ANNUAL UPDATE OF THE
LAW
Lycoming Law Association
May 15, 2013
Holiday Inn, 100 Pine Street, Williamsport, PA
Presented by: Clifford A. Rieders, Esq.
Rieders, Travis, Humphrey, Harris, Waters,
Waffenschmidt & Dohrmann
161 West Third Street
Williamsport, PA 17701
Phone: 570-323-8711
Fax: 570-567-1025
Email: crieders@riederstravis.com
www.riederstravis.com
EMOTIONAL DISTRESS
By: Clifford A. Rieders, Esq.
2
WEILEY V. ALBERT EINSTEIN MEDICAL CENTER
51 A.3D 202 (PA.SUPER 2012)
BENDER, J.
• Son sued hospital, school and funeral home after
hospital transferred his father’s body to school
where the body was dissected.
• Son was family member authorized to dispose of
body;
• hospital knew son did not want organ donation or
dissection; and
• hospital transferred body without obtaining son’s
consent. Weiley, 51 A.3d at 213.
By: Clifford A. Rieders, Esq.
3
WEILEY V. ALBERT EINSTEIN MEDICAL CENTER
51 A.3D 202 (PA.SUPER 2012)
BENDER, J.
• Son alleged sufficient facts to support claim for
Tortious Interference with a Dead Body against
hospital (but not school or funeral home). A fact
finder could find as follows.
• Despite knowledge that son did not want organ
donation or dissection, hospital transferred body to
school without contacting son or obtaining consent.
• Hospital was “substantially certain” that son would
“suffer serious emotional distress, sufficient for the
“intentional” portion of section 868.”
• “This conduct could be viewed as a wanton
mistreatment of the body.” Weiley, 51 A.3d at 213.
By: Clifford A. Rieders, Esq.
4
WEILEY V. ALBERT EINSTEIN MEDICAL CENTER
51 A.3D 202 (PA.SUPER 2012)
BENDER, J.
• Trial court erred by concluding the that Weiley
failed to assert sufficient facts to support his cause
of action against Hospital for interference with a
dead body.
• Weiley pled sufficient facts to support his claim
against Hospital for wanton mistreatment and
intentional transfer or operating on a body without
privilege.
• Weiley failed to plead any facts to establish that the
School or John Doe’s conduct was wanton or
intentional as would support a claim for
interference with a dead body.
By: Clifford A. Rieders, Esq.
5
WEILEY V. ALBERT EINSTEIN MEDICAL CENTER
51 A.3D 202 (PA.SUPER 2012)
BENDER, J.
• School has immunity under the Pennsylvania
Anatomical Gift Act.
• Funeral home did not fail to make a good faith
effort to learn that this was an unauthorized transfer
and had not obligation to see-out Weiley.
• Weiley has not pled a claim for international
infliction of emotional distress against any
defendant because he was not present when the
allegedly tortious conduct that caused the serious
mental distress occurred.
By: Clifford A. Rieders, Esq.
6
NEGLIGENCE ISSUES
By: Clifford A. Rieders, Esq.
7
KEFFER V. BOB NOLAN’S AUTO SERVICE, INC.
59 A.2D 621 (PA. SUPER. 2012)
STEVENS, P.J.
• Van rear-ended tow truck as it turned into median strip
turn-around for emergency and authorized vehicles to
make a U turn. Van crossed median, struck the guardrail
rolled over and trapped driver inside, sustaining serious
injuries.
• Coordinate jurisdiction rule did not preclude trial judge
from properly deciding as a matter of law that the tow
truck was authorized under the circumstances to use the
median opening. Previous denial of motion for partial
summary judgment did not decide issue of what
constitutes an “authorized vehicle” when it evaluated
whether conduct warranted punitive damages.
• Tow truck driver was not negligent, his employer was not
liable for negligent training of driver; auto club not
vicariously liable or negligent.
By: Clifford A. Rieders, Esq.
8
LONGWELL V. GIORDANO
57 A.3D 163 (PA.SUPER 2012)
STRASSBURGER, J.
• Tenant sued landlord and contractor after a slip and fall on
asphalt pavement where his shoe caught the edge of a drop-off.
• Court applied RESTATEMENT (SECOND) OF TORTS § 360, PARTS OF LAND
RETAINED IN LESSOR’S CONTROL WHICH LESSEE IS ENTITLED TO USE.
• Comment b provides in part: “the lessor remains liable to him
notwithstanding his knowledge of the existence of the condition.”
• Court could not say “as a matter of law that a reasonable man
would regard it as foolhardy to walk along the … driveway at
night knowing that the area was poorly lit and that there was a
drop off,” nor that tenant failed to exercise reasonable care.
• Genuine issue of material fact exists. Longwell, 57 A.3d at 168-169
By: Clifford A. Rieders, Esq.
9
LONGWELL V. GIORDANO
57 A.3D 163 (PA.SUPER 2012)
STRASSBURGER, J.
• Court noted that “[t]he risk must be perceived, and
the risk must be faced voluntarily.” Longwell, 57
A.3d at 170 (citation for quote omitted)(emphasis
added by Court) for assumption of the risk to apply.
• The doctrine did not bar recovery. Even though the
tenant was aware that “the drop-off posed a
threat,” “he could not see the drop-off,”” was
mistaken as to where” it was and “thought he left a
margin of error.”
• The court concluded that the tenant “subjectively
saw himself as avoiding harm.” Id. (emphasis by
court)
By: Clifford A. Rieders, Esq.
10
LONGWELL V. GIORDANO
57 A.3D 163 (PA.SUPER.2012)
STRASSBURGER, J.
• The pavement contractor did not owe a duty to the
tenant.
• Under the Restatement (Second) of Torts § 385, the
contractor’s work would have had to make a
dangerous condition “in a manner unlikely to be
discovered by the possessor[.]”
• The landlord was aware of the drop-off both before
and after the contractor paved the driveway.
By: Clifford A. Rieders, Esq.
11
BOYLE V. ERIE INSURANCE EXCHANGE
50 A.3D 1256 (PA. 2012)
JUSTICE EAKIN
• An uninsured motorist negligently crashed his car
during a hurricane. While responding to the scene,
a volunteer firefighter drove over a bridge that
collapsed, suffering severe injuries.
• Rescuer used appropriate care in responding, did
not act “rashly nor had he unnecessarily exposed
himself to danger.”
• Rescue doctrine did not impose liability on
uninsured motorist for damages from bridge
collapse which was superseding cause;
disapproving Superior Court cases to the contrary.
By: Clifford A. Rieders, Esq.
12
BOYLE V. ERIE INSURANCE EXCHANGE
50 A.3D 1256 (PA. 2012)
JUSTICE EAKIN
• The question in arbitration for underinsurance motorist
benefits is whether the rescue doctrine allows a
volunteer firefighter responding to a crash to recover his
underinsured motorist benefits in spite of a finding that
his injuries were the result of a superseding cause, a
bridge collapse.
• The rescue doctrine provides that it is not contributory
negligence for a plaintiff to expose himself to danger in
a reasonable effort to save a third person or the land or
chattels of himself or a third person from harm. Thus the
rescue doctrine permits injured rescuers to recover when
their recovery would otherwise be barred by the strict
application of the defense of contributory negligence.
By: Clifford A. Rieders, Esq.
13
BOYLE V. ERIE INSURANCE EXCHANGE
50 A.3D 1256 (PA. 2012)
JUSTICE EAKIN
• The next question is whether the rescue doctrine
bars application of the principal of superseding
causes: that is, is a tortfeasor liable for all injuries a
rescuer suffers during the rescue, even when the
injuries are caused by an unforeseeable
superseding cause?
• We hold the rescue doctrine will not make an
original tortfeasor liable for injuries attributable to a
superseding cause and we disapprove of any
language to the contrary in Superior Court cases.
By: Clifford A. Rieders, Esq.
14
BOYLE V. ERIE INSURANCE EXCHANGE
50 A.3D 1256 (PA. 2012)
JUSTICE EAKIN
• The rescue doctrine establishes a causal link between
“the tortfeasor and the rescuer’s injury” because it is
reasonable that a rescuer may be injured while
rendering aid.
• But, tortfeasor is not a guarantor of the rescuer’s safety.
• “[H]arm that is not reasonably foreseeable is not the
responsibility of the tortfeasor.”
• Bridge collapse was superseding cause; It was “not
reasonable to foresee a bridge more than three miles
away, on the rescuer’s own property, would collapse
and injure” the rescuer. Bole, 50 A.3d at 1260-1261.
(citations omitted)
By: Clifford A. Rieders, Esq.
15
MIRABEL V. MORALES, 57 A.3D 144
(PA.SUPER. 2012)
PANELLA, J.
• As a passenger on a bus, plaintiff sustained injuries
from the bus collision with a van. Jury awarded
damages. Superior Court Granted a new trial.
• Jury instruction on choice of ways doctrine (which
still exists despite comparative negligence) was not
supported by evidence.
• Choice of ways doctrine requires 1) safe course 2)
dangerous course and 3) facts which put
reasonable person on notice or actual knowledge
of danger. In this case there was not evidence that
proceeding straight was free of obstruction and
would have been safe.
By: Clifford A. Rieders, Esq.
16
MIRABEL V. MORALES, 57 A.3D 144
(PA.SUPER. 2012)
PANELLA, J.
• The doctrine states for a person having the choice
of two ways, one which is perfectly safe, and the
other of which is subject to risks and dangers,
voluntarily chooses the latter and is injured, is guilty
of contributory negligence and cannot recover.
By: Clifford A. Rieders, Esq.
17
MIRABEL V. MORALES, 57 A.3D 144
(PA.SUPER. 2012)
PANELLA, J.
• The doctrine applies in the following circumstances
• 1. No evidence established that proceeding straight down
Cumberland was a safe alternative.
• 2. Rather there must be evidence establishing that
Cumberland was free of obstructions that would allow
Schulgen to proceed safely down it.
• 3. The jury instruction probably misled the jury because it
implied the availability of a safe alternative, one not
established by evidence which may have affected the
jury’s calculus when determining liability.
By: Clifford A. Rieders, Esq.
18
MIRABEL V. MORALES, 57 A.3D 144
(PA.SUPER. 2012)
PANELLA, J.
• Discussing wealth and size of Comcast in closing
was reversible error.
• Jury instruction on choice of ways doctrine was not
supported by evidence.
By: Clifford A. Rieders, Esq.
19
NEGLIGENCE –
PUBLIC UTILITIES
By: Clifford A. Rieders, Esq.
20
ALDERWOODS (PENNSYLVANIA) V. DUQUESNE LIGHT
52 A.3D 347 (PA.SUPER. 2012)
MUSMANNO, J.
• After vehicle crashed and broke a utility pole, the
Electric Company restored service to the pole. It
then connected a building and energized the
connectors. Then it turned on power to the
building. Soon afterwards, a fire began in an
electrical panel in a locked basement of that
building.
• Citing Wivagg v. Duquesne Light Co., 73 D.& C.2d
694 (Allegheny Co. 1975)court agreed it is
foreseeable that “when a primary line breaks loose
and contacts low-voltage lines, the customer’s
electrical equipment can be shorted out and
compromised.
By: Clifford A. Rieders, Esq.
21
ALDERWOODS (PENNSYLVANIA) V. DUQUESNE LIGHT
52 A.3D 347 (PA.SUPER. 2012)
MUSMANNO, J.
• The Althaus test for duty weighs five factors:
• 1. the relationship between the parties; - favored plaintiff
• 2. the social utility of the conduct; - slightly favored Plaintiff
• 3. the nature of the risk imposed and the foreseeability of
the harm incurred; - favored plaintiff
• 4. consequences of imposing a duty;
• 5. public interest.
By: Clifford A. Rieders, Esq.
22
ALDERWOODS (PENNSYLVANIA) V. DUQUESNE LIGHT
52 A.3D 347 (PA.SUPER. 2012)
MUSMANNO, J.
• Not utility’s practice to enter property and inspect
equipment. Expert opined that had they done so, the prior
to reenergizing the single phase service would have
revealed the electrical damages …”
• Duty to inspect of at a minimum warn the customer, under
the facts alleged, does not place an undue burden upon
the electric company.
• The only building attached to the broken pole;
• Public interest: does not tip scales either way: safe manner,
prompt restoration of service.
• Causes of action sounding in negligence: duty, breach of
duty, breach caused damages.
By: Clifford A. Rieders, Esq.
23
STATE FARM FIRE & CAS.CO. V. PECO
54 A.3D 921 (PA.SUPER. 2012)
SHOGAN, J.
• Homes damaged from “dangerous and defective”
surge which came from a bolt of lightening and
struck PECO facility. Insurer as subrogee sued.
• Rule 12.1 of PECO’s Public utility Tariff was an
exculpatory clause that limited its liability. Court
concluded exculpatory clause was not against
public policy because it did not exempt them from
all liability it only limited liability.
• Rule 12.1 did not apply to strict liability because it
was limited to harm which is or is not foreseeable.
• An action still exists because there was no
disclaimer of an action for strict liablility.
By: Clifford A. Rieders, Esq.
24
ARBITRATION –
NURSING HOMES
By: Clifford A. Rieders, Esq.
25
SETLOCK V. PINEBROOK PERSONAL CARE
56 A.3D 904 (PA.SUPER. 2012)
MUNDY, J.
• Personal care retirement center transported its resident
to her doctor appointment by one of its assistants in one
of the retirement center’s wheel chairs. The wheel chair
did not have a footrest in place, despite it originally
having one.
• As the assistant pushed resident through the medical
offices, she told the resident to “lift her feet” because
there was no foot rest. Resident told assistant to be
careful, apparently unable to lift her feet. No safety
harness or similar device was used .
• Resident’s feet became entangled, catapulting her
through the air, landing on her head and face while
striking the floor. She suffered severe injuries which
required hospitalization and ultimately killed her.
By: Clifford A. Rieders, Esq.
26
SETLOCK V. PINEBROOK PERSONAL CARE
56 A.3D 904 (PA.SUPER. 2012)
MUNDY, J.
• Court refused to compel arbitration because the “wrongful
death action is a distinctly different cause of action from
anything contemplated by the terms of the residential
agreement[.]”
• “[A]rbitration agreements are to be strictly construed and
such agreements should not be extended by implication.”
• Agreement provided for center assistance for visits to a
physician, provided rates for that assistance and provided for
arbitration for any dispute arising from the contract.
• Nothing in the contract provided for medical care or
distinguished between on or off premises.
• Payment schedule for transporting residents does not
encompass all claims sounding in tort that arise from
transportation.
By: Clifford A. Rieders, Esq.
27
MEDICAL MALPRACTICE
By: Clifford A. Rieders, Esq.
28
THIERFELDER V. WOLFERT
52 A.3D 1251 (PA. 2012)
CHIEF JUSTICE CASTILLE
• A general practitioner who provided some
“incidental mental health treatment” to patient
had no duty to refrain from sex with patient; that
“higher standard” of duty was limited to mental
health specialists.
• Husband and wife sought treatment from general
practitioner for “libido problems.”
• Wife was also treated for depression, anxiety, stress,
add, and other emotional problems.
By: Clifford A. Rieders, Esq.
29
THIERFELDER V. WOLFERT
52 A.3D 1251 (PA. 2012)
CHIEF JUSTICE CASTILLE
• Doctor and patient - wife engaged in a year long consensual
sexual relationship which began after wife considered doctor
to be her hero and to have “cured” her.
• Court accepted for purposes of its decision that mental health
specialists would owe a duty to refrain from sexual contact
with their patients and that Pennsylvania’s Medical Practice
Act of 1985, §§422.1-422.5a “does not support concept of
different duties for physicians who provide the same care.”
• Transference phenomenon is therapeutic model for mental
health specialists which they know or should know makes
patients particularly vulnerable to sexual exploitation.
• General practitioners increasingly advise on mental health
and prescribe medication for emotional conditions but do not
provide the kind of therapeutic treatment provided by a
mental health specialist which includes transference.
By: Clifford A. Rieders, Esq.
30
CATLIN V. HAMBURG
56 A.3D 914 (PA.SUPER. 2012)
OLSON, J.
• Negligent sterilization resulted in fetus with congenital
abnormalities at 19 ½ weeks which was voluntarily
terminated and resulted in total hysterectomy.
• An Expert, board certified in obstetrics and gynecology
since 1978, testified that “standard of care requires that
when a surgical technique is seen to fail during a
surgery, or when a more secure technique is available to
accomplish the same goal, then the surgeon should
perform the more secure and safer surgical procedure.”
• Essentially since the Filshie clip on right fallopian tube
slipped prompting the performance of a modified
Polmeroy procedure, the same should have been done
on the left fallopian tube but was not.
By: Clifford A. Rieders, Esq.
31
CATLIN V. HAMBURG
56 A.3D 914 (PA.SUPER. 2012)
OLSON, J.
• That expert’s failure to cite medical literature did
not render his opinion inadmissible or speculative.
• The expert opinion was not required to rule out all
conceivable causes of the pregnancy, which goes
to weight of evidence.
• Also trial court erred in limiting damages to 2 week
postnatal period because there was no birth in this
case; it was error to equate situation to wrongful
birth.
By: Clifford A. Rieders, Esq.
32
BUCKMAN V. VERAZIN
54 A.3D 956 (PA. SUPER. 2012)
BENDER, J.
• Patient brought Medical malpractice claim after
undergoing signoid colectomy and colostomy.
• Discovery revealed conflicting statements by the
physician as to why he performed the surgery in the
manner he did.
• As a result, plaintiff submitted discovery request for
the medical records of all sigmoid colectomy and
similar procedures by doctor in five preceding
years, allowing for the redaction of all identifying
information of the non-party patients.
By: Clifford A. Rieders, Esq.
33
BUCKMAN V. VERAZIN
54 A.3D 956 (PA. SUPER. 2012)
BENDER, J.
• Superior Court reversed the granting of the motion to
compel because the inquiry was not relevant. Doctor’s
actions when operating on other patients was not
probative of what his actions were when caring for this
patient.
• What the doctor “knew or believed to be the standard
of care is of no moment” and was only intended to
counter doctor’s erroneous employment of the “error in
judgment” rule as defense.
• Court reiterated that the standard of care is objective
and either met or not. It “does not allow consideration
of the subjective state of mind of the doctor when he or
she undertakes to treat a patient.”
By: Clifford A. Rieders, Esq.
34
SAYLER V. SKUTCHES
40 A.3D 135 (PA.SUPER. 2012)
OTT, J.
• This case involved the calculation of attorney fees where the plaintiff suffered a
delay in breast cancer diagnosis and without access to funds from judgment on
appeal lacked access to further treatment pending appeal and died
approximately a year and four months after the jury award but prior to appellate
review.
• § 509 only refers to attorney fees by stating that “future damages for medical or
other related expenses shall be paid as periodic payments after payment of the
proportionate share of counsel fees and costs based upon the present value of the
future damages awarded pursuant to this subsection.” (emphasis by the court) 40
P.S. 1303.509(b)(1).
• Court held that § 509 of the MCARE Act, 40 P.S. 1303.509, did not authorize
additional attorney fees and that the attorney fees are calculated based on the
present value of the patient’s future damages at the time of death rather than on
the potential award. Appeal Denied by Pennsylvania Supreme Court at 54 A.3d
349 (Pa. Oct 05, 2012) (Table, NO. 360 MAL 2012).
• The “American Rule” precludes recovery of attorney fees from the adverse party
“unless there is express statutory authorization, a clear agreement of the parties, or
some other established exception.” (citation omitted)
By: Clifford A. Rieders, Esq.
35
SAYLER V. SKUTCHES
40 A.3D 135 (PA.SUPER. 2012)
OTT, J.
• A significant fact in Saylor was that the plaintiff died prior
to the calculation of attorney fees. As a result, liability for
future damages already terminated pursuant to 40 P.S.
1303.509(b)(3).
• Under those circumstances, the court viewed attorney
fees based on future damages as an addition to the jury
award, requiring express statutory authorization.
• In many cases, however, the question of when the future
damages will terminate remains unknown at the time of
the attorney fee calculation. Attorney fees based upon
a percentage of this unknown amount can be viewed
as a percentage of the jury award rather than as an
additional cost imposed upon an adverse party.
By: Clifford A. Rieders, Esq.
36
SAYLER V. SKUTCHES
40 A.3D 135 (PA.SUPER. 2012)
OTT, J.
• The court did not discuss the potential for conflict of
interest (See my commentary for JICIV §14.150) between
attorneys and plaintiffs nor the authority from other
jurisdictions which analyzed similar medical malpractice
statutes.
• Court’s conclusion is said to be consistent with the
declaration of MCARE Act “to limit jury awards in
medical malpractice suits in order to ensure affordable
health care premiums.”
• No consideration of incentivizing defendants to delay
treatment pending appeal expediting death of patient
prior to entry of judgment, as occurred in this case.
By: Clifford A. Rieders, Esq.
37
ANDERSON V. MCAFOOS
57 A.3D 1141 (PA. 2012)
SAYLOR, J.
• Medical malpractice lawsuit was filed in February 2002;
• Three months later MCare Act came into effect with
§512 requirements for expert witness competency.
• In 2005, Plaintiff submitted expert report and curriculum
vitae and a case management order in 2007 required
the exchange of expert reports and pretrial motions by a
certain date. No party raised issues of competency
under §512.
• At trial in 2008, after a voir dire of the expert pathologist,
defense objected to competency of the pathologist to
testify as to standard of care under §512.
By: Clifford A. Rieders, Esq.
38
ANDERSON V. MCAFOOS
57 A.3D 1141 (PA. 2012)
SAYLOR, J.
• Plaintiff failed to preserve issues for review.
• Since Plaintiff did not think §512 applied to the case which
was filed before it became effective, the voir dire was not
framed to address the “related-fields-of-medicine focus” of
that section.
• Plaintiff failed to raise the argument that the defendants
waived objection by not following local rule requiring “unusual
questions of evidence, factor or law be dealt with prior to trial.
• There is “no general requirement that an objection to a
proposed expert’s qualifications under Mcare Act be made
prior to voir dire.
• Dissent suggests civil rules committee should consider a
remedy for surprise disqualifications of experts did not usually
occur under the more liberal expert qualifications outside of
the Mcare Act.
By: Clifford A. Rieders, Esq.
39
COOPER EX REL COOPER V. LANKENAU HOSP.
51 A.3D 183 (PA. 2012)
BAER, J.
• Patient alleged medical battery for Cesarean
section after twenty-seven weeks of pregnancy
despite patient’s refusal of consent.
• In a medical battery/lack-of-consent case, plaintiff
need not prove any intent to harm the patient.
Proving an intention surgery or “touching” satisfied
the “offensive contact” element.
• Court concluded that the jury instruction was
acceptable, but suggested that the Committee for
Proposed Standard Jury Instructions to consider
clearer instructions, which it did.
By: Clifford A. Rieders, Esq.
40
SEEBOLD V. PRISON HEALTH SERVICES
57 A.3D 1232 (PA. 2012)
JUSTICE SAYLOR
• Corrections officer who became infected with
MRSA after contact with inmate brought claim
against physician for negligent failure to warn of
inmates communicable disease.
• Court held that a physician who treats prison
inmate has no duty to warn corrections officers of
inmates communicable disease.
• Court stated that the “general touchstone” is the
applicable standard of care. “[T]hird-party
interventions on the part of physicians push the
inquiry outside these ordinary boundaries.”
By: Clifford A. Rieders, Esq.
41
SCAMPONE V. HIGHLAND PARK CARE CENTER
57 A.3D 582 (PA. 2012)
CHIEF JUSTICE CASTILLE
• Jury verdict found nursing home facility was both
corporately and vicariously liable for resident’s death.
• Staff failed to conduct ordered DUI testing, to ensure
that the resident was consuming sufficient fluids and
food, and falsified records to show that medications or
treatment were provided when it was not.
• The administrators temporarily increased staff for state
inspections.
• Despite significant symptoms, the resident was denied
nursing care for nineteen days before she died.
• Dehydration and malnutrition caused resident’s fatal
heart attack.
By: Clifford A. Rieders, Esq.
42
SCAMPONE V. HIGHLAND PARK CARE CENTER
57 A.3D 582 (PA. 2012)
CHIEF JUSTICE CASTILLE
• Superior Court remanded for new trial; Pa Supreme
Court affirmed, remanded and held “that a nursing
home and affiliated entities are subject to potential
direct liability for negligence, where the requisite
resident-entity relationship exists to establish that the
entity owes the resident a duty of care[.]”
• “[A] corporation may owe duties of care directly to
a plaintiff separate from those of its individual
agents, such as duties to maintain safe faciilities,
and to hire and oversee competent staff.”
By: Clifford A. Rieders, Esq.
43
SCAMPONE V. HIGHLAND PARK CARE CENTER
57 A.3D 582 (PA. 2012)
CHIEF JUSTICE CASTILLE
• That a corporation acts through agents does not
preclude “hailing a corporation into court on direct
liability tort claims.”
• There is no immunity or exemption from direct
liability, which is an exception to “the general rule
that an entity must meet the obligations it incurs in
functioning.” Court declined invitation to recognize
a judicial immunity for nursing homes.
By: Clifford A. Rieders, Esq.
44
SCAMPONE V. HIGHLAND PARK CARE CENTER
57 A.3D 582 (PA. 2012)
CHIEF JUSTICE CASTILLE
• Rejected argument that Thompson created a corporate
cause of action only against hospitals.
• Inquiry is not whether an entity is similar to a hospital.
• “The relevant question is whether the legal principles
explicated in Thompson, or elsewhere in our decisional
law, apply to describe appellants’ legal duty or
obligations to Ms. Scampone, given the considerations
which pertain.” 57 A.3d 605.
• In essence the question is whether there was sufficient
evidence of a relationship with the entities to establish
that duties of care exist under the Restatement Section
323 or the Althaus factors. Case remanded for that
determination.
By: Clifford A. Rieders, Esq.
45
HALL V. EPISCOPAL LONG TERM CARE
54 A.3D 381 (PA. SUPER. 2012)
STEVENS, P.J.
• Evidence of understaffing was sufficient to support
claim for corporate negligence.
• Issue of punitive damages should go to jury.
• Evidence similar to that presented in Scampone
sufficient for punitive damages, i.e., acted in an
outrageous fashion with reckless disregard to the
rights of others and/or created an unreasonable risk
of harm to the resident by chronic understaffing,
manipulated staffing around state inspections,
falsified records. The resident went entire months
without a bath and “was left to lie in her own filth.”
By: Clifford A. Rieders, Esq.
46
OSBORNE V. LEWIS
59 A.3D 1109 (PA.SUPER. 2012)
OLSON, J.
• LASIK surgery performed June 1, 2000. August 2004,
patient complained of decreased vision which was
confirmed. After seeing doctors and specialists,
patient was told that the LASIK surgery caused his
vision loss.
• Patient filed malpractice claim on July 24,, 2007.
• Court held the medical malpractice claim was
barred by the seven-year statute of repose of the
Mcare Act, 40 P.S. § 1303.513.
By: Clifford A. Rieders, Esq.
47
OSBORNE V. LEWIS
59 A.3D 1109 (PA.SUPER. 2012)
OLSON, J.
• Court noted that the seven-year statute of repose
was one of the ways that the McCare Act was to
address the crisis of professional liability insurance.
• “A cause of action accrues when a plaintiff could
first maintain the action to successful conclusion. “
Citation omitted. 59 A.3d 1114.
• In this case, the cause of action arose only after the
negative effects of the LASIK surgery were
ascertainable, late 2003 or 2004. As a result, the
statute of repose applied.
By: Clifford A. Rieders, Esq.
48
OSBORNE V. LEWIS
59 A.3D 1109 (PA.SUPER. 2012)
OLSON, J.
• The 7 year statute of repose barred the action even
though the action could not have been brought
before 2003, 2004.
• The statute mandates that no medical malpractice
claim “may be commenced seven years from the
date of the alleged tort or breach of contract.” 40
P.S. § 1303.513
• It was undisputed that the tort or breach of
contract occurred on the date of surgery, June 1,
2000, which was more than seven years prior to the
filing of the claim.
By: Clifford A. Rieders, Esq.
49
OSBORNE V. LEWIS
59 A.3D 1109 (PA.SUPER. 2012)
OLSON, J.
• Fraudulent concealment does not apply to toll the
statute of repose, 40 P.S. § 1303.513.
• Mcare Act specifially provides for the doctrine of
fraudulent concealment to apply in cases of
wrongful death or survival actions.
• The absence of such an express provision for other
circumstances evidences legislative intent that the
fraudulent concealment exception does not apply
to claims addressed by subsection (a).
By: Clifford A. Rieders, Esq.
50
RENNA V. SCHADT, M.D.
2013 PA.SUPER.34, 3021 EDA 2011 (FEBRUARY 25,2013)
BOWES, J.
• Superior Court affirmed that trial court permitting a
pathologist and an oncologist to render expert
testimony with respect to the standard of care
applicable to a surgeon. The lower court did not err
in failing to grant a new trial or remittitur.
• The claim was that a surgeon deviated from the
standard of care in performing a fine-needle
aspiration biopsy instead of a computed
tomography guided core biopsy on two lesion in
the right breast.
By: Clifford A. Rieders, Esq.
51
SOVEREIGN IMMUNITY
By: Clifford A. Rieders, Esq.
52
RODRIGUEZ V. COM., DEPT. OF TRANSP.
59 A.3D 45 (PA.CMWLTH. 2013)
LEAVITT, J.
• Motor vehicle accident occurred when a vehicle
traveling east lost control and crossed over a 30
feet wide grass median and collided into a vehicle
traveling west. Passenger was killed and estate
brought claim against Penn DOT for failing to erect
a median barrier to prevent crossover accidents
between opposing bound traffic.
• Court held that there was no exception to
sovereign immunity for PennDot’s failure to erect a
median barrier.
By: Clifford A. Rieders, Esq.
53
RODRIGUEZ V. COM., DEPT. OF TRANSP.
59 A.3D 45 (PA.CMWLTH. 2013)
LEAVITT, J.
• Court followed seminal case dealing with sovereign
immunity and highways, Dean v. Department of
Transportation, 751 A2d 1130 (2000).
• Svege v. Interstate Safety Services Inc., 862 A.2d 752
(Pa.Cmwlth. 2004) and Quinones v. Department of
Transportation, 45 A.3d 467 (Pa. Cmwlth. 2012)
establish that PennDOT has no duty to erect
median barriers to prevent crossover accidents.
By: Clifford A. Rieders, Esq.
54
WORKER’S COMPENSATION
IMMUNITY
By: Clifford A. Rieders, Esq.
55
GILLINGHAM V. CONSOL ENERGY, INC. 51 A.3D
841 (PA.SUPER. 2012)
BOWES, J.
• Two engineering consultants sued client after
stairwell they were on separated from client’s
building because rusty bolts attaching the stairwell
to the building disintegrated and stairwell
separated from the building. The two men fell 13
feet and sustain injuries.
• Liability imposed for failure to inspect building and
recognize visible rust;
• Whether release was adhesive was an issue for jury
to resolve whether agreement was signed because
of superior bargaining power.
By: Clifford A. Rieders, Esq.
56
GILLINGHAM V. CONSOL ENERGY, INC. 51 A.3D
841 (PA.SUPER. 2012)
BOWES, J.
• Immunity from suit under the Pennsylvania Worker’s
Compensation Act, 77 P.S. § 481(a) depended upon
status of the consultants. Status of employee under
worker’s compensation act was an issue for jury.
• Consultant was on the payroll as an employee but the
contract explicitly listed him as an independent contractor by
terms.
• Means and methods and tools of completing work were not
controlled.
• Pain and suffering and loss of consortium were not
excessive despite relationship to medical expenses
involved.
• Only slightly more than twice special damages;
• Other was only four times amount of medical expenses and
lost past and future earnings.
By: Clifford A. Rieders, Esq.
57
FRAZIER V. W.C.A.B. (BAYADA NURSES, INC.)
52 A.3D 241 (PA.2012)
JUSTICE BAER
• Bayada nurse fractured ankle as passenger on bus
involved in motor vehicle accident. Accident occurred
during course and scope of employment. Nurse was
awarded worker’s compensation. Nurse filed third-party
lawsuit against SEPTA for injuries and Bayada filed notice
of its intent to recoup its benefits.
• Employer barred from enforcing its “reimbursement rights
pursuant to statute providing political subdivisions
immunity from claims of subrogation or reimbursement
from a workers’ compensation claimant’s tort recovery,
disapproving Fox v. WCAB (PECO Energy Co.) 969 A2d
11.”
By: Clifford A. Rieders, Esq.
58
PRODUCT LIABILITY
By: Clifford A. Rieders, Esq.
59
REOTT V. ASIA TREND, INC.
55 A.3D 1088 (PA 2012)
JUSTICE BAER
• Buyer of a tree stand was injured when the tree
stand collapsed which was indisputably a
substantial factor in causing buyer’s injuries.
• The Superior Court noted that while was a jury
question as to whether his “setting the stand”
maneuver of bobbing up and down on his toes
entailed a high degree of risk of injury or death,
there was no evidence that this maneuver could
have caused the collapse in the absence of a
defect.
By: Clifford A. Rieders, Esq.
60
REOTT V. ASIA TREND, INC.
55 A.3D 1088 (PA 2012)
JUSTICE BAER
• Pa. Supreme Court affirmed and held that allegedly
reckless use of tree stand was an affirmative
defense to strict liability that must be pleaded and
proven that conduct was so reckless as to
constitute sole or super case of injuries, abrogating
Berkebile v. Brantly Helicopter Corp., 337 A.2d. 893
• Reversed on issue of causation and remanded for
new trial limited to issue of damages.
By: Clifford A. Rieders, Esq.
61
PRE-EMPTION
By: Clifford A. Rieders, Esq.
62
ZIMMERMAN V. NORFOLK SOUTHERN CORP.
706 F.3D 170 (3RD CIR. 2013)
SMITH, CIRCUIT JUDGE
• Motorcyclist approached railroad crossing in the
dark with obstructed view of the tracks at less than
76 feet away, motorcyclist tried to abruptly stop
when it saw train approaching. His brakes locked,
causing him to collide headfirst with the locomotive,
leaving him partially paralyzed.
• Motorcyclist brought “failure to warn; failure to
maintain safe crossing; failure to ensure that the
crossing device complied with federal regulations
and punitive damages.”
• Many railroad regulations preempt state law claims.
By: Clifford A. Rieders, Esq.
63
ZIMMERMAN V. NORFOLK SOUTHERN CORP.
706 F.3D 170 (3RD CIR. 2013)
SMITH, CIRCUIT JUDGE
• FRSA did not exempt failure to warn claim based
upon excessive speed because 49 C.F.R. § 213.9
creates a federal standard of care providing speed
limits on different types of tracks.
• Accident report was privileged, but other accident
reports were not.
• FRSA preempted failure to warn for misclassification
of tracks.
• FRSA did not preempt failure to maintain safe
crossing area and fact issue precluded summary
judgment.
• FRSA preempted claim for negligence per se.
By: Clifford A. Rieders, Esq.
64
CONTRACT – WARRANTY OF
HABITABILITY
By: Clifford A. Rieders, Esq.
65
CONWAY V. CUTLER GROUP, INC.
57 A.3D 155 (PA.SUPER. 2012)
MUNDY, J.
• Second purchaser sued home builder for breach of
the implied warranty of habitability after discovery
of a water leak.
• Court decided an issue of first impression that the
warranty of habitability extended beyond first
purchaser to second purchaser of home.
By: Clifford A. Rieders, Esq.
66
REAL ESTATE – UTCPC
By: Clifford A. Rieders, Esq.
67
MILLIKEN V. JACONO
60 AL3D 133 (PA.SUPER. 2012)
FORD ELLIOTT, P.J.E.
• Buyers sued sellers of house for failure to disclose
that a murder/suicide occurred in the house in
2006.
• Claim included fraud and misrepresentation
regarding sale of property without disclosure of
murder/suicide which took place, breach of the
Real Estate Seller Disclosure Law, negligent
Representation, Fraud and a violation of the Unfair
Trade Practices Act.
• Court concluded that murder/suicide was not a
material defect as provided under RESDL, 68 Pa.
C.S.A. § 7102.
By: Clifford A. Rieders, Esq.
68
MILLIKEN V. JACONO
60 AL3D 133 (PA.SUPER. 2012)
FORD ELLIOTT, P.J.E.
• Court characterized psychological disclosures as being
“massive expansion” in the character of physical disclosures
required by RESDL.
• Because sellers did not conceal or fail to disclose a material
defect under RESDL, Court concludes sellers could not be
liable for fraud even though expert testimony was that the
value of the house was diminished and buyer testified they
would not have purchased home had they known.
• Court concluded that buyers were not liable for negligent
misrepresentation relying on the fact that sellers had no duty
to disclose the murder/suicide.
• Court also concluded that no claim satisfied the catch-all
provision of UTPCPL because sellers did not engage in any
deceptive conduct.
• Bender, J., filed a dissenting opinion which was joined by
Mundy and Wecht.
By: Clifford A. Rieders, Esq.
69
WRONGFUL BIRTH
By: Clifford A. Rieders, Esq.
70
SERNOVITZ V. DERSHAW
57 A.3D 1254 (PA.SUPER. 2012)
DONOHUE, J.
• Parents brought wrongful birth and wrongful life action after
their son was born with familial dysautonomia.
• Because their child was at increased risk for the disease, they
underwent testing. Defendants failed to inform them that
mother was a carrier and mother was informed that she tested
negative for all mutations for which she was tested.
• Upon learning son’s diagnosis, both parents learned that they
must be carriers but were “not given the opportunity to
determine whether they should terminate the pregnancy.
• Superior Court concluded that 42 Pa.C.S.A. § 8305 which
prohibits wrongful birth and wrongful life actions is
unconstitutional because the manner in which it was enacted
violated article II, Section 3, violating the single subject rule.
By: Clifford A. Rieders, Esq.
71
REIMBURSEMENT/MEDICAID
ISSUES
By: Clifford A. Rieders, Esq.
72
U.S. AIRWAYS V. MCCUTCHEN
569 U.S. ___(2013)
• U.S. Airways ERISA plan paid medical bills in
connection with an automobile accident.
• Neither “unjust enrichment” nor “double recovery”
prevent reimbursement or require the plan to pay a
share of the attorney’s fees incurred in securing the
funds from a third party.
• The clear terms of a plan were controlled.
By: Clifford A. Rieders, Esq.
73
U.S. AIRWAYS V. MCCUTCHEN
569 U.S. ___(2013)
• In this case, U.S. Airways demanded reimbursement
of its money without any deduction for attorney’s
fees.
• The agreement is the measure of the parties’
equities, so that if a contract abrogates the
common-fund doctrine, the insurer is not unjustly
enriched by claiming the benefit of its bargain.
• Given the unequal bargaining strength of the
parties, and that there is no bargaining which
occurs on behalf of the employee, the decision is
breathtaking.
By: Clifford A. Rieders, Esq.
74
U.S. AIRWAYS V. MCCUTCHEN
569 U.S. ___(2013)
• McCutchin was fortunate in that his plan was silent
on the allocation of attorney’s fees.
• In those circumstances, the common-fund doctrine
provides the appropriate default.
• U.S. Airways or anyone else can depart from the
well established common fund rule by drafting its
contract to say so.
By: Clifford A. Rieders, Esq.
75
U.S. AIRWAYS V. MCCUTCHEN
569 U.S. ___(2013)
• If a plan can be amended to address attorney’s
fees in the reimbursement situation and they do so,
people will not bring cases and the insurance
companies will not get their money back.
• The court oddly states: “When the next McCutchin
comes along, he is not likely to relieve U.S. Airways
of the cost of recover.”
By: Clifford A. Rieders, Esq.
76
WOS, SECRETARY, NORTH CAROLINA DEPT. OF HEALTH V. E.M.A
133 S.CT. 1391 (MARCH 20, 2013)
KENNEDY. J.
• Federal statute prohibits States from attaching a lien on the
property of a Medicaid beneficiary to recover benefits paid
by the State on the beneficiary’s behalf.
• The anti-lien provision pre-empts State’s efforts to take an
portion of a Medicaid beneficiary’s tort judgment or
settlement not designated as payment for medical care.
• North Carolina has a statute requiring that up to one-third of
any damages recovered by a beneficiary for a tortious injury
be paid to the State to reimburse it for payments made for
medical treatment on account of the injury.
• The conclusive presumption is preempted.
• The defect in the statute is that it sets no process for
determining what portion of a beneficiary’s tort recovery is
attributable to medical expenses.
By: Clifford A. Rieders, Esq.
77