Cooper v. Church of St. Benedict
2008 PA Super 171
Decided July 29, 2008
The First Amendment’s Free Exercise of Religion Clause does not apply to church organist’s breach of contract claim, where organist’s primary duties are not “ministerial actions.”
Background: An organist sued her employer, a church, for breach of her employment agreement. The Church filed preliminary objections, asserting that the Free Exercise Clause of the First Amendment, prohibits judicial interference with decisions made by religious institutions concerning the employment of its ministers. The Trial Court (Schuylkill County) agreed and dismissed the action. The organist appealed.
Outcome: The Superior Court reversed, finding that this “ministerial exception” applies only to those church employees whose primary duties include teaching, spreading the faith, church governance, supervision of religious orders, or supervision of participation in religious ritual or worship. The Church argued that, as a Roman Catholic Church, music is an integral part of its worship, and thus the organist was a minister of the Church. The Court reiterated that the ministerial exception applies only to ministers, and whether someone is a minister requires an evaluation of the person’s actual functions within the church. Examining the Complaint, the Court held that no mention was made of the organist being responsible for any ministerial function, and that the Trial Court should not have granted the Church’s preliminary objections.
Any questions regarding this case may be directed to Corey J. Adamson at 717-255-7639 or cadamson@tthlaw.com.
Boatin v. Miller
2008 PA Super 188
Decided August 14, 2008
A Court of Common Pleas cannot refuse to treat a Petition to Open Default Judgment as filed because it does not comply with local rules of court, when it is in conformance with the Pennsylvania Rules of Civil Procedure.
Background: After default judgment was entered against them in the Trial Court (Dauphin County), the owners of a taxi company petitioned to open the default judgment. The form of the petition did not comply with local rules of court requiring a distribution list upon any proposed order, and the Trial Court issued a “non-entertaining order.” After filing another petition that did comply with the local rules, the Trial Court denied the petition as it was untimely filed and failed to state a reasonable excuse for the default. The owners appealed.
Outcome: The Superior Court reversed, holding that where a petition to open a default judgment is filed within ten days of the judgment being entered and stated a meritorious defense, the requirements of the Pennsylvania Rules of Civil Procedure regarding opening default judgments were satisfied, and the Trial Court could not refuse to accept the petition for filing, despite the fact that it did not fully comply with local rules. The Court posited that pursuant to the Pennsylvania Rules of Civil Procedure, pleadings or other papers that satisfy statewide filing rules (i.e., the Pennsylvania rules) must be accepted for filing, regardless of any local rule that is not satisfied. As the first (non-entertained) petition was filed within ten days of the entry of judgment, it was presupposed, pursuant to the Pennsylvania Rules of Civil Procedure, that it was promptly filed.
Any questions regarding this case may be directed to Corey J. Adamson at 717-255-7639 or cadamson@tthlaw.com.
Hoffa v. Bimes and Quakertown Veterinary Clinic, PC
2008 Pa.Super. 181
Decided August 7, 2008
Holding: The Veterinary Immunity Act barred any claim against a veterinarian save those grounded in gross negligence where the veterinarian was providing emergency care in a life threatening situation.
Background: A horse that was brought to a veterinary clinic by a training facility received emergency treatment from two veterinarians, and the owner was initially unavailable to discuss treatment. Dr. Bimes performed an abdominal tap, which unfortunately pierced the horse’s small intestine and caused an infection which may have contributed to the horse’s death over one year later. Although both parties stipulated that an “emergency situation” existed at the time of treatment, they disputed whether the care given was “emergency care” within the meaning of the Veterinary Immunity Act. The Trial Court granted a compulsory non-suit in favor of Dr. Bimes and the veterinary clinic. Plaintiff owner appealed.
Outcome: The Superior Court affirmed the Trial Court’s decision, interpreting the term “emergency care” in the Veterinary Immunity Act as veterinary care given in “emergency, life-threatening situations” where the veterinarian obtains information through examination or other means in order to make medically sound decisions regarding treatment. Therefore, given the emergency situation, the Veterinary Immunity Act barred the claims against veterinarians except those based upon gross negligence.
Any questions regarding this case can be directed to Anne Kulesa at 610-332-7027 (akulesa@tthlaw.com).
Dahl v. Ameriquest Mortgage Company
2008 Pa.Super. 142
Decided July 1, 2008.
Holding: Under the Real Estate Settlement Procedures Act (RESPA), a closing and escrow agent was not a “servicer” of a mortgage because the company did not receive scheduled periodic payments from the borrower, but simply disbursed funds from the real estate closing.
Background: Randolph Dahl entered into a mortgage agreement with Ameriquest which subsequently hired NREIS to be the closing and escrow agent on Ameriquest’s behalf and to receive and distribute the mortgage proceeds. One of NREIS’s duties was to make the initial payment for hazard insurance to Comprehensive Insurance Services. However, the insurance was never purchased, the Dahl’s home suffered damage from a wind storm and the Dahls subsequently brought an action against Ameriquest and NREIS asserting claims under RESPA. The Trial Court subsequently dismissed the Dahl’s RESPA claims against both Ameriquest and NREIS, holding that NREIS was not a “servicer” of the mortgage as defined by RESPA and that the settlement escrow account created to make payment of hazard insurance was not covered by RESPA.
Outcome: On appeal, the Superior Court upheld the decision of the Trial Court First, the Court held that NREIS was not a “servicer” of the mortgage under RESPA because the definition of “servicing” under the Act means receiving “scheduled periodic payments” from a borrower pursuant to the terms of a loan. The Court determined that NREIS simply received and made payments for purposes of closing and settlement of the real estate transaction and, therefore, the payments were not “periodic”. Thus, disbursement of one payment for hazard insurance did not constitute “servicing” under the plain language of RESPA. The Court further held that the settlement escrow account was also not covered by RESPA, because it did not meet the statutory definition of an escrow account in that it was not established or controlled by a “servicer”.
Any questions regarding this case can be directed to Gordon Einhorn at (717) 441-7054 (geinhorn@tthlaw.com).
Moyer v. Teledyne Continental Motors, Inc., et al.
2008 Pa. Super 194
Decided August 20, 2008
Holding: An airplane service bulletin is not the legal equivalent to an instruction manual, nor is it a replacement part. Therefore, it does not create an exception to the 18-year statute of repose created by GARA (General Aviation Revitalization Act of 1994).
Background: The Moyers were killed when their single engine airplane crashed on an island in the Delaware River during an emergency landing. The plane had suffered a loss of engine power and was unable to reach the local airport. Causation was assigned to the failure of a repair weld in the plane’s replacement crankcase.
GARA’s statute of repose runs 18 years from the date of delivery of the aircraft to its first purchaser and authorizes suit against the manufacturer of the aircraft, component, system, subassembly, or other part. The aircraft at issue was delivered in 1982, while the accident occurred in 2003, well beyond the 18 year statute. Appellants argued that the issuance of a 1990 service bulletin, authorizing the welding of crankcases, should be excepted from the statute of repose. Flight manuals are considered a “part” of the aircraft for purposes of GARA’s statute of repose as they are necessary for the operation of the aircraft and inseparable from it. The Trial Court granted Defendants’ motions for summary judgment.
Outcome: In affirming, the Superior Court of Pennsylvania held that there is no authority for the proposition that service bulletins are equivalent to flight manuals and that none of the exceptions to GARA’s statute of repose applied. The Court also noted that service bulletins are issued on a continuing basis, and agreed with the Trial Court’s finding that “it was not the service bulletin that failed but the crankcase.”
If you have any questions, or wish to discuss this case, please contact Joseph F. Kulesa at (610) 332-7009 or jkulesa@tthlaw.com
Brethren Mutual v. Triboski-Gray
2008 U.S. Dist. LEXIS 53850 (M.D. Pa.)
Decided: July 10, 2008
Holding: The insured’s signature on an application for auto insurance coverage does not constitute a “request in writing” for reduced UM/UIM limits pursuant to Section 1734 of the MVFRL.
Background: In conjunction with the acquisition of a vehicle by Anne Triboski-Gray, she obtained insurance through a broker who placed the coverage with Brethren Mutual. According to the signed application, Ms. Triboski-Gray secured a policy with $250,000 in liability limits but reduced limits of $35,000 in UM/UIM. The UM/UIM limits were stated on page one of the application and the signature was on page two.
The year after she signed the application, Ms. Triboski-Gray was injured in an accident. Brethren tendered $35,000 in UIM benefits. Triboski-Gray maintained she was entitled to $250,000 because she had not made a “written request” for reduced UM/UIM limits as is required by Section 1734 of the Motor Vehicle Financial Responsibility Law (MVFRL). Brethren contended that the insured’s signature on the application satisfied the statutory requirement.
Holding: The District Court held that Triboski-Gray had not made a valid written request for reduced limits. Even though Section 1734 had been repeatedly held to require no particular form of writing, the Court ruled that the signature on the application (which was partially filled out by the agent) fell short of an express designation of lower limits by the insured.
Any questions regarding this case can be directed to Kevin McNamara at 717-237-7132 or kmcnamara@tthlaw.com.
Lane v. PennDOT, et al.
2008 Pa.Super. 157
Decided July 17, 2008
Holding: A subcontractor’s indemnification obligation does not extend to injuries or claims that are unrelated to that subcontractor’s work, unless the contract specifically provides otherwise.
Background: A bicyclist traveling through a public park sustained injuries when he struck a steel reinforcement bar that partially protruded onto the path. The Contractor sought indemnification from a subcontractor for the claimed injuries. The Trial Court determined that the Contractor was 100% negligent and that the Subcontractor was not negligent. The Court severed the indemnification claim and separately found that the indemnification clause did not apply to damages incurred due to the Contractor’s negligence. The Contractor appealed.
Outcome: The Superior Court affirmed, applying the Perry-Ruzzi principle. Although the parties could have contracted for the Subcontractor to indemnify the Contractor for the Contractor’s own negligence, the contract did not so provide. The indemnification clause at issue provided that the Subcontractor was to indemnify the Contractor for any damages incurred “in connection with the performance of this Subcontract and any work performed hereunder.” As the Trial Court determined that the accident in question did not relate to the Subcontractor’s work, the Superior Court held that the contractor could not recover for its own negligence.
Any questions regarding this case can be directed to Anne Kulesa at 610-332-7027 (akulesa@tthlaw.com).
Dental Care Assoc., Inc. v. Keller Engineers, Inc.
2008 Pa. Super. 143
Decided: July 2, 2008
Holding: A Judgment of Non Pros is affirmed where the complaint alleged that an unlicensed engineer breached a duty to use the degree of knowledge, skill and judgment ordinarily possessed and used by the average engineer in the profession. Such an action required a certificate of merit which was not filed in the case.
Background:
Keller provided professional engineering services for the construction of a new dental office, including a site plan and storm water management system. After construction, problems developed with the design of the water management system. Keller agreed to submit a proposed redesign, quoted by a contractor at $26,500, which Keller agreed to pay. The contractor then revised its bid to $39,005.75, which Keller refused to pay, unless an independent engineer deemed it justifiable. Dental Care obtained services of an independent engineer who made recommendations for the redesign and a quote of $35,488.00. Keller refused to pay more than $26,500. Dental Care filed a complaint for negligence and unjust enrichment, alleging that Keller had “failed to use the degree of knowledge, skill and judgment ordinarily possessed and used by the average engineer in the profession.” Keller answered that it had used the appropriate standard of care. After Keller obtained a judgment for non pros, Dental Care appealed on the basis that Keller did not have a professional license; the complaint alleged ordinary negligence; and Dental Care was not required to file a certificate of merit.
Holding: Although the Pennsylvania Rules of Civil Procedure require a certificate of merit for a “licensed professional”, the Superior Court holds that Keller, a Pennsylvania corporation engaged in the business of providing engineering services, qualifies as a “licensed professional" for the purposes of the certificate of merit provisions under Rule 1042.1(b)(1)(vi). The Court concludes that Dental Care’s causes of action are inextricably intertwined with the propriety of assessing the professional engineering services provided in the storm water management plan and civil design of the Dental Care property.
Any questions regarding this case can be directed to Paul Walker at 717-441-7061 (pwalker@tthlaw.com).
Haas v. Four Seasons Campground, Inc.
2008 Pa. Super.136
Decided June 26, 2008
Holding: A non-resident party’s website does not expose that party to jurisdiction in Pennsylvania unless that website is interactive, directed at Pennsylvanians, and generates a significant revenue stream from those interactions.
Background: Four Seasons Campground is a New Jersey corporation which rents campground spaces and cabins in southern New Jersey. Appellees viewed the website then, because the website did not allow online seasonal contract purchases, drove to New Jersey and signed a seasonal contract for a campsite. Mr. Haas was injured when a tree branch fell at the campsite, striking him on the head. At issue was whether Four Seasons’ website was sufficient to confer jurisdiction pursuant to Pennsylvania’s Long-Arm Statute.
Outcome: In affirming the Trial Court ruling, the Superior Court held that the Appellee’s website was “minimally interactive.” The Court noted that the campground did not have agents in Pennsylvania, was not registered to do business in Pennsylvania, paid no Pennsylvania taxes, and had no assets in Pennsylvania. Further, the website at issue was not directed specifically at Pennsylvania residents. Four Seasons’ website only allowed users to input information regarding reservation requests. It did not permit users to engage in “shopping at a virtual retail store,” and did not constitute the minimum contacts necessary to expose Four Seasons to personal jurisdiction in Pennsylvania.
If you have any questions, or wish to discuss this case, please contact Joseph F. Kulesa at (610) 332-7009 or jkulesa@tthlaw.com
State Auto v. Pro Design
2008 U.S. Dist. LEXIS 46908 (M.D. Pa.)
Decided: June 17, 2008
Holding: In post-Sackett opinion, District Court holds that the addition of a second vehicle to a single vehicle policy does constitute a “purchase” of coverage for which a new stacking waiver is required.
Background: The insured acquired a single vehicle commercial policy in 2001 and signed a stacking waiver. The insured then added additional vehicles in 2004 and 2005. State Auto did not obtain a waiver after the second and third vehicles were added and did not charge a premium for stacked coverage on the grounds that the original stacking waiver applied to subsequently acquired vehicles.
In 2006, the insureds were involved in an accident and demanded stacked coverage on the grounds that they had purchased new coverage in 2004 and again in 2005 when they converted their single vehicle policy to a multi-vehicle policy. They argued that a waiver of stacking on a policy that originally covered only a single vehicle was meaningless.
Outcome: The District Court agreed with the insureds basing its decision on the conclusion that a “purchase” of coverage occurred when the insureds’ policy went from insuring a single vehicle to multiple vehicles. This decision does not address the potential impact of inter-policy stacking because the issue was not raised nor does it address whether the “purchase” of coverage occurred immediately upon the addition of a second car to the policy or whether the “purchase” occurred when the policy came up for renewal.
Any questions regarding this case can be directed to Kevin McNamara at 717-237-7132 or kmcnamara@tthlaw.com.
Preferred Fire Protection, Inc., v. Joseph Davis, Inc., and Liberty Mutual Ins. Co.
2008 Pa.Super. 162
Decided July 23, 2008
Holding: Under the Bond Law, the one year statute of limitations starts to run when work is completed, and what constitutes “work” is for the jury’s determination .
Background: Preferred was the subcontractor responsible for the installation of a fire protection sprinkler system. Preferred performed all the contracted for installation work, including application for the permit on the sprinkler system from the City of Pittsburgh, which application form indicated that Preferred was responsible for scheduling a final inspection by the Building Inspector. The contractor failed to pay Preferred in full, and Preferred eventually filed suit against the contractor and the commercial surety that had posted a Labor and Materialmen’s Payment Bond. The surety filed a Motion for Summary Judgment on the grounds that the claim was time-barred under Section 194 of the Public Works Contractors’ Bond Law, 8 P.S. § 194(a), and Centre Concrete Co. v. AGI, Inc., 559 A.2d 516 (Pa. 1989) which was granted by the Trial Court..
Outcome: The Superior Court reversed summary judgment. The Court held that, for the purposes of determining whether a claim was time-barred under the Bond Law, that is whether “work” was performed at the re-inspection and re-testing more than 1.5 years after the initial installation, was a genuine issue of material fact to be determined by a fact-finder and not appropriate for summary judgment.
Any questions regarding this case can be directed to Anne Kulesa at 610-332-7027 (akulesa@tthlaw.com).
Quinn v. Bupp
2008 PA Super 161
Decided July 21, 2008
Holding: In a breach of contract action involving the sale of real estate, recovery of lost profits is permissible, while recovery of losses due to increased mortgage rates is not.
Background: Plaintiff/buyer instituted a breach of contract action against Defendant/seller after the seller refused to sell him certain property. In a bench trial, the Trial Court found for buyer, and awarded him specific performance. The Court, however, denied buyer’s request for additional consequential damages for: 1) his increased borrowing costs due to an increase in mortgage interest rate; and 2) loss of profits from the income generated by the commercial properties. The buyer appealed, alleging he was entitled to the aforementioned damages.
Outcome: The Superior Court, applying Pennsylvania general contract principles, noted that in order to recover consequential damages, said damages must have been reasonably foreseeable and within the contemplation of the parties at the time of contracting and must be capable of being proved with reasonable certainty. Using this analysis, the Court held that the buyer was entitled to damages for lost profits, but not for losses sustained by fluxuating mortgage rates. More specifically, the Court determined that changes in interest rates, while foreseeable, are not capable of being proven with reasonable certainty. This is contrasted with loss of profit, which is both foreseeable and can be proven with reasonable certainty. The case was remanded to the Trial Court for a hearing on damages.
Any questions regarding this case can be directed to Jason Giurintano at 717-237-7157 or jgiurintano@tthlaw.com.
Ford Motor Co. v. Buseman
2008 Pa. Super. 146
Decided: July 7, 2008
Holding: Absent fraud, accident or mutual mistake, a release that discharges all claims and parties is applicable even to tortfeasors who did not contribute toward settlement.
Background: Buseman filed suit against Ford and a dealership arising out of the rollover of a Ford Explorer. Ford filed a motion for summary judgment on the basis that Buseman had previously filed suit against the driver of the Explorer which had settled. Two releases by Buseman were submitted in support of the motion: the first release was for Buseman’s own insurer; the second release was to the driver’s insurer. The releases extended to the driver, and “all other persons, firms or corporations.” Ford argued that the releases also release Ford. Busman argued that it was never her intention to release anyone other than the driver and the insurers. The Trial Court denied the motion, and Ford appealed.
Outcome: On appeal, Ford contended that: 1) the language of the releases is unambiguous; 2) there is no evidence of fraud, accident, or mutual mistake; and 3) the unilateral claim of mistake and/or the lack of intention to release Ford when the releases were signed is not a viable defense to the entry of summary judgment. The Court reviews the actual language of the releases: "[the driver]...and all other persons, firms or corporations of and from any and every claim, demand, right or cause of action, of whatever kind of nature, on account of or in any way growing out of any and all personal injuries and consequences thereof...."; and "[the driver],...and all other persons, firms or corporations liable or, who might be, claimed to be liable, none of whom admit any liability to the undersigned...." The Superior Court holds that the language in the releases at issue is unambiguous, clear, broad in scope and extinguishes all claims against all tortfeasors, whether previously sued or not, and even where other tortfeasors had not participated in the settlement. The Court distinguishes other cases that had limiting language in the release. Further, there is no allegation of actual fraud or accident; a unilateral mistake is insufficient.
Any questions regarding this case can be directed to Paul Walker at 717-441-7061 (pwalker@tthlaw.com).
Government Employees Insurance Co. v. Ayers
2008 Pa.Super. 193
Decided August 18, 2008
Holding: A specific household vehicle exclusion was enforceable in an Underinsured Motorist Coverage provision of a policy as it was a narrow exception and violated neither the Motor Vehicle Financial Responsibility Law nor public policy.
Background: Plaintiff was struck from behind while riding his motorcycle, and the vehicle that struck his motorcycle then rolled over his body, which was no longer on the motorcycle. Although these incidents are related, they were considered two separate accidents for the purposes of this case. Plaintiff had separate motorcycle and pick-up truck policies, both of which contained a “household vehicle exclusion.” The exclusion barred coverage for bodily injury "while occupying or from being struck by a vehicle owned or leased by you or a relative that is not insured for Underinsured Motorist Coverage under this policy" (emphasis added). GEICO declined to stack Plaintiff's UIM policies for incident (1) under the household vehicle exclusion, as Plaintiff was "occupying" the motorcycle at that time. GEICO argued that the exclusion specifically barred coverage for bodily injury that occurred while the policyholder was occupying a vehicle owned by him that was not covered by that specific policy, and the motorcycle was not covered by the pick-up truck policy. The Trial Court denied GEICO’s motion for summary judgment and granted the Plaintiff’s motion for summary judgment, finding that any ambiguity in the contract must be resolved against GEICO. GEICO appealed.
Outcome: The Superior Court held that the “household vehicle exclusion” to UIM stacking was a narrow exception and violated neither the Motor Vehicle Financial Responsibility Law nor public policy. Thus, the exception was enforceable, and the insured was precluded from stacking the two policies for the first incident. The policies were stacked for the second incident, as the policyholder no longer occupied the motorcycle when the vehicle rolled over him.
Any questions regarding this case can be directed to Anne Kulesa at 610-332-7027 (akulesa@tthlaw.com).
Underwood v. Wind
2008 PA Super 158
Decided July 18, 2008
Holding: A landlord may only be held liable for injuries caused by a tenant's pet if it is proven the landlord knew of the presence of that pet and of that pet's violent propensities.
Background: Plaintiffs were attacked by two pit bulls which escaped from their owner’s apartment. Plaintiffs sued both the tenant/dog owner and the tenant’s out-of-possession landlord under theories of negligence and negligence per se. At trial, there was a dispute over whether the out-of-possession landlord was aware of the presence of dogs on the property. The judge instructed the jury that the landlord could be liable if she "knows, or should have known, of the presence of a dangerous animal." A jury found in favor of Plaintiff against both the landlord and tenant (an aggregate award of $260,870.40.). Landlord appealed based upon faulty jury instructions.
Outcome: The Court held that under existing Pennsylvania law, a landlord may be held liable for injuries caused by a tenant's pet only if it is proven that she knows of the presence of that pet and knows of that pet's violent propensities. The "should have known" language in the jury instruction was a misstatement of the law by the Trial Court. The case was remanded for a new trial as to the landlord only.
Any questions regarding this case can be directed to Jason Giurintano at 717-237-7157 or jgiurintano@tthlaw.com.
MARYLAND CASE UPDATES
Grady v. Brown
___ Md. App. ___
(Filed June 30, 2008)
This is a case which was brought in the Circuit Court for Baltimore City as a result of a motor vehicle accident. Both parties agreed that the case would be tried to a jury solely on liability and that if the Plaintiff would prevail, a judgment of $50,000.00 would be entered against the Defendant. The jury was given a special verdict sheet which had two questions, the first was whether or not the Defendant was negligent and the second was whether or not the Plaintiff was contributorily negligent. After a denial of the Motion for Judgment, the jury received the case and returned the verdict sheet indicating that the Defendant was not negligent. The Plaintiff argued that in this Boulevard Rule case, a motion should have been granted in favor of the Plaintiff who was lawfully on the Boulevard. However, the Defendant’s testimony was that although he proceeded towards the Boulevard, he stopped in the shield of parked vehicles. His contention was that at no time did he enter into the travel portion of the lane. The Court Ruled that the purpose of the Boulevard Rule is to facilitate the free flow of traffic on major fairways by preventing interruptions or delays and ensuring the safety of the drivers there on. By not pulling in to the travel lane, the Defendant did not violate the Boulevard Rule and therefore a denial of the Motion for Judgment was proper.
Any questions regarding this case can be directed to Michael Burgoyne at (410) 752-0075 or mburgoyne@tthlaw.com.
Hill Construction v. Sunrise Beach, LLC
___ Md. App. ___
(Filed July 2, 2008)
A Maryland Corporation, Hill Construction, Inc. filed suit in the Circuit Court against the Defendants with regard to a condominium project. The Circuit Court dismissed the Complaint due to the fact that the Plaintiff Corporation had its corporate charter forfeited and thus had no standing to maintain the lawsuit. The Plaintiff then noted an appeal and that appeal was dismissed due to the fact that at the time the appeal was noted, the charter was still forfeited. The Corporation argued that a dismissal was not proper because they had revived their charter during the pendency of the appeal. However, the Maryland Court of Special Appeals held that the revival did not relate back to cure the loss of a right divested during the time that the charter was forfeited.
Any questions regarding this case can be directed to Michael Burgoyne at (410) 752-0075 or mburgoyne@tthlaw.com.