Header graphic for print

PA Trial Practice Blog

Stay Up To Date On Pennsylvania Court Matters

Pa Supreme Court reiterates standards for transfer of venue in Pennsylvania

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


            On August 18, 2014, the Pennsylvania Supreme Court reiterated the standards in Pennsylvania for transfer of venue.  In doing so, the Court reversed the decision of the Pa Superior Court and affirmed the decision of the Philadelphia Court of Common Pleas Judge to transfer venue to Dauphin County.

            As Background, Residential Warranty Corporation and Integrity Underwriters filed suit in Dauphin County against Alexander Bratic and Joseph Proko ( “Bratic and Proko”). The case ended when Bratic and Proko winning on a Motion for Summary Judgment. Thereafter, Bratic and Proko filed a lawsuit in Philadelphia against Residential Warranty Corporation and Integrity Underwriters and their attorneys ( the “Defendants”) for wrongful use of civil proceedings and common-law abuse-of-process.

The Defendants filed a motion to transfer venue to Dauphin County pursuant to Pa.R.C.P. 1006 (d)1) for forum non conveniens. The Philadelphia Court of Common Pleas granted the Motion for the following reasons:

  1.       The original claim which resulted in this lawsuit took place in Dauphin County;
  2.       All the Defendants are from Dauphin County;
  3.       Each of the Defendants’ 8 witnesses live over 100 miles from Philadelphia and are engaged in business activities which make their ability to appear at trial in Philadelphia County far more burdensome then in Dauphin County
  4.       The sole connection to Philadelphia is that Defendants occasionally conducted business in Philadelphia.

On appeal the Pa Superior Court initially affirmed the Lower Court.  After re-argument before the Court en banc, the Pa Superior Court reversed the lower Court finding that the Defendants did not carry their burden of demonstrating that trial in Philadelphia would be oppressive or vexatious.

On appeal the Pa Supreme Court reversed the Pa Superior Court and found that the Pa Superior Court improperly substituted its judgment for that of the Court of Common Pleas. The Court found that the trial court is vested with considerable discretion when ruling on a Motion to transfer venue and “if there exists any proper basis for the trial court’s decision to transfer venue, the decision must stand.”

The Pa Supreme Court found that there was ample evidence in the record to support the trial court’s decision to transfer venue. While the Defendant has the burden of proof they need not show “near-draconian consequences” as suggested by the Superior court. They just need to show that trial would be more than inconvenient in Philadelphia. Based upon the record the trial court did not abuse its discretion.    




Pa Superior Court Erred in finding that implied warranty of habitability applied to subsequent purchasers!

Posted in Pennsylvania Superior Court, Pennsylvania Supreme Court, Trial Practice


            I previously posted on this blog a decision by the Pa Superior Court in which the Court found that the implied warranty of habitability applied to subsequent purchasers of a home.

            As expected the Pa Supreme Court has struck down that ruling and reversed the Pa Superior Court. In doing so the Court reasoned that the implied warranty of habitability is grounded in contract law and a subsequent purchaser would not have privity of contract. Thus the warranty could not apply to a subsequent purchaser. The Court further found that public policy reasons might compel the legislature to change the law but do not compel the Pa Supreme Court to extend such a warranty to subsequent purchasers.



“Johnny Doc” loses battle to seal his videotape deposition

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

Thumbnail image for iStock_000016826286XSmall[1].jpg

     On April 23, 2014, I served as a commentator for the PCN network for the Pennsylvania Superior Court en banc arguments. One of the cases that I provided commentary was the case John J. Dougherty v. Karen Heller Yesterday the Superior Court issued a decision denying an appeal filed by John Dougherty a/k/a Johnny Doc.

      Appellant John Dougherty, is the business manager of the International Brotherhood of Electrical Workers Local 98. He is also a former candidate for the Pennsylvania Senate. Dougherty brought a defamation action against Appellee Karen Heller, a writer for The Philadelphia Inquirer.  

       This Superior Court appeal involved a discovery dispute regarding a videotaped deposition to be taken of Dougherty. Keller notified Dougherty of his videotaped deposition at her counsel’s office, which he attended. Once there he refused to give his videotaped deposition when Keller’s counsel would not agree not to disseminate the video to any third party absent court permission. Keller filed a motion to compel Dougherty’s videotaped deposition and for costs and fees related to the previous deposition.

        Dougherty in turn filed a motion for protective order. On April 10, 2012, the trial court denied Dougherty’s Motion for protective order and granted the motion to compel but denied the request for fees. The result was that Dougherty was to appear for his deposition without any limitations on the videotape’s use. Dougherty then appealed the order as a collateral order to the Pa Superior Court.

        The issues on appeal were as follows:

  1. Whether the orders are appealable as collateral orders? Or whether Dougherty was required to appeal at the end of the case?
  2. Whether the trial court erred in failing to find that Doughtery had a privacy interest which warranted the entry of a protective order prohibiting the public disclosure of the videotape deposition?

        Yesterday the Pa Superior Court denied Johnny Doc’s appeal. First they found that under the collateral order doctrine they did have jurisdiction. Second, they found that Johnny Doc failed to establish a compelling privacy interest which warranted the sealing of the videotape deposition.



Superior Court: Due Care Required Of Physicians Performing Peer Review Services

Posted in Pennsylvania Superior Court, Trial Practice

Thumbnail image for iStock_000016826286XSmall[1].jpg

I am pleased to share with you the following post from my colleague J.Benjamin Nevius, Esquire who practices in our Chester County Office.

Last week, the Pennsylvania Superior Court issued an opinion in Pollina v. Dishong, 2014 PA Super 153 (Pa. Super. Ct. 2014), holding that neither the Pennsylvania Peer Review Protection Act, 63 Pa.C.S.A. § 425.1 et seq., nor the doctrine of judicial privilege, will insulate a physician against negligence claims arising from a failure to exercise due care in the peer review process.

In 2010, Pennsylvania’s Bureau of Program Integrity (“BPI”) received a complaint from a disgruntled former employee of a dental practice located in Johnstown, Pennsylvania.  The employee alleged that the practice and its proprietor (together, the “Provider”), had engaged in fraudulent billing practices with respect to Pennsylvania’s Medical Assistance program (“MA”) – also known as Medicaid.  BPI, which frequently retains medical professionals to perform peer review services in connection with fraud investigations, retained Arthur Kravitz, DMD to assist with the investigation.

Dr. Kravitz attended an unannounced inspection of the Provider, interviewed employees, and reviewed 78 patient files.  At the conclusion of his investigation, Dr. Kravitz issued a report opining among other things, that the Provider over-prescribed medications and performed unnecessary dental procedures.  As a result of Dr. Kravitz’s findings, BPI referred the matter to the Pennsylvania Attorney General (“AG”) for further handling.  In October 2011, BPI suspended MA payments to the Provider during the pendency of the investigation, as required by law.

The Provider appealed to the Bureau of Hearings and Appeals (“BHA”), another bureau within the DPW, seeking to reinstate the MA payments.  Both the BHA and AG ultimately concluded that there was insufficient evidence to support the fraud allegations and, in April 2012, BPI reinstated the MA payments.  By that time, however, the damage had already been done.  The Provider sustained substantial economic loss as a result of the suspension, and had terminated all but three essential employees.

The Provider subsequently sued Dr. Kravitz for failure to exercise due care in his investigation.  Dr. Kravitz filed preliminary objections, arguing that he is entitled to peer review immunity and/or judicial privilege because he rendered his opinions in the course of a judicial or quasi-judicial proceeding.  The Superior Court refused to extend immunity to Dr. Kravitz for many reasons, the biggest being that the allegations did not pertain to the substance of Dr. Kravitz’s professional opinions, but rather the care used in investigating the allegations against the Provider.

Citing LLMD of Michigan, Inc. v. Jackson-Cross Co., 740 A.2d 186, 191 (Pa. 1999), the Superior Court held:

[T]he goal of ensuring that the path to truth is unobstructed and the judicial process is protected, by fostering an atmosphere where the expert witness will be forthright and candid in stating his or her opinion, is not advanced by immunizing an expert witness from his or her negligence in formulating that opinion.  The judicial process will be enhanced only by requiring that an expert witness render services to the degree of care, skill and proficiency commonly exercised by the ordinarily skillful, careful and prudent members of their profession.

The decision demonstrates the exposure physicians face in performing peer review services, particularly when an opinion could mean termination or suspension of MA payments to a medical provider.  Physicians offering peer review services to BPI and other review organizations (including insurance carriers) should review coverage to ensure they are adequately protected against risk.

No Duty to disclose murder suicide when selling a home in Pennsylvania

Posted in Uncategorized

Thumbnail image for iStock_000016826286XSmall[1].jpg

            Hopefully, this scenario does not happen very often.  Specifically, you sell a home where there was previously a murder suicide.  Well, it happened in the case Milliken v. Jacono.

            I previously blogged on the Pa Superior Court Decision where the court found no duty to disclose. When the Pa Supreme Court accepted the case we wondered whether the Court would now impose such a duty.

            The Pennsylvania Supreme Court in a short and precise decision affirmed the Pa Superior Court. The Court in a case of first impression found that in Pennsylvania that Psychological stigmas are not material defects that require disclosure by a seller.  Again, I do not know that this decision has many practical implications. However, it would make a great law school exam question.



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

Posted in Uncategorized

Thumbnail image for iStock_000016826286XSmall[1].jpg

            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

Thumbnail image for iStock_000016826286XSmall[1].jpg

            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

Thumbnail image for iStock_000016826286XSmall[1].jpg

            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

Thumbnail image for iStock_000016826286XSmall[1].jpg

            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.