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Pa Rule of Civil Procedure 4003.5 amended to prohibit discovery of communications with experts

Posted in Uncategorized

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            The Pennsylvania Supreme Court has put to rest any arguments that can be made for the disclosure of attorney communications with expert witnesses or draft reports.  First there was the Barrick case, which I previously posted on.  The Pa Superior Court found that the communications were not discoverable. That ruling was brought into question when the Pa Supreme Court granted allocator.  However, the Court affirmed the Pa Superior Court this past April and found that those communications were not discoverable.

            Now, to completely shut the door the Pa Supreme Court has issued an order amending Pa rule of civil procedure 4003.5 which deals with discovery of expert testimony and reports. Pursuant to the amendment the Court added the following language:

A party may not discover the communications between

another party’s attorney and any expert who is to be identified pursuant to subdivision (a)(1)(A) or from whom discovery is permitted under subdivision (a)(3) regardless of the form of the communications, except in circumstances that would warrant the disclosure of privileged communications under Pennsylvania law. This provision protects from discovery draft expert reports and any communications between another party’s attorney and experts relating to such drafts”


            So, unlike Federal Court, in Pennsylvania Courts, you cannot obtain copies of correspondence with an expert or a copy of any of their draft reports.  It is a good rule and protects the candor and the relationship between counsel and experts.


Valet service owes no duty or liability for returning car to intoxicated driver!

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

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            The Pennsylvania Superior Court recently issued a decision on an issue of first impression in the Commonwealth of Pennsylvania. The case dealt with the duty and ultimate liability of a valet service when a car is returned to an allegedly intoxicated patron.

            In this case, an alleged intoxicated patron was given keys to his car and then drove away and was involved in an accident that resulted in his death.  The PA Superior Court found that there was a mutual bailment and that the valet service was bound to turn over the keys to the patron when he demanded his keys. As the valet service had no right to retain the car they could not be found liable for returning the car. 

            While the Superior Court noted sympathy for the loss of life, the Court found as a matter of law that the Valet service was not liable.

Pa Superior Court finds that Asbestos claim barred by statute of repose

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


            Today the Pennsylvania Superior Court found that an asbestos claim was barred by a statute of repose.  The Plaintiff had argued that pursuant to the Abrams case, the Pennsylvania Supreme Court had found that there was no statute of repose in Asbestos.  The Pa Superior Court disagreed.

            In this case, the applicable statute of repose was found at 42 Pa C SA section 5536 which barred any claim filed more than 12 years after completion of construction of an improvement to real property.   The Pa Superior Court found that this statute prevailed and that the dicta in the Abrams case did not compel a different result.  The Court further found that if there is to be an exception to this statute for Asbestos cases that is within the purview of the legislature not the Courts.

            Thus, the Pa Superior Court revised the lower court decision and set aside a jury verdict. 


Today’s Pennsylvania Appellate Court Posted Decisions

Posted in Pennsylvania Commonwealth Court, Pennsylvania Superior Court, Pennsylvania Supreme Court

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            On a regular basis the Pennsylvania Appellate Courts post opinions, with the most opinions being posted by the Pennsylvania Superior Court.  The Commonwealth Court delineates an opinion as “reported” as compared to the Superior Court’s delineation of “published” and “unpublished”. See my previous post regarding the Superior Court rules on referencing “unpublished” opinions.            

            Today the Commonwealth Court posted two reported zoning decisions, one affirming the lower court and another reversing the lower court.  The Pennsylvania Superior Court posted twelve unpublished decisions.  




Pa Supreme Court refuses to consider issue that was not delineated in statement of issues presented

Posted in Pennsylvania Supreme Court, Trial Practice

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            Today the Pennsylvania Supreme Court issued a 59 page decision on a personal income tax issue. If you practice tax law, which I do not, the case will be of interest to you.

            The language in the case that should be of interest to trial attorneys is found on the last two pages of that decision.  There the Court found that the Appellant waived an issue since they did not include the issue in the statement of issues presented.  The Court found that Pa R.A.P. 2116 (a) “is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby.”

            Next time you submit a brief on appeal make sure you compare your statement of issues to what is included in your brief.  Otherwise, the issue is waived. That was the result in this case.


Pa Superior Court strikes down law firm quantum meruit claim

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


            Today the Pa Superior Court reversed a lower court decision and struck a quantum meruit claim for attorney’s fees. The case involved a dispute between two law firms regarding a fee from a personal injury lawsuit.

             The Court found that there was a contract that governed the situation and that the contract foreclosed any quantum meruit claims.  The Court further found that the law firm was entitled to compensation pursuant to the contract and receive two-thirds  of the fee from a personal injury lawsuit.

            The Pa Superior Court remanded the case for the lower court to calculate the revised fee. In a footnote the Pa Superior Court commented that they would not calculate the fee since that was the job of the Lower Court. The Court reminded the parties and the Lower Court that the Pa Superior Court was an error correcting court and in essence they were leaving the math to the Lower Court.


Pa Superior Court Rules that Firecracker injury case must proceed to trial

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


            Today the Pennsylvania Superior Court reversed a lower court decision granting summary judgment dismissing a case in which Robert J. Thompson was injured while assisting in a fireworks show.  The Defendant argued that Thompson assumed the risk of injury and moved for summary judgment based upon the assumption of the risk doctrine.

\           On appeal the Pa Superior Court reversed the lower court and remanded for the case to proceed to trial.  In its ruling the Court found that there was a dispute of fact as to the size of diameter of the mortar tubes used in the show. The Court further found that the question of whether the Plaintiff assumed the risk was a jury question.


Changes in Montgomery County Court of Common Pleas Judicial Assignments

Posted in Court of Common Pleas

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Every 18 months the president Judge of Montgomery County Court of Common Pleas issues the judicial assignments.  In recent years there have been few changes in assignments.  This year is no exception.  The only changes that have been made this year are that Judge Carluccio is moving from criminal to civil, Judge Rogers from civil to criminal and Judge Bertin from family to civil.

The new judicial assignments take effect June 30, 2014 and below are the assignments:

Civil Division

Honorable Thomas M. Del Ricci (Civil Administrative Judge)

Honorable Emanuel A. Bertin

Honorable Thomas C. Branca

Honorable Carolyn T. Carluccio

Honorable Richard P. Haaz

 Criminal Division

Honorable William J. Furber, Jr. – President Judge

Honorable William R. Carpenter- Criminal Administrative Judge

Honorable Steven T. O’Neill

Honorable Thomas P. Rogers

Honorable Garrett D. Page

Honorable Wendy Demchick-Alloy

Honorable Gary S. Silow

Honorable Cheryl  L. Austin

 Family Division

Honorable Rhonda Lee Daniele

Honorable Stephen R. Barrett

Honorable Kelly C. Wall- Family Administrative Judge

Honorable Patricia E. Coonahan

Honorable Gail A. Weilheimer

Honorable Steven C. Tolliver

 Orphans Court

Honorable Stanley R. Ott

Honorable Lois E. Murphy

 Juvenile Court

Honorable Joseph A. Smyth

 Contact Information for the Judges and their Chambers can be found at http://www.montcopa.org/index.aspx?NID=1396

A Candid Conversation with PA Attorney General Kathleen Kane, part 4

Posted in Trial Practice


This is part 4 of 4 of my candid conversation with Pennsylvania Attorney General Kathleen Kane. Part 1 was posted on Tuesday, Part 2 on Wednesday and part 3 yesterday.

There was a recent decision issued by Judge Jones in the Eastern District of Pennsylvania striking down Pennsylvania’s Defense of Marriage Act or DOMA.  Your office made a decision not to defend that lawsuit and referred it to the Governor’s General Counsel.  What was the basis for that decision?

As lawyers we have to operate under the rules of professional conduct and where I am discharged with the duties of representing the Governor, being his lawyer and the Secretary of health, being his lawyer, in a court of law, I was bound by my ethics, by the ethical rules, to delegate that case to another lawyer because the Governor and I and the Secretary of Health and I had a fundamental difference and that fundamental difference was the basis of the lawsuit.  I believed DOMA to be legally unconstitutional.  They did not.  There was no way I could ethically represent them in a court of law where we had a difference of opinion that was actually the crux of the entire case.  I think Judge Jones’ decision showed that we were legally correct in our decision and also ethically correct in our decision because the Governor had competent legal representation and so did the Secretary of Health and that’s the way our judicial system works.

When you were at Lackawanna County District Attorney’s Office, you prosecuted a number of cases.  Now that you are in the AG’s Office, do you miss it?

I miss it terribly.  I really do.  I’m hoping that if there is a good Supreme Court case or something, that I can get back in there and argue.  I love it.  I love being in the courtroom.  I always thought that that was the best part of my job.  But I also love the fact that I get to make the decisions.  I get to make sure that we’re following the law and I make sure that it’s done right and that we’re representing the public.  I love that responsibility that I have and I love the leadership aspect of it.  I love that I get to motivate and inspire people.  I love that the people of Pennsylvania trust me and they feel like they have a voice in the Office of Attorney General.  And while I miss being in the courtroom, I think my new role is even more challenging, particularly since I’m not just trying to convince 12 people of the facts and the law; I now represent 12 ½ million people.

How do you balance being the chief law enforcement officer in Pennsylvania, mother of two and a wife?

Well, hopefully, they would say well. You do what you can.  Some days I put in 16 hours here and I may only get to kiss the boys goodnight and see them off to school the next morning.  But then there are other times when I’m home with the boys and I get to be their mother.  I think you have to turn it off.  When I go home and I’m lying in bed with them or I’m watching TV with them, I don’t answer the phone.  If it rings two or three times, I know there is an emergency and then I know to pick it up.  But you have to, you have to make it a line.  I have a private life.  I have to make sure that I keep it because I never want to look back in four years and say, I missed my sons growing up.  I think that would be a tragedy.  And I also want to make sure that the people of Pennsylvania get their money’s worth out of me.  And I think my boys are happy.  They’re doing well in school.  So I think so far it’s going pretty well.

What historical significance, if any, do you place on being the first woman elected to the position of Attorney General in Pennsylvania?

When I started running, I did not know I would be first candidate on a major party ticket that was a woman.  So that to me was like, are you kidding me?  This late in our history and that’s where we are right now.  And then when they said well you’d be their first woman elected, I don’t ever feel that I’m different because I’m a woman.  I feel that women and men are exactly equal.  That’s the way we were brought up.  The more the campaign went on and the more I saw how women needed that and how excited they were that I would be the first, and more so how they brought their daughters and their granddaughters to come and meet me and say, “she may be the first one.  She’s the first woman.  See, I told you you can do it and here’s an example.  Here’s a living, breathing example.”  It really hit me.  And I have boys.  But that responsibility and that significance really hit me.  The night before the election I was at a rally at Scranton High School; five thousand people there.  Bill Clinton was there.  He was there stumping for Obama.  And a woman came up to me afterwards and she said, “I drove two hours to see you.  I brought my granddaughter.”  I said, “well, I’m sure you came to see President Clinton and I, I thank you but you didn’t come to see me” and she says, “oh no, it was nice to see him but she says we came to see you.  I told her to get in the car and we’re coming up because I wanted to show her.”  And I almost died.  And I still to this day when I think about that, I just can’t believe it.

And finally when you retire as Attorney General years from now, how do you want to be remembered?

Well thank you for saying years from now.  I want to be remembered as a tough prosecutor, fair and that I represented the people of Pennsylvania and that I abided by the laws of Pennsylvania, I protected the Constitution, I protected the people of Pennsylvania and there was never any politics involved.  I want them to go away feeling that they’re safer and that we’re in a better place and that they had somebody in their corner.

A Candid Conversation with PA Attorney General Kathleen Kane, part 3

Posted in Trial Practice


This is part 3 of 4 of my conversation with Pennsylvania Attorney General Kathleen Kane. Part 1 posted on Tuesday and Part 2 was posted yesterday.

What are issues that plague Pennsylvania regarding drug trafficking? 

The incredible supply of drugs that’s coming into Pennsylvania.  We went to the southwest border.  We went to Colorado, Arizona, Texas, and we went out with the border patrol and we crossed the border into Mexico because we felt it was important to work not only with our Federal partners but our international partners, in fighting the drugs coming across the border.  Almost all of the illegal drugs, not the prescription drugs but the narcotics, are coming up through Mexico.  They estimate that they stop about 40% of the drugs which is frightening because you should see the amount of drugs that they stop.  That means that 60% is coming in.  A safer border is a safer Pennsylvania so we believe that if we go and work with them and understand the drug trade better and the resources that they have so that we can all combine our resources and work better and smarter because you can’t just stand out on the street, as in the past, and take the dealers off the street.  You have to trace it back to the source and then you have to trace it back to the other source.  So the drugs are coming up from Mexico, they’re going to California or New Mexico or they are going up to Arizona.  They are being repackaged and sent immediately over to Pennsylvania.  So that’s a frightening, that’s a frightening realization.  So the amount of drugs coming into PA… it’s a huge issue.

The prescription pills use is a huge issue in Pennsylvania because a lot of times prescription pill users then turn into heroin users.  They can’t afford the prescription pills anymore.  They are not readily available to them and they immediately turn to heroin because it’s not just a good of a high but it’s cheaper and easier to get.  It’s more readily accessible.  So that contributes to the heroin problem.  The biggest threat in the years past was that we didn’t work together and the people refused to believe the enormity of the problem.  I think that we did a great job in educating the legislature and educating the public about, get your head out of the sand.  This is a problem and we are not going to solve it unless you see it first.  And they did.  They gave us the $3 million for the Mobile Street Crimes Unit.  But then we got together and normally law enforcement doesn’t play well together.  We said who cares who does the press conference; who cares who gets the credit.  We don’t care.  We need you to work with us because this is our plan and they were just so grateful that politics didn’t play a role in it any longer and we just wanted to get the job done.  The locals trust us now and the locals say how great it is to work together again.  I think that is a great accomplishment.  But we have taken a lot of drugs off the street.  We’ve taken a lot of drug trafficking organizations off the street in one year.  The examples of these cartels and the organizations that they have is scary and we have dismantled a lot of them and I think that that is a great accomplishment.

Is the Drug Problem unique to Pennsylvania? 

No, it’s not unique to Pennsylvania.  I think Pennsylvania was just behind in allowing themselves to believe that it was here.  When I first asked for the money for the Mobile Street Crimes Unit and started talking about the drug trafficking organizations.  So not only did I have to fight for the money and come up with a better way of combatting these DTOs, but I had to convince people that there was a problem first.  I had to educate them and convince them it was a problem before they could then move on and say okay well let’s fix the problem.  But I also think we have made good strides because the legislature really gets that this is not just an enforcement problem.  This is an education problem, it’s enforcement and its treatment.  And you have to have those three rungs of that triangle or you are not going to solve the problem.  You only have two, it’s going to slip out through the treatment side.  You don’t educate kids, well you know what, too late.  We don’t want to wait until they become an addict or a dealer.  We want to get them before that to stop so there’s not a huge amount of people in rung number two.  So they see that and somebody asked me the question, well, we have the treatment services in the other day and they were arguing for more money and you’re saying you need more money; you’re taking the money off the treatment.  I said, oh no, you give them their money.  They need it.  They deserve every dime of it.  They need their money.  But I need money too because this is the only way it’s going to work.

In our first year too, we expanded our education and outreach department.  We have crossed trained all of our agents in every area; in senior reviews and internet and cyber safety and in narcotics and in gun, you know, straw purchasing.  And they have spread out and they have blanketed this Commonwealth.  We updated all of our materials.  When I first went to see a presentation, they were talking to kids about straw purchasing and Lynne Abraham was on the video.  Scared straight doesn’t work with kids anymore.  So we partnered with universities and said, tell us how to get the kids now.  They’re digital now; you have 15 seconds, how do we get to them; how do we trap them; how do we make sure that we are getting into their minds.  And we have updated all of our materials and I think that they’re much more effective.  But that’s because I believe that education is the key to prevention and I’d rather prevent than just react.  So we’ve made that another key component of this office.

What can the public do to assist in the prevention and/or detection of these crimes?

They can first realize that these crimes are out there.  They can realize that they are a part of the solution; that this is not just a law enforcement problem.  With our limited resources, we really can’t do it on our own and they have to realize that they have to get involved; that they can go to community meetings and they can understand what a drug house looks like and how they can spot a drug house.  And when they know what to do, who to call, that it could be anonymous and things like that.  But they have to get involved.  And they have to start calling the tips in when they are a witness to a crime.  Philadelphia has a big problem that  people won’t step up to the plate; they won’t show up for court and testify because they are too afraid of retaliation.  So our office also has a line item that it’s a pass through but it’s the witness relocation program.  A lot of it goes to Philly to make sure that the witnesses show up.  We as prosecutors can’t do anything without the witnesses.  So they have to show up; they have to be a part of the system.

It seems to me you hear more about the arrests for heroin and sale of prescription drugs.  Is it more prevalent?  Is there a greater focus from your office or is it both?

I can’t say whether there is a greater focus because I can honestly tell you I don’t know what the past administrations have done.  So I’m not going to compare us to them.  I will tell you that it is, it is a major focus of this office.  I think with our new Mobile Street Crimes Unit that it has become more of a focus.  We have a diversion unit that deals with the prescription drug abuse but it goes to the health care aspect of it.  So we go to hospitals and pharmacies and doctors who are overprescribing.  So we’re not just taking the users off the street.  We are also taking the pill pushers off the street and so we’re combatting it on a couple different of levels.  But I, I think that we have done an incredible job in the last couple of months of combatting this.  There is so much more to go and we’ll never be able to sit back and say, well, the war is done; we’re good.  You  also have to keep fighting it.

What are the issues that plague Pennsylvania and specifically the focus or priorities of your Child Predator section?

Well you say it exactly.  It is making sure that we stop child predators and we have travelers.  About 40% of all child predators are travelers.  We had two in one week in just Scranton alone.  And a traveler’s a guy or a woman, mostly guys, who think they are going to meet either a girl or a young boy for the purposes of illegal sexual activity.  And, of course, we’re sitting there waiting for  them and we take them down.  Human trafficking is also a problem in Pennsylvania.  It’s across the nation.  It’s an international problem.  We work with our international partners in making sure that we combat it.  But we also look for live victims in the child pornography.  They do tagging and we work with the Center for Missing Children and we work with them to make sure that these kids who are portrayed in these pornography videos, that we try and find them so that we can save them.