eNotes: Liability – August 2023 – Pennsylvania
August 01, 2023
SIGNIFICANT CASE SUMMARIES
Pennsylvania Case Summaries
Allegheny County v. Hailer
Pennsylvania Commonwealth Court
No. 1469 C.D. 2021
Decided: July 11, 2023
Autopsy and toxicology records, while generally exempt from public disclosure under the Right-to-Know Law (“RTKL”), may be accessed if the provisions of the RTKL conflict with federal or state law.
Brittany Hailer and Pittsburgh Current (“Requestors”) submitted a RTKL request (“Request”) to obtain the “Autopsy/External Examination and Toxicology Report for Daniel A. Pastorek,” who died while in the custody of the Allegheny County Jail. Pursuant to the RTKL, records in the possession of a Commonwealth agency are presumed to be public, unless they are exempt under Section 708 of the RTKL, protected by privilege, or exempt under any other federal or state law, regulation, order or decree. See 65 P.S. § 67.305. Section 708 exempts access to a coroner’s autopsy records, but permits the release of the deceased person’s name and the cause and manner of his death. See 65 P.S. § 67.708(b)(2). However, Section 305 of the RTKL indicates that the RTKL “shall not apply” when any of its provisions regarding access conflict with any other federal or state law. See 65 P.S. § 67.305. In response to the Request, and pursuant to Section 708(b)(20) of the RTKL, the County provided the cause and manner of Mr. Pastorek’s death, but denied production of the requested materials. Relying on Section 305, and citing Section 1252-B of the Coroner’s Act of Allegheny County, which mandates that the coroner shall charge and collect a fee for an autopsy report and a toxicology report whenever they are requested by nongovernmental agencies to investigate a claim asserted under a policy of insurance, or to determine liability for the death of a deceased, as a provision in conflict with the RTKL, the Requestors appealed to the Pennsylvania Office of Open Records (“OOR”). The OOR granted their appeal and concluded that the records were accessible upon payment of an appropriate fee pursuant to the Coroner’s Act. The OOR directed the County to produce the records.
Allegheny County filed a Petition for Review with the Trial Court, arguing that the requested records were exempt from disclosure under Section 708(b)(20) of the RTKL, and adding that the language in the Coroner’s Act permitting disclosure did not apply. In support of Requestors’ position, Hailer, an investigative reporter, submitted an Affidavit indicating that the Request was filed as part of her research into whether conditions at the County Jail contributed to Mr. Pastorek’s death. The Trial Court reversed the OOR, construing the language of the Coroner’s Act to require a coroner to exercise discretion in determining whether anyone seeking records was a “nongovernmental agency” seeking to “determine liability for the death of the deceased” indicating that otherwise, anyone “with good cause” would be entitled to access information about a death. It found that Hailer’s journalistic research did not implicate the legal process of determining liability for Mr. Pastorek’s death. Requestors appealed to the Commonwealth Court.
The Commonwealth Court reversed and directed Allegheny County to produce records responsive to the request. The Court found the language of Section 1252-B of the Coroner’s Act was plain and unambiguous and was simply a fee schedule that established costs to be collected for the production of coroner records when requested by various entities. It did not limit the receipt of coroner records to nongovernmental agencies seeking records for the purpose of investigating insurance claims or determining liability for the death of a decedent. Rather, it required that the coroner shall “charge and collect” fees for requests relating to those discrete types of inquiries.
Questions about this case can be directed to Julia Morrison at (717) 441-7056 or firstname.lastname@example.org.
Hinerman v. Westmoreland County Airport Auth.
Pennsylvania Commonwealth Court
No. 732 C.D. 2022
Decided: June 15, 2023
Intentionally failing to attend compulsory arbitration due to a mistaken belief as to jurisdiction was not a legitimate excuse to open judgment of non pros.
Plaintiffs filed a civil action seeking a jury trial for damages for a trip and fall on a snow-covered unimproved patch of land at the Airport Authority (“Authority”). Plaintiffs were traversing a parking lot looking for a rental car. Despite determining that the car they were seeking was in an adjacent lot, accessed by a cleared, paved walkway, Plaintiffs elected to take a short cut across a snow-covered patch between the lots, not intended for pedestrian traffic. Wife Plaintiff fell in a hole in the ground which was obscured by snow and sustained injury. Plaintiffs claimed that as business invitees, the Authority had a duty to inspect for, and repair, or at least warn of, such a dangerous condition. The Trial Court entered summary judgment in favor of the Authority, determining that the Authority owed no duty relative to conditions which may have existed in an unimproved shortcut that Plaintiffs elected to take.
On appeal, Plaintiffs argued error claiming that genuine issues of material fact existed as to whether the condition was open and obvious. The Commonwealth Court observed that the Authority maintained a pedestrian walkway in the midst of snowy conditions, which the Plaintiffs acknowledged was clear of snow. The Plaintiffs elected to forego the cleared walkway for a shortcut across a snow-covered, unimproved area that had not been intended for pedestrian use. By walking across that area, Plaintiffs accepted the risk that the underlying ground would be less than optimally suitable for walking upon. The Court affirmed the order of judgment.
The Court affirmed the judgment in favor of Defendant. The Trial Court did not abuse its discretion when it determined that the Defendant owed no duty to the Plaintiffs who chose to walk in an area not intended for pedestrian use.
Questions about this case can be directed to James F. Swartz, III at (610) 332-7028 or email@example.com.
Isaac’s at Spring Ridge, LLP v. MMG Ins. Co.
Pennsylvania Superior Court
No. 455 MDA 2021
Decided: June 20, 2023
Interpretation of an insurance contract should give effect to all of its terms. Here, a policy endorsement did not invalidate the policy’s virus exclusion, which precluded coverage for business interruption loss caused by COVID-19.
This case, handled for the defense by Kevin McNamara of Thomas, Thomas & Hafer, arises out of the COVID-19 pandemic and the emergency declaration issued by Governor Wolf on March 6, 2020. Issac’s at Spring Ridge is a deli and restaurant in Wyomissing, Pennsylvania. It purchased a standard business owner’s insurance policy through MMG Insurance Company. On March 6, 2020, as part of the emergency declaration, all in-person bars and restaurants were closed. Issac’s made a claim with MMG for their pandemic related business income interruption losses. MMG denied the claim based on the “virus exclusion” contained in the policy as well as the fact that COVID-19 does not cause physical loss or damage to property.
Issac’s did not dispute that the virus exclusion barred coverage for their claim. However, they had also purchased a coverage endorsement which provided additional coverage and additional limits and did not specifically exclude coverage for losses arising out of viruses or bacteria. They argued that the coverage endorsement superseded the “virus exclusion” and their claim should have been covered. The Trial Court found that the endorsement could only enhance coverage which already existed. As the Court found there was no coverage for losses relating to viruses or bacteria, the endorsement did not override the policy’s “virus exclusion”. Issac’s appealed.
The Superior Court, in a non-precedential opinion, affirmed the Trial Court. The Court discussed the general principals of interpreting an insurance contract, namely that all the terms of the policy are to be given effect to the extent possible, with no terms to be treated as surplusage. Here, the clear language of the policy’s “virus exclusion” precluded coverage for COVID-19 related losses. To the extent Issac’s bought additional coverage, through a policy endorsement, that endorsement specifically stated that it did not delete exclusions in the policy unless done so explicitly. The endorsement was silent about the virus exclusion, so to strike it would render the virus exclusion surplusage. The Superior Court also noted that the policy’s requirement that claims must arise out of a direct physical loss would have precluded the claims even without a virus exclusion.
Cardinal Midstream II, LLC v. Energy Transfer LP
Pennsylvania Superior Court
2023 Pa. Super. 84
Decided: May 16, 2023
Expert reports required to be produced in response to a government directive are not privileged work product.
Several government agencies mandated that a pipeline construction company retain experts to investigate the cause of a pipeline explosion that caused significant property damage. During a separate legal proceeding, a trial court ordered production of these expert engineering reports. The pipeline construction company appealed the Trial Court’s Order, arguing, among other things, that the reports were privileged work product
Given that the engineering expert reports were prepared in response to a government directive, and not in anticipation of litigation, they were not privileged work product under Pa.R.Civ.P. 4003.5(a)(3). Accordingly, the Trial Court’s Order compelling the production of the reports was affirmed.
Questions about this case can be directed to Brook Dirlam at (412) 926-1438 or firstname.lastname@example.org.
Rouse v. Rosenberg
Pennsylvania Superior Court
2023 Pa. Super. 83
Decided: May 15, 2023
Superior Court reaffirms that Pennsylvania only permits recovery for the intentional or wanton mishandling of a dead body under Section 868 of the First Restatement of Torts. The Court declined Plaintiff’s request to expand the tort of interference with a dead body to include negligent conduct.
The incident underlying this case concerns the murder of Christian Moore-Rouse by Adam Rosenberg. On December 21, 2019, Adam shot Christian in back of a head with a .9 mm handgun and disposed of his body in a nearby park. Christian was reported missing by his family. It is alleged that in the weeks following the murder, Kimberly and Howard Rosenberg came into possession of the .9 mm handgun. It is alleged that they Rosenbergs either knew or suspected that their son was responsible for Christian’s disappearance. Rather than turning the weapon into police, the Rosenbergs gave it to their marriage counselor Martha Laux. After receiving the weapon, Ms. Laux turned it into the police but she lied and said she had found it while walking her dog in a park. Christian’s body was not discovered until approximately two months later.
Christian’s mother, T. Lee Rouse (“Plaintiff”), filed suit against the Rosenbergs and their marriage counsel, alleging that their actions delayed the discovery of her son’s body, which caused her severe emotional distress. Plaintiff asserted a claim for the negligent interference with a dead body under Section 868 of the Second Restatement of Torts. Plaintiff also asserted an alternative claim for the intentional interference with a dead body under Section 868 of the First Restatement of Torts.
The Court held that Plaintiff was not permitted to assert a claim for the negligent interference with a dead body because Pennsylvania has not yet adopted the revised and expanded version of Section 868 as contained within the Second Restatement of Torts. The Court declined Plaintiff’s request to expand the tort to include the negligent conduct and noted that any such expansion must be by the Supreme Court. Accordingly, Plaintiff was restricted to asserting a claim for the wanton or intentional conduct in accordance with Section 868 of the First Restatement of Torts. However, Plaintiff failed to state such a claim because the Complaint did not contain facts to suggest that the Defendants acted with intent or that they ever had possession or control over the body.
Questions about this case can be directed to Danielle Vols at (570) 825-6890 or email@example.com.