an additional defendant since the defendant’s Joinder Complaint raised a negligence claim as related to the claims made in the original Complaint.

PROCEDURE-DISCOVERY-MEDICAL RECORDS OF OTHER DEFENDANTS

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

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 or business variety and whether there is diversity jurisdiction. We also instruct the District Court to give leave to further amend the complaint within a reasonable time to cure defective jurisdictional allegations.

The rules for determining citizenship do not change depending on whether a trust is embedded within another business entity. See Lincoln Benefit Life Co., 800 F.3d at 105 n.16 (stating rule to trace citizenship through “however many layers of partners or members there may be” (citation omitted)); cf. Johnson v. SmithKline Beecham Corp., 724 F.3d 337, 348-49 (3d Cir. 2013) (determining citizenship of plaintiff LLC, whose sole member was a corporation, as the states of incorporation and principal place of business of the corporation). Given the Supreme Court’s decision in Americold Realty, the jurisdictional citizenship of a traditional trust is only that of its trustee. That rule is definitive.

PROCEDURE-CLASS ACTION-DEFECTIVE ROOF SHINGLES-SPECIFIC DEFECT

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

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 by the defendant that the chosen forum is oppressive to him.  The court relied upon the Cheeseman opinion.  The plaintiff’s choice of forum can rarely be disturbed.  The burden on defendant is a heavy one.  The Philadelphia County involvement is not incidental or tangential.  There is nothing in the record that supports a finding that the filing of the case in Philadelphia was vexatious.  Sacred Heart defendants’ evasion of discovery evidences a lack of good faith.  The late joinders and/or late filings of petitions to transfer, together with supporting affidavits, was calculated to avoid discovery and ambush the plaintiffs with new claims of oppressiveness and no notice or opportunity to refute them.  The court applied the wrong standard.

PROCEDURE-JURISDICTION-FORUM NON CONVENIENS-JONES ACT

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 public interest factors.

PROCEDURE-DISCOVERY-DEPOSITION-PRESENT SENSE TESTIMONY

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 is one of hundreds of deliveries in which she assisted.  The court ruled that the controlling issue is not whether the witness can remember the incident; it is whether the witness can describe the treatment that was provided by looking at the strip.  McLane is limited to the situation in which the cytotechnologist can testify only as to what she currently observes, not knowing that the patient had developed cancer.  The present case is governed by Lattaker because Wettick did not find Nurse Getty’s testimony credible.  He thought a review of the strip would aid her in her recollection.  She did not offer any credible testimony as to why she could not review the chart and explain what information in the records caused her to make the changes.  The court therefore will permit the reconvening of the deposition and granted sanctions.

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

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, suffice it to mitigate those concerns.  The court may also consider whether relation-back or other doctrines suffice to render timely other claims against other proposed parties.

PROCEDURE-VENUE-MEDICAL MALPRACTICE-PERFORMANCE OF STUDIES

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 that Appellants’ complaint was predicated on an allegation of mere clerical error falling outside the ambit of such controlling authority.

In summary, the essence of Appellant’s complaint was that Dr. Rogers and SCHC failed to furnish Maximor, whom they intended to treat upon his immediate transfer to SCHC, with the timely care Dr. Rogers indicated he should receive at SCHC. As described, Dr. Rogers’ involvement in Maxamor’s case transcended the mere offer of advice from a remote location. She was, instead, expected to direct Maximor’s course of care, and she clearly commenced in that role with her report. Like in Bilotti-Kerrick v. St. Luke’s Hospital, 873 A.2d 728 (Pa. Super. 2005) and Cohen v. Furin, 946 A.2d 125 (Pa. Super. 2008), the complaint alleged negligent acts in Philadelphia that deprived Maximor of the health care services Dr. Rogers indicated he should have in Philadelphia at a critical time in his case. Because the trial court’s rationale for transferring venue to Berks County was flawed, therefore, we vacate the order transferring venue and reinstate venue in Philadelphia County. Order vacated. Case remanded for proceedings consistent with this decision. Jurisdiction relinquished.

PROCEDURE-VENUE-MEDICAL MALPRACTICE

Wentzel v. Cammarano, 2017 Pa. Super. LEXIS 540 (July 19, 2017) Stevens, P.J.E.  Maximor Wentzel (“Maximor”), a minor, by his parent and natural guardian, Charisma Wentzel, and Charisma Wentzel in her own right (“Appellants”), appeal from the order entered in the Court of Common Pleas of Philadelphia County sustaining preliminary objections to venue and transferring the action to Berks County. We vacate the order and remand for proceedings consistent with this decision. 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.  We agree that Appellants’ complaint asserting both corporate and vicarious liability based on the omissions of Dr. Rogers and hospital staff puts forth a case of medical malpractice against Appellees. Indeed, in Rostock v. Anzalone, 904 A.2d 943 (Pa.Super. 2006), this Court held that a complaint accusing a medical care professional of failure to recommend appropriate work-up for a patient, to notify a patient of test results, or to maintain proper patient records made out allegations of professional, not clerical, failure, as such services strongly imply acts of diagnosis and/or treatment which may only be provided by a medical professional. Id. at 946. Even if the maintenance of patient records were largely clerical, we continued, the physician, “as the professional charged with supervising employees in a professional context, would be responsible for their derelictions under the doctrine of vicarious liability.” Id. Relying on the same rationale expressed in Rostock, we reject the conclusion of the trial court that Appellants’ complaint alleged merely clerical or ministerial negligence. The allegation of errors committed by Dr. Rogers and the support staff at St. Christopher’s Hospital, causing delay in care to Maximor, sounded, instead, in medical malpractice. Also underpinning the trial court’s transfer of venue, however, was its conclusion that Dr. Rogers’ alleged negligence occurring on September 12, 2013, occurred before Maximor was in her direct care in Philadelphia. See J-A08039-17 – 9 – Trial Court Opinion, at 11-12. According to the trial court, a triad of Superior Court decisions, Cohen v. Furin, 946 A.2d 125 (Pa.Super. 2008), Bilotti –Kerrick v. St. Luke’s Hospital, 873 A.2d 728 (Pa. Super. 2005), and Olshan v. Tenet Health System City Avenue, LLC, 849 A.2d 1214 (Pa.Super. 2004), thus guided its decision to remove the case from Philadelphia County. We find the trial court’s application of these cases to the present matter unpersuasive, as our jurisprudence expressed therein does not support transfer of venue as it occurred here.  Similarly, in the case sub judice, Appellants’ complaint did not dispute that Dr. Rogers made an appropriate diagnosis and devised a suitable treatment plan calling for the immediate transfer of Appellant to her care. Instead, it alleged that she failed to furnish these services to Maximor as quickly as she, herself, opined was indicated because of her and her staff’s negligent failure to put the plan into effect in a timely manner.  In summary, the essence of Appellant’s complaint was that Dr. Rogers and SCHC failed to furnish Maximor, whom they intended to treat upon his immediate transfer to SCHC, with the timely care Dr. Rogers indicated he should receive at SCHC. As described, Dr. Rogers’ involvement in Maxamor’s case transcended the mere offer of advice from a remote location. She was, instead, expected to direct Maximor’s course of care, and she clearly commenced in that role with her report. Like in Bilotti and Cohen, the complaint alleged negligent acts in Philadelphia that deprived Maximor of the health care services Dr. Rogers indicated he should have in Philadelphia at a critical time in his case. Because the trial court’s rationale for transferring venue to Berks County was flawed, therefore, we vacate the order transferring venue and reinstate venue in Philadelphia County. Order vacated. Case remanded for proceedings consistent with this decision. Jurisdiction relinquished. Judge Panella joins the Opinion. Judge Lazarus files a concurring statement.

PROCEDURE-INJUNCTIONS-PRELIMINARY INJUNCTION

Reilly, et al. v. City of Harrisburg, No. 16-3722 (3rd Cir. May 25, 2017) Ambro, C.J.  This “clarifies” when preliminary injunction should be granted.  The context of this case was protests in front of an abortion clinic.  We follow our precedent that a movant for preliminary equitable relief must meet the threshold for the first two “most critical” factors: it must demonstrate that it can win on the merits (which requires a showing significantly better than negligible but not necessarily more likely than not) and that it is more likely than not to suffer irreparable harm in the absence of preliminary relief. If these gateway factors are met, a court then considers the remaining two factors and determines in its sound discretion if all four factors, taken together, balance in favor of granting the requested preliminary relief. In assessing these factors, Judge Easterbrook’s observation bears repeating: “How strong a claim on the merits is enough depends on the balance of the harms: the more net harm an injunction can prevent, the weaker the plaintiff’s claim on the merits can be while still supporting some preliminary relief.” Hoosier Energy, 582 F.3d 721 at 725 (7th Cir. 2009).

PROCEDURE-DOCUMENTARY EVIDENCE

Grimm v. Universal Med. Servs., 2017 Pa. Super. LEXIS 139 (March 1, 2017) Bender, P.J.E.  Appellants, Universal Medical Services, Inc. and Roderick K. Reeder, CFO, appeal from the trial court’s March 24, 2016 order granting Appellee’s, Jeffrey P. Grimm, request for attorneys’ fees.  In this appeal raising an issue of first impression, we must consider the interplay between the Pennsylvania Wage Payment and Collection Law (referred to herein as “WPCL”) and Pennsylvania Rule of Civil Procedure 1311.1, which allows a plaintiff to limit the maximum amount of damages recoverable to $25,000.00 in exchange for relaxed requirements in admitting certain documentary evidence at a de novo trial following compulsory arbitration.  After close review, we affirm.

PROCEDURE-DISCOVERY-PROPORTIONALITY-LAWNMOWER GASOLINE CAP

In this opinion by Judge Brann of the Middle District, the court applied a sliding scale as to whether alternative reasonable designs should be discoverable.  What happened was that the user of the lawnmower heard the lawnmower sputtering and he went to loosen the cap.  Gasoline sprayed from the machine onto his body, igniting in flames.  Terrible injuries followed.  The court ruled that material corresponding to alternative designs or components that share less in common with the contested design or component should be incrementally less discoverable, and for more limited purposes, as those similarities diminish.  It would be difficult to understand how this standard will be imposed.  Fassett v. Sears Holding Corp., 2017 U.S. Dist. LEXIS 11337.

PROCEDURE-JOINDER-PRODUCTS LIABILITY CASE – DEFENDANT SUING INSURANCE COMPANY

In this case involving Marcia Confer v. Fairfield Auto, Fairfield Auto joined the insurance company of the plaintiff.  The judge said that this was improper.  In a products liability or negligence claim, the automobile manufacturer may not bring in and sue the plaintiff’s insurance company saying plaintiff should have filed an insurance claim instead.  Confer v. Fairfield Auto Dealership, Inc., et al. Civil No. 16-0719 (C.C.P. Lycoming Dec. 27, 2016) Dudley N. Anderson, Judge.

PROCEDURE-DISCOVERY-PRECOMPLAINT DISCOVERY-CERTIFICATE OF MERIT

Vianello v. Bey, No. 6372 Civ. 2015 (C.P. Monroe March 9, 2016) Williamson, J.  Under Pa. Rules of Civil Procedure 1042.5, except for the production of documents for inspection, a plaintiff may not, without leave of court, seek any discovery in a professional liability claim with respect to that claim, prior to filing a certificate of merit.  Plaintiff has asserted a professional liability claim at least as to Defendant Pocono Medical Center, and arguably all defendants.  He has not filed a certificate of merit.  He has failed to timely request leave of court.  The Plaintiff claims he needs the information for inclusion in an amended complaint, and not for a certificate of merit to be filed.  However, without a certificate of merit, the Plaintiff cannot sustain his claim under the Rules of Civil Procedure regardless of what he alleges in an amended complaint.  The Defendants should not suffer the unfair burden of incurring defense costs to answer discovery when there is no certificate of merit, which is a necessary requirement for Plaintiff’s claims to even proceed.  Therefore, we will not grant leave of course to allow the discovery outside of the parameters set forth by Pa. R.C.P. 1042.5.

PROCEDURE-PRECOMPLAINT DISCOVERY-PROTECTIVE ORDER

Tullytown Borough v. Armstrong, 129 A.3d 619 (Pa. Cmwlth. 2015).  Tullytown Borough appealed from an order of the Court of Common Pleas denying the Borough’s motion for protective order.  The Commonwealth Court affirmed.  The plaintiffs filed a writ of summons commencing a civil rights action under § 1983.  The plaintiffs sought to depose nine borough employees.  The individuals were identified but failed to give the reasons for the depositions.  The borough filed a motion for protective order.  Precomplaint discovery was requested pursuant to Pennsylvania Rule of Civil Procedure 4003.8 to obtain material for a complaint.  The memorandum of law in support of pre-complaint discovery request gave the reasons for the discovery.  The trial court denied the borough’s motion for protective order.  The court relied upon Pennsylvania Rule of Civil Procedure 4003.8, which permits precomplaint discovery under the circumstances therein described.  The trial court may, but is not required to, direct a party to state how discovery will advance preparation of the complaint.  There was no abuse of discretion.

PROCEDURE-COMPLAINT-SPECIFICITY

Rincavage v. Katz, PICS Case No. 16-0103 (C.P. Monroe Sept. 25, 2015) Williamson, J.  The court, after multiple times, found that plaintiff’s complaint was not specific enough with respect to allegations of negligence against the doctor.  Claims of failure of safety or to perform a procedure or properly handle hardware are general allegations without a specific factual basis to support them.  Further, to say that there is pain and suffering from these acts of negligence, is not specific enough.  Plaintiff must describe his specific injuries suffered and not just general allegations of serious injury.  General allegations of pain, suffering, injury and medical bills without more specific information do not allow defendant sufficiently to prepare a defense in this case.  The decision is somewhat out of the mainstream in terms of what it requires.

PROCEDURE-MOOTNESS-INSURANCE COVERAGE-DECLARATORY JUDGMENT ACTION

Selective Way Insurance v. Hospitality Group, 119 A.3d 1035 (Pa. Super. 2015).  Selective Way Insurance Company appeal from order entered by the Court of Common Pleas granting motions for summary judgment.  The lower court had concluded that the statute of limitations barred Selective’s request for declaratory judgment regarding its duty to defend and indemnify Hospitality Group Services, Inc.  The court reversed and found that the statute of limitations for the filing of a declaratory judgment action brought by an insurance company regarding its duty to defend and indemnify begins to run when the cause of action for declaratory judgment arises.  This requires a determination by the trial court of when the insurance company had a sufficient factual basis to support its contentions that it had no duty to defend and/or indemnify the insured.  The court also engaged in a lengthy discussion on mootness.  This was an en banc decision with a dissenting opinion filed by Ford Elliott, P.J.E. and by Panella and Shogan.  Mundy concurred in the result and filed a dissenting opinion.  Others would have utilized the four-year statute of limitations.

PROCEDURE-DISCOVERY-PEER REVIEW ACT

Yocabet v. UPMC Presbyterian, ___ A.3d ___ (Pa.Super. 2015).  The allegations involve a claim concerning kidney transplants at UPMC Presbyterian.  The plaintiff did not have Hepatitis C prior to kidney transplant.  The donor did have Hepatitis C, which should have rendered her ineligible to be a kidney donor.  Follow-up testing was recommended, but none was ordered.  In a companion case, a similar situation occurred.  Plaintiffs requested materials with respect to a CMS/DOH investigation in a May 11, 2011, board meeting.  The court said that as to the investigation, the Peer Review Act did not protect it from disclosure.  The Department of Health is not a professional health care provider and did not conduct peer review.  The Department of Health and the Centers for Medicare and Medicaid Services are not organizations approved, licensed, or otherwise regulated to practice or operate in the health care field.  UPMC was not, by participating in the investigation, policing its own activities nor was any medical professional doing so.  Instead, UPMC was reporting to a governmental body so that it could retain the right to receive payment from programs covering a group of its patients.  A review committee must be “engaging in peer review,” and peer review is a “procedure for evaluation by professional health care providers” of services performed by other professional health care providers.  63 P.S. § 425.2.  The Pennsylvania Department of Health, acting on behalf of the Centers for Medicare and Medicaid Services, did not, during CMS/DOH investigation, conduct peer review because it is not a professional health care provider.  Hence, the documents and interviews submitted by UPMC for purposes of the CMS/DOH investigation are not protected by the peer review privilege.  The fact that the regular document was forwarded to a peer review committee, does not give it peer review protection.

 

With respect to two interrogatories seeking production of documents relating to a May 11, 2011, board meeting, the court ruled that it would have to be produced in camera.  The attorney-client privilege may apply to a meeting of the governing board of an organization.  The board of directors of a professional health care provider can conduct peer review.  The matter was remanded for UPMC to produce an in camera review of the information requested so it could be determined what privilege would apply, if any.

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