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By Daniel Siegel
REPORTING DECISIONS THROUGH FEBRUARY 3, 2006
PENNSYLVANIA STATE COURT DECISIONS
1. CAUSES OF ACTION
1.1. Civil Remedies For Violations of State Constitutional
Rights
► Commonwealth Court of Pennsylvania
♦ Jones v. City of Philadelphia
No. 795 C.D. 2004 (January 25, 2006)
Holding: A city or other local government is not liable for
monetary damages under Article I, Section 8 of the
Pennsylvania
Constitution for a claim of excessive force. Of note is the en
banc Court’s finding that the plaintiff failed to show that
his
rights against governmental use of excessive force were not
sufficiently protected by the Fourth Amendment. Judge
Smith-Ribner filed a dissenting opinion, in which she was
joined by Judge Friedman.
1.2. Motor Vehicles Claims – Uninsured Motorist Actions
► Superior Court of Pennsylvania
♦ Pantelis v. Erie Insurance Exchange
2006 PA Super 1 (January 4, 2006)
Holding: An automobile insurer’s acknowledgement of
“reasonable
proof” that a party is entitled to first party benefits does
not
preclude the insurer from later disputing whether the insured
is
“legally entitled to recovery” of third party benefits in an
uninsured motorist claim pursuant to 75 Pa.C.S.A. § 1731(b).
The Court notes that the payment of medical bills under
Section
1716 can be “triggered by something as simple as submission of
a
bill from a medical provider,” whereas the “legal entitlement
to
recovery of uninsured motorist benefits … is based on the
wrongful conduct of a third party.”
2. CIVIL PROCEDURE
2.1. Pre-Trial Procedure
► Commonwealth Court of Pennsylvania
♦ Wheeler v. Red Rose Transit Authority
No. 874 C.D. 2005 (January 27, 2006)
Holding: A petition to reinstate a case dismissed under Pa.
R.Civ.P. 230.2, filed more than 30 days after the termination
order, will be granted only if there is a “reasonable
explanation or a legitimate excuse” for the failure to file
(1)
the statement of intention and (2) the petition to reinstate
within 30 days of its termination.
2.2. Professional Negligence Actions
► Superior Court of Pennsylvania
♦ Varner v. Classic Communities Corp.
2006 PA Super 2 (January 6, 2006)
Holding: A Certificate of Merit is required for professional
liability actions, including those against architects.
Although
a Complaint may attempt to characterize a claim as sounding in
ordinary negligence or negligence per se, because the claim is
against a licensed professional, the plaintiff must file a
Certificate of Merit. When a plaintiff fails to file the
requisite Certificate of Merit, a judgment of non pros is
warranted under Pa. R.Civ.P. 1042.1-1042.8.
2.3. Trial Practice (Voir Dire)
► Superior Court of Pennsylvania
♦ Capoferri v. Children’s Hospital of Philadelphia
2006 PA Super 16 (January 31, 2006)
Holding: A trial court commits reversible error by denying
counsel’s request to ask prospective jurors certain questions
during voir dire about their knowledge of or perspective about
the alleged medical malpractice crisis, and the alleged flight
of physicians from Philadelphia, in particular. The Court
notes
that its Opinion does not endorse any of the questions
proposed
by the plaintiffs and, instead, states that the trial court
should have asked prospective jurors appropriate preliminary
questions designed to detect whether any of the prospective
jurors had been exposed to tort reform and/or medical
negligence propaganda.
3. UNEMPLOYMENT COMPENSATION
3.1. Willful Misconduct
► Commonwealth Court of Pennsylvania
♦ ATM Corp. of America v. Unemployment Compensation
Board
of Review
No. 1560 C.D. 2005 (January 23, 2006)
Holding: An accounting department employee, who processes
checks in and out of an employer’s multimillion dollar account
and who refuses to authorize a background check, is properly
terminated for willful misconduct and is not entitled to
unemployment compensation benefits.
4. WORKERS’ COMPENSATION (ALL COMMONWEALTH COURT CASES)
4.1. Calculation of Self-Employment Income
♦ Acme Markets, Inc. v. Workers’ Compensation Appeal
Board (Brown)
No. 1174 C.D. 2005 (January 3, 2006)
Holding: In determining a claimant’s earning power, a Workers’
Compensation Judge may consider a claimant’s net income from
self-employment, and is not required to rely solely upon the
claimant’s gross income. The ultimate determination must be
based upon all evidence, including claimant’s testimony and
other sources.
4.2. Medical Expenses – Replacement of Orthopedic Appliances
and Similar Items
♦ Zuback v. Workers’ Compensation Appeal Board (Paradise
Valley Enterprise Lumber Co.)
No. 1173 C.D. 2005 (January 9, 2006)
Holding: Although the Workers’ Compensation Act requires an
employer to provide home modifications at the employer’s
expense, such modifications are limited to a one-time
expenditure. The replacement of an orthopedic device,
including
a stair glide, is not an additional modification, however, and
an employer is obligated to pay for such costs, which are the
result of “wear and tear.”
4.3. Retirement/Voluntary Withdrawal from the Workforce
♦ Hepler v. Workers’ Compensation Appeal Board (Penn
Champ/Bissel, Inc.)
No. 1727 C.D. 2005 (January 11, 2006)
Holding: Disability benefits should be suspended when a
claimant leaves the workforce. For disability compensation to
continue following retirement, a claimant must show that he or
she is seeking employment after retirement or that he or she
was forced into retirement because of the work-related injury.
When a claimant is forced into retirement because of a
work-related injury, the claimant must show that he or she was
forced out of not only the pre-injury job, but the entire
labor
market, or that the claimant continues to actively seek
employment.
♦ Blong v. Workers’ Compensation Appeal Board (Fluid
Containment)
No. 1569 C.D. 2005 (January 19, 2006)
Holding: A claimant who moves permanently to New Zealand has
removed himself from the workforce, and an employer is
entitled
to a suspension of benefits.
4.4. Supersedeas Fund Reimbursement
♦ ConocoPhilips v. Workers’ Compensation Appeal Board
(Logan)
No. 515 C.D. 2005 (January 19, 2006)
Holding: An employer is not entitled to Supersedeas Fund
reimbursement for a “deemed denial” of a request for
supersedeas. Once a claimant receives an award of a lump sum
payment for retroactive compensation or specific loss benefits
and that award is later reversed or modified, the claimant is
not required to repay that money. Instead, an employer must
resort to repayment from the Fund, provided supersedeas was
denied prior to disbursement of the funds to the claimant.
FEDERAL COURT DECISIONS OF INTEREST
5. JURISDICTION
5.1. Diversity Jurisdiction – Banks
► U.S. Supreme Court
♦ Wachovia Bank v. Schmidt
No. 04-1186 (January 17, 2006)
Holding: Although “All national banking associations shall …
be
deemed citizens of the States in which they are respectively
located,” pursuant to 28 U.S.C. § 1348, for purposes of
determining citizenship for diversity purposes under 28 U. S.
C. 1332, a national bank is a citizen of the state in which
its
main office is located, as set forth in its articles of
association.
6. MOTOR VEHICLE INSURANCE
6.1. Bad Faith Claims
► U.S. District Court, Eastern District of Pennsylvania
♦ Harris v. Lumberman’s Mutual Casualty Co.
No. 05-CV-5228 (January 23, 2006)
Holding: Pennsylvania’s bad faith statute, 42 Pa. C.S.A. §
8371, conflicts with the Motor Vehicle Financial
Responsibility
Law as to the remedies available under 75 Pa. C.S.A. §§ 1716
and
1797. Because the MVFRL is the more specific statute, it
preempts the bad faith statute. In particular, the special
provision, section 1797, preempts the bad faith statute, and a
claim for statutory bad faith arising from the denial of first
party medical benefits will be dismissed. Because section 1716
and the bad faith statute impose different remedies for
different degrees of culpable conduct, i.e., unreasonable
conduct under section 1716 and bad faith conduct under section
8371, the statutes are reconcilable. Accordingly, section 1716
does not preempt the bad faith statute and a claim for
statutory bad faith arising from a carrier’s denial of a claim
for lost wages benefits will not be dismissed.
Remember, visit Pennsylvania Legal Research Links, and make
www.palegallinks.com your home page for Pennsylvania research.
About The Author: Daniel J. Siegel, an attorney in Havertown,
Pennsylvania, has authored this newsletter since 1988. To
subscribe, or contact Dan Siegel, go to
www.danieljsiegel.com or send an email to
subscribe@danieljsiegel.com with the subject "Subscribe." Dan
Siegel also has offices in Philadelphia.
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