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Pa Superior Court affirms that venue is proper in county where payment is owed in breach of contract case.

Posted in Civil Procedure, Court of Common Pleas, Pennsylvania Superior Court, Trial Practice

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            On April 14, 2014, the Pennsylvania Superior Court affirmed that venue was proper in Snyder County in a breach of contract case.  In Scarlett v. Mason, the Court found that in a breach of contract case, in the absence of an agreement, venue is proper in the county where payment was to be made. The Court reaffirmed the standard which had been previously set forth by the Superior Court in the Lucas Enterprises, Inc. v. Paul C. Harman Co., Inc. case. 

            The Pa Superior Court issues very few published opinions. As I previously posted most decisions are unpublished. What is interesting about the decision is that it is affirming the law that has been the law since 1980. So why publish this decision when there are so many others that should be published and are not. Perhaps, we will see a change.

            So remember when you file suit, more times than not, you will be able to file suit in the county where your client’s office is located. The reasoning is that if payment is owed in that county and payment is not made then that is the county where the breach takes place.

NCAA opens the door for Pa Commonwealth Court to review consent decree with Penn State

Posted in legislation, Pennsylvania Commonwealth Court

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            On April 9, 2014, the Pennsylvania Commonwealth Court found that the NCAA opened the door for the Court to review the validity of the Consent Decree entered into between Penn State and the NCAA. 

            As background information, as a result of the Jerry Sandusky matter, Penn State, in order to avoid the death penalty sanction, entered into a Consent Decree with the NCAA involving multiple sanctions which included a 60 million dollar fine payable over a 5 year period. The funds were to be paid into an endowment for programs preventing child sexual abuse and/or assisting the victims of child sexual abuse.  

             Pennsylvania subsequently passed the Institution of Higher Education Monetary Penalty Endowment Act (“Endowment Act”) which provided that any penalties such as those imposed against Penn State, would have to be paid to the State which in turn would distribute the money to the programs preventing child sexual abuse and/or assisting the victims of child sexual abuse. The obvious purpose of the legislation was to make sure the funds stayed in Pennsylvania.

             State Senator Jake Corman and State Treasurer Rob McCord filed a lawsuit against the NCAA, and in the lawsuit they alleged that the NCAA intended to divert most of the 60 million dollars outside of Pennsylvania. In the lawsuit, Corman and McCord sought:

  1.       A declaration that the Endowment Act was valid and constitutional;
  2.       A declaration that the NCAA violated the Endowment Act
  3.       A declaration that the entirety of the monetary penalty in the Consent Decree be paid to the state treasury and stay in Pennsylvania pursuant to the Endowment Act.

            In response to a Seconded Amended Complaint the NCAA asserted a defense in New Matter that the Consent Decree was supported by “valuable, bargained for consideration and that the Consent Decree is a binding contract.”

            On April 9th the Commonwealth Court issued a decision on a Motion for Judgment on the Pleadings filed by Corman and McCord. First, the Court found that the Endowment Act was constitutional and ruled against the NCAA in their argument that the Endowment Act was unconstitutional as special legislation. Second, the Court denied the Motion for Judgment on the Pleadings. In doing so, the Court found that based upon the defense asserted by the NCAA it will be necessary for the Court to hold a hearing regarding the Consent Decree.

            The NCAA has now opened the door for the Commonwealth Court to review the validity of the Consent Decree.  In my opinion, the NCAA should have chosen their battles more carefully. All the NCAA had to do was agree that the 60 million dollar fine stays in Pennsylvania to be paid to the Pennsylvania programs that prevent child sexual abuse and/or assist the victims of child sexual abuse. However, in a power struggle the NCAA wanted to direct the funds to programs outside of Pennsylvania. As a result, they have opened the door for the Pa Commonwealth Court to review the validity of the consent decree.

             If the NCAA were smart they would cut a deal now and agree to let the funds stay in Pennsylvania in turn for the dismissal of the lawsuit. That way the court would not be reviewing the validity of the Consent Decree. The NCAA cannot afford to have that Decree declared invalid by the Court. If that were to happen it would compromise the authority of the NCAA to impose sanctions and compel colleges to agree to Consent Decrees. 

Pa Supreme Court Rules That General Contractor Is Immune From Liability For Injuries Suffered By Subcontractor

Posted in Court of Common Pleas, Pennsylvania Superior Court, Pennsylvania Supreme Court, Trial Practice


            On March 26, 2014, the Pennsylvania Supreme Court ruled that a general contractor was immune from liability under the Pennsylvania Workers’ Compensation Act for injuries sustained by a subcontractor.

            In Patton v. Worthington Associates, Inc. Earl Patton was self-employed at Patton Construction, Inc. (“Patton Construction”) Patton Construction was retained by Worthington Associates, Inc. (“Worthington”) as a subcontractor on a job in which Worthington was the general contractor. While working at the job site, Patton fell and sustained injuries to his back.

            Patton sued Worthington alleging that Worthington failed to maintain safe working conditions at the job site.  Worthington moved for summary judgment arguing that they were immune from suit pursuant to the provisions of the Pennsylvania Workers’ Compensation Act as a statutory employer.

            The Lower Court denied the motion for summary judgment and the case proceeded to trial. The Court further permitted the case to go to the jury for the jury to decide if Patton was an independent contractor or an employee with respect to Worthington. The jury returned a verdict in favor of Patton for 1.5 million dollars.

            On appeal, the Pa Superior Court affirmed the Lower Court. The Pa Supreme Court accepted the case and reversed the Pa Superior Court. The Pa Supreme Court found that the law was clear that Worthington was entitled to be viewed as a statutory employer and was immune from liability.  The Pa Supreme Court indicated that they while they do not like to disturb a compensatory jury verdict 4 years later, they were an error correcting court and both the trial court and the Pa Superior Court committed an error of law.



Will the right to oral argument be lost in Pennsylvania?

Posted in Civil Procedure, Court of Common Pleas, Pennsylvania Supreme Court, Trial Practice


Will the right to oral argument be lost in Pennsylvania? Pennsylvania Rule of Civil Procedure 211 provides that litigants have a right to oral argument to argue Motions.  The Pennsylvania Supreme Court Civil Rules Committee is seeking to take away that right. There currently is a proposal to rescind Rule 211.

If rescinded there will be uncertainty as to whether you will ever have oral argument on Motions. While the commentary indicates that the Court will still have discretion to grant oral argument, the rescision of Rule 211 takes away the absolute right to oral argument.

We will need to monitor whether the Pa Supreme Court adopts the proposal of the Civil Rules Committee. I know that many Bar Associations are objecting to the proposed rule change. If approved then attorneys will need to request oral argument and be at the discretion of the Court to grant the request. Perhaps a local rule change would be appropriate to continue to preserve the right to oral argument.


PA Superior Court finds that arbitration award is not final until the arbitrator rules on any outstanding claims for attorney’s fees

Posted in Court of Common Pleas, Pennsylvania Superior Court, Trial Practice


            On April 2, 2014, the Pennsylvania Superior Court reversed a Lower Court decision confirming an arbitration award.  As background, an arbitration panel found liability and entitlement to an award of counsel fees. The panel further found that the amount of counsel fees would be determined after another hearing.

            Prior to the panel holding a hearing on the amount of the counsel fees to award, the prevailing party filed a Petition to Confirm the Arbitration Award and the Lower Court entered an Order confirming the award. The prevailing party subsequently entered judgment.

           On appeal the Pa Superior Court found that while the issue of the amount of the counsel fees was still pending there was no final arbitration award to confirm.

            The Pa Superior Court vacated the Lower Court order and judgment and remanded the case back to the Lower Court. On remand the Lower Court is to direct the arbitration panel to schedule a hearing on an award of the attorney’s fees and issue a decision. Once the award of attorney’s fees is issued then the prevailing party can move to confirm the arbitration award.


Litigation and Hearing Impaired or deaf Clients

Posted in Court of Common Pleas, Trial Practice

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            Representing hearing impaired or deaf clients presents challenges like no other challenges that attorneys face in representing their clients in litigation.

            Communicating with a hearing impaired or deaf client can be done a number of ways. However, it must involve advanced planning.  You can communicate in writing or via sign language.  Written communication might not be the best way to communicate with your client since it might be their second language, sign being their first. If written communication is their second language then the client might not effectively communicate their needs via written communication.         

            Sign interpreters present their own issues when you are communicating with the client.  First, you need to decide if there is a family member who can perform sign interpretation or whether you need to retain a third party. If you utilize a family member then you want to make sure that the family member is also the client. Otherwise, there might be issues regarding preserving the attorney client privilege.  As to a third party, you want to retain them as a consultant or client representative, again to preserve the attorney client privilege.

            At a deposition, there will need to be multiple interpreters.  First there should be the table interpreter who you retain as your consultant. The table interpreter serves 2 functions. First they allow you to communicate with your client during any break. Second and more important they listen to the interpretation of the questions and answers and advise you if you should object to the interpretation.  Third, there should be multiple interpreters who are interpreting the questions and answers. Multiple interpreters are required since they get tired from having to concentrate and from the signing. They also can confer if there is a lengthy answer to make sure that they captured the entire answer.

            Another issue at depositions and then in Court is the use of simultaneous versus consecutive interpreting.  Simultaneous interpreting is typically used in a conversational setting and not in a legal setting. That is when the interpreter is signing while the question is being asked and while the answer is being given. While that is acceptable in a conversational setting it is not acceptable in a legal setting.  In order to effectively interpret a question or an answer the interpreter must hear the entire question or answer to obtain the tense and the context. Otherwise, the interpretation will be incorrect.

            As to Court, you have the same issues as set forth above. However, there are additional issues which involve the jury.  You need to make sure that your client is favorably received by the jury and that you effectively communicate their client’s testimony to the jury. Typically they are issues in any case, however, they are more challenging with a hearing or deaf client.  Now the jury is being distracted by the person signing. Additionally, the interpreter now plays an even more important role. You need them to personalize your client. A bland interpretation can send one message as compared to an interpreter who understands the case and is expressive at the appropriate times.

Pennsylvania Attorney General Kathleen Kane Sets The Record Straight In Response to Philadelphia Inquirer Article

Posted in Uncategorized



            Today the Philadelphia Inquirer, relying upon unnamed sources attacked Attorney General Kathleen Kane. The article with blurred pictures of the Attorney General is plastered over ¾ of the front page of the Sunday paper.  The AG had issued a statement to the newspaper, however, the paper only chose to include very few selective quotes in the paper.

            In response to the article the AG issued a statement today.  I challenge the Philadelphia Inquirer and Philly.com to print the entire statement.  Here is a link to that statement

            The AG has been in office for a little over a year.  During that course of time the AG’s office has filed charged against a number of public officials. A review of those charges demonstrate that the office has been nonpartisan in the filing of the charges.  

Trial Court’s failure to strike jurors for cause constitutes reversible error and warrants vacating defense jury verdict

Posted in Court of Common Pleas, Pennsylvania Commonwealth Court, Pennsylvania Superior Court, Trial Practice


            On March 12, 2014, the Pennsylvania Superior Court in Cordes v. Associates of Internal Medicine et. al. vacated a defense verdict in a medical malpractice case based upon the trial court’s failure to strike 3 prospective jurors for cause.

            In Cordes, the Plaintiff, during Voir Dire, challenged 3 prospective jurors for cause since 2 of the panel had family members who were patients of the Defendant Doctor and the third was an employee of a company that also employed the Defendant Doctor. The trial court refused to strike the jurors based upon the relationships due to the jurors assurances that they were not biased.

            The Cordes, case was a case of first impression in the Pa Superior Court and the Pa Supreme Court. On appeal the Pa Superior Court found that “the close situational, familiar, and financial relationships presented in the instant case necessarily stripped the trial court of its discretion to rely upon the challenged jurors’ assurances of impartiality. Rather, those relationships required exclusion per se”.  In so finding, the Court disregarded a decision of the Commonwealth Court which issued a contrary ruling.

            The decision reaffirms the sanctity of our jury system.  It further confirms that trial judges should not solely rely upon the assurances of prospective jurors when they have a financial or familial relationship to one of the parties. The problem is that a few judges are so anxious to empanel a jury that they do not seriously consider challenges for cause. Most judges are cautious and would have granted the challenges and struck the jurors. If that had occurred here it would have saved all parties and the Court time and money. 

Automatic Appeal Provisions Apply To Pending Nunc Pro Tunc Appeal

Posted in legislation, Pennsylvania Commonwealth Court, Trial Practice


            In most likely a case of first impression, the Pennsylvania Commonwealth Court ruled that the automatic appeal provisions of the County Tax Assessment Law apply when there is a pending nunc pro tunc appeal.

            As background information, all real estate in Pennsylvania is taxed based upon assessments that are established by the County Assessment Office. If a taxpayer objects to an assessment then they have a right on a yearly basis to file a tax assessment appeal, first to the Board of Assessment and then subsequently to the Court of Common Pleas. The deadline for any yearly appeal is established by the County. Typically it is August or September 1st to appeal the next year’s assessment.  The Consolidated County Assessment Law provides for an automatic assessment appeal when the taxpayer has a pending appeal in Court.

            The Automatic Assessment appeal is found at 53 Pa C.S. A. Section 8854 and it provides that once an appeal is pending that a taxpayer does not need to appeal for subsequent tax years. The purpose is to avoid “unnecessary duplicative precautionary appeals” until there is a final disposition of a pending appeal.

            In Appeal of P-Ville Associates, the taxpayer had a pending appeal to the Chester County Court of Common Pleas for the 2011 assessment and did not appeal the subsequent year.  What was unusual about the case was that the pending appeal was a Petition for Nunc Pro Tunc Appeal. It was that Petition that was pending. Arguably there was no appeal pending just a Petition requesting that the Court permit the appeal.

The Lower Court denied the taxpayer’s nunc pro tunc appeal after the appeal deadline passed to appeal the next year’s assessment. The Court then  found that the automatic appeal provisions did not apply and did not hear the taxpayer’s appeal of the 2013 assessment.

            On appeal, the Commonwealth Court found that the automatic appeal provisions were applicable and ordered that the case be remanded for the court to hear testimony regarding the 2013 assessment.  The taxpayer was very fortunate in this case.  The language in the statute is: “so long as the appeal is pending before a court” then the automatic appeal provisions apply.  However, there was no pending appeal. There was just a Petition seeking permission to file a late appeal.  I recommend that if faced with this situation that you do not rely upon the automatic appeal provisions and that you file subsequent appeals to the Board of Assessment and then to the Court. It’s better to be safe than sorry.  

Pa Superior Court finds that all issues were waived on appeal due to untimely filed 1925 b statement

Posted in Court of Common Pleas, Pennsylvania Superior Court

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            On March 11, 2014, the Pa Superior Court ruled that there is only one  exceptions to the timely filing of a Concise Statement of Matters Complained of on appeal as required by Pa Rules of Appellate Procedure 1925 (b). The exception is if the Prothonotary fails to give written notice of the entry of a court order requiring the 1925 (b) Concise Statement of Matters Complained of and/or fails to note service of the order on the dockets.

            Absent a mistake by the Prothonotary the Pa Superior Court found that there is a “bright line rule” and Superior Court does not have the discretion to permit an appeal if the 1925(b) statement was untimely filed.  The result is that all issues on appeal are waived!

            As background information, the Appellant filed their statement of matters complained of 3 days late. They mailed the Statement on the 20th day but it was not received by the Prothonotary until the 23rd day. The Lower Court accepted the late filing and issued an opinion. On appeal the Superior Court found that the statement that was filed 3 days late caused the Appellant to waive all their issues on appeal. Thus, the court affirmed the Lower Court Decision.

            There are a few lessons to be learned from this case. First, if you mail the Statement make sure you get a certificate of mailing from the post office. If you do, then the date of mailing constitutes the date of filing. In this case, the Appellant did not obtain such a certificate of mailing. If they had then the statement would have been timely filed and the Appellant would not have waived all issues on appeal.  Second, if you do not plan on obtaining such a certificate of mailing then make sure you hand deliver the statement to the court or send it by overnight mail making sure that it arrives in the clerk’s office by the 20th day. Third, if your opponent does not timely file the statement then you should argue that all issues on appeal have been waived.