Procedure

July 23rd, 2019 by Rieders Travis in Procedure

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.

RECENT ARTICLES

 

Article Categories