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By Daniel Siegel

A Summary of Recent Pennsylvania

Appellate Court Decisions & Rule Changes

REPORTING DECISIONS THROUGH AUGUST 1 2006

PENNSYLVANIA STATE COURT DECISIONS

1. CIVIL LITIGATION

1.1. AUTOMOBILE INSURANCE

*Superior Court of Pennsylvania

*Santorella v. Donegal Mutual Insurance Co., 2006 PA Super 202 (July 31, 2006)

Holding:An individual who owns a registered, uninsured motor vehicle in a state other than Pennsylvania is precluded from receiving first party medical benefits under a policy issued to another member of the individuals household. In this case, plaintiff David Santorella, Jr., owned an uninsured car registered in California. The Superior Court denied the plaintiff first party benefits under 75 Pa.C.S.A. 1714 because the word registered is not qualified by the words in this Commonwealth in the statute, we refuse to read into the section an exception it does not explicitly declare

*Wheeler v. Nationwide Mutual Fire Insurance Co., 2006 PA Super 197 (July 31, 2006)

Holding:An individual whose motor vehicle insurance policy on which he or she is a named insured does not provide income loss, may not recover first party income loss benefits from the insurance policy covering the motor vehicle he or she was driving at the time of the accident.

1.2. DAMAGES

*Superior Court of Pennsylvania

*Excavation Technologies, Inc. v. Columbia Gas Co. of Pa., 2006 PA Super 164 (July 7, 2006)

Holding:A utility company is considered to be in the business of supplying information when acting in compliance with the Pennsylvania One Call System and is therefore subject to Section 552(2) of the Restatement (Second) of Torts. In addition, the Court adopts Section 552(3) for negligent misrepresentation cases that arise under the One Call Act. Finally, the Court holds that the economic loss doctrine which states that no cause of action exists for negligence that results solely in economic damages unaccompanied by physical injury or property damage does not automatically apply when only economic losses are alleged. Rather, if, in a negligent misrepresentation claim, (1) the defendant was in the business of supplying information, and (2) it was foreseeable that the information would be used and relied upon by third parties, the claim may proceed under Section 552 of the Restatement, and the economic loss doctrine is inapplicable.

1.3. MEDICAL MALPRACTICE CLAIMS & CIVIL PROCEDURE/PLEADINGS

*Superior Court of Pennsylvania

*Rostock v. Anzalone, 2006 PA Super 191 (July 26, 2006)

Holding:A complaint may be dismissed under the doctrine of lis pendens based upon the pendency of a prior action or an agreement for alternative dispute resolution. The mere filing of a second complaint, identical in all respects to the first with the sole exception that the second complaint alleged, This is a medical malpractice action, does not make the defense of lis pendens unavailable.

*McSorley v. Deger, 2006 PA Super 200 (July 31, 2006)

Holding:In a claim alleging lack of informed consent, it is a jury question whether the doctors actions were within the terms of the consent provided by the patient. In this case, the pre-surgery consent form permitted the physician to perform such surgical or other procedures as are necessary and desirable in the event of unforeseen conditions that necessitate an extension of the original procedure.

2. CIVIL PROCEDURE

2.1. FORGERY

*Superior Court of Pennsylvania

*De Lage Landen Financial Services, Inc. v. The Urban Partnership, LLC, 2006 PA Super 169 (July 12, 2006)

Holding:Generally, when an allegation of forgery is raised in this case, it was alleged that the document conferring jurisdiction in Pennsylvania was forged the party claiming forgery has the burden of proving the existence of a forgery by clear and convincing evidence. Because the allegation of forgery raises an issue of fact, resolution of the issue will turn upon the courts assessment of the witnesses credibility; however, there is no legal requirement that a party alleging forgery present a handwriting expert to support the claim.

3. WORKERS COMPENSATION

3.1. RETIREMENT

*Commonwealth Court of Pennsylvania

*Pries v. Workers Compensation Appeal Board (Verizon Pennsylvania), No. 1870 C.D. 2005 (July 25, 2006)

Holding:Affirming its decision in County of Allegheny (Dept. of Public Works) v. Workers Compensation Appeal Board (Weis), 872 A.2d 263 (Pa.Cmwlth. 2005), the Court holds that, in order for disability compensation to continue following retirement, a claimant must show that he or she is seeking employment after retirement and that he was forced into retirement because of his work-related injury. It is the claimants burden to show that he or she has not withdrawn from the entire work force.

3.2. PSYCHIATRIC TREATMENT

*Commonwealth Court of Pennsylvania

*Huddy v. Workers Compensation Appeal Board (U.S. Air), No. 1031 C.D. 2005 (August 1, 2006)

Holding:A Notice of Compensation Payable is properly amended to include depression and anxiety when a claimant proves that the work injury was a substantial contributing factor to the psychological injury/diagnosis.

3.3. SUBROGATION

*Superior Court of Pennsylvania

*Urmann v. Rockwood Casualty Insurance Co., 2006 PA Super 201 (July 31, 2006)

Holding:A settlement agreement, which apportions a settlement between an injured workers claim and the workers spouses loss of consortium claim, will not be overturned when it is adjudicated by the trial court based upon an evidentiary hearing and the execution of a settlement agreement. In this case, the facts demonstrate that the trial court attempted to assure that the apportionment was fair and consistent with Darr Construction Co. v. Workmens Compensation Appeal Board (Walker), 522 Pa. 400, 715 A.2d 1075 (1998).

3.4. WAIVER OF ISSUES ON APPEAL

*Commonwealth Court of Pennsylvania

*McGaffin v. Workers Compensation Appeal Board (Manatron, Inc.), No. 2168 C.D. 2005 (July 19, 2006)

Holding:Because the claimant failed to raise/preserve the issue before the Workers Compensation Judge of whether an impairment rating under Section 3006(a.2) of the Act, 77 P.S. 511.2(1), precludes a termination of benefits, the Court declines to address the issue.

NEW PENNSYLVANIA RULE OF CIVIL PROCEDURE

PA.R.CIV.P. 204.11 (FORMAT OF PLEADINGS AND OTHER LEGAL PAPERS)

*Effective February 1, 2007, all pleadings, motions and other legal papers must conform to the following requirements:

1. Documents must be on 8-1/2 by 11 inch paper

2. Documents shall be on white paper (except dividers and similar sheets)

3. The first sheet shall contain a 3-inch space at the top for court stampings, filing notices, etc.

4. Text must be double-spaced

5. Quotations more than two lines long may be indented and single spaced

6. Margins must be at least one inch on all four sides

7. Letter shall be clear and legible, and no smaller than 12 point in size

8. Lettering shall be on only one side of a page (except for exhibits and supporting documents)

9. Documents must be firmly bound.

NEW JERSEY STATE COURT DECISION

WORKERS COMPENSATION — INTOXICATION

*Supreme Court of New Jersey

*Tluma v. High Bridge Stone, No. A-69-05 (July 19, 2006)

Holding:In order for the statutory defense of intoxication to bar the recovery of workers compensation benefit, an employer must prove by a preponderance of the evidence that the employees work-related injuries were caused solely by intoxication.

Remember, visit Pennsylvania Legal Research Links, and make www.palegallinks.com your home page for Pennsylvania research.

About the Author: Daniel J. Siegel, a Havertown, Pa. attorney, founded

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