PENNSYLVANIA CASE SUMMARIES
Pyeritz v. State Police Department of the Commonwealt of Pennsylvania
Pa.Supreme Court, No. 9 WAP 2009
2011 Pa. Lexis 2831
Decided: Nov. 23, 2011
In a case of first impression, the Pennsylvania Supreme Court holds that Pennsylvaniadoes not recognize a separate, independent cause of action for negligent spoliation of evidence.
Background
Plaintiff as Administratrix of the Estate of Daniel Pyeritz brought suit against the Pennsylvania State Police (PSP) and various PSP Troopers involved in the chain of custody regarding a nylon belt allegedly used by decedent to secure himself in a tree stand while hunting. After decedent had left his brother’s house to hunt and hadn’t returned, a search party found him at the base of a tree where he had installed a tree stand. The nylon belt, allegedly used by decedent to secure himself in the tree stand, was ripped in two. PSP had seized the belt pieces for the criminal investigation and then had advised counsel for Plaintiff that they would retain custody of the belt pieces for longer than permitted by internal PSP regulations. However, the belt pieces were destroyed before Plaintiff counsel requested they be returned. Plaintiff filed a products liability suit against the two manufacturers of the belt and tree stand in federal court in September 2003, settling the claim in November 2003 for $200,000. In October 2003, the plaintiff filed suit against the state police and a number of individual troopers "for failure to preserve evidence necessary for plaintiffs' third-party claim. The trial court granted summary judgement to the defendants, which was affirmed by the Commonwealth Court.
Holding
Pennsylvanialaw does not recognize a cause of action for negligent spoliation of evidence. Judge McCaffrey, writing for the majority, explained that when deciding whether to impose a duty, the Supreme Court considers the five factors it laid out in its 2005 decision in R.W. v. Manzek : "(1) the relationship between the parties; (2) the utility of the defendant's conduct; (3) the nature and foreseeability of the risk in question; (4) the consequences of imposing the duty; and (5) the overall public interest in imposing the duty." McCaffery said "the first two factors mitigate against the imposition of a duty". He noted that the relationship between the parties was grounded in a request by one party to an agent of the other. While he noted it would be understandable that the party would rely upon the agent from PSP, such reliance “is not necessarily justifiable as a matter of law so as to constitute a partial basis for imposing a duty upon the Commonwealth itself.” With respect to the utility of the conduct in question, it was noted that the PSP maintained the items in question through the criminal investigation and thereafter for an additional nine months, and “[the expectation that the state police could be utilized to safeguard evidence that was no longer needed for criminal investigative purposes was misplaced and served no legitimate police function.” Justice Eakin, writing separately, noted that the personal property exception to Sovereign Immunity was not applicable to the case as Plaintiff claimed injury based on the destruction of the belt fragments, rather than injury resulting from the death of Plaintiff’s decedent.
Any questions regarding this case can be directed to James Dodd-o at 610-332-7000 or jdoddo@tthlaw.com.
Schuenemann v. Dreemz, LLC
2011 Pa. Super. 236
Decided: Nov. 4, 2011
In a dram shop action, Pennsylvania Superior Court affirms decision to allow evidence at trial regarding bar’s internal policies and procedures, video surveillance equipment, licensing agreements with the Liquor Control Board, certification under the responsible alcohol management provisions of the Liquor Code, course of conduct and the legal limit for blood alcohol content (BAC) when operating motor vehicles.
Background
A 23 year old consumed alcohol at Dreemz, a bar in Philadelphia. Thereafter, she drove her vehicle at a high rate of speed into a pole resulting in her death. The estate of the decedent filed an action against the bar under the Dram Shop Act. After a jury returned a verdict in favor of the estate, Dreemz filed post-trial motions claiming that the court improperly admitted evidence at trial and erred in denying its motion for a new trial.
Holding
The Superior Court affirmed the trial court’s admission of the following evidence finding it relevant to the issue of whether the bar served alcohol to a visibly intoxicated person and to impeach the bar’s assertions in discovery that its employees were trained and certified in accordance with the requirements of the Liquor Code: the bar’s internal policies and procedures, including training of employees and its policy with regard to calling taxi cabs for intoxicated patrons; the bar’s video surveillance equipment and usage; the nature of its conditional license and agreements with the liquor control board; and its certification under the responsible alcohol management provisions of the Liquor Code. Additionally, evidence regarding the bar’s admission of underage patrons and patrons without identification was relevant to show the bar’s course of conduct relative to its patrons and whether it adhered to the Code. Further, the trial court properly allowed testimony regarding the legal limit for BAC, because it was relevant to establish the decedent’s intoxication as long as there was no charge that a BAC over the legal limit raised the presumption that the individual was under the influence of alcohol and there was other corroborating evidence demonstrated that the decedent was visibly intoxicated.
Any questions regarding this case can be directed to Lisa Trembly at 610-332-7029 or ltrembly@tthlaw.com.
Discover Bank v. Stuka
2011 PA Super 241, 2011 Pa. Super. LEXIS 3745
Decided: November 14, 2011
The Superior Court holds that to properly plead a cause of action in breach of contract, a credit card company need not attach the actual, signed, agreement between itself and the cardholder(s). Rather, the ‘standard’ agreement and a statement of account would suffice for an action in implied contract.
Background
Discover Bank sued the Stukas concerning a credit card account alleging they defaulted for failure to make timely payments. Discover attached to the Complaint an “account summary”. In response to preliminary objections, Discover filed an Amended Complaint and attached the “Discover Cardmember Agreement” and monthly statements from 2002 to 2009. Stukas again objected, and the Court ordered that Discover produce the executed agreement. Discover then filed a Motion to Amend its Complaint and a Second Amended Complaint now alleging unjust enrichment and breach of implied contract, because the signed agreement was not available. Additionally, Discover alleged that Stukas had, on occasion, paid their credit card balance and then continued to use the card. The lower court declined Discover’s Motion to Amend and dismissed the Amended Complaint with prejudice. Discover appealed.
Holding
The Superior Court reversed. The Court noted that, under the Rules of Pleading, Discover should have been permitted to amend its pleading. Additionally, the Court held that a Plaintiff, in an action seeking recovery upon a credit card account, should produce a cardholder agreement and a statement of account. The Court here identified that these documents were produced and that, therefore, dismissal of Discover’s Complaint was improper.
Rule 1019 of the Pennsylvania Rules of Civil Procedure provides that where a cause of action or defense is based upon a writing, the pleader shall attach the writing. That Rule also provides that where the writing is unavailable, the pleader may explain that deficiency. In interpreting this rule, the Court held that the actual, signed, agreement need not be provided. In order to plead an action sounding in quasi-contract (unjust enrichment or contract implied in law), as Discover had done, it was sufficient to plead that benefits were conferred upon the defendant and that defendant appreciated and retained these benefits. Based upon this standard, Discover’s Second Amended Complaint gave the Stukas adequate notice of the action they were required to defend, as those allegations would permit recovery, if ultimately proven.
Any questions regarding this case can be directed to Ryan Blazure at 570-820-0240 or rblazure@tthlaw.com
Wright v. Sirod Denny and SEPTA
(530 C.D. 2011; Decided October 25, 2011)
Plaintiffs held not entitled to uninsured motorist benefits from SEPTA where bus was stopped at time of Plaintiff’s injuries
Background
The Wrights filed suit against Defendants Denny and Southeastern Pennsylvania Transportation Authority (SEPTA) to recover damages stemming from an accident pursuant to the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa. C.S. §§ 1701 - 1799.7. The complaint alleged that Wright was a passenger onboard a SEPTA bus, which was rear-ended, causing injuries to Mr. Wright. The striking vehicle fled the scene and was deemed uninsured.
The sole issue before the court was whether SEPTA was obligated to pay uninsured motorist benefits to the Wrights. The trial court found SEPTA not obligated to pay these benefits because the Wrights' claim was barred by sovereign immunity under 42 Pa. C.S. §§ 8521-8528. The Wrights appealed.
Holding
The Court upheld the decision of the trial court and explained that SEPTA and its employees are generally immune from suit for damages arising out of a negligent act, unless the act falls within one of the enumerated exceptions to sovereign immunity. The Court found that the exception of relevance concerned Vehicle Liability. However, for this exception to apply, the motor vehicle must be in "operation". The Pennsylvania Supreme Court has previously interpreted "operation" to mean "to actually put it in motion," and not where the vehicle is stopped. In this case, the SEPTA bus was not in motion and, therefore, not in "operation" when the accident occurred. Thus, this case presented no exception to immunity.
Any questions regarding this case can be directed to Oliver M. Bather at 610-332-7006 or obather@tthlaw.com.
Kelly v. Siuma, et al.
211 Pa. Super. 234
Decided: Nov. 3, 2011
Superior Court affirms Order denying Defendant’s Petition to Open a Default Judgment because the Defendant Princeton Tavern failed to provide any legitimate reason for not answering the Complaint until ten months after service and only after default judgment was entered.
Background
Plaintiffs were injured in an automobile accident after being struck by Defendant Siuma’s vehicle. Defendant Siuma was driving under the influence of alcohol at the time of the accident consumed at the Defendant Princeton Tavern. It was alleged that he was served alcohol after he was visibly intoxicated. Plaintiff filed a Dram Shop action against Princeton Tavern. Princeton Tavern failed to file an Answer or respond to the Complaint until ten months after it was served and only after plaintiffs obtained a default judgment. The trial court denied Princeton Tavern’s Petition to Open the Judgment and the decision was affirmed by the Superior Court.
Holding
A default judgment may be opened if the movant has (1) promptly filed a Petition to Open; (2) provided a reasonable excuse or explanation for failing to file a responsive pleading; and (3) pleaded a meritorious defense. Defendant failed to satisfy the second prong, because it failed to explain why Defendant did not contact Plaintiffs’ counsel for seven months following service and did not file an Answer until ten months after service. Defendant claimed it contacted an attorney to represent it; however, Defendant failed to establish when the attorney was hired. Further, the attorney offered no excuse as to why he did not contact Plaintiffs’ firm sooner or file an Answer sooner. The Superior Court found that even if the Defendant pled a meritorious defense, the trial court properly denied the Petition to Open the Default Judgment because Defendant failed to satisfy the second prong of the test.
Any questions regarding this case can be directed to Lisa Trembly at 610-332-7029 or ltrembly@tthlaw.com.
Walthour v. Commonwealth of Pennsylvania, Department of Transportation
390 C.D. 2011
Decided: 11/17/11
Summary judgment for PennDot, based on conclusion of inadequate written notice for the purpose of 42 Pa. CSA § 8522(b)(5) for claim of injury caused by pot hole, vacated.
Background
Plaintiff hit a pothole while operating a motorcycle causing serious personal injuries. The trial court granted PennDot's summary judgment based on Plaintiff’s lack of proof on the prior written notice requirement exception to the Sovereign Immunity Act, 42 Pa.C.S sect. 8522(b)(5). The appeal focused on a letter of record received by PennDot from a State Senator that cited merely "general disrepair" of State Route 837, which purportedly contained the accident pothole. The letter did not specifically mention "pot holes."
Holding
The Commonwealth Court vacated the grant of Summary Judgment for PennDot. Referencing Merling v. Department of Transportation, 468 A.2d 894 (Pa. Commwlth 1983), the Court held that the letter at issue together with PennDot’s acknowledgment that it desired to make major improvements to that roadway, but was unable to secure the necessary funding, was sufficient to put it on notice per 42 Pa.C.S sect. 8522(b)(5).
Any questions regarding this case can be directed to John Yaninek at 717-441-3952 or jyaninek@tthlaw.com.
Largent v. Reed
Franklin Cty CCP, No. 2009-1823
Decided November 7, 2011
Trial Court orders Plaintiff to produce Facebook Username and Password, as there is no protected expectation of privacy
Background
Defendant allegedly collided with a minivan, driven by an Additional Defendant, whose vehicle then crashed into a motorcycle ridden by both Plaintiffs. Plaintiff wife stated that she “suffers from depression and spasms in her legs, and uses a cane to walk.” To rebut such testimony, Defendant identified her Facebook page where she posted several photographs that show her “enjoying life,” and a status update about going to the gym. Thereafter, Defendant sought to obtain Plaintiff’s Facebook Username and Password to enter Plaintiff’s private page. In opposition, Plaintiff argued that disclosure of her account information would cause unreasonable embarrassment and annoyance. Plaintiff also compared theDefendant's discovery request to the court to allowing discovery of all of her private photo albums and e-mails.
Holding
The Court ultimately held that material on social networking websites is generally discoverable in a civil case. The Court noted that Facebook’s foremost purpose is to help you connect and share information with the people in your life. The Court explained that Plaintiff put her health at issue and thus, any posts on Facebook that concern her health, mental or physical, are discoverable, and any privilege concerning such information is waived. The Court further explained that Pennsylvania’s discovery rules are broad, and that there is no confidential social networking privilege under existing Pennsylvania law. Rather, given the inherently public nature of social networking, there is no reasonable expectation of privacy in material posted on Facebook. Further, making a Facebook page ‘private’ does not shield it from discovery. The Court also relied on the fact that courts in other jurisdictions with similar rules have allowed discovery of social networking data.
The Court also addressed whether the 1986 Stored Communications Act (“SCA”), 18 U.S.C. §§ 2702-03, prohibited disclosure of Plaintiff's Facebook information, a novel issue in Pennsylvania, and a question only one other court in the country has discussed. The Court determined that the SCA only covers internet service providers, and thus, did not apply to Plaintiff, because Defendant was seeking information directly from the Plaintiff, rather than serving subpoenas on Facebook.
Largent joins Zimmerman v. Weis Markets Inc. and McMillen v. Hummingbird Speedway Inc. as defense victories in an emerging body of case law dealing with Facebook. The apparently lone plaintiff win on the subject in Pennsylvania -- Piccolo v. Paterson -- came after the plaintiffs attorney successfully argued his case was distinguishable from McMillen because there were no allegations his client posted one thing and said another.
Any questions regarding this case can be directed to Oliver M. Bather at 610-332-7006 or obather@tthlaw.com.
MARYLAND CASE SUMMARIES
Tempel v. Murphy
Court of Special Appeals
Case No. 1199, September Term, 2010
Opinion by Judge J. Eyler
Filed: October 28, 2011
Holding that a non-settling Defendant had no right to inspect settlement documents, and that a lost wage claim was not speculative.
Background
In a wrongful death case with a number of Defendants, many of the Defendants settled with the Plaintiffs. The non-settling Defendants filed a motion to compel production of the settlement documents. The trial court denied the motion. After trial, the jury awarded damages to the Plaintiffs for, among other things, lost wages. The Defendants’ filed for judgment notwithstanding the verdict on the lost wages issue, arguing that it was speculative. The Trial Court denied the motion.
Holding
The Appellate Court affirmed explaining that the settlement amounts are not discoverable because they do not make any fact that is of consequence to the determination of the action more or less likely at the pre-verdict stage. The Court noted that the terms of the release, other than the amount of the release, was relevant because the nature of the release would affect the rights of the non-settling parties under Maryland Uniform Contribution Among Joint Tortfeasor’s Act. With regard to the lost wages argument, the Defendants argued that the award was speculative because there was no evidence of when the decedent would have retired. The Court held that the Plaintiffs did not have to prove a specific age of retirement. The jury was free to consider the totality of the evidence, including the decedent’s age, health, employment, financial situation, and general population statistics to determine the amount of lost wages.
Any questions regarding this case can be directed Ben Peoples at (410) 653-0460 or cpeoples@tthlaw.com.
Board of Education of Prince George’s County v. Marks-Sloan
Court of Special Appeals
Case No. 1447, September Term, 2010
Opinion by Judge J. Eyler
Filed: October 28, 2011
Employees of county boards of education do not have statutory immunity, but the boards must protect the employees from execution on a judgment against the employee.
Background
A bus driver caused tortious injury and was sued, along with the board of education, his employer. The Defendants moved for summary judgment, arguing that the bus driver had statutory immunity. The Court denied the motion. The Court then entered judgment in favor of the Plaintiffs and the Defendants appealed.
Holding
Maryland’s intermediate appellate court affirmed. The Court held that there was no immunity under the statute, but that the board had to protect its employee from execution of the judgment. In interpreting the language of the statute, the Court examined the statute’s legislative history. The statute was created after the Maryland Tort Claims Act, which provides immunity to state employees. The Court observed that the legislative history of the statute as it applied to the board indicated that the legislature considered using language similar to language found in the Maryland Tort Claims Act, but decided against doing so, indicating that it did not intend to provide immunity to board employees.
Any questions regarding this case can be directed Ben Peoples at (410) 653-0460 or cpeoples@tthlaw.com.
NEW JERSEY CASE SUMMARIES
D’Alessandro v. Hartzel
Superior Court of New Jersey – Appellate Division
A-3736-09T3
Decided Oct. 27, 2011
Summary judgment dismissal of a negligence suit against the owner of a vacation condominium was appropriate in the absence of proof of a dangerous condition in the rental property or unreasonable risk of physical harm, especially where Plaintiff knew or had reason to know of the risk.
Background
Plaintiff booked a one-week stay in Defendants’ vacation condominium at the Jersey Shore. Prior to walking through the front door on check-in day, Plaintiff never visited the unit, but had viewed on-line photographs of the interior layout. On arrival, Plaintiff was dragging a suitcase on wheels as she crossed the threshold of the front door, facing forward into the unit. Immediately thereafter, Plaintiff fell on the step leading from the landing into the sunken living room and sustained injuries. It was a bright and sunny day, and Plaintiff admitted that she had a clear view of the landing, steps and living room and that the step carpeting was distinguishable from the front tile landing. Further, there were no prior complaints or falls by other guests. Nevertheless, Plaintiff sued Defendants alleging negligence in design and a failure to warn Plaintiff of, or protect her from, a dangerous condition. The Cape May County trial court granted Summary judgment in favor of Defendants and Plaintiff appealed.
Holding
On appeal, the Appellate Division affirmed the granting of summary judgment. Plaintiff failed to offer expert proof that the condition was dangerous or involved an unreasonable risk of physical harm to visitors. In addition, where, as here, Plaintiff knew or had reason to know of the claimed risk involved, and Defendants had no reason to expect that Plaintiff would not discover the obvious condition or that a fall was even foreseeable for Defendants, summary judgment was appropriate.
Any questions regarding this case can be directed to Christopher J. Dos Santos at 610-332-7017 or cdossantos@tthlaw.com.
Mohamed v. Iglesia Evangelica Oasis de Salvacion
Superior Court of New Jersey Docket No. L-5871-10
Decided: June 10, 2011/Approved for Publication November 3, 2011
Superior Court holds that a church has no duty to maintain an abutting sidewalk and that the use of the church’s basement and parking lot by parishioners does not render the church property to be partially commercial.
Background
Plaintiff sued a church after tripping on a sidewalk in front of the church. Defendants moved for summary judgment. The church has a basement and allows its use and an adjoining parking lot for birthday parties and other events held by parishioners. The church takes donations for the use of the basement. The parking lot is also used by parishioners and their friends while shopping, and sometimes the church receives donations for this use.
Holding
The Court granted Summary Judgment for Defendants and Dismissed the Complaint. While New Jersey law imposes a duty on commercial landlords to maintain sidewalks which abut the commercial property, there is no such duty for residential property owners. A New Jersey Supreme Court case has held that religious, charitable and not-for-profit organizations may have such a duty, requiring an analysis of the use of the property, and allowing liability to attach if the “use of the property is partially or completely ‘commercial’.” A later case found liability where a church leased apartments as a form of social charity, holding that renting was a commercial activity, even if the church did not receive fair market rental value. Another later case found that a not-for-profit school on church property was a commercial activity. The Superior Court holds that the services of providing a basement and parking lot are not advertised and the church does not lease or require fees and does not dictate any terms of use. The use is only by parishioners and their friends. The lack of formality and regulation results in something less than a commercial enterprise.
Any questions regarding this case can be directed to Paul Walker at 717-441-7061 or pwalker@tthlaw.com.
Tymczyszyn v. Columbia Gardens
Superior Court of New Jersey – Appellate Division
A-3544-09T4
Decided Sept. 30, 2011
A Housing Authority’s Motion for Summary Judgment based on sovereign immunity denied on a claim of slip and fall on ice outside residential property, as sufficient evidence of the creation of a dangerous condition or constructive notice of dangerous condition
Background
Plaintiff slipped and fell on ice on the sidewalk abutting Defendant Hoboken Housing Authority’s multi-unit residential property. Defendant invoked the immunity conferred upon public entities by common law for snow removal activities as well as the weather condition immunity under the New Jersey Tort Claims Act (specifically, N.J.S.A. § 59:4-7). Defendant further argued that it did not create the dangerous condition that caused the fall, nor did it have constructive notice of the dangerous condition prior to the incident. Opining that the actions taken by Defendant to remove ice and snow from the abutting sidewalk were not “palpably unreasonable,” the Trial Court granted summary judgment for Defendant. Plaintiff appealed.
Holding
The Appellate Division reversed finding that Plaintiff presented sufficient evidence for a jury in that the manner in which Defendant removed snow and ice could have created the dangerous condition that caused Plaintiff’s injury. Alternatively, a jury could find that Defendant was constructively on notice of the dangerous condition. In addition, Defendant was not entitled to invoke the common law immunity for snow-related activities because a public landlord owes the same duty to pedestrians as a commercial landlord to keep sidewalks abutting their property free of snow and ice. Finally, Defendant was not entitled to invoke the weather condition immunity of N.J.S.A. § 59:4-7 because the statute limits immunity to accidents that occur on a street or highway not on a sidewalk.
Any questions regarding this case can be directed to Christopher J. Dos Santos at 610-332-7017 or cdossantos@tthlaw.com.