eNotes: Liability – July 2022- Pennsylvania

SIGNIFICANT CASE SUMMARIES

PA CASE SUMMARIES

Riemenschneider v. D. Sabatelli, Inc.
Pennsylvania Superior Court
No. 1842 EDA 2021, 2022 Pa. Super. 105

Decided: June 7, 2022

Superior Court affirms Trial Court’s dismissal of estate’s negligence and wrongful death action pursuant to the exclusivity provision of the Pennsylvania Workers’ Compensation Act.

Background

Samantha Riemenschneider, as the administrator of the Estate of David Scott Macleary, instituted this suit asserting counts for negligence and wrongful death. By way of background, Riemenschneider commenced the underlying action as a result of fatal injuries sustained by her father, Mr. Macleary, while operating a dump-truck, while in the course and scope of his employment with D. Sabatelli, Inc. The Trial Court dismissed the action based on the exclusivity provision of the Workers’ Compensation Act (WCA). Riemenscheider appealed the Trial Court’s dismissal, arguing that the exclusivity provision did not apply because she was not within the “class of individuals” entitled to relief under the WCA.

The exclusivity provision of the WCA operates as the exclusive remedy for an employer’s liability to an employee for any injury or death. This provision applies to dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in the WCA. As Mr. Macleary’s daughter, the Trial Court held that the exclusivity provision of the WCA barred Ms. Riemenschneider’s action. Ms. Riemenschneider argued that because she was not disabled and over the age of 23, and there was no other viable “claimant,” the WCA did not apply.

Holding

The Superior Court affirmed the Trial Court’s dismissal, holding that the WCA was Ms. Riemenschneider’s exclusive means of recovery and this decision did not “leave a certain class of employees who have suffered the most serious of work-related injuries without any redress under the Act,” when Mr. Macleary received benefits under the WCA on the day of his death.

Questions about this case can be directed to Danielle Vols at (570) 825-6890 or dvols@tthlaw.com.

Ward v. West Grove Hosp. Co.
Pennsylvania Superior Court
No. 1756 EDA 2021

Decided: June 3, 2022

Superior Court affirms Trial Court did not err in refusing to issue standard “pre-existing condition” charge to jury.

Background

Plaintiff Ward sued Defendant West Grove Hospital Company for negligence related to his stress test while admitted at West Grove. Ward ran the treadmill stress test in just hospital socks, resulting in blisters over his feet. He developed chronic regional pain syndrome/reflex sympathetic dystrophy (CRPS) in the following days and weeks, which spread pain from his feet throughout his legs and upper extremities. A portion of the trial was spent with experts from both parties opining on the relationship between Ward’s preexisting conditions and the injuries suffered during the stress test. These include diabetes, high blood pressure, “a couple hernia surgeries,” a “bad back,” and radiculopathy.

Ward’s attorney requested the Court provide the jury with Pennsylvania Suggested Standard Civil Jury Instruction 7.70, pertaining to preexisting conditions. The Trial Court did not include the instruction in the charge. Ward’s attorney made an objection on the record to the omission. The jury found West Grove’s nurse liable for negligently causing the blisters and pain to Ward’s feet, but also found that the nurse’s negligence was not a cause of Ward’s developing CRPS. Ward was awarded $20,000. Ward appealed, raising several issues relating to the failure to include SSJI 7.70. Ward argued that given expert testimony that his preexisting conditions predisposed him to develop CRPS, the inclusion of the SSJI 7.70 charge was necessary.

Holding

The Superior Court affirmed the omission of the charge by the Trial Court. The Court held that the Supreme Court has never adopted the SSJI, and they exist only as a reference to assist trial courts. The Superior Court further stated that while the Trial Court did not include a verbatim reading of SSJI 7.70, its instructions did address the underlying principles of the suggested charge, including an explanation that the nurse’s conduct could be a factual cause of Ward’s injuries, even if unusual or unexpected. Further, the Trial Court explained that the harm in this case could include, but was not limited to, Ward’s CRPS. The Court held that despite the lack of verbatim reading of SSJI 7.70, its ideas were covered well enough, and the jury’s finding that the nurse’s conduct was a factual cause of some compensable harm was enough to distinguish the case from others were the lack of a particular instruction had proven reversible error.

Questions about this case can be directed to Logan Nagle at (717) 255-7234 or lnagle@tthlaw.com.

Dietz v. Avco Corp.
Pennsylvania Superior Court
No. 645 EDA 2021

Decided: May 26, 2022

Superior Court vacates the judgment awarding delay damages for Plaintiffs’ survival claim, finding that delay damages are not available for emotional injury.

Background

This products liability action arises out of an incident involving an aircraft owned and operated by Mr. Lallo, a licensed pilot. His wife, Mrs. Lallo, was a passenger in the aircraft at the time. During a flight, the aircraft suddenly lost power, causing a crash which killed the Lallos. The Lallos’ children filed a design defect products liability action against numerous Defendants due to the subject crash.

Following trial, the jury awarded $2,000,000 to each estate for wrongful death and $2,500,000 to each estate for survival damages. A motion for delay damages followed. The Court subsequently awarded Plaintiffs delay damages in the amount of $1,390,077.44. Thereafter, Defendants appealed, arguing, in part, that the Trial Court erred in determining that Plaintiffs were entitled to recover delay damages, as Pennsylvania’s delay damages rule precludes the award of delay damages on the portion of a verdict arising from emotional injury.

Holding

On appeal, the Court found that in Pennsylvania, the Trial Court may award delay damages to a plaintiff who has prevailed on a claim for bodily injury, death, or property damage. Additionally, the Court noted that claims for emotional injury, loss, or reputation, humiliation and mental anguish do not constitute claims for which a court may award delay damages. In this case, Plaintiffs’ survival claims, which sought relief for the emotional injuries suffered by the Lallos in the moments preceding their death, do not fall within the ambit of bodily injury, death, or property damage as required for the award of delay damages under Pennsylvania Rule of Civil Procedure 238. Accordingly, the Court vacated the judgment in favor of Plaintiffs and remanded for the Trial Court to reduce the judgment by the amount of delay damages it awarded for Plaintiffs’ survival claims.

Questions about this case can be directed to Jillian Denicola at (570) 825-5653 or jdenicola@tthlaw.com.

Roy v. Rue
Pennsylvania Superior Court
2022 Pa. Super. LEXIS 162

Decided: April 12, 2022

Fifty-one day delay held too long to be considered a prompt attempt at opening a default judgment.

Background

On April 24, 2010, Mr. Roy was a patron of Hammerheads Sports Bar and Grille. Ms. Roy averred that, during this time, Hammerheads served alcohol to another individual, Mr. Rue, who was visibly intoxicated. Ms. Roy alleged that a disturbance broke out inside of Hammerheads and several patrons were escorted out of the establishment by Hammerheads’ employees. Mr. Roy was neither involved in this disturbance nor escorted out of the establishment. All the same, Mr. Roy exited Hammerheads and stood on the sidewalk in front of the establishment. At that time, a group of people, including Mr. Rue, began to argue. Without warning or provocation, Mr. Rue violently struck Mr. Roy in the back of the head, thereby causing catastrophic injuries and his death.

In her Complaint, Ms. Roy raised claims of, inter alia, assault and battery against Mr. Rue. An affidavit/return of service revealed Ms. Roy used a process server who served the complaint on Mr. Rue at 3260 Teesdale Street, Apt. 2, Philadelphia, PA. The Complaint was handed to a Debbie Rue, Mr. Rue’s mother. Mr. Rue did not timely file an Answer. Consequently, Ms. Roy filed a ten-day notice of intent to enter default judgment pursuant to Pennsylvania Rule of Civil Procedure 237.1. The ten-day notice was served upon Mr. Rue on June 9, 2012, by certified mail return receipt requested and by regular mail addressed to the Teesdale Street residence. Mr. Rue had ten days to respond and he failed to do so. Accordingly, on June 22, 2012, Ms. Roy filed a Praecipe to enter default judgment against Mr. Rue. The Trial Court then entered a default judgment against Mr. Rue on June 22, 2012. The notice of entry of default judgment was served upon Mr. Rue on June 22, 2012, by certified mail return receipt requested and by regular mail addressed to the Teesdale Street residence.

On January 7, 2013, the Trial Court filed an Order indicating that an assessment of damages trial against Mr. Rue would take place on January 16, 2021. The certified docket entries contain a notation that notice of this Order was provided, under Pa.R.Civ.P. 236, on January 8, 2013. Mr. Rue failed to appear for the assessment of damages trial, and on January 18, 2013, a verdict of damages was entered against Mr. Rue in the amount of $23,206,444.85.

Holding

The Superior Court affirmed the decision of the trial court that Mr. Rue failed to promptly file a petition to open the default judgment. On February 18, 2021, Mr. Rue filed a Petition to open the default judgment. Mr. Rue argued that he was not properly served with the Complaint, the ten-day notice, the notice of assessment of damages trial, and the award, because he did not reside at the Teesdale residence at any time material to the case. To that end, Mr. Rue alleged that he was living at another address when the Complaint was served, and he was incarcerated during the service of all subsequent documents. The Trial Court denied the Petition to open default judgment as the certified record at all times material stated that Mr. Rue resided at the Teesdale address. Having his improper service allegations denied, Mr. Rue attempted to argue lack of notice. The Court applied a three prong test in order to determine if Mr. Rue: (1) promptly filed a petition to open the default judgment, (2) provided a reasonable excuse or explanation for failing to file a responsive pleading, and (3) pleaded a meritorious defense to the allegations contained in the Complaint. The Court found that his request to open the judgment was not prompt, as eight years had elapsed. However, even if the Court agreed with Mr. Rue’s position that he was only aware of the judgment as of December 29, 2020, Mr. Rue still did not file the Petition until February 18, 2021, 51 days later, which also was deemed untimely.

Questions about this case can be directed to Jonathan Danko at (717) 441-3957 or jdanko@tthlaw.com.

Mercer v. Newell
Pennsylvania Superior Court
254 A.3d 755

Decided: March 13, 2021

When employer’s fraudulent misrepresentation to an employee causes an aggravation of that employee’s work-related injury, the Workman’s Compensation Act is not a bar to a common law claim against the employer for fraudulent misrepresentation.

Background

Jerry Mercer, Jr. was employed at Active Radiator where he soldered parts into heavy-duty radiators and cooling devices. His job required the use of an alloy of lead and cadmium. As a worker exposed to those elements, he was entitled to health protections pursuant to OSHA regulations, which, in part, meant he was monitored for lead, zinc, and cadmium exposure. On November 2, 2016, following a blood test, a doctor reviewed Mercer’s zinc levels and directed Active Radiator to remove Mercer from further lead exposure until further testing could be performed and gave notice that “lead was accumulating in Mercer’s brain.” Active Radiator, however, concealed the doctor’s orders and permitted Mercer to work another year until he was terminated in November of 2017. Mercer filed suit against Active Radiator for fraudulent misrepresentation, asserting that without notice of his elevated lead and zinc levels, he was permitted to continue working which aggravated the accumulation of lead in his brain – an aggravation of a prior work-related injury – and cause permanent brain damage.

Active Radiator filed Preliminary Objections in a nature of a demurrer, alleging the suit was barred by the Workman’s Compensation Act (WCA), which, aside from limited circumstances, provides the exclusive remedy for an injury sustained by an employee during the course of his employment. The Trial Court agreed and sustained the Objections and dismissed the suit. The Trial Court dismissed the suit in its entirety, including claims for medical monitoring, battery and intentional infliction of emotional distress.

Holding

On appeal, the Superior Court relied on Pennsylvania’s Supreme Court decision in Martin v. Lancaster Battery Co. to reverse the Trial Court’s Order. In Martin, the Supreme Court held that where an alleged aggravation of an employee’s injury arises from and is related to an alleged fraudulent misrepresentation of the employer, the worker is not limited to remedies under the WCA and is not precluded from bringing a common law suit against the employer for the aggravation caused the misrepresentation. The Superior Court was critical of the Trial Court’s failure to properly apply Martin and held that, consistent with Martin, where Mercer was not seeking compensation for the work-related injury itself, but, rather, aggravation of a previous injury caused by fraudulent misrepresentation, the WCA was not a bar to the suit. The Superior Court did not address Mercer’s claims for medical monitoring, battery or intentional infliction of emotional distress.

On May 11, 2022, Pennsylvania’s Supreme Court granted Active Radiator’s Petition for Allowance of Appeal limited to the following issue:

This Court in Martin only recognized an exception to the WCA for certain fraudulent  misrepresentation claims, and no subsequent court has applied the Martin exception to any other types of claims. Did the Superior Court therefore err in ordering that Respondent could proceed with their medical monitoring, battery, and intentional infliction of emotional distress claims under the Martin exception?

Questions about this case can be directed to Julia Morrison at (717) 441-7056 or jmorrison@tthlaw.com.

Mertira v. Camelback Lodge & Indoor Water Park
Monroe County Court of Common Pleas
No. 2031 CIVIL 2021

Decided: March 30, 2022

Summary judgment for landowner where Plaintiff fell while traversing grassy area during an active snowfall.

Background

After dining at Defendant’s restaurant, Plaintiff slipped and fell on Defendant’s property. The fall occurred on a grassy strip, where Plaintiff and some of her family members chose to walk, instead of walking on a walkway/sidewalk or parking lot. Plaintiff claimed that she was forced to walk on the grassy area because the walkways appeared to be covered with ice and snow. However, none of the witnesses to the fall identified any hills or ridges formed by ice or snow. Further, it was undisputed that at the time of the accident, freezing rain and/or snow was actively falling. Such precipitation had started before Plaintiff entered the restaurant and did not stop until three hours after her fall.

In granting summary judgment for the Defendant, the Court observed that a landowner has no duty to clear ice and snow from grassy areas that are “not intended to be traversed by pedestrians.” Rather, the duty to clear ice and snow generally applies only to sidewalks, parking lots and other paved areas where pedestrians would be expected to travel. A landowner is not responsible to clear snow and ice from their entire property, which would be unreasonable. In the instant case, the Court found that Plaintiff’s choice of travel did not impose liability on the landowner, despite Plaintiff’s claim that the path appeared less dangerous. Moreover, in view of the fact that there were generally slippery conditions caused by the ongoing precipitation, there was no duty on the landowner to address the conditions until the winter event had ended.

Holding

The Trial Court entered summary judgment in favor of the landowner because the Plaintiff fell on an area not intended for pedestrian travel during an ongoing winter event.

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