eNotes: Liability – October 2023 – Pennsylvania

SIGNIFICANT CASE SUMMARIES

Pennsylvania Case Summaries

Johnson v. Toll Bros.
Pennsylvania Superior Court
2023 Pa. Super. 181

Decided: September 26, 2023

Plaintiffs’ tort claims were barred by the economic loss doctrine, the gist of the action doctrine and/or the applicable statute of limitations.

Background

Construction Company, who designed and constructed the home at issue, installed Defendant Window Manufacturer’s windows in the home. Construction of the home was completed and a certificate of occupancy issued on October 18, 2004. In 2017, Plaintiff homeowners hired an inspector who discovered the alleged latent defects caused by the windows. Plaintiffs filed a Writ of Summons against Defendant Window Manufacturer in August 2018. In the later filed Complaint, Plaintiffs asserted claims of negligence, product liability – strict liability, and product liability – breach of implied warranties of merchantability and fitness for particular use against Defendant Window Manufacturer. Plaintiffs claimed damage to the resale value of the home and damage to the interior and exterior of the home due to water infiltration. Defendant Window Manufacturer filed, and the Trial Court granted, a Motion for summary judgment on the basis that Plaintiffs’ product liability claims were barred by the economic loss doctrine, as well as the gist of the action doctrine, and that Plaintiffs’ implied warranty claim was barred by the applicable statute of limitations.

On appeal, Plaintiffs argued that the economic loss doctrine does not apply because they suffered property damage to areas of the home other than the allegedly defective windows; that the gist of the action doctrine does not apply because Defendant Window Manufacturer breached a “social duty” of care to the Plaintiffs to supply non-defective windows; and that the statute of limitations does not apply because the running of the filing period was tolled by the latent nature of the defect in the windows, first discovered in 2017.

Holding

The Superior Court, reviewing the Trial Court’s ruling for error of law, affirmed the Trial Court’s Order granting Defendant Window Manufacturer’s Motion for summary judgment. The Superior Court, considering the economic loss doctrine, found that Plaintiffs’ tort claims were barred, as any damage by the alleged defective windows to the home were purely economic damages to the home itself, which are not recoverable in tort. The Superior Court then considered the gist of the action doctrine and found that Plaintiffs’ product liability claims were barred after finding the “gist” of the claim concerned the contractual duty Defendant Window Manufacturer owed to the Construction Company, to whom it sold the windows pursuant to an agreement of sale. Lastly, the Superior Court found that Plaintiffs’ claim of breach of implied warranty of merchantability was barred by the statute of limitations, as the claim must be brought within 4 years.

Note: A companion appeal addressed the applicability of the statute of repose and a summary of that decision can be found below.

Questions about this case can be directed to Laura Daube at (717) 441-3955 or ldaube@tthlaw.com.

Johnson v. Toll Bros.
Pennsylvania Superior Court
2023 Pa. Super. 169

Decided: September 19, 2023

The statute of repose related to construction projects applied and Plaintiffs’ claims were time barred, as the occupancy permit issued for the subject structure was record evidence of lawful construction.

Background

Defendant Construction Company built the home at issue in this matter, completing construction on or about October 18, 2004, the date a certificate of occupancy was issued. Plaintiff homeowners filed a Writ of Summons against Defendant Construction Company in August 2018. In the later filed Complaint, Plaintiffs alleged that Defendant Construction Company negligently, and in violation of applicable building codes, improperly installed door frames, brick façade and windows, which allowed water intrusion into the home, causing continuous damage beginning in 2012 at the latest. Plaintiffs supported these claims with expert testimony. Defendant Construction Company filed, and the Trial Court granted, a Motion for summary judgment on the basis that Plaintiffs’ claims were time barred by the statute of repose, which required suit to be filed within 12 years of the completion of construction.

On appeal, Plaintiffs argued that the statute of repose is not applicable because Defendant Construction Company’s alleged building code violations made the construction of the home “unlawful.” Plaintiffs argued, alternatively, that even if the statute of repose applied, they qualified for a two-year extension to file their claims because they sustained injury in the tenth to twelfth years of the filing window. Defendant Construction Company argued that the construction was “lawful” as it was authorized by the governing body with jurisdiction over the project. Defendant Construction Company also argued that Plaintiffs were not entitled to the two-year filing extension under the statute of repose because all of Plaintiffs’ alleged injuries were present at the time of construction.

Holding

The Superior Court, reviewing the Trial Court’s ruling for error of law, affirmed the Trial Court’s Order granting Defendant Construction Company’s Motion for summary judgment. The Superior Court, considering the rules of statutory construction and prior decisions dealing with the term “lawfully” related to various statutes of repose, held that the occupancy permit issued for the subject home on October 18, 2004, constituted evidence of record that Defendant Construction Company lawfully performed the construction.

The Superior Court likewise rejected Plaintiffs’ argument that they qualified for a two-year extension to the filing period under the statute of repose, holding that the term “injury” refers to damages that first arise in the tenth to twelfth years after construction of a structure is complete. The term “injury” does not refer to a continuing harm in the tenth to twelfth years, which would create the absurd result of nearly every construction defect claim automatically receiving an additional two years to file a claim.

Note: A companion appeal addressed the economic loss doctrine, the gist of the action doctrine and the statute of limitations, and a summary of that decision can be found above.

Questions about this case can be directed to Laura Daube at (717) 441-3955 or ldaube@tthlaw.com.

Grace v. Graystone Court Villas, LLC
Pennsylvania Superior Court
No. 1208 WDA 2022

Decided: September 13, 2023

Trial Court did not err in applying the hills and ridges doctrine to a slip and fall during generally slippery conditions.

Background

Plaintiff sought damages for a slip and fall accident which allegedly occurred from an unsafe accumulation of ice and snow in a parking lot. Plaintiff testified that she had returned home after picking up her son, at which time it had been a “raining and snow mix.” When she left her home to travel to Defendant’s location fifteen minutes later, she had to scrape ice from her car, which was new from when she got home, and saw that her driveway and sidewalks were slippery. She drove two miles to Defendant’s location and saw that the roads were “a little slick.” Upon arriving at Defendant’s property, Plaintiff exited her car and while walking towards the rear of her car, holding onto the car, she slipped and fell on ice. Defendant moved for summary judgment in reliance on the existence of generally slippery conditions throughout the community. The Trial Court granted summary judgment ruling that the hills and ridges doctrine applied and precluded liability.

On appeal, Plaintiff argued that the Trial Court misapplied the hills and ridges doctrine on her negligence claim because she fell on an isolated patch of ice left over from snow removal efforts ten hours earlier in the day. The hills and ridges doctrine protects landowners from liability for generally slippery conditions where the snow and ice complained of are an entirely natural accumulation. The Superior Court concluded that Plaintiff’s testimony, taken in its totality, established the existence of generally slippery conditions. Although Plaintiff was a business invitee, it was undisputed that it was actively sleeting at the time of her fall. Plaintiff was aware of the slippery conditions because ice had formed before she left for her destination, she noticed “slick” roads on the way there, and she held onto her car as a precaution as she walked. Further, Plaintiff saw no accumulation of ice, just “ice and some snow” in the parking lot where she fell.

Holding

The Court affirmed the judgment in favor of Defendant. The Trial Court properly applied the hills and ridges doctrine to find no liability on the landowner where the incident occurred at a time when there were generally slippery conditions throughout the community.

Questions about this case can be directed to James F. Swartz, III at (610) 332-7028 or jswartz@tthlaw.com.

Wimbs v Wolfson
Pennsylvania Superior Court
No. 927 WDA 2022

Decided: August 30, 2023

Plaintiff failed to demonstrate a good faith effort to serve Defendant, mandating dismissal.

Background

Wimbs and Wolfson were involved in a car accident on November 26, 2018. On November 25, 2020, the day before the expiration of the statute of limitations, Wimbs filed a Praecipe to issue Writ of Summons. Wimbs attempted to serve Wolfson via sheriff as required by the rules. Service was not perfected as the sheriff noted that Wolfson no longer lived at the address. The Writ was then re-issued ten times, with no attempts to make service. On April 29, 2022, Wimbs filed a Complaint and counsel for Wolfson filed Preliminary Objections asserting that no service was ever made of the Writ/Complaint prior to the expiration of the statute of limitations and that there were no good faith effort to do so. Wimbs answered that he made reasonable efforts to serve, including contacting Wolfson’s insurer in July 2021 to request her address and request that they advise her of the suit. He also noted that counsel for Wolfson entered an appearance in September 2021.

The Lower Court sustained the Preliminary Objections and opined that dismissal was proper as the Writ was issued eleven times and only one attempt was made to serve Wolfson. The Lower Court determined that this did not constitute a good faith effort to serve; demonstrated an intent to stall, and did stall, the court machinery; and found there was no evidence that Wolfson had actual notice of the suit prior to the expiration of the statute of limitations. Wimbs appealed.

Holding

The Superior Court affirmed. The Court restated the principal that once the statute of limitations is tolled by the filing of a Writ or Complaint, there must be good faith efforts to serve a defendant. Where noncompliance is alleged, the Lower Court has the sound discretion to determine whether there was a good-faith effort to serve. The Superior Court agreed with the Lower Court that no good faith effort was shown as counsel for Wimbs failed to follow up on information provided by the sheriff and to make a diligent search for Wolfson. The Court similarly rejected Wimbs’ argument that since the insurance carrier was informed of the lawsuit and counsel had entered an appearance that there was actual notice to Defendant such that a showing of prejudice was required before the case could be dismissed. The Court noted that at no time did Wimbs ever serve Wolfson with process and all contact with her insurer occurred after the statute of limitations had already expired. As there was no notice to Wolfson of the suit before the expiration of the statute of limitations, and no significant attempt to comply with the rules of court, the Court held that the Lower Court properly dismissed the case.

Questions about this case can be directed to Rebecca Sember-Izsak at (412) 926-1446 or rsember@tthlaw.com.

Velesaris v. Leontiev
Pennsylvania Superior Court
No. 1602 MDA 2022

Decided: August 15, 2023

Motion in Limine granted where experts did not demonstrate competency to testify to effects of delayed diagnosis and/or the prognosis, treatment, and management as a result thereof.

Background

Velesaris was diagnosed with breast cancer for which she underwent a double mastectomy, chemotherapy, radiation, and multiple reconstructive surgeries. Velesaris filed suit against, inter alia, Dr. Leontiev, alleging medical malpractice. Velesaris alleged that a delayed diagnosis caused the progression of her breast cancer, which required her to undergo the extensive the treatment. Velesaris identified two experts – a radiologist expert, Reni S. Butler, M.D., and a psychiatrist expert, Howard L. Foreman, M.D. – who were to testify as to causation as it relates to the delayed diagnosis and the subsequent prognosis, treatment, and management of the cancer.

Dr. Leontiev filed a Motion in limine, asserting that Velesaris’ proposed experts were not qualified to express opinions on causation. Dr. Leontiev argued that the issues of causation in the matter related solely to whether Velesaris required more aggressive oncology treatment resulting from the alleged failure to detect. As to Dr. Butler, Dr. Leontiev asserted that her expertise was limited to interpreting studies and developing impressions then utilized by oncology. Although Dr. Leontiev recognized that radiology is an integral step in diagnosing and sizing cancer, he further argued that the size of the tumor alone is insufficient to perform the necessary analysis. As to Dr. Forman, Dr. Leontiev noted that psychiatry is unrelated to oncology.

After consideration of Dr. Leontiev’s Motion in limine, the Trial Court ruled that both Dr. Reni Butler and Dr. Howard Forman were precluded from expressing an expert opinion on causation. As a result, Velesaris notified the Court that they would be unable to make out a prima facie case of negligence. Consequently, the Court entered an Order granting summary judgment in favor of Dr. Leontiev. The instant appeal followed.

Holding

The Superior Court affirmed the holding of the Trial Court. The Superior Court held that, pursuant to the requirements set forth under the MCARE Act, an expert in radiology whose curriculum vitae demonstrates their qualification to render an expert opinion regarding detection, progression, and effects of delayed diagnosis, is not by extension qualified to render an expert opinion regarding management and treatment of breast cancer when there is a delayed diagnosis. The Superior Court further held that a psychiatrist is not competent to provide an expert opinion regarding the effects of a delayed diagnosis, or management and treatment of breast cancer when there is a delayed diagnosis.

Questions about this case can be directed to Thomas Lopez at (717) 441-7057 or tlopez@tthlaw.com.

White v. S.C. Rehab & Nursing Ctr.
Pennsylvania Superior Court
No. 2399 EDA 2022

Decided: August 10, 2023

An entity that outsources work to a subcontractor may still be considered a statutory employer of the subcontractor’s employees, provided that specific conditions are satisfied.

Background

Plaintiff was working as a janitor at a nursing home operated by S.C. Rehab and Nursing Center (“Somerton”). The nursing home was not owned by Somerton, but rather, Somerton controlled the property through a lease agreement with another entity. Plaintiff sustained injuries when he allegedly fell from a toilet seat that had not been properly fastened. He received workers’ compensation benefits from his direct employer, Serene Health Services, the janitorial services company hired by Somerton. Plaintiff filed a negligence claim against Somerton, alleging that his injuries resulted from Somerton’s negligence in maintaining the bathroom. Somerton filed a Motion for summary judgment, asserting that it was Plaintiff’s statutory employer under the Workers’ Compensation Act, and as such, was immune from liability.

The Trial Court granted summary judgment in favor of Somerton, finding that it was a statutory employer and therefore immune from liability. Plaintiff’s Motion for reconsideration was denied, and he appealed. The central issue was whether Somerton qualified as a “statutory employer” under the Pennsylvania Workers’ Compensation Act, which would grant it immunity from liability.

Holding

The Court applied a five-element test to determine whether Somerton qualified as a statutory employer: (1) the employer holds a contract with an owner or one in the position of an owner; (2) the premises are either occupied by or under the control of said employer; (3) a subcontract was made by such employer; (4) the subcontractor is entrusted with a portion of the employer’s typical business; and (5) the individual in question is an employee of the subcontractor. The Court found that Somerton, as the lessee of the premises, had control over the property, putting it “in the position of an owner.” This control satisfied the first two elements of the statutory employer test. Somerton had also subcontracted janitorial services to a company that employed Plaintiff, satisfying the third and fourth elements. Additionally, Plaintiff was an employee of the subcontractor, Serene, which satisfied the fifth element. Therefore, the Court concluded that Somerton qualified as a statutory employer of Plaintiff, making it immune from liability.

Questions about this case can be directed to Matt Mangapora at (412) 926-1437 or mmangapora@tthlaw.com.

Ehmer v. Maxim Crane Works, LP
Pennsylvania Superior Court
296 A.3d 1202

Decided: June 7, 2023

A defendant requesting to transfer venue pursuant to forum non conveniens must place detailed evidence on the record to support the transfer.

Background

Plaintiff Ehmer, suffered injuries when his vehicle collided with the rear of a Maxim Crane Works tractor trailer in Columbia County. Plaintiff filed a personal injury lawsuit in Philadelphia County. Maxim filed a Motion requesting to transfer venue to Columbia County based on forum non conveniens, stating Columbia County would provide easier access to Plaintiff’s medical records and the scene of the collision. Maxim also alleged Philadelphia County would pose hardship to three witnesses, and attached to its Motion Affidavits of each witness comparing the burden of Philadelphia County with the burden of Columbia County. Maxim did not include an explanation of the relevancy of the testimony to its claim for transfer.

The Trial Court granted Maxim’s Motion and transferred venue to Columbia County. Plaintiff filed an Emergency Motion for reconsideration. The Court denied Plaintiff’s Motion and Plaintiff appealed.

Holding

The Superior Court reversed the Trial Court Order transferring venue. The Court emphasized that Defendant bears the burden of placing detailed information on the record to support a transfer of venue. When alleging potential witness hardship, the defense must demonstrate that a witness’s testimony is relevant and necessary to their defense. Here, Maxim failed to establish the necessity of the witnesses’ testimony by neglecting to summarize each witnesses’ predicted testimony for the record. Additionally, the Court held the Trial Court erred in considering the necessity of a site visit in transferring venue where the necessity was not supported by detailed information in the record. Finally, the Court held that considerations of record locations are insufficient to support a venue transfer as technology allows for quick and easy transfers of such records.

Questions about this case can be directed to Briana Vetter at (267) 861-7584 or bvetter@tthlaw.com, or to Chris Gallagher at (267) 861-7597 or cgallagher@tthlaw.com.