by Mark Bauman | Dec 18, 2021 | General Liability and Casualty, Legal News
The Pennsylvania Supreme Court ruled improper venue must be raised by preliminary objection and if not so raised shall be waived. Zappala v. Brandolini Property Management, Inc. (Pa. November 27, 2006).
This personal injury case was filed against various individual and corporate defendants relative to a slip and fall that occurred in Chester County. Suit was filed in Philadelphia County against various defendants, some of which were located in Chester County and some of which were located in Philadelphia County. Shortly before trial, the Philadelphia County defendants were dismissed from the case. The Chester County defendants then moved to transfer the case to Chester County and the motion was granted. Plaintiff appealed to the Superior Court which reversed the trial court’s ruling finding that the transfer was improper since a challenge to improper venue was not brought by the Chester County defendants in preliminary objections (which are required to be filed within twenty days after a complaint is filed). The Superior Court rejected Plaintiff’s argument that a challenge to venue could not be made at the time of preliminary objections and had to wait until the last Philadelphia County defendant was dismissed from the case.
The Supreme Court upheld the decision of the Superior Court and stated that the language of Pa.R.C.P. 1006(e) explicitly states that a challenge to improper venue must be made in preliminary objections or else the challenge is waived. It rejected the trial court’s reasoning that improper venue can be raised “at the first reasonable opportunity” which in this case would have been when the Philadelphia County defendants were dismissed from the case shortly before trial. It also found, however, that a petition to transfer venue on the basis of forum non conveniens, can be made at any time in the litigation and remanded the case to allow the Chester County defendants to seek a challenge to venue on that basis.
by Mark Bauman | Dec 17, 2021 | General Liability and Casualty, Legal News
In a case of first impression, the Pennsylvania Supreme Court found that state court wrongful use of civil proceedings and abuse of process claims (Dragonetti claims) which are based on frivolous claims filed in Bankruptcy Court are pre-empted by the Bankruptcy Code. Stone Crushed Partnership v. Kassab Archbold Jackson & O’Brien, et. al., 908 A.2d 875 (Pa. 2006).
This case arose when plaintiffs and defendants formed a partnership to purchase real estate. The partnership, Granite Partners I, Ltd. (“Granite”) entered into an agreement of sale to purchase land secured by a mortgage, note, and personal guarantees from the three partners, Jackson, Archbold and O’Brien. Granite later defaulted on the loan and the mortgage holder confessed judgment against it and the three partners. Jackson, one of the three partners sought to avoid foreclosure by forming his own partnership, Stone, to purchase the mortgage and note from the lender. The mortgage and note were assigned to Stone. Granite later filed for Chapter 11 relief under the Bankruptcy Code and sought to have the debt to Stone discharged. Adversary proceedings ensued and at all stages of the proceedings, including an appeal to the Third Circuit Court of Appeals, the case was decided in favor of Jackson and his partnership, Stone.
On an unrelated matter, Jackson sued Archbold and O’Brien’s law firm relative to another building partnership. Archbold and O’Brien counterclaimed and asserted claims against Jackson that they had raised in the bankruptcy proceedings. The counterclaim was ultimately dismissed and upheld by the Superior Court. Jackson then asserted a claim for wrongful use of civil proceedings and abuse of process in state court. The claim was dismissed by the trial court which found that the claims were preempted by the Bankruptcy Code. The decision was upheld on appeal to the Superior Court.
The Supreme Court found that the Bankruptcy Code preempts a state law Dragonetti claims based upon a frivolous claim filed in Bankruptcy Court proceedings because Congress evinced an intent to govern the whole filed and Fed. R. Civ. P. 11, 28 U.S.C. § 1927, and the Bankruptcy Code potentially provide for the equivalent protection afforded by the Commonwealth to its citizens. The Supreme Court’s holding settles for Pennsylvania a long-standing disagreement among state and federal courts on the issue of whether the Bankruptcy Code preempts state law abuse of process claims.
by Mark Bauman | Dec 16, 2021 | General Liability and Casualty, Legal News
The Pennsylvania Supreme Court refused to toss out a verdict where the same 10 jurors did not agree on each special jury interrogatory. Fritz v. Hazel Wright et. al., 907 A.2d 1083 (Pa. 2006).
In Fritz, plaintiff sustained injuries when he fell on a driveway. He sued the property owner and the jury awarded the plaintiff damages. After the verdict was rendered, the defendants requested that the jury be polled. The jury was unanimous that the defendants were negligent, that the negligence was a substantial factor in bringing about the alleged harm and that the plaintiff was contributorily negligent. However, on the question of whether the plaintiff’s negligent was a substantial factor in bringing about the harm, jurors 4 and 8 said yes while all the others said no. On the question of damages, all of the jurors except for jurors 4 and 9 agreed that the plaintiff should receive $53,000. Defendants moved for a mistrial, arguing that the verdict was improper because the same ten jurors did not agree to each of the jury questions.
The defendants appealed to the Superior Court which, in a divided decision, agreed with the defendants, vacated the judgment and remanded the case for a new trial. The Superior Court found that the term “verdict” as used in the Pennsylvania Constitution and 42 Pa.C.S. § 5104(b), consists of all of the answers to the jury interrogatories so that the verdict upon which five-sixths of the jurors must agree is comprised of the total verdict inclusive of each interrogatory response. An appeal to the Pennsylvania Supreme Court followed.
The Supreme Court overruled the Superior Court. It held that a verdict is the decision of a jury reported to court on matters submitted to the jury at trial. A general verdict slip is one in which the jury is simply asked to find for the plaintiff or defendant. A general verdict slip with special findings asks the jury to answer individual questions in conjunction with the ultimate verdict question. The Court stated that the jury’s decision is the general verdict and not the answers to the individual interrogatories, which are merely advisory. It also found that regardless of whether the jury is delivering a general verdict or general verdict with special findings, its deliberation will encompass all aspects of the case that are necessary to arrive at a decision.
The Court stated that if the Superior Court’s reasoning were followed, the fortuitous fact that this verdict included special findings would permit counsel to delve into the otherwise sacrosanct jury deliberation process to ascertain disagreements among particular jurors or particular subparts of their discussions, whereas this would not be permitted if the verdict had been a general verdict without additional questions. The Court held that it sees no reason to permit invading the sanctity of the jury deliberations in the case of special findings where such invasion would not be permitted in the case of a general verdict without special findings.
by Mark Bauman | Dec 15, 2021 | General Liability and Casualty, Legal News
In Kisak v. Wheeling Park Comm’n, 898 A.2d 1083 (Pa. Super. 2006), a husband and wife, residents of Pennsylvania, were playing miniature golf in West Virginia when the wife fell and sustained an injury. The miniature golf park was owned by the Wheeling Park Commission which is a political subdivision of the City of Wheeling, West Virginia which is a public corporation. Suit was filed in Allegheny County, Pennsylvania. The corporation filed preliminary objections claiming improper venue and alleged that it neither owned property nor conducted any business within Allegheny County. The trial court agreed and dismissed the action and an appeal followed.
In the appeal, the plaintiffs argued that the corporation regularly conducted business in Allegheny County by way of advertising and produced a chart indicating that most of the corporations advertising was in the Pittsburgh, Allegheny County, Pennsylvania area.
The Superior Court disagreed. It stated to determine if business contacts amount to regularly conducting business for purposes of establishing venue, it will continue to apply the “quality” and “quantity” test as set forth by the Pennsylvania Supreme Court in Purcell v. Bryn Mawr Hospital, 525 Pa. 237, 579 A.2d 1282, 1284 (1990). It held that that the advertising done by the corporation is incidental to and not essential to the corporations operation of its park.
The trial court sustained the preliminary objections and dismissed the complaint based on lack of venue. On appeal, the claimant and husband asserted that the trial court erred because the foreign state park commission advertised through radio stations, television stations, newspapers, and billboards in the forum county. The appellate court found that such advertising activity was not a sufficient basis on which to conclude that the foreign state park commission regularly conducted business in the forum county and that since transfer to another county in the state was not possible, the case had to be dismissed.
by Mark Bauman | Dec 14, 2021 | General Liability and Casualty, Legal News
The Pennsylvania Superior Court reversed a criminal contempt order issued by a Philadelphia Court of Common Pleas trial judge and ruled that an attorney is permitted to speak with his expert witness during a break from direct examination. Yoskowitz v. Yazdanfar, 900 A.2d 900 (Pa. Super. 2006).
In Yoskowitz, Judge Eugene E.J. Maier issued a criminal contempt order against F. James Gallo, Esquire for talking to his expert witness during a break in testimony. This was one of two criminal contempt orders issued by Judge Maier against Mr. Gallo.
Mr. Gallo was initially cited for contempt after seeking the assistance of plaintiff’s counsel in operating the video/DVD equipment he sought to use while questioning his expert witness. Plaintiff’s counsel objected and, after a sidebar, Judge Maier ruled that Mr. Gallo’s request was improper. Mr. Gallo then commented on the substance of the sidebar in front of the jury prompting the first contempt ruling.
Mr. Gallo then indicated that he was finished with the direct examination of the expert witness and the court took a brief break. During the break, Mr. Gallo had a conversation with his expert witness. The technical staff then arrived to help operate the video/DVD equipment and Mr. Gallo’s request to continue his examination was granted. Mr. Gallo’s discussion with the expert witness during the break prompted the second contempt ruling that is the subject of the appeal.
Judge Maureen Lally-Green of the Superior Court noted that there was little case law on the issue and the Pennsylvania Rules of Evidence do not address the right of a witness to consult with counsel prior to cross-examination. Judge Lally-Green turned to 42 Pa.C.S.A. §4132(3) regarding criminal contempt on the basis of misbehavior. According to the section, there must be proof beyond a reasonable doubt that there was “misconduct; in the presence of the court; committed with the intent to obstruct the proceedings; which obstructs the administration of justice.” Judge Lally-Green opined that “the record before us, in light of relevant case law, and custom, does not support a conviction for criminal intent” and the Superior Court reversed the criminal contempt order.
by Mark Bauman | Dec 13, 2021 | General Liability and Casualty, Legal News
The issue of when and under what circumstances an employer can request that an employee undergo a medical examination under the Americans with Disabilities Act was recently decided in the case of Ward v. Merck & Co., 17 Am. Disabilities Cas (BNA) (E.D. Pa. 2006).
Ward was hired by Merck as a chemist in 1996. By October 2002, Ward’s supervisors noticed that Ward had become more introverted in the workplace. Ward had been diagnosed with anxiety disorder, for which he refused the recommended treatment. Merck was not aware of the diagnosis. At one point, Ward had resigned citing job-related stress, but withdrew his resignation when asked to reconsider. Ward took a three week leave of absence when he was diagnosed as possibly suffering from schizophrenia following an incident of screaming at co-workers in the cafeteria regarding the quality of food. Upon his return from the leave of absence, Ward’s behavior and performance deteriorated to the point where his supervisors became concerned for his well-being and the well-being of his co-workers. Merck subsequently requested that Ward undergo an examination with occupational health. Ward did not agree that his “behavior, performance or productivity” had changed and did not agree that an examination was necessary. Ward, therefore, did not undergo an examination. Merck suspended Ward with pay and warned that he would be terminated if he did not agree to an examination. Merck advised Ward that “the approach the company has chosen to take at this time by sending you for a fitness-for-duty evaluation is specifically intended not to punish or discipline you even though your workplace productivity and performance has been well below acceptable standards and your behavior has often been unprofessional.” Ward continued to refuse to submit to an examination and was terminated.
Ward sued asserting claims under the ADA. He claimed that the examination violated 42 U.S.C. 12112(d)(4) of the ADA which states that “[a] covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”
Upon finding that this portion of the ADA pertained to non-disabled employees, the court analyzed whether Merck’s request for examination in this case was “job-related and consistent with business necessity.” The court stated in order to meet this test, “there must be sufficient evidence for a reasonable person to doubt whether an employee is capable of performing the job, and the examination must be limited to determining an employee’s ability to perform essential functions.” The court further noted “an employee’s behavior cannot be merely annoying or inefficient to justify examination” but there must be a “reasonable belief based upon objective evidence” that the employee’s ability to perform the essential functions of the job is “impaired by a medical condition or the reasonable belief that an employee will pose a direct threat due to a medical condition.” In the current case, the court found that Merck’s requested medical examination was justified, noting that Ward’s behavior “posed more than a mere inconvenience for his supervisors.”
