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PA Trial Practice Blog

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The Pa Supreme Court refuses to adopt the Restatement (Third) Torts: Products Liability

Posted in Pennsylvania Supreme Court, Trial Practice

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        On November 19, 2014, the Pa Supreme Court issued a 137 page opinion on the state of products liability law in Pennsylvania.  In summary the Court ruled as follows:

  • The Court declined to adopt the Restatement (Third) Torts: Products Liability:
  • The Court’s previous decision in Azzarello v. Black Brothers Company, is overruled;
  • A Plaintiff in a products liability case must prove that the product is in a “defective condition” and the Plaintiff could  prove it by showing either:
    • The danger is unknowable and unacceptable to the average or ordinary consumer, or that
    • A reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions;
  • The burden of production and persuasion is by a preponderance of the evidence;
  • Whether a product is in a defective condition is a question of fact ordinarily submitted to the finder of fact;
  • The question is removed from the jury’s consideration only where it is clear that reasonable minds could not differ on the issue;
  • The trial judge is relegated to the role of determining issues of law.

This case is a must read if you handle or defend product liability cases.

Pa Supreme Court finds that Pa’s $500,000 local agency limit of liability is constitutional

Posted in Court of Common Pleas, legislation, Pennsylvania Commonwealth Court, Pennsylvania Supreme Court, Trial Practice

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            On November 19, 2014 the Pennsylvania Supreme Court issued a decision in Zauflik v. Pennsbury School District in which the high court found that Pennsylvania’s $500,000 local agency limit of liability was constitutional.

            As background, Ashley Zauflik sustained severe life changing injuries when she was struck by a school bus owned by Pennsbury School District and driven by one of their employees.  Pennsbury School District like all other school districts are considered local agencies and are granted immunity from liability under the Political Subdivision Tort Claims Act.  There are limited exceptions to the act which permit a lawsuit against a local agency. The applicable exception in this case was “negligent operation of a motor vehicle”.

            The Political Subdivision Tort Claims Act also provides a maximum limit of liability for a local agency of $500,000. Prior to trial Pennsbury admitted to liability and agreed to tender the statutory limit of liability of $500,000. The Plaintiff refused the offer and the case proceeded to a jury trial whereby the jury issued a verdict in favor of the Plaintiff for over 14 million dollars. Pennsbury filed a post-trial motion to mold the verdict in accordance with the statutory limit of liability and the trial judge granted the Motion molding the verdict to $502,661.63 which included delay damages.  The Plaintiff appealed and the Commonwealth Court affirmed.

            The Pa Supreme Court granted allocator to review whether the statutory cap was constitutional, whether it violated the Equal Protection Clause and whether it violated the Separation of Powers.  The Pa Supreme Court in lengthy analyses which included a detailed history of governmental immunity in Pennsylvania found that the cap limit was constitutional, did not violate equal protection or the separation of powers. While the Court had empathy with the Plaintiff who suffered life changing injuries, the Court opined that it was up to the legislature to change the law not the Court. Accordingly, the Commonwealth Court decision was affirmed which resulted in the 14 million dollar judgment being reduced to $502,661.63.

            I recommend that you keep the decision handy in case you have a case involving the Political Subdivision Tort Claims Act. The case provides a detailed history of the law and the common law that preceded the statute.

Pa Supreme Court refuses to consider juror bias issue

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

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On October 28, 2014, the Pa Supreme Court issued one of many orders in which they denied a Petition For Allowance of Appeal. In this case, Cordes, v. Associates of Internal Medicine, the Supreme Court refused to take a case that was viewed by the Pa Superior Court as a case of first impression in Pennsylvania. Whether a Judge can rely upon a prospective jurors statement that they can be fair when there is a pre-existing relationship between a juror and one of the parties in the case.

I previously blogged on the Superior Court decision. In summary the Pa Superior Court vacated a defense jury verdict since the trial judge should have struck one or more jurors for cause.  The result of the Pa Supreme Court’s refusal to hear the case is that the case is remanded for a new trial.  As I indicated in my previous post, this was an odd case.  Usually, trial judges are very cautious and will strike jurors for cause if there is a pre-existing relationship. In this case the court did not. As result, much time and money was wasted.

PA Commonwealth Court issues split decisions on sovereign immunity

Posted in Court of Common Pleas, Evidence, legislation, Pennsylvania Commonwealth Court

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Today the Pennsylvania Commonwealth Court issued two decisions involving Sovereign Immunity defenses asserted by governmental entities. In the two decisions the Court affirmed a grant of summary judgment and reversed the grant of summary judgment based upon the defense of Sovereign Immunity.

In Falor v. Southwest Pennsylvania Water Authority, Falor sued claiming that the Water Authority was negligent in failing to turn off the water to her vacant property. Falor had requested that the water be turned off. The water company went to the property but since it appeared as if the water was for 2 properties the worker decided not to turn the water off. However, neither the water company nor the water notified Falor that they had not turned off the water.  Falor believing that the water had been turned off also turned off the gas. The pipes froze and burst then causing significant damage to her property.  The Commonwealth Court affirmed the lower Court’s ruling that under the Pennsylvania Political Tort Claims Act that the water company was immune from liability, despite their negligence, and that there was no applicable exception that applied to the facts of that case.

In Taylor v. Northeast Bradford School District, Taylor was injured when she tripped over a room divider in a gym.  The lower court as in Falor granted summary judgment based upon the defense of sovereign immunity.  The Commonwealth Court reversed finding that there needed to be evidence in the record to support a finding that the divider was personal property as compared to real estate. While the lower court made such a finding it was not supported by the record. Accordingly, the decision was reversed and remanded for the lower court to consider evidence on whether the divider was a fixture and thus real estate or whether it was personal property.  

Pa Supreme Court Amends Pa Rule of Evidence 611

Posted in Evidence, Pennsylvania Supreme Court, Trial Practice

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 On September 18, 2014, the Pa Supreme Court issued an Order adopting amendments to Pa Rule of Evidence 611. Rule 611 applies to the presentation of witnesses. 

The Amendment revises subpart C which addresses when leading questions are permissible. Leading questions are generally permissible on cross examination and on direct examination of a hostile witness or an adverse party.

The amendment, which takes effect immediately, adds the following language to subpart C(2), or examination of a hostile witness or adverse party:

        ”A witness so examined should usually be interrogated by all other parties as to whom the witness is not hostile or adverse as if

under redirect examination”

The amendment basically codifies the practice in some Courts. It also eliminates any confusion since some may argue that they are also entitled to leading questions.



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

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     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

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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

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            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.