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					        Volume 14, No. 3




Chair
        Civil Litigation
           Section                                            Civil Litigation
      Katherine Van Buskirk Oliver

Chair-Elect
      Joanna E. Tibbels
Vice Chair
                                                                      Update                                                   Summer 2009
      Steven F. Baicker-McKee
Secretary                                             Section Salutes Outgoing Chair
      Amy L. Groff
Treasurer                                             and Welcomes New Chair
      Gary J. Shapira
Immediate Past Chair                                  Message from the Incoming Chair
      David R. Fine                                   By Katherine V. Oliver


                                                      I
Newsletter Editor                                          have enjoyed the privilege of serving as    Section’s mission,
      Bridget M. Gillespie                                 an officer of the Civil Litigation Section   and I look forward
PBA Newsletter Liaison                                     Council over the past several years, and    to carrying on that
                                                      it is with a sense of honor and responsibility   tradition.
      Tina Schreiber
                                                      that I take on the role as Section chair.             We         are
PBA Staff Liaison                                     The PBA Civil Litigation Section’s               fortunate to have
      Michael Shatto                                  mission has as its primary focus the study,      a strong and active
                                                      development and advancement of law and           Section Council, Katherine V. Oliver
               Contents                               procedures related to civil litigation, and      comprised        of
                                                      the improvement of justice through these         members with diverse personal and
From the Incoming Chair ...............1              mechanisms. Our past Section chairs have         professional backgrounds, talents and
                                                      significantly contributed to fulfillment of our                       CONTINUED ON PAGE 25

From the Outgoing Chair:
Cleaning Our Own House ...............1

Civil Litigation Section                              Message from the Outgoing Chair
Annual Retreat ................................2
                                                      Cleaning Our Own House
The Lindbergh Kidnapping —
Jury Duty.........................................4
                                                      By David R. Fine



                                                      W
From the Editor:                                                   e engage in a bit of fiction about   number succeed.
Balancing Act ..................................7                                                      A lot of able
                                                                   judges. No matter what their
                                                                   backgrounds or reputations, once    men and women
Recent Pa. Cases of Note ................8
                                                      they take their oaths and don their robes,       serve in our
Pennsylvania Federal                                  we assume that they will be scrupulously         judiciary, often
Business Decisions........................17          honest, dispassionate, impartial and wise.       foregoing more
                                                      So wed are we to our hopeful fiction that         lucrative private
                                                                                                                               David R. Fine
Legislative Update ........................27         we call them “Honorable” even before they        practices to do
                                                      have a chance to prove they are because we       so.
To submit ideas for articles, please                  trust that they will meet the standard.              Unfortunately, not all judges merit
contact editor Bridget Gillespie                          Fortunately, most judges try to meet         the public trust that comes with the
at (412) 288-4017 or send her an
                                                      those lofty expectations, and a significant                          CONTINUED ON PAGE 25
e-mail at bgillespie@psmn.com.
Civil Litigation Section Retreat — Omni Bedford Springs Resort
By Kathleen Yurchak & Katherine Oliver        trails, a heated, spring-fed indoor pool,   that brought to life this historic hero,
                                              first-class spa amenities, tennis courts,    the tragic events surrounding his
                                              and a restored 18-hole golf course,         son’s kidnapping and death, and the
                                              one of the first to be built in America.     investigation leading to the trial of
                                              In addition to the excellent facilities,    Bruno Hauptmann.
                                              participants were able to stroll                 Throughout       the     weekend,
                                              around and enjoy the past recreated         attendees watched and participated as
                                              as Bedford Springs wears its history        prosecutor David Wilenz (portrayed by
                                              proudly. Above the front desk, there        Malcolm L. Macgregor) and defense
                                              is a vintage 39-star American flag.          counsel Edward Reilly (portrayed by
    Kathleen Yurchak    Katherine V. Oliver   The Crystal Dining Room includes the        Janis L. Wilson) demonstrated various



D
          uring its 200-year history, the     Daniel Webster Room, named for one          trial techniques, including selecting a
          Omni Bedford Springs Resort         of the Resort’s celebrated guests and       jury in a high-profile case, presenting
          has hosted presidents James         the 1796 Room features fine dining           opening       statements,    examining
K. Polk, William Taft and Dwight              in a recreated 18th century ambience.       and      cross-examining     witnesses,
D. Eisenhower; not to mention                 The Frontier Tavern, which appeared         and offering closing arguments.
author Nathaniel Hawthorne, car               to be extremely popular with the            Pennsylvania Supreme Court Justice
manufacturer Henry Ford and at least          attendees, in the past served as a stage    J. Michael Eakin skillfully presided
nine supreme court justices. Taking           coach stopover for travelers.               during the weekend trial, adding
part in a bit of history themselves, over          In keeping with the historical         insightful commentary from the
43 lawyers and their families attended        theme, the CLE program presented by         perspective of the bench over the
the annual retreat hosted by the              the Civil Litigation Section was titled,    course of the presentations.
Pennsylvania Bar Association’s Civil          “A Retrial of the Lindbergh case from            Trial commenced on Friday
Litigation Section on May 1, 2009,            Voir Dire to Verdict.” This fabulous        afternoon with voir dire and selection
at the Omni Bedford Springs Resort            program was set against the backdrop        of a jury from a pool made up of Retreat
located in the Allegheny Mountains            of the 1935 trial of Bruno Richard          attendees. After delivery of opening
in Bedford County. The historical             Hauptmann for the kidnapping                statements, program presenters gave
ambience of the resort combined               and murder of the Lindbergh baby.           outstanding performances focused
perfectly with a fascinating period-          Masterful        performances       were    on the challenges confronted by
piece seminar masterfully presented           delivered by a cast comprised of            trial lawyers just as much today as
by the members of the Civil Litigation        Section council members, who                in the era of the 1935 Lindbergh
Section.                                      brought to life the sad story of Charles    trial, demonstrating techniques for
    The Resort, sections of which date        Lindbergh’s baby, kidnapped and             examination of: the sympathetic
back to 1806, reopened two years ago          murdered at the height of America’s         witness, (Colonel Charles Lindbergh,
after extensive renovations. Located          love affair with its aviator hero.          portrayed by Sean Sullivan); the
on more than 2,200 scenic acres, it is             Pulitzer Prize winner A. Scott         problematic witness (Col. H. Norman
easy to see why past U.S. presidents          Berg helped set the stage on Friday         Schwarzkopf Sr., portrayed by Stan
were drawn to the place as their              evening following a cocktail reception      Parker); the overly-eager witness (Dr.
summer White House. Participants in           and fabulous dinner at the Resort.          John Condon, portrayed by Marvin
the Annual Retreat were able to enjoy         Mr. Berg shared the captivating life        Wilenzik); and the accused (Bruno
over 25 miles of hiking and biking            story of Charles Lindbergh through          Richard Hauptmann, portrayed by
                                              inside details and actual film footage       Gary Shapira). The program also
                                                                                          highlighted techniques for examination
Kathleen V. Yurchak, Esq. is a shareholder in Goodall & Yurchak, P.C. in State            of expert witnesses through a special
College, PA., where she has a general litigation practice. She can be reached at          appearance by expert witness Michele
yurchak@centrelaw.com.                                                                    Dresbold, who has been referred to as
                                                                                          the “Sherlock Holmes of handwriting
Katherine V. Oliver, Esq. is chair of the PBA's Civil Litigation Section and a            analysis.” Having been trained in the
partner in the State College office of McQuaide, Blasko, Fleming & Faulkner,               United States Secret Service’s Advance
Inc., concentrating on insurance and general litigation. She can be reached at            Document Examination training
kvoliver@mqblaw.com.                                                                                         CONTINUED ON PAGE 3

2       Civil Litigation Update
Photos courtesy of Barbara Shapira




                                                     Janis Wilson uses exhibit.                                      Gary Shapira, as defendant, testifies in his own defense.




                                                       The jurors listen attentively.                                         Janis Wilson, as defense attorney, makes a
                                                                                                                                  point as Justice Eakin takes notes.




                                      Malcolm MacGregor, as prosecutor,
                                                                                            The cast: first row: David Fine, Malcolm MacGregor, Marvin Wilenzik, Allan K. Marshall,
                                     and Janis Wilson, as defense attorney.
                                                                                                Don Ballentine; Second row: Michelle Dresbold, Janis Wilson and Gary Shapira.

Civil Litigation Retreat —                                                              for the defense. In the testimony                very end of the program, when Ms.
Omni Bedford Springs Resort                                                             elicited for each side of the case, Ms.          Dresbold shared facts, information,
                                                                                        Dresbold testified in an incredibly               and analysis that were perhaps
CONTINUED FROM PAGE 2
                                                                                        persuasive and honest manner,                    unappreciated even at the time of the
program, Ms. Dresbold is considered                                                     providing scientific analysis that                Lindbergh trial.
one of the top experts nationwide on                                                    served as the underpinning of each                   Compelling closing arguments
the subject of handwriting analysis.                                                    case, and highlighting the factors               were presented by both attorneys.
Ms. Dresbold gave outstanding                                                           of emphasis and perspective that                 At the end of the day, and after
performances for both the prosecution                                                   are so fundamental to effective trial            presentation of evidence and argument
and the defense, (donning different                                                     practice. Ms. Dresbold’s integrity               for both sides, the audience observed
colored hats, of course), testifying first                                               while offering testimony on behalf of            deliberations by the jury and the
as the prosecution’s expert regarding                                                   both the prosecution and the defense             thought process leading to the history-
the ransom notes allegedly sent by                                                      left the audience guessing as to what            defying verdict — NOT GUILTY! ■
Hauptmann, and then reappearing                                                         her verdict would have been until the

                                                                                                         PBA Civil Litigation Section Newsletter               Summer 2009           3
The Lindbergh Kidnapping — Jury Duty

By Timothy Logan                                A footprint was found in the mud       allegedly
                                           and light snow below the child’s            committed


T
        he crime had shocked the           window. The police also found a             t h e r e .
        world. Who would dare kidnap       small chisel. The investigation was         Hauptmann
        the only son of the greatest       initially headed by Lindbergh himself       claimed to be
man alive, Charles A. Lindbergh?           and many errors hindered the efforts of     innocent and
This worldwide celebrity had married       the police to identify a suspect. A total   insisted that
millionaire heiress, Anne Morrow           of 14 ransom notes were delivered           the ransom
and they had built a 20-room stone         to the Linberghs, many through the          m o n e y
                                                                                                              Timothy Logan
house in a secluded wooded location        assistance of a Dr. John Condon, a          belonged to a
in central New Jersey. The couple          retired teacher who had placed an           business associate, Isidor Fisch. Mr.
would normally spend the weekends          advertisement in the Bronx Home             Fisch had allegedly left furs and other
in their new home that was still under     News offering to be the go-between for      belongings, including the money, to
construction and then return to the        the Lindberghs and the kidnapper. Dr.       be stored in Mr. Hauptmann’s garage
estate of Mrs. Lindbergh’s parents         Condon even had a meeting with the          while Mr. Fisch returned to Germany
in Englewood, New Jersey. Every            kidnapper in a Bronx cemetery while         for a visit. Mr. Fisch died while in
weekend except this one.                   Charles Lindbergh listened from a           Germany and was never questioned
     Little Charles Jr. had come down      car a distance away. Gold certificates       about Hauptmann’s story.
with a cold and Anne did not want to       with serial numbers that had been                Nearly 70 years later, this small-
expose him to the damp March air,          recorded, were delivered as ransom to       town attorney took advantage of the
so the Lindberghs, along with the          the kidnapper. Dr. Condon was told          opportunity to be on a jury retrying
nanny, Betty Gow, the housekeeper          that the child was in a boat off the        the Lindbergh kidnapping case at the
and her husband were the only ones         Massachusetts coast, but Lindbergh’s        annual retreat for the Civil Litigation
that knew the family would be staying      search by air proved futile.                Section of the Pennsylvania Bar
past Sunday evening. On March 1,                On May 12, 1932, the remains of        Association at the historic Omni
1932, a Tuesday evening, between 8         Charles Jr. were found in the woods a       Bedford Springs Resort. My departure
and 10 p.m., the child was taken from      few miles from the Lindbergh home           for a weekend of education and fun was
his second floor bedroom window. A          when a truck driver went into the           delayed by Law Day ceremonies in
ransom note was left on the windowsill     woods to relieve himself. The child         Greene County where I had presented
that demanded $50,000.00.                  had died of a fractured skull. It was       the portrait of retiring Greene County
     The New Jersey State Police were      speculated that when the rungs to the       President Judge Hon. H. Terry Grimes
called and soon swarms of police,          ladder broke, the child was dropped         that morning. Consequently, I was
newspaper and radio reporters and          by the kidnapper, fracturing his skull.     rushing to get to the opening session
photographers were inspecting every        After the discovery of the child’s body,    where the jury would be selected.
inch of the airman’s estate. The           Col. H. Norman Schwarzkopf took             As a lawyer for 20 years and always
nursery was fingerprinted, but not          complete control of the investigation.      addressing the jury, it intrigued me
one fingerprint was found. A crude               After more than two years, German-     to possibly be a juror. A fascination
wooden ladder made in three sections       born Bruno Richard Hauptmann was            that I never dreamed would happen.
was found in a small copse of trees not    arrested and over $14,000 in gold           Here was my chance! I didn’t want
far from the house. The bottom two         certificates from the ransom money           to be late and miss this opportunity.
rungs were broken. By the time the         was found hidden in his garage.             My wife, Sandy, and I pulled into
ladder was checked for fingerprints, in     Hauptmann was a carpenter by trade,         the magnificent portico of the stately
excess of 400 prints were found from       but he was an illegal immigrant who         Omni Bedford Springs Resort just
the masses of police and press that had    had fled Germany where authorities           minutes before the session began.
descended upon the crime scene.            had sought to arrest him for crimes              Entering the “courtroom,” this
                                                                                       potential juror noted that Pennsylvania
Timothy N. Logan, Esq. is a solo practitioner in Waynesburg, Pa. and serves            Supreme Court Justice J. Michael
clients in Greene, Washington and Fayette counties, as well as, in parts of W.         Eakin was the presiding judge (Hon.
Va. He handles civil litigation matters as well as real estate, probate and estate     Thomas Trenchard at the trial in
planning and business matters.                                                                           CONTINUED ON PAGE 5



4    Civil Litigation Update
The Lindbergh Kidnapping —                 was a carpenter who had the means          handwriting of Bruno Hauptmann
                                           to construct the wooden ladder, that       was a match for the handwriting
Jury Duty
                                           expert testimony would be presented        in the ransom notes. Although not
CONTINUED FROM PAGE 4
                                           to prove that several of the wooden        exactly the same, Mr. Hauptmann’s
1935). Malcolm L. MacGregor, Esq.          slats in the ladder actually came from     handwriting had many similarities to
was the prosecuting attorney (David        Hauptmann’s attic and that testimony       the handwriting in the ransom notes.
T. Wilentz, Esq.) and Janis L. Wilson,     would show that over $14,000 in            Moreover, his German upbringing
Esq. was the attorney for the accused      ransom money was found hidden in           was apparent in the grammar and style
Bruno Richard Hauptmann (Edward            the defendant’s attic and that he had      of the ransom notes.
J. Reilly, Esq.). As the names of the      actually spent some of those gold               The prosecution rested and the
potential jurors were called, I waited     certificates. This was going to be          defense presented the testimony
anxiously until my name was called.        interesting!                               of the defendant, Bruno Richard
I joined my fellow citizens, eager to           The prosecution opened its case       Hauptmann. Separating out the strong
do my civic duty. Voir dire began and      with the testimony of the distraught       feelings against Germans during the
the attorneys asked questions about        father and national hero, Col. Charles     defendant’s testimony was difficult,
our experiences as victims of crimes       A. Lindbergh. Mr. Lindbergh testified       especially when he gave the “Hail
or whether we knew any of the parties.     about the events of the evening of         Hitler” salute when he was sworn in!
Of course, everyone had heard of the       the kidnapping. Focusing on his            Seriously, Hauptmann’s explanation
Lindberghs, but the judge and the          testimony without dwelling on his          of his relationship with Isidor Fisch
attorneys were obviously looking for       celebrity status was not as simple         and his subsequent possession of the
something more than mere familiarity       as expected. It was my natural             ransom money shed some doubt on
with the famous family. The question       inclination to empathize with him and      the state’s case against him.
that caused the most discussion was        his wife, but I strove to separate my           The defense later called its
whether any potential juror would          feelings from the cold hard facts. On      own handwriting expert, Michelle
have a problem imposing the death          cross-examination, Ms. Wilson was          Dresbold, wearing a different “hat” to
penalty if the defendant were found        careful to craft her questions so as not   rebut the testimony of the prosecution
to be guilty. It was apparent that each    to appear unsympathetic or callous. It     expert, Michelle Dresbold. Defense
juror gave serious thought to this         was apparent from Col. Lindbergh’s         expert Dresbold testified that a
inquiry. Could I send a person to their    testimony that he offered little to tie    note from Isidor Fisch had been
death if I believed he was guilty of the   Mr. Hauptmann to the crime. He did         discovered and when his handwriting
murder of a 20-month old child? Two        testify that he heard the voice of the     was compared to the ransom notes,
jurors concluded that they could not       kidnapper in the cemetery, but that he     numerous similarities convinced Ms.
and were honest in expressing their        was unable to identify it as belonging     Dresbold that Mr. Fisch had some
beliefs. Both were excused and the         to Bruno Hauptmann.                        involvement in the kidnappings.
jury pool was down to 4 jurors. The             Prosecutor MacGregor elicted               The attorneys gave fervent
trial was ready to begin.                  testimony from Col. H. Norman              closings in their final attempt to
     The attorneys gave their openings.    Schwarzkopf, the lead investigator         convince the jury of the guilt or
Listening carefully, it was difficult       of the case and that of Dr. John F.        innocence of the defendant. Malcolm
not to be “an attorney” and analyze        Condon, the colorful individual            MacGregor was impressive in his
everything that was said. Justice          who had volunteered himself to be          style, but I reminded myself that as
Eakin had cautioned the jury that          a contact of sorts for the kidnapper       a juror, the state had the burden of
the opening statements were not            to communicate information and             proof to produce ample evidence in
evidence, but it was easy to see how       deliver additional ransom notes to the     the form of testimony and exhibits to
juries can be persuaded early in a         Lindberghs. Dr. Condon’s testimony         bear out the guilt of Bruno Richard
trial by the impassioned words of          about the meeting in the cemetery was      Hauptmann beyond a reasonable
skilled attorneys. Ms. Wilson painted      less than persuasive at times because      doubt. The prosecutor pointed out
Mr. Hauptmann as an unfortunate            of his inability to clearly identify the   the undisputed facts that the ransom
German immigrant caught up in an           defendant as the person with whom he       money was found in the defendant’s
unfortunate set of circumstances. The      met.                                       garage, and he argued that the
prosecutor laid out a seemingly clear           The handwriting expert, Michelle      testimony of his handwriting expert
cut case against the defendant and         Dresbold, (John Trendley at the            proved the Mr. Hauptmann authored
explained that the evidence would          1935 trial), testified on behalf of the
prove that Bruno Richard Hauptmann         prosecution. She concluded that the                          CONTINUED ON PAGE 6



                                                           PBA Civil Litigation Section Newsletter      Summer 2009       5
The Lindbergh Kidnapping —                Michelle Dresbold, and her conclusion       Hauptmann not guilty. It is certain
                                          that Isidor Fisch was the author of         that had this been an actual trial, more
Jury Duty
                                          at least some of the ransom notes.          time and consideration would have
CONTINUED FROM PAGE 5
                                          This endowed an air of credibility to       been given to the testimony, exhibits
the myriad of ransom notes delivered      the testimony of Bruno Hauptmann            and arguments of counsel before a
to the Lindberghs. The state’s            that the gold certificates found in his      decision was rendered. Nevertheless,
evidence also included the expert         garage belonged to Mr. Fisch and that       the overshadowing spectre of
testimony of a “wood” expert whose        he had left a portion of the ransom         “reasonable doubt” convinced each
report was entered by “stipulation.”      money with Mr. Hauptmann while he           juror that the defendant could not be
The wood expert’s report set forth a      escaped the country with the balance        found guilty.
hypothesis that the wood from the         of the gold certificates. Was it enough           An interesting note that occurred
ladder matched wood taken from            to raise a reasonable doubt?                to me as I prepared for this article
Hauptmann’s attic. Credibility of              Justice    J.    Michael      Eakin    is the difficulty we have in recalling
this report was questionable since        communicated the instructions to the        testimony accurately after the passage
the jury never actually heard the         jury and explained “reasonable doubt.”      of time. Even though this trial was
expert testify. Finally, although the     We were cautioned not to allow the          condensed into less than two days,
jury was admonished by the judge to       celebrity status of the Lindberghs or       it was still difficult to recall specific
avoid deciding the case on emotion,       the emotion of the crime itself to affect   testimony of the witnesses. I struggled
it was clear that both Mr. MacGregor      our deliberations, but we were to “look     with my recollection to a greater
and Ms. Wilson took advantage of          at the evidence that exists.” With these    extent weeks after the trial while
those opportunities to play upon the      words the jury was instructed to begin      writing this article. Recent changes in
empathy of the jury in a case fraught     their deliberations.                        the law permit jurors to keep notes to
with sentiment and sensationalism.             Because of the nature of the           assist them in remembering testimony
An innocent baby of a famous and          proceeding, the jury conducted their        that may occur days, weeks or even
popular national hero is snatched from    deliberations in front of the audience.     months before jury deliberation.
the warmth and supposed safety of         The first order of business was to select    While the taking of notes may be a
his own crib by a cold and ruthless       a foreman. I was chosen by unanimous        distraction, it did provide an aid to my
kidnapper. Taken out into the cold and    vote. My thought, as foreman, was to        memory.
possibly dropped or struck over the       direct the discussion by considering             At the conclusion of the trial and
head, the child dies from a fractured     the various witnesses and exhibits.         after the jury verdict, the handwriting
skull. All these dastardly deeds were     However, it was soon apparent that          expert, Michelle Dresbold stated
done solely for greed and avarice.        the deliberations were going to be          that she actually believed that both
Separating the facts from sentiment       difficult to facilitate in an efficient       Hauptmann and Fisch were involved
was difficult since I was a father and     manner since the jurors had differing       in the kidnapping based upon another
could not imagine the angst and grief     views on some of the evidence and           recently discovered note that had
borne by Charles and Anne Lindbergh.      it was nearly impossible to redirect        been written by Mr. Hauptmann while
     Defense counsel, Janis Wilson,       the dialogue on certain theories in         incarcerated where he begins the note
carefully crafted a closing argument      the case. A complicating factor was         “Dear Sir” in the exact same way as
that circumspectly avoided the            the time constraint placed upon us by       several of the ransom notes. However,
anguish of the Lindberghs yet             Justice Eakin (who sat watching us          this testimony was not available to
almost mechanically presented the         along with the attorneys and the entire     the jury prior to the rendering of the
rebuttal to the state’s case against      conference during our deliberations).       verdict. If this testimony had been
her client. Her difficulty arose from      Pressured to make a decision, the           available during the trial, it may have
having a defendant that was an easy       jury was polled and it came down            been sufficient to convict Hauptmann
target of hatred and prejudice. She       to three “not guilty” decisions and         of this heinous crime.
stressed the circumstantial character     all eyes were upon me to render the              In conclusion, the experience of
of the prosecution’s case against her     final vote. I am a person that prefers       serving on a jury was informative,
client. The lack of physical evidence     to methodically consider all facts,         insightful and enjoyable. The
connecting Mr. Hauptmann to the           theories and circumstances before           slightest action (or inaction) by an
scene raised some questions in my         rendering a decision. I succumbed           attorney can have an impact on the
mind. Finally, Ms. Wilson took us back    to the pressure and agreed with my          delivery of their case. As an attorney,
to the testimony of her expert witness,   fellow jurors and found Bruno Richard                          CONTINUED ON PAGE 7




6    Civil Litigation Update
From the Editor

Balancing Act
By Bridget M. Gillespie                   a committee devoted to this important      exercise,
                                          issue—the Quality of Life/Balance          join a club,


O
        ver the July 4th holiday          Committee. Its Mission Statement           do      charity
        weekend I watched Nik             provides that it “shall identify issues    work. During
        Wallenda walk 1,087 feet          in the changing marketplace that           the day you
across the Allegheny River on a           adversely affect the lawyer’s ability      can alleviate
high wire suspended 200 feet in           to balance their professional and          stress through
the air while carrying a 42-pound         personal life. The committee shall         making time
balancing pole. Although not death-       identify solutions to improve the          for       lunch
defying, we lawyers also engage           quality of life of lawyers and develop     away       from
in balancing acts. We balance             ways to disseminate those solutions        your       desk     Bridget M. Gillespie
professional responsibilities with        and recommendations.”                      or, like an
personal responsibilities. We also             Maintaining a balance between         associate of mine, juggling the stress
juggle daily schedules that can           our professional and personal lives can    balls that vendors hand out. (Hmm —
change at a moment’s notice when an       help us deal with our daily stress and     he balances his workload and juggles
emergency call from a client comes        people use a variety of methods for        — a virtual circus performer!)
in or an adversary files a request         accomplishing this goal. Some set a            In order to work on my own
for a preliminary injunction. These       routine to leave the office at a set time   balancing act, one of my New Year’s
challenges can be daunting at times.      every day, others declare certain days     resolutions was to see a movie at an
    The purveyors of continuing legal     or times to be family/friend time only,    actual movie theater every month.
education courses are well aware of       and others make a concerted effort to      I enlisted nonlawyer friends to join
these challenges. Nary a month goes       find a way to fit both work and family       me in this endeavor. Given that the
by without seeing a course offered in     in when both obligations seem to           balancing act problem is not unique
time management or calendar control,      clash. (Too bad we can’t be like those     to attorneys, in the first half of the
as well as, methods for coping with       television and movie characters who        year I have been to a movie theater
the profession while maintaining a        find a way to be in two places at the       only three or four times — looks like
life apart from it. Articles abound       same time.)                                I need to step up my work on that
on the need to maintain balance and            Many attorneys also engage in         resolution! ■
how to achieve it. The PBA even has       other activities to de-stress. They

Bridget Gillespie, Esq. is the editor of this publication. She is a commercial litigation attorney and partner with Picadio
Sneath Miller & Norton, P.C. in Pittsburgh. To submit ideas for articles, please phone her at 412-288-4000 or send her an
e-mail at bgillespie@psmn.com.


The Lindbergh Kidnapping —                the witnesses by the skilled attorneys     the perspective of the counsel table
                                          was intriguing and educational.            and the witness box. Kudos to David
Jury Duty
                                          The potential for difficulties during       R. Fine, our esteemed chair, and the
CONTINUED FROM PAGE 6
                                          the deliberations were apparent as         entire committee and speakers for
many objectionable questions were         differing personalities, backgrounds       putting together a fresh new face on
permitted that normally would not         and belief systems clashed. How            an old case in the beautiful setting of
have been. This was later explained       testimony was interpreted and              the restored Omni Bedford Springs
that leading questions would be           understood was in direct correlation       Resort. ■
permitted on direct examination in        with that person’s life experiences
the interests of time. Yet, as a juror,   and philosophy. These insights will
the extraction of information from        assist me in understanding juries from


                                                          PBA Civil Litigation Section Newsletter       Summer 2009        7
Recent Pa. Cases of Note

Opinions from the
Pennsylvania Courts
Amy L. Groff, Pennsylvania Case Notes Editor

        SUPREME COURT                      referred her to an orthopedic surgeon,     the court held
                                           James Nutt, M.D., who referred her         that defendant
Summary Judgment on                        back to Dr. El-Daief. Dr. Nutt reported    dentists     were
Statute of Limitations                     to Dr. El-Daief that one possible          not       entitled
Grounds Not Appropriate                    explanation for her symptoms was the       to      summary
                                           laceration of the radial nerve during      judgment where
Where Medical Malpractice
                                           the August 2000 surgery, but neither       factual questions
Plaintiff Visited Two Doctors              Dr. Nutt nor Dr. El-Daief reported         r e m a i n e d
Nineteen Times During                      this possibility to Ms. Wilson. After      regarding
Limitations Period in Attempt                                                                                  Amy L. Groff
                                           “bouncing” between Dr. El-Daief and        the     plaintiff’s
to Determine Cause of Injury               Dr. Nutt, attending a total of nineteen    diligence. In Caro, the Superior
                                           appointments, Ms. Wilson testified          Court held that “In light of the new
     In Wilson v. El-Daief, 964 A.2d       that she realized “something is wrong      requirements of Rule 1042.3 [the
354 (Pa. Feb. 19, 2009) (Opinion by        here” around September 2001. She           rule requiring medical malpractice
Saylor, J.), the Supreme Court reversed    did not file a writ of summons until        plaintiffs to obtain a certificate of
the Superior Court’s affirmation of         October 2003.                              merit before filing a complaint], we
summary judgment for the defendant              The common pleas court                now hold that evidence that an injured
in a medical malpractice case where        determined that the cause of action        party appeared to have lost confidence
the plaintiff knew that she was injured    arose on the date of the August            in his or her physician, without more,
and made diligent efforts to discover      2000 surgery and the discovery rule        is insufficient to trigger the running
its cause, but did not file suit for more   did not toll the two-year statute of       of the statute of limitation where
than two years after the operation that    limitations. The court noted that “the     a plaintiff has diligently sought to
caused the injury.                         fact that a plaintiff is not aware that    discover the cause of his or her injury.”
     Dr. Samir El-Daief of Montgomery      the defendant’s conduct is wrongful,       867 A.2d at 538.
Hospital Medical Center operated           injurious or legally actionable is              Ms. Wilson analogized her case
on Mary Elizabeth Wilson’s wrist           irrelevant to the discovery rule           to the surgical sponge cases, where
and hand in May and August 2000            analysis,” quoting Haggart v. Cho,         plaintiffs experienced pain but could
in order to treat pain. After the first     703 A.2d 522, 528 (Pa. Super. 1997).       not identify its source until long
operation, Ms. Wilson experienced          Even if the discovery rule tolled the      after the statute of limitations period.
relief from pain, but shortly after the    statute of limitations until Ms. Wilson    Citing Caro, she argued that her mere
second operation, she “experienced         lost confidence in Dr. El-Daief in          perception in September 2001 that
constant, persistent, excruciating         September 2001, the court found, the       “something is wrong here” should not
pain; within several weeks, her hand       claim would still be time-barred.          be equated with knowledge of injury
contracted into a fist, her right elbow          On appeal, a divided Superior         and cause that triggers the statute of
bent inward, and her right shoulder        Court affirmed, and the plaintiff           limitations. Defendant argued that the
drew upward.” Ms. Wilson went to           appealed to the Supreme Court, which       correlation between the August 2000
Dr. El-Daief numerous times over           took the appeal to evaluate the issue      operation and her injury was obvious
the following thirteen months in an        in light of Fine v. Checcio, 870 A.2d      and that the plaintiff did not need to
attempt to determine the cause of the      850 (Pa. 2005), and Caro v. Glah, 867      discover the precise medical diagnosis
pain and disfigurement. Dr. El-Daief        A.2d 531 (Pa. Super. 2004). In Fine,       in order for the clock to start running
                                                                                      (citing Bigansky v. Thomas Jefferson
Amy Groff works in the Harrisburg office of K&L Gates and practices in the areas of
                                                                                      Univ. Hosp., 658 A.2d 423, 427, 430-31
employment law and general civil and commercial litigation. She is treasurer of the
                                                                                                         CONTINUED ON PAGE 9
PBA's Civil Litigation Section.

8    Civil Litigation Update
Pa. Cases of Note                           In Justice Baer’s view, the discovery        treat their son’s problems, plaintiffs
                                            rule should be interpreted to mean that      asked the defendant for David’s birth
CONTINUED FROM PAGE 8
                                            the statute of limitations tolls until the   mother’s medical records as early as
                                            plaintiff “obtains, or with the exercise     1980, but only in 1999 did the agency
(Pa. Super. 1995)). Defendant argued        of due diligence should have obtained,       produced a letter from the birth
that Caro and Rule 1042.3 should            medical evidence sufficient to enable         mother’s psychiatrist indicating that
not be read to impose a substantively       the plaintiff to link her injury to the      she suffered from schizophrenia. The
different statute of limitations standard   acts of the defendant.”                      letter had been placed in the file of one
in medical malpractice cases. Plaintiff         The majority opinion responded           of David’s siblings, but not in David’s
argued that the “injury” for discovery      to Justice Baer’s opinion by noting          file.
rule purposes should be considered          that the writ of summons procedure,               The parents sued for negligence
the lacerated nerve; defendant              which was in fact used in this case,         on two theories, “wrongful adoption”
argued it should be the symptoms            will help plaintiffs escape the Catch-22     and “failure to disclose.” Both of these
she experienced in close temporal           Justice Baer identified. Responding           theories were recognized in the case of
relationship to the surgery.                to Justice Baer’s suggestion that the        Gibbs v. Ernst, 647 A.2d 882, 890-91
     The court acknowledged that            court develop a special discovery rule       (Pa. 1994), where the court held that
under Fine, “atypical and lasting           for medical malpractice cases, the           a negligent misrepresentation claim
post-surgical symptoms . . . may            majority explained that the discovery        could be brought against an adoption
trigger the limitations period,” but        rule in Pennsylvania is not judge-           agency for failure to make reasonable
found that there were “potential            made law, but a legislative enactment,       efforts to make true representations to
sources of confusion” in this case,         and the court’s role is to interpret the     prospective parents. The Gibbs court
namely the “asserted unwillingness          will of the legislature.                     also held that “an adoption agency has
or inability on the part of Dr. El-Daief                                                 a duty to disclose fully and accurately
to recognize injury or cause” and Dr.       — Contributed by Jonathan Pyle, Esq.,        to the adopting parents all relevant
Nutt’s failure to inform the plaintiff      Philadelphia; jhpyle@gmail.com.              non-identifying information in its
that the laceration of the nerve was a                                                   possession concerning the adoptee.”
possibility. The court declined to hold     Supreme Court Rejects                        Id. David Halper, also a plaintiff,
“that a lay person must be charged with     “Wrongful Adoption” Where                    asserted only the “failure to disclose”
knowledge greater than that which           Adoption Agency Failed to                    claim.
was communicated to her by multiple                                                           The jury found in the Halpers’
                                            Provide Evidence Regarding
medical professionals involved in                                                        favor and awarded $300,000. On
                                            Birth Mother’s Schizophrenia
her treatment and diagnosis.” The                                                        appeal, the Superior Court reversed and
court found that Ms. Wilson’s loss of                                                    remanded. The court interpreted Gibbs
                                                In Halper v. Jewish Family
confidence in her doctor in September                                                     to allow negligent misrepresentation
                                            & Children’s Service of Greater
2001 “does not unambiguously                                                             claims only where the condition of the
                                            Philadelphia, 963 A.2d 1282 (Pa. Feb.
establish notice of injury and cause.”                                                   child was foreseeable at the time of the
                                            19, 2009) (Opinion by Eakin, J.), the
Thus, the court held that the issue of                                                   misrepresentation. The parties agreed
                                            Supreme Court held that adoptive
the plaintiff’s diligence should go to                                                   that at the time the adoption took place
                                            parents could not bring a “wrongful
the jury.                                                                                in 1964, schizophrenia was considered
                                            adoption” claim against an adoption
     Justice Baer, joined by Justice                                                     a disorder caused by the environment
                                            agency for failure to disclose evidence
McCaffery, concurred and dissented,                                                      and not a genetic disorder that a child
                                            of the birth mother’s schizophrenia,
finding that the statute of limitations                                                   could inherit from the mother, but that
                                            where schizophrenia was not
rules and the certificate of merit rules                                                  by 1980, it became widely known that
                                            considered heritable at the time of the
place some medical malpractice                                                           schizophrenia had a substantial genetic
                                            adoption.
plaintiffs in a Catch-22. If they wait                                                   component. Given this, the court
                                                Plaintiffs Jack and Marlene
until they have enough evidence to                                                       found that no harm was foreseeable
                                            Halper adopted their son David
obtain a certificate of merit, they risk                                                  at the time of the adoption and the
                                            in 1964 through the defendant's
having their claim barred by the statute                                                 defendant could not be liable for
                                            adoption agency. David experienced
of limitations, but if they file early in                                                 negligent misrepresentation.
                                            mental health problems, continually
order to meet the statute of limitations                                                      The Superior Court upheld the
                                            used drugs, and was hospitalized for
requirement, they will have their case                                                   judgment as to the “failure to disclose”
                                            depression after a suicide attempt at
dismissed with prejudice for failure                                                     claim, but since the verdict did not
                                            age 15. Seeking insight into how to
to provide a valid certificate of merit.                                                                     CONTINUED ON PAGE 10



                                                            PBA Civil Litigation Section Newsletter         Summer 2009        9
Pa. Cases of Note                            “absolute conflicts on fundamental           erroneously described the property
                                             issues.” The court credited testimony       in the deed, and the error was not
CONTINUED FROM PAGE 9
                                             that “it is often difficult to pinpoint      discovered until after the closing
                                             a particular disorder, especially           occurred. The sellers ultimately sued
distinguish between the “wrongful            where major psychiatric disorders           the Steiners, who subsequently filed
adoption” and “failure to disclose”          are concerned because they are often        a separate legal malpractice action
theories, the court remanded for a new       co-morbid,” as well as testimony that       against the attorneys who represented
trial on David’s “failure to disclose”       “psychiatrists do not agree, in general,    them.
claim.                                       and different understandings of human            Although the Steiners’ complaint
     The Superior Court also found           beings includes different ways of           included a count for professional
that the testimony of the Halpers’           psychiatrically describing them.”           malpractice that was consistent with
expert witnesses was contradictory                In a concurrence, Justice Saylor       a tort claim, the complaint did not
because one expert testified that David       observed that the court was applying        include a count described as a breach of
suffers from major depressive disorder       the Gibbs “duty to disclose” rule           contract claim. The attorneys filed an
and two other experts testified that he       to the post-adoption timeframe,             answer to the complaint and included,
suffers from schizophrenia. The court        implicitly raising the issue of whether     in new matter, a defense that the claim
found that the expert testimony was          an adoption agency has an obligation        was time-barred by the two-year statute
too contradictory to go to the jury,         to retain records indefinitely. Since        of limitations applicable to tort claims.
citing Brannan v. Lankenau Hospital,         this issue was never raised below, he       The attorneys subsequently moved for
417 A.2d 196 (Pa. 1980), where the           understood the court’s ruling to make       judgment on the pleadings, which the
court held that juries should not be         no holding regarding such a duty.           trial court granted on the basis that the
allowed to consider expert testimony                                                     two-year statute of limitations barred
that is “so contradictory that the jury      — Contributed by Jonathan Pyle, Esq.,       the Steiners’ professional malpractice
is left with no guidance on the issue.”      Philadelphia; jhpyle@gmail.com.             claim. Although the Steiners moved
417 A.2d at 200.                                                                         for reconsideration, arguing that
     The        Halpers         appealed,    Appellate Court May Not Sua                 the attorneys’ alleged concealment
arguing that the Superior Court              Sponte Examine Complaint                    of wrongdoing tolled the statute of
misinterpreted Gibbs by requiring                                                        limitations, the Steiners never argued
                                             to Find a Cause of Action
proof of foreseeability. The “wrongful                                                   that their complaint contained a breach
adoption” claim, they argued, should
                                             Never Argued to Exist
                                                                                         of contract claim subject to a longer
have been sustained upon evidence                                                        limitations period. The trial court
that the agency did not fully disclose           The       Pennsylvania      Supreme
                                                                                         denied the motion for reconsideration,
all     non-identifying       information    Court held that the Superior Court
                                                                                         and the Steiners appealed to the
about the parent. The Supreme Court          incorrectly examined a complaint sua
                                                                                         Superior Court.
affirmed the Superior Court’s holding         sponte to determine the existence of
                                                                                              In their statement of matters
on the “wrongful adoption” question,         a cause of action never argued to be
                                                                                         complained of on appeal, filed
noting that the Gibbs court specifically      present for purposes of calculating
                                                                                         pursuant to Rule of Appellate
stated that negligent misrepresentation      the applicable statute of limitations.
                                                                                         Procedure 1925(b), the Steiners again
is limited by “the common law notion         Steiner v. Markel, No. 62 MAP
                                                                                         never characterized their claim as one
of foreseeability . . . to prevent it from   2008 (Pa. Apr. 29, 2009) (Opinion
                                                                                         for breach of contract. Instead, they
becoming in any way a guarantee or           by Greenspan, J.). In so holding,
                                                                                         asserted that the attorneys’ actions
warranty of a child’s future health.”        the Supreme Court emphasized the
                                                                                         should have tolled the two-year statute
647 A.2d at 891.                             importance of pleading sufficient facts
                                                                                         of limitations applicable to tort claims.
     The Halpers also appealed the           to apprise the defendant of the causes
                                                                                         Although the Superior Court agreed
Superior Court’s finding that the             of action being asserted.
                                                                                         that the two-year statute of limitations
differences of opinion among the                 Steiner was a legal malpractice
                                                                                         barred the Steiners’ legal malpractice
expert psychiatrists rendered the            action that arose following the attorney-
                                                                                         claim, the court held, sua sponte, that
testimony insufficient to go to the jury.     defendants’ erroneous description
                                                                                         the complaint stated a timely claim for
Here, the Supreme Court reversed             of property in a deed. Their clients,
                                                                                         breach of contract. Because a breach
the Superior Court’s finding that the         the Steiners, negotiated a purchase
                                                                                         of contract claim is subject to a four-
evidence was fatally inconsistent            of real property and contracted with
                                                                                         year statute of limitations, rather
and held that evidence should be             the attorneys to represent them in the
                                                                                         than the two-year limitations period
kept from the jury only if it contains       transaction. However, the attorneys
                                                                                                            CONTINUED ON PAGE 11



10   Civil Litigation Update
Pa. Cases of Note                           Court disagreed and stated that the        of action being asserted “create[s]
                                            Steiners were misreading Cardenas.         a moving target for the courts and
CONTINUED FROM PAGE 10
                                            According to the Supreme Court,            litigants,” according to the court.
                                            the Superior Court in Cardenas was              Justice Todd filed a concurring
applicable to a legal malpractice tort      directly faced with the question of        opinion, and Justice Saylor dissented.
claim, the Superior Court reversed the      whether the pleading of certain facts      Justice Todd’s concurring opinion was
trial court’s entry of judgment on the      within a complaint was sufficient           limited to her belief that, because the
pleadings.                                  to support a claim for intentional         Steiners waived the ability to question
     However, the Supreme Court held        interference with an inheritance.          the characterization of their cause of
that the Steiners waived any argument       Rather than sua sponte determining         action by not raising it within either
that their complaint raised a breach of     whether the Cardenas complaint             their motion for judgment on the
contract claim and that the Superior        supported such a claim, the Superior       pleadings or their 1925(b) statement,
Court erred in sua sponte finding            Court determined that Pennsylvania         she would not reach the substantive
that they had stated such a claim.          law supported a claim for interference     question of whether the trial court
The Supreme Court observed that the         with an inheritance and that the           has a duty to determine all potential
Steiners never raised the existence of      plaintiffs pleaded sufficient facts         causes of action raised within a
a breach of contract claim with the         to state such a claim. The Supreme         complaint. Justice Saylor agreed with
trial court in either their response to     Court held that the Steiners’ complaint    Justice Todd, but dissented because
the attorneys’ motion for judgment          and the Superior Court’s sua sponte        he believes courts are obligated to
on the pleadings or the Steiners’ own       examination was distinguishable from       review the factual allegations within
motion for reconsideration. Although        Cardenas because the Steiners never        a complaint to determine whether
the Steiners’ Rule 1925(b) statement        asserted the existence of a breach         the facts state a cause of action on
included an assertion that the trial        of contract claim yet the Superior         any theory since Pennsylvania is a
court erred in not determining whether      Court nevertheless determined that         fact pleading jurisdiction. Justice
the complaint stated a cause of action      the complaint contained “an entirely       Saylor disagreed with the majority’s
“under any theory,” the Supreme Court       different, previously unstated, theory     interpretation of Cardenas and noted
dismissed as “wholly without merit”         of recovery.”                              that the Supreme Court itself previously
that this vague assertion was sufficient          In reversing the Superior Court,      discovered a cause of action from
to preserve the issue for appellate         the Supreme Court emphasized the           facts pled within a complaint, citing
review. Moreover, because the Steiners      importance of pleading sufficient           Lobolito, Inc. v. North Pocono Sch.
failed to raise the existence of a breach   facts to apprise the defendants of the     Dist., 755 A.2d 1287, 1292-93 (Pa.
of contract claim with the trial court      causes of action they are asserting.       2000). Justice Saylor favored granting
in the first instance, they were barred      The Superior Court relied on Rules         supplemental allowance of appeal so
from raising it for the first time on        of Civil Procedure 1019(a) and 126 in      that the parties could address whether
appeal in a 1925(b) statement pursuant      determining that the Steiners pleaded      the Steiners’ professional malpractice
to Rule of Appellate Procedure 302.         a breach of contract cause of action.      claim pleaded facts sufficient to state a
The Supreme Court observed that “by         Rule 1019(a) is the foundation for         breach of contract claim. He believed
raising this argument sua sponte, the       the fact pleading requirement in           that this would provide the court
Superior Court deprived the Attorneys’      the commonwealth, and Rule 126             with the opportunity to address how
of an opportunity to respond thereto.”      requires that the procedural rules be      a plaintiff is to distinguish pleading
     Despite finding a waiver of             liberally interpreted. The Supreme         facts that solely raise a tort claim of
the argument, the Supreme Court             Court determined that Rules 1019(a)        legal malpractice as opposed to a
nonetheless addressed whether the           and 126 did not support the Superior       breach of contract claim because the
trial court is obligated to discern all     Court’s action and stated that the         “elements of tort- and contract-based
potential causes of action within a         Steiners “simply did not plead facts       causes of action in this setting overlap
complaint and determined that the           sufficient to apprise the Attorneys that    substantially, if not completely,” citing
courts have no such obligation. The         the Clients intended to allege a cause     Bailey v. Tucker, 621 A.2d 108, 115
Steiners, relying on a line of Superior     of action grounded in contract.” The       (Pa. 1993).
Court cases culminating in Cardenas         court observed that “[i]f the Clients
v. Schober, 783 A.2d 317 (Pa. Super.        themselves do not know what their          — Contributed by Jonathan B.
2001), asserted that a trial court          cause of action is, the Attorneys          Stepanian, Esq., McQuaide, Blasko,
must “discover” causes of action            cannot reasonably respond to it.” The      Fleming & Faulkner, Inc., Hershey;
within a complaint. The Supreme             failure to clearly articulate the causes   jbstepanian@mqblaw.com.
                                                                                                          CONTINUED ON PAGE 12

                                                            PBA Civil Litigation Section Newsletter       Summer 2009         11
Pa. Cases of Note                           Ms. Dolan moved for permission to         a time, as they come up.” Id. at 750
                                            withdraw the Rule 1311.1 stipulation      (Kline, J., concurring). Nonetheless,
CONTINUED FROM PAGE 11
                                            because her counsel claimed that he       there had been no action taken on his
                                            was unaware the $25,000 limit would       invitation, and the Superior Court was,
        SUPERIOR COURT                      include $8,200 in property damage.        therefore, required to decide the issue.
                                            The trial court, over objection by the         The Dolan court held that a
Superior Court Addresses                    defense, permitted the withdrawal and     stipulation under Rule 1311.1 — which
Case of First Impression                    continued the trial so that the defense   is in fact, according to the court, not
Involving Withdrawal of                     could adequately prepare for a trial      really a stipulation at all but instead a
Stipulation and Plaintiffs’                 that would no longer proceed solely       unilateral election made by the plaintiff
Introduction of Testimony                   on expert reports and with limited        — is appropriately treated according
from Expert Originally                      damages.                                  to analogous principles regarding the
Retained by Defense                              Mr. Fissell obtained a defense       withdrawal of stipulations generally.
    In ruling on two issues of first         medical evaluation performed by a         Therefore, the court noted that the trial
impression, the Pennsylvania Superior       chiropractic doctor. However, after       court may permit withdrawal of a Rule
Court determined that (1) a trial court     examining Ms. Dolan, the defense          1311.1 stipulation in its discretion
is vested with the discretion to permit     expert issued a report diagnosing Ms.     based on a showing of good cause and
a plaintiff to withdraw her stipulation     Dolan with chronic sprain syndrome        the lack of substantial prejudice to the
to limit damages and proceed on             and agreeing that the condition           defendant. The court found that it was
expert reports following appeal from        was permanent; these findings              not an abuse of discretion to find good
an arbitrators’ award and (2) a plaintiff   corresponded with those of Ms.            cause in a mistaken understanding
may introduce testimony from an             Dolan’s treating physician. Although      of the limitation of recovery under
expert who was originally retained by       the defense was obligated to produce      the rule and to determine that Mr.
the defense and conducted a medical         a written report from the chiropractic    Fissell would suffer no prejudice
evaluation of the plaintiff that was        expert concerning his exam findings,       by continuing the trial to allow the
unfavorable to the defense. Dolan v.        the defense opted not to call him as a    defense to fully prepare in view of
Fissell, No. 239 EDA 2008, 2009 PA          witness, likely because the doctor’s      the permitted withdrawal of the Rule
Super. 82 (May 1, 2009) (Opinion by         report was favorable to Ms. Dolan.        1311.1 stipulation.
Klein, J.)                                  Ms. Dolan’s counsel then contacted the         The Superior Court also found no
    Dolan v. Fissell arose from a           expert, who agreed to testify on Ms.      error in permitting the plaintiff to call
motor vehicle accident. While in            Dolan’s behalf. Ms. Dolan, therefore,     an expert originally retained by the
traffic, Ms. Dolan slowed her van to         sought to introduce testimony from        defense. The court observed that, “[w]
less than five mph. She then heard           the expert originally retained by the     hile usually an expert initially contacted
screeching tires, and Mr. Fissell struck    defense and was permitted to do so        by one side will refuse to testify for
Ms. Dolan’s minivan from behind,            by the trial court. The jury returned     the other side, and sometimes may be
pushing her vehicle into the car in         a verdict in favor of Ms. Dolan in the    contractually bound to refuse,” the
front of her. Ms. Dolan claimed to          amount of $434,757.23.                    expert is the individual who “owns”
have experienced continuing chronic              In ruling on the first issue, the     his opinion and may therefore “decide
back pain as a result of the accident.      Superior Court initially observed that    whether and for whom he will testify.”
Her treating physician testified that        Rule 1311.1 is silent on whether the      Although the defense argued that
she suffered from permanent chronic         plaintiff may withdraw a stipulation.     Pennsylvania Rule of Civil Procedure
sprain syndrome, which would cause          Judge Kline specifically noted that, in    4003.5(a)(3) prevents a party from
pain during her daily activities, as a      his concurring opinion in Kopytin v.      discovering facts known or opinions
result of the accident.                     Aschinger, 947 A.2d 739 (Pa. Super.       held by a non-testifying expert, the
    The case first proceeded to              2008), he invited the Rules Committee     court observed that Rule 4003.5(a)(3)
compulsory arbitration, at which            to take up this very question because     specifically exempts medical experts
Ms. Dolan was awarded $28,220.              it would be “better for the practice      retained for purposes of conducting an
Mr. Fissell appealed and Ms. Dolan          of law and the business of the courts     examination pursuant to Rule 4010(b)
thereafter filed a stipulation under         for these policy decisions to be made     and who may be required to produce a
Pennsylvania Rule of Civil Procedure        by the Pennsylvania Supreme Court         detailed written report. See Pa.R.C.P.
1311.1 to proceed on medical reports        upon recommendation of the Civil          4010(b)(1). Additionally, the court
and limit damages to $25,000.               Procedural Rules Committee rather         observed that Rules 4003.5 and 4010
However, at a settlement conference,        than by the appellate courts, one at                          CONTINUED ON PAGE 13


12   Civil Litigation Update
Pa. Cases of Note                           favor of Adam Cruz that when, molded          Court reversed the en banc panel’s
                                            to include delay damages, totaled over        holding regarding the propriety
CONTINUED FROM PAGE 12
                                            $15 million. Princeton, the hospital’s        issue, ultimately resolving the issue
                                            insurer, retained Attorney Alan Gold          by holding that a genuine issue of
address discovery of an expert’s            to handle the appeal and settlement           material fact existed. The Supreme
identity, not the admissibility of that     negotiations. A mediator suggested a          Court then remanded the case to the
expert’s testimony at trial. Instead,       settlement range between $8 million           Superior Court for consideration of
the court held that “[i]f counsel retains   and $10 million. The Cruzes then              the harm element which is the subject
an expert and does not contract to          rejected a settlement offer from              of the instant matter.
preclude the expert from testifying         Princeton for $7 million. Then, in                 To establish the harm element,
for the opposing side, he or she takes      2002, Attorney Gold petitioned the            the Cruzes cited their own deposition
the chance that the report will be          trial court to appoint a guardian ad          testimony in which they averred they
unfavorable and the other side will         litem for Adam for the express purpose        were angry, upset, suffered anxiety
use it.” Therefore, the court found         of evaluating the settlement demand.          attacks, and believed the petition was
no error in permitting Ms. Dolan to         The trial court denied the petition, and      an attempt to terminate their parental
call an expert originally retained by       the Cruzes subsequently settled the           rights. The defendants, by contrast,
the defense, but who authored an            case for $7.1 million in 2002. In 2003,       argued that the Cruzes suffered
unfavorable report, as a witness at         the Cruzes filed a complaint for abuse         nothing more than a “transient rub of
trial.                                      of process alleging the improper filing        life” not “serious enough to warrant
                                            of the petition to appoint a guardian         compensation.” In analyzing the harm
— Contributed by Jonathan B.                ad litem that caused them “extreme            element, the court relied on Shiner v.
Stepanian, Esq., McQuaide, Blasko,          emotional distress, fear, upset and           Moriarty, 706 A.2d 1228, 1236 (Pa.
Fleming & Faulkner, Inc., Hershey;          anxiety that their parental rights could      Super. 1998), for the proposition that
jbstepanian@mqblaw.com.                     be terminated.”                               while “medical testimony is necessary
                                                 An abuse of process claim has            to establish emotional harm in cases
Neither Physical Impact                     the following three elements: (1) use         of intentional infliction of emotional
nor Medical Testimony Is                    of legal process, (2) for an improper         distress, it is not necessary in cases of
Necessary to Create an                      purpose, and (3) harm to the plaintiff.       abuse of process.”
Issue of Material Fact on the               Werner v. Plater-Zyberk, 799 A.2d                  The court noted the Cruzes feared
                                            776 (Pa. Super. 2002). The trial court        their parental rights could be interfered
Harm Element of an Abuse
                                            granted summary judgment on the               with by “the awesome power of the
of Process Claim Alleging
                                            abuse of process claim in favor of the        state.” Under the circumstances,
Emotional Distress                          defendants, Princeton and Attorney            the court concluded that human
                                            Gold. On appeal in 2006, a Superior           experience would offer reason for
     In Cruz v. Princeton Insurance         Court panel reversed, reasoning that          a jury to discern the significant
Co., Nos. 3191 and 3192 EDA 2004,           a question of material fact existed           emotional distress claimed by the
2009 PA Super. 49 (Mar. 24, 2009)           concerning whether “Princeton and its         Cruzes. The court, therefore, held
(en banc) (Opinion by Bender,               counsel commenced the guardianship            that an issue of material fact existed
J.), the Superior Court held that           action for the improper purpose of            regarding the harm element, reversed
neither physical impact nor medical         forcing the Cruzes to settle . . . for less   the order granting summary judgment,
documentation of distress-related           than the amount of the outstanding            and remanded the case to the trial
symptoms is necessary to create a           judgment.” In 2007, however, an               court for further consideration.
question of material fact regarding the     en banc panel of the Superior Court                Judge Orie Melvin filed a
harm element of an abuse of process         reversed the panel decision and               dissenting opinion, disagreeing that
claim where emotional distress is the       held that no issue of material fact           an issue of material fact existed
alleged harm. This matter came before       existed concerning the propriety of           regarding the harm element of the
the Superior Court following a lengthy      Princeton’s use of the petition. Two          abuse of process claim. She first
procedural history.                         separate opinions, one concurring             noted that very little precedent exists
     In 1994, the Cruzes, individually      and one dissenting, disagreed on the          on the harm element because most
and on behalf of their son Adam, filed       propriety element but agreed that             cases revolve around the propriety
a medical malpractice claim against         a question of material fact existed           element. Judge Orie Melvin pointed
Northeastern Hospital and two of its        regarding the harm element. Then,             out that the petition never presented
doctors. The jury returned a verdict in     in 2008, the Pennsylvania Supreme                                CONTINUED ON PAGE 14


                                                             PBA Civil Litigation Section Newsletter         Summer 2009         13
Pa. Cases of Note                           on the actual language of the Act —       $1,000,000 regardless of the outcome
                                            that the “exclusivity is triggered,       of trial. At trial, the jury returned a
CONTINUED FROM PAGE 13
                                            if, when the cause of action arises,      verdict of $1,071,041.67, which was
                                            the plaintiff was an employee who         reduced to $1,000,000 in accordance
any possibility of the termination          ‘sustained injury’ while ‘actually        with the high/low agreement. Plaintiff
of the Cruz’s parental rights. She          engaged in furtherance of the business    then filed a petition for delay damages
argued that the deposition testimony        or affairs of the employer.’” Here,       pursuant to Pennsylvania Rule of Civil
established “at most” that the Cruzes       the plaintiff alleged that he was not     Procedure 238. The trial court denied
were “upset” and that “mere upset as        an employee and was not acting in         the petition on the basis that recovery
described [in the deposition testimony      the scope of his employment. He           of high/low delay damages was barred
was] insufficient as a matter of law to      did not allege damages for physical       by the agreement.
satisfy the harm requirement of the         injuries in his complaint but, rather,         On appeal, the Superior Court
claim for abuse of process.”                economic damages as a result of the       agreed with the trial court. The
— Contributed by Philip K. Miles            alleged actions of the defendant in       Superior Court focused on the plain
III, Esq., McQuaide, Blasko, Fleming        destroying evidence. Accordingly, the     language of Rule 238, which provides
& Faulkner, Inc., State College;            court reversed and remanded the case,     that “. . . damages for delay shall be
pkmiles@mqblaw.com.                         holding that, under the facts pled in     added to the amount of compensatory
                                            the case, the Act does not preclude the   damages . . . and shall become part of
Workers’ Compensation                       plaintiff’s claims.                       the verdict, decision or award.” Since
Act Exclusivity Provision                       Judge Gantman filed a concurring       under Rule 238, any award of delay
Is Triggered Only if the                    opinion in which she agreed that the      damages becomes a part of the verdict
Plaintiff Alleges Employment                Act does not preempt the plaintiff’s      and award, merging the amounts into
and Physical Injury                         claim, but found the issue on appeal      one settlement, “the enforcement of
While Actually Engaged                      to be broader. She wrote that, on         a high/low agreement as a settlement
in Furtherance of the                       remand, the trial court should revisit    thus creates a conflict with the award
                                            and decide the employer’s motion for      of further monetary damages.”
Employer’s Business
                                            judgment on the pleadings on other             The court ultimately held that
                                            grounds asserted in the motion, such as   because a high/low agreement was
     In Minto v. J.B. Hunt Transport,
                                            whether the plaintiff sufficiently pled    both a contract and a settlement, the
Inc., No. 43 EDA 2008, 2009 PA
                                            the “spoliation” claim as a negligence    addition of delay damages would
Super. 73 (Apr. 17, 2009) (Opinion
                                            cause of action.                          exceed the agreed-upon ceiling, “and
by Klein, J.), the plaintiff alleged that
                                                                                      the dignity of the high/low agreement
because his employer, defendant J.B.
                                            — Contributed by Natalie Grill            would be compromised.” The parties
Hunt Transport, negligently destroyed
                                            Einsig, Esq., Pepper Hamilton LLP,        were free to agree that delay damages
and failed to preserve evidence of a
                                            Harrisburg; einsign@pepperlaw.com.        should be applied separately to the
truck accident that rendered plaintiff a
                                                                                      stipulated limits, but they did not do
quadriplegic, he was then prejudiced
                                            Delay Damages Cannot Be                   so. Accordingly, the plaintiff was not
in his tort suit against third-party
                                            Recovered Where Addition                  entitled to delay damages where such
manufacturers of parts of the truck.
                                            of Such Damages Would                     damages would expose the defendant
On a motion for judgment on the
                                            Exceed the Agreed-Upon                    to liability beyond the amount to which
pleadings, the trial court held in favor
                                                                                      it agreed in the high/low agreement.
of the defendant, finding that all of the    Ceiling of a High/Low
plaintiff’s claims were barred by the       Agreement                                 — Contributed by Natalie Grill
exclusivity provision of the Workers’
                                                                                      Einsig, Esq., Pepper Hamilton LLP,
Compensation Act (the Act), 77 P.S. §            In Thompson v. T.J. Whipple
                                                                                      Harrisburg; einsign@pepperlaw.com.
481, which provides that the Act is the     Construction Co., No. 324 WDA
employee’s exclusive remedy against         2008, 2009 PA Super. 57 (Mar.
                                                                                      Physicians Now Liable if
the employer for injuries sustained in      30, 2009) (Opinion by Bowes, J.),
the course of employment.                   the parties entered into a high/low       They Engage in Sexual
     The Superior Court reversed            settlement agreement, whereby the         Relationships with Their
the trial court’s decision holding          defendant agreed to pay the plaintiff     Patients
that the plaintiff’s claims against         a minimum recovery of $250,000
his employer were not barred by the         in return for plaintiff’s agreement
Act. In so holding, the court focused       to accept a maximum amount of                               CONTINUED ON PAGE 15


14   Civil Litigation Update
Pa. Cases of Note                          — Contributed by Matthew P. Keris,             The Pennsylvania Municipal
                                           Esq., Marshall, Dennehey, Warner,         Police Officer’s Education and
CONTINUED FROM PAGE 14
                                           Coleman & Goggin, Scranton;               Training     Commission       (Training
                                           mpkeris@mdwcg.com.                        Commission)         suspended       the
     The Pennsylvania Superior Court                                                 Academy’s certification in May 2002
recently clarified previous rulings                 COMMONWEALTH                      for a number of reasons, including
limiting physicians’ liability for                                                   failure to properly document student
                                                      COURT
engaging in sexual relations with their                                              examination scores and instructors’
patients. In Thierfelder v. Wolfert, No.                                             lack of proper certifications to
571 EDA 2007, 2009 PA Super. 92 (May       Governmental Immunity Is                  teach certain classes. The Training
19, 2009) (en banc) (Opinion by Klein,     Applicable to Community                   Commission then officially revoked
J.), the Superior Court recognized         Colleges and Bars Statutory               the Academy’s certification in August
a new medical malpractice cause of         Damages Claims under the                  2002. As a result, the Training
action and held that when a physician      Consumer Protection Law                   Commission disallowed most of the
is providing specific treatment for                                                   credits the plaintiffs earned at the
psychological problems and has a               In Meyer v. Community College         Academy. The plaintiffs would have
sexual relationship with the patient,      of Beaver County, 965 A.2d 406 (Pa.       to repeat nearly all of the Act 120
that patient can state a cognizable        Cmwlth. Feb. 11, 2009) (en banc)          required credits at another police
cause of action for malpractice if the     (Opinion by Simpson, J.), and its         academy and pay tuition for those
sexual relationship directly causes the    companion case Barr v. Community          credits.
patient’s psychological or emotional       College of Beaver County, 968 A.2d             Following the trial court’s
symptoms to worsen.                        235 (Pa. Cmwlth. Feb. 11, 2009)           denial of the College’s motion for
     In Thierfelder v. Wolfert, the        (en banc) (Opinion by Simpson,            summary judgment on the CPL
trial court granted the general            J.), the Commonwealth Court               claims, the College appealed to the
practitioner’s preliminary objections      held that governmental immunity           Commonwealth Court. The College
to the claim of the wife-plaintiff that    barred students’ claims against the       first argued that it was not “any other
the doctor “acted negligently when he      community colleges based on the           legal entity” within the definition
had a consensual sexual relationship       Consumer Protection Law (CPL).            of “person” under the CPL and,
with her for one year while she was        The matter came before the court as       therefore, not subject to the private
his patient and being treated by him       an interlocutory appeal by permission     action provisions of the CPL. The
for anxiety and depression. As a result    following an order of the Court of        court declined to decide the issue
of that affair, wife claimed that she      Common Pleas of Beaver County             because it found for the College on its
suffered and will continue to suffer       denying the Community College             second argument — that the College
significant psychological harm.” The        of Beaver County’s (the College’s)        is immune from suit under the CPL
trial court held that the doctor owed no   motion for partial summary judgment.      because of statutory governmental
duty to the patient under the pleaded          The plaintiffs in both cases were     immunity under 42 Pa. C.S. § 8541.
circumstances.                             former students in the College’s               The     Commonwealth         Court
     In reversing the trial court, the     police technology program (the            initially noted that “a community
Superior Court found no distinction        Academy) during the 2001-2002             college, as a tax supported institution
between a medical doctor in general        academic year. The Academy lost           created by local government units,
practice and a psychiatrist treating       its school certification under the         is a local agency for purposes of
a patient for emotional problems.          Municipal Police Officers Education        governmental immunity,” citing Cmty.
“These doctors need not be specialists     and Training Act, also known as “Act      Coll. of Allegheny County v. Seibert,
in psychological care, but merely must     120,” 53 Pa. C.S. §§ 2161-70. The         601 A.2d 1348 (Pa. Cmwlth. 1992),
be medically licensed to treat patients    former students filed claims alleging      aff’d, 622 A.2d 285 (Pa. 1993). The
for such conditions. We note that in       breach of contract, breach of warranty,   court then analyzed whether the
this case it is claimed that Dr. Wolfert   and “unfair or deceptive conduct”         immunity was applicable to CPL
was actively treating the patient for      under the CPL. As the court noted, “[t]   claims.
those issues, and not merely cognizant     he only significant difference between          The trial court had relied on
of them. As such, the trial court erred    the two cases is Plaintiffs [in Meyer]    numerous decisions drawing a
in granting Defendants’ preliminary        completed one half of their course        distinction between contract claims and
objections.”                               of study; the Barr plaintiffs virtually   tort claims in analyzing governmental
                                           completed the entire course of study.”                      CONTINUED ON PAGE 16


                                                          PBA Civil Litigation Section Newsletter      Summer 2009       15
Pa. Cases of Note                           utility service facilities; (6) streets; (7)   College “retained immunity for the
                                            sidewalks; or (8) care, custody and            types of conduct needed to support
CONTINUED FROM PAGE 15
                                            control of animals).                           such an award.” The Commonwealth
                                                 As no one asserted that the               Court reversed the trial court and
immunity. The Commonwealth Court            College’s actions fell within the              granted partial summary judgment
declined to decide whether CPL              statutory exceptions, the court quickly        in favor of the College, finding that
claims were “tort-like” or “contract-       surmised that under § 8541, the                governmental immunity barred the
like.” Instead, the court explained         College “is not liable for statutory           plaintiffs’ CPL claims.
that under § 8541, a local agency           damages on account of any injury                   Judge Butler dissented without
may be held liable under a statute          to a Plaintiff’s person or property            opinion.
creating a cause of action, but only if     interests; rather, it retains immunity.”
the claim is predicated on negligence       Governmental immunity for statutory            — Contributed by Philip K. Miles III,
within one of the eight exceptions to       damages is only waived for negligent           Esq., McQuaide, Blasko, Fleming
immunity found in 42 Pa. C.S. § 8542        acts explicitly enumerated in § 8542.          & Faulkner, Inc., State College;
((1) vehicle liability; (2) care, custody   The court further held that the College        pkmiles@mqblaw.com. ■
or control of personal property of          could not be held liable for treble
others; (3) real property, trees; (4)       damages under a separate punitive
traffic controls and street lighting; (5)    provision of the CPL because the




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16   Civil Litigation Update
Business Litigation Update

Pennsylvania Federal
Business Decisions
Bridget M. Gillespie and Henry M. Sneath, Business Decisions Editors

                                               author of the bestseller “Your Best        swiftly-rejected complaints against
                                               Life Now,” infringed on the copyright      counsel for Osteen and the publisher
                                               and the trademark. Osteen’s book           with the Pennsylvania State Bar. The
                                               allegedly violated the copyright by        Third Circuit therefore affirmed the
                                               borrowing phrases from Douglas’s           district court’s decision to impose a
                                               book; it allegedly infringed on the        $5,000 sanction against Douglas.
                                               trademark by repeatedly using the
                                               phrase “eyes of faith.” Douglas            — Contributed by Jason A. Spak, Esq.
Bridget M. Gillespie      Henry M. Sneath      further alleged that Osteen’s lawyer       of Picadio Sneath Miller & Norton,
                                               interfered with Douglas’s contractual      P.C., Pittsburgh; jspak@psmn.com
Third Circuit Affirms                           relationship with an unnamed legal
Dismissal and Sanctions                        adviser. Defendants included Osteen,
                                                                                          Motion to Dismiss Granted
                                               Osteen’s publisher, and its distributors
against Pro Se Plaintiff’s                                                                Against Pro Se Plaintiff in the
                                               and retailers.
Copyright Infringement Case                         The Third Circuit held that           Seduction Advice Business
Against Televangelist Joel                     the Eastern District’s decision to         for Claims of Violations
Osteen                                         dismiss Douglas’s claims against all       of the Lanham Act, Fair
                                               Defendants was proper. First, federal      Housing Act and Antitrust
    In Douglas v. Osteen et al., No.           copyright law does not prohibit two        Law
08-3097, 2009 U.S. App. LEXIS 5879             authors from “employ[ing] similar
(3d Cir. Mar. 13, 2009) (per curiam),          literary methods to write books on             In Parker v. Viacom International,
the Third Circuit affirmed the Eastern          similar themes,” which was what            Inc. et al., 605 F. Supp.2d 659 (E.D.
District’s decision to dismiss with            Douglas had accused Osteen of              Pa. March 11, 2009) (opinion by
prejudice a copyright claim filed by            doing. Second, federal trademark law       Robreno, J.), pro se Plaintiff Gordon
a serial pro se plaintiff. The Third           requires a “likelihood of confusion”       Parker, an individual in the business of
Circuit also affirmed the district              as a basis for an infringement claim,      providing seduction advice, initiated
court’s decision to impose sanctions           and Osteen’s use of the phrase “eyes       an action against Defendants Viacom
against that plaintiff.                        of faith” was not likely to cause          International, Inc., Venusian Arts
    Plaintiff Herman Douglas wrote             confusion. Finally, Douglas did            Corp. (VAC), and Erik Von Markovik.
a book (Prayer Power in the Eyes               not allege that he had a contractual       VAC is a corporation that provides
of Faith), trademarked its title, and          relationship with his legal adviser or     information and live seminars on
copyrighted its contents. In his               explain how Osteen’s lawyer — who          dating-related advice and Markovik
complaint, Douglas alleged that Joel           allegedly told the adviser only that he    is an owner/operator of VAC.
Osteen, a popular televangelist and            would be filing a motion to dismiss —       Parker alleged that Viacom’s reality
                                               interfered with it.                        television program, “The Pickup
Henry M. Sneath and Bridget M.                      The Third Circuit then noted that     Artist” (TPUA), which debuted on
Gillespie are partners in the litigation       while Douglas had been previously          August 5, 2007, resulted in violations
firm Picadio Sneath Miller & Norton,            sanctioned for filing frivolous             of the Lanham Act, Fair Housing Act
P.C., in Pittsburgh. They have extensive       lawsuits, he had nevertheless filed a       and Antitrust Law.
federal and state court trial experience       number of meritless motions with the           With respect to Lanham Act
in cases involving commercial disputes,        district court (e.g., seeking a default    violations, Parker first alleged,
professional negligence, products liability,   judgment against Osteen after Osteen       as part of a claim for misleading
intellectual property and insurance            entered an appearance) and filed                               CONTINUED ON PAGE 18
coverage.
                                                               PBA Civil Litigation Section Newsletter       Summer 2009        17
Pennsylvania Federal                        “pivot,” which describes a seduction         described Defendants’ behavior as
Business Decisions                          technique, that he first used in his          harassment, designed to make him
                                            1999 book entitled “29 Reasons Not           lose access to the Internet.
CONTINUED FROM PAGE 17                      to Be a Nice Guy.” Parker contended               Parker also alleged that, as a
                                            that Defendants’ use of the term             violation of the Antitrust Law, the
advertising, that Viacom lied about         constituted false designations of the        seduction community migrated from
whether certain women in a dance            origin. To establish a false designation     a newsgroup on USENET to another
club scene were paid actors, Viacom         of origin claim under the Lanham Act,        website, which caused a shift in
faked an entire particular scene,           a plaintiff must show: (1) defendant         the balance of power to Markovik.
and Viacom overstated the social            uses a false designation of origin; (2)      Section 2 of the Sherman Act makes it
awkwardness of male contestants.            that such use of a false designation         unlawful to monopolize, or conspire to
In response, Defendants moved to            occurs in interstate commerce in             monopolize, interstate or international
dismiss the claim on the grounds that       connection with goods and services;          commerce. The courts have defined
Parker lacked standing, the alleged         (3) that such false designation is           anti-competitive conduct as conduct
false statements did not constitute         likely to cause confusion, mistake, or       to obtain or maintain monopoly power
commercial advertising or promotion,        deception as to origin, sponsorship,         as a result of competition on some
and Parker’s alleged injuries were          or approval of plaintiff’s goods or          basis other than the merits. Parker
speculative in nature. The court held       services by another person; and (4)          contended that Defendants attempted
that to have standing to assert a false     that plaintiff has been or is likely to be   to divert Internet traffic from his Web
and misleading advertising claim            damaged. In response to Defendants’          site. However, because Parker failed to
under the Lanham Act, a plaintiff must      argument that Parker failed to allege        allege harm to the competitive process
show that he has a reasonable interest to   the essential elements of the claim,         as a whole, the court dismissed his
be protected against false advertising.     the court determined that, because           claim.
In comparing factors identified              Defendant was the producer or “origin
by the Third Circuit to determine           of” TPUA, the false designation              — Contributed by Joseph R.
whether a plaintiff has a reasonable        of origin element was unsatisfied.            Carnicella, Esq. Picadio Sneath
interest, including (1) the nature of       The court concluded that because             Miller & Norton, P.C., Pittsburgh;
the alleged injury, (2) the directness      Defendants’ production of TPUA was           jcarnicella@psmn.com
or indirectness of the asserted injury,     the origin of the good at issue, rather
(3) the proximity or remoteness of the      than Parker’s term “pivot,” Parker           SEC Fails to Satisfy Burden
party to the alleged injurious conduct,     failed to satisfy the false designation of   to Show That Chairman
(4) the speculativeness of the claim,       origin element. Moreover, with respect       Unlawfully Tipped Material,
and (5) the risk of duplicative damages     to Parker’s claim that he had a first use     Nonpublic Information to
or complexity in apportioning claims,       trademark, the court determined that
the court determined that Parker’s                                                       Outsider
                                            Parker’s allegations, in fact, weakened
claim failed. Specifically, the court        his claim that he used the term as a
concluded that Parker alleged a                                                               In Securities and Exchange
                                            trademark or that the term acquired a
commercial interest in the seduction                                                     Commission v. Anton, Civil Action
                                            secondary meaning.
education industry but failed to allege                                                  No. 06-2274, 2009 U.S. Dist. LEXIS
                                                 With respect to the Fair Housing
a competitive harm. Additionally,                                                        34889 (E.D. Pa. April 23, 2009)
                                            violations, Parker claimed that
Parker’s injuries were remote because                                                    (opinion by Sanchez, J.), the Securities
                                            Markovik attempted to harass him
he failed to state a direct connection                                                   and Exchange Commission (SEC)
                                            by posting messages on the Internet
between Defendants’ false statements                                                     alleged that Frederick W. Anton, III,
                                            so that Parker would move from his
and his injuries. Finally, the court                                                     violated securities laws by disclosing
                                            residence and, as a result, Parker would
found that Defendants would face                                                         material, nonpublic information to
                                            lose his Internet access. According to
multiple liability for the same conduct                                                  David L. Johnson. Anton served as
                                            the court, to assert a violation under
if it allowed Parker to establish                                                        chairman of the board of directors
                                            the Fair Housing Act, a plaintiff must
standing on these facts.                                                                 for PMA Capital Corporation, which
                                            show that (1) he is the victim of a
     Also, in regard to Lanham Act                                                       was a publicly-traded insurance
                                            discriminatory housing practice, (2)
violations, Parker claimed that                                                          holding company. Johnson was a
                                            which makes unavailable or denies
because he was in the business of                                                        retired former PMA executive who
                                            housing on account of a protected
providing seduction advice, he had a                                                     regularly followed PMA’s stock price,
                                            classification. Here, the court held that
first use trademark to use of the term       Parker made no such claim and merely                            CONTINUED ON PAGE 19



18   Civil Litigation Update
Pennsylvania Federal                      interest and a civil penalty for a total    that Anton knew about the dividend
Business Decisions                        amount of $786,449. Subsequently, the       elimination when he spoke to Johnson
                                          SEC commenced this action against           on October 31, 2003, and thus, no
CONTINUED FROM PAGE 18                    Anton for alleged tipper liability for      conclusive evidence existed to prove
                                          disclosing information to Johnson.          that Anton disclosed the information
reviewed PMA’s financial reports and            According to the court, liability      to Johnson in their conversation.
attended PMA’s annual meetings.           under the classical theory of insider       Furthermore, the court determined
PMA’s two main businesses included        trading will be imposed on corporate        that the record lacked any evidence
PMA Insurance Group, which was            insiders who trade on the basis of          to demonstrate that any discussions
the primary commercial insurance          confidential information obtained            were held regarding the dividend
business, and PMA Re, which was the       by reason of their position with the        elimination prior to the meeting on
reinsurance business.                     corporation. This legal theory applies to   November 2, 2003, at which time
     From the period between 2000         officers, directors and other permanent      the board decided to suspend the
and 2003, PMA Re increased the            insiders of a corporation, and also to      dividend. Also, with respect to the
amount of its loss reserves, which        attorneys, accountants, consultants,        reserve increase, the court concluded
is an estimate of future amounts          and others who temporarily become           that although Anton could have
needed to pay reported and unreported     fiduciaries of a corporation. The court      been aware of the potential reserve
insurance claims, several times as a      determined that for the SEC to prove        increase based on his experience, the
result of experiencing a higher volume    its case, the SEC had to demonstrate        record failed to confirm that he was
of reported claims from its insured       by a preponderance of the evidence          involved in any discussions regarding
companies. In late October 2003,          that Anton, with scienter, disclosed        the increase subsequent to September
Johnson read an analyst report, which     material, nonpublic information to          30, 2003, which was the date when
had reduced PMA’s classification           Johnson, an outsider of PMA, in             Anton attended his last meeting of the
from “Neutral” to “Underperform.”         breach of a fiduciary duty to PMA            Executive Committee of the board of
Subsequently, Johnson spoke with          shareholders. Furthermore, the SEC          directors. In fact, the minutes from the
John Smithson, the President and CEO      had to establish the following facts:       last meeting Anton attended revealed
of PMA, who informed Johnson that         (1) Johnson sold PMA stock while in         that at that time PMA anticipated
the report was factual but that PMA       possession of the inside information;       a $50-60 million reserve increase,
would be reporting its third quarter      (2) Johnson knew or should have             which was a stark contrast to the
earnings in the normal course and         known that Anton violated a                 $150 million increase announced on
more information would be available       relationship of trust by relaying the       November 4, 2003.
at that time.                             inside information; and (3) Anton                In addition to determining that
     On October 31, 2003, Johnson         benefitted from the disclosure.              Anton did not make a disclosure to
contacted Anton, and following their           The SEC’s case against Anton           Johnson, the court concluded that the
conversation, Johnson sold 20,000         relied heavily on the conversation          SEC failed to prove that the information
shares of PMA stock. Johnson sold         between Anton and Johnson on October        regarding the increase in loss reserves
another 20,000 shares on November         31, 2003. The court determined,             was material. According to the court,
3, 2003, and in the interim, he advised   however, that the individuals were not      materiality relates to whether the
his children to sell their shares of      credible in their testimony regarding       tipped information, if divulged to
PMA stock. At that time, PMA’s            the conversation. Anton’s testimony         the public, would have been likely to
shares sold at an average price of        was discredited based on, inter alia,       affect the decision of potential buyers
$13.17. On November 4, 2003, PMA          his inconsistency in recollection of        and sellers. Furthermore, assuming
announced it would be increasing          the conversation; Johnson’s testimony       that the evidence showed Anton
its loss reserves by approximately        was discredited based on, inter alia,       had disclosed material, nonpublic
$150 million and planned to suspend       his inconsistencies in his stated           information, the court concluded
dividends. When the market closed         reasons for calling Anton. Because          that the SEC failed to establish that
on November 4, 2003, PMA’s stock          the accounts of the conversation            Anton had personally benefitted,
closed at $5.03 per share. In 2005, the   could not be credited, the court then       either directly or indirectly, from
SEC commenced an action against           considered circumstantial evidence to       any disclosure. As to the remaining
Johnson for allegedly committing          determine whether Anton made such           elements, the court determined that
insider trading. Johnson settled the      a disclosure to Johnson. With respect       there could be no finding of scienter
action by paying the amount of losses     to the dividend elimination, the court      or breach of a fiduciary duty because
he and his son avoided, prejudgment       concluded that the record failed to show                       CONTINUED ON PAGE 20



                                                          PBA Civil Litigation Section Newsletter        Summer 2009        19
Pennsylvania Federal                       failed to exercise appropriate             Adolor stock in a public offering
Business Decisions                         oversight over Adolor; or b) received      — did not meet the standard. These
                                           benefits from Adolor that, in light         latter allegations showed that several
CONTINUED FROM PAGE 19                     of the circumstances, made them so         officers and directors received some
                                           beholden to Adolor as to render them       benefits from Adolor, but they did
the SEC failed to meet its burden of       incapable of independent oversight.        not show that the benefits were
establishing by a preponderance of         Because the shareholders only alleged      substantial enough to compromise
the evidence that Anton disclosed          that the officers and directors received    these individuals’ judgment.
material, nonpublic information.           benefits from Adolor, the court ruled            Because the shareholders did not
                                           that the shareholders had not met Rule     particularly plead enough facts to
— Contributed by Joseph R.                 23.1’s heightened pleading standard        suggest that a precomplaint demand on
Carnicella, Esq. Picadio Sneath            and dismissed the complaint.               Adolor to sue its officers and directors
Miller & Norton, P.C., Pittsburgh;              The court first found that the         would have been futile, the court
jcarnicella@psmn.com                       shareholders made no allegations           dismissed the shareholders’ derivative
                                           that Adolor’s board as a whole             suit for failure to make such a demand.
Dismissed Derivative Filing                systematically failed to exercise
Failed Properly to Plead                   appropriate oversight. The shareholders    — Contributed by Jason A. Spak, Esq.
Futility                                   had alleged that members of the            of Picadio Sneath Miller & Norton,
                                           board’s compensation and audit             P.C., Pittsburgh; jspak@psmn.com
     In the case of In re Adolor Corp.     committees had conflicts which
Deriv. Litig., No. 04-3649, 2009 U.S.      made it impossible for them to fulfill      Facebook “Friends” Status
Dist. LEXIS 40360 (E.D. Pa. May 12,        their duties. But the court found that     and Other Circumstantial
2009) (opinion by, Surrick, J.), the       these allegations were insufficient to      Evidence Insufficient to
Eastern District dismissed a derivative    meet the relevant pleading standard.       Show Membership in Group
suit by shareholders against Adolor        Alleging that the audit committee
                                                                                      Under Section 13(d) of
Corporation’s officers and directors.       failed to meet at all might be enough to
                                           plead a systematic failure of oversight,
                                                                                      Securities and Exchange Act
The shareholders never made a pre-
                                           but merely alleging the members of         of 1934
complaint demand, which is normally
a precondition for a derivative suit,      that committee had ethical conflicts
                                           was insufficient.                               In Quigley Corp. v. Karkus,
and the court found that they did not
                                                The court then found that while       Civil Action No. 09-1725, 2009
properly allege that a demand would
                                           the shareholders had alleged that          U.S. Dist. LEXIS 41296 (E.D.
have been futile.
                                           various officers and directors had          Pa. May 15, 2009) (opinion by J.
     Adolor     was      a     Delaware
                                           received benefits from Adolor, the          Pratter), the court was asked to issue
biopharmaceutical company, and
                                           shareholders had not alleged that the      a preliminary injunction against a
the shareholders alleged that it
                                           benefits were sufficient, in light of the    group involved in a proxy contest.
should have sued its officers and
                                           circumstances, to render the officers       The Plaintiff, Quigley Corporation
directors for misleading shareholders.
                                           and directors incapable of independent     (Quigley), alleged that a group of
Shareholders alleged that Adolor’s
                                           oversight.                                 investors (the Karkus Defendants)
board members misrepresented the
                                                The shareholders’ allegations         violated Sections 13(d) and 14(a) of
results from FDA trials of a pain
                                           about the benefits that Adolor’s            the Securities and Exchange Act of
reliever that Adolor hoped to sell as
                                           president and CEO received did             1934 (the Exchange Act), 15 U.S.C.
a treatment for post-operative ileus,
                                           suggest that he might have been            §§ 78m(d) and 78n(a), when it failed
a complication following abdominal
                                           incapable of completely independent        to make certain disclosures. Quigley
surgery.
                                           oversight. But the allegations as to       alleged that Defendants were acting
     The court applied Fed. R. Civ. P.
                                           other board members — who were             in concert to replace the board of
23.1 and ruled that to proceed without
                                           respectively alleged to have owned         directors of Quigley at an upcoming
making a precomplaint demand, the
                                           a company that sold Adolor stock;          shareholders meeting and that the
shareholders who filed the action had
                                           to have been friendly with another         Karkus Defendants had concealed
to plead with particularity that the
                                           director outside the boardroom; to         the membership of Defendant John
demand would have been futile under
                                           have served as an outside consultant       Edmund Ligums Sr. in the Karkus
Delaware law. To meet that standard,
                                           to Adolor; and to have paid indirect       Defendants’ group. Quigley asked the
the shareholders had to allege that the
officers and directors: a) systematically   royalties to Adolor and purchased                            CONTINUED ON PAGE 21



20   Civil Litigation Update
Pennsylvania Federal                       million active users, and the average        Dist. LEXIS 41304 (E.D. Pa. May
Business Decisions                         user has 120 “friends” on the site.          15, 2009) (opinion by J. Stengel), the
                                           Despite Quigley’s assertions of these        Plaintiff, Gallup, Inc. (Gallup), asked
CONTINUED FROM PAGE 20                     extensive relationships, however, the        the court to sanction the defendant,
                                           court found that there was no evidence       Kenexa Corporation (Kenexa), for
court to enjoin the Karkus Defendants      that Mr. Ligums was in fact a member         violation of a settlement agreement.
from continuing to violate Sections        of the Karkus Defendants’ group, and         Gallup had previously brought a
13(d) and 14(a) of the Exchange            accordingly there was no requirement         copyright infringement action against
Act, from participating in the proxy       for the Karkus Defendants to include         Kenexa, a competitor of Gallup,
contest, and the counting of the           Mr. Ligums on their disclosure to the        alleging unlawful use of Gallup’s
proxies solicited by any Defendant or      SEC under Section 13(d).                     employee        engagement       survey
those acting in concert or participation        Quigley’s claims under Section          instrument. On January 30, 2006,
with them on the basis of misleading       14(a) of the Exchange Act also               the parties entered into a settlement
proxy materials.                           related to the status of Mr. Ligums as       agreement over which the court
    Quigley first asserted that the         a member in the Karkus Defendants’           retained jurisdiction.
Karkus Defendants violated Section         group. Quigley alleged that the Karkus            Gallup filed a motion for sanctions
13(d) of the Exchange Act by failing       Defendants violated Section 14(a) by         alleging that Kenexa breached the
to disclose that Mr. Ligums was            omitting Mr. Ligums’s involvement in         settlement agreement when it failed to
part of the group intending to solicit     the group intending to solicit proxies       stop using prohibited items on some
proxies for the replacement of the         from the other shareholders. The court       surveys and failed to inform some
current board of directors of Quigley.     ruled that based upon its ruling that        clients that they were discontinuing
According to the court, Section 13(d)      Mr. Ligums was not a member of the           those items. Kenexa admitted that it
requires any group which acquires          group for purposes of Section 13(d),         breached the agreement as alleged
“beneficial ownership” of more than         there was no misrepresentation made          by Gallup, but contended that the
five percent of equity securities to file    under Section 14(a). Accordingly the         breaches were a result of human error
disclosures with the SEC within 10         court denied Quigley’s motion for            and that it had acted in good faith.
days of the acquisition. A “group” is      preliminary injunction.                           The court declined to sanction
defined by Section 13(d) as “two or              In addition to Quigley’s motion,        Kenexa for its admitted violations.
more persons act[ing] as a partnership,    the Karkus Defendants filed a motion          In doing so, the court distinguished
limited partnership, syndicate, or other   asking the court to exercise its equitable   an order that retained jurisdiction
group for the purpose of acquiring,        powers to force Quigley to turn over         with one that expressly incorporates
holding, or disposing of securities        its full list of shareholders prior to the   the substance of the agreement. The
of an issuer.” Quigley asserted that       statutory date of two days prior to the      court held that a contempt proceeding
Mr. Ligums’s extensive personal and        meeting. The court decided to grant          is only appropriate for violation of a
professional connections with many         the motion as a pseudo-sanction based        court order, and because the court did
of the Karkus Defendants, combined         upon Quigley’s actions in bringing the       not incorporate any of the terms of
with past criticisms of the Quigley        Karkus Defendants to court on the eve        the agreement into its order when it
management made by Mr. Ligums,             of the annual meeting and falling very       retained jurisdiction, the violation of
demonstrated that Mr. Ligums had an        short of its evidentiary burden in the       the settlement agreement could not
agreement with the Karkus Defendants       preliminary injunction hearing.              give rise to contempt. As a remedy,
to act together to solicit proxies in                                                   however, the court ordered Kenexa to
order to change the management of          — Contributed by Jeffrey B. Cadle,           abide by the terms of the agreement
the company.                               Esq., Picadio Sneath Miller & Norton,        that it had admitted to breaching, so
    Among the relationships that           P.C., Pittsburgh; jcadle@psmn.com            that in the case of further breaches,
Quigley cited in support of their                                                       Kenexa would be subject to the
claims, most notable was Quigley’s         Violation of Settlement                      contempt powers of the court.
assertion that Mr. Ligums was              Agreement Not Grounds for
Facebook “friends” with another                                                         — Contributed by Jeffrey B. Cadle,
                                           Contempt Where Agreement
defendant, Mr. DeShavo, and one                                                         Esq., Picadio Sneath Miller & Norton,
or more of Mr. DeShavo’s children.         Was Not Incorporated Into
                                                                                        P.C., Pittsburgh; jcadle@psmn.com
However, the court found no                Court Order
significance in this relationship, noting
that Facebook has more than 200                In Gallup, Inc. v. Kenexa Corp.,                           CONTINUED ON PAGE 22

                                           Civil Action No. 00-5523, 2009 U.S.
                                                           PBA Civil Litigation Section Newsletter        Summer 2009        21
Pennsylvania Federal                            Prior to Bridgeport’s motions for     of the accused and claimed products
Business Decisions                         summary judgment and the USPTO’s           to correspond directly. Instead, there
                                           reexamination of the ‘831 Patent, the      may be infringement if a combination
CONTINUED FROM PAGE 21                     court conducted its claim construction     of the accused product’s components
                                           hearing for certain terms in both          performs a function performed by
Claim Construction Reveals                 patents. The parties disagreed over        a single element in the claimed
that Product Did Not Infringe              whether the construction of the claims     invention. The test for infringement
Patents Literally or Under                 required a complete split in the ring.     under the doctrine of equivalents is
Doctrine of Equivalents                    Arlington specifically claimed that         that the difference between the accused
                                           Bridgeport’s product infringed claim 1     device and the claimed invention must
     Arlington Industries, Inc. v.         of the ‘831 Patent. The ‘831 Patent is     be insubstantial to one of ordinary
Bridgeport Fittings, Inc., No. 3:06-       for “an invention which relates to cable   skill in the art or the accused device
CV-1105, 2009 U.S. Dist. LEXIS             terminations and more particular to        must “perform the substantially same
39170 (M.D. Pa. May 8, 2009)               duplex or two-wire cable terminations      function in substantially the same way
(opinion by J. Caputo), involved a         that snap into place and include snap-     with substantially the same result as
patent infringement action filed by         on cable retainers which do not require    each claim limitation.”
Arlington Industries, Inc. (Arlington)     twisting to lock.” It found that the            The court’s determination that
against Bridgeport Fittings, Inc.          term “spring metal adaptor” in claim       Bridgeport’s adaptor did not infringe
(Bridgeport). In the action, Arlington     8 of the ‘050 Patent meant “a split ring   the ‘831 Patent paralleled its decision
claimed that Bridgeport’s electrical       or split spring metal adaptor so as to     of non-infringement of the ‘050
connector adaptor infringed two of         allow the diameter to easily change,”      Patent. In its infringement analysis
Arlington’s patents, designated by         and that the limitation of the “spring     of the ‘050 Patent, the court found
U.S. Patent Numbers: 5,266,050 (the        steel adaptor” in claim 1 of the ‘831      that Bridgeport’s adaptor did not
‘050 Patent) and 6,521,831 (the ‘831       Patent followed the same analysis.         infringe literally or under the doctrine
Patent). The court ultimately held that    Bridgeport distinguished its adaptor       of equivalents. When addressing the
Bridgeport’s adaptors did not infringe     by demonstrating that its adaptors         issue of literal infringement, the court
Arlington’s Patents.                       are not split. In opposition, Arlington    referred to its claim construction
     After a lengthy procedural            argued that its patented products did      ruling where it found that the term
history, Bridgeport filed four motions      not require a complete split.              “spring metal adaptor” in claim 8 of
for summary judgment. Two of the                Patent infringement involves a        the ‘050 Patent meant “[a]n adaptor
summary judgment motions separately        two-step analysis. The court must          which is circular or round and has
requested the court to enter judgments     first construe the asserted claims to       circular cross sections. A spring
finding that Bridgeport’s adaptor did       determine their proper meaning and         metal adaptor is a split right or split
not infringe either the ‘831 or the ‘050   scope. Then, the court compares            spring metal adaptor so as to allow the
Patents. Bridgeport’s other summary        the claims with the accused device.        diameter to easily change.” The court
judgment motions requested the court       Claim construction is a question of        compared the claim construction with
to find non-willingness as to both          law, while infringement is a question      Bridgeport’s adaptor, which it found
patents and to determine the issue         of fact. Infringement occurs when          to mean “a piece of continuous metal
of damages. The court subsequently         either the accused device infringes the    with no gaps. The metal of the adaptor
ordered a stay of proceedings on the       construed claims literally or under the    on the leading end creates a complete
‘831 Patent, pending the U.S. Patent       doctrine of equivalents. To establish      circle.” When comparing the claims,
and Trademark Office’s (USPTO)              infringement, every limitation set         the court found that Bridgeport’s
final determination of its inter partes     forth in the patent claim must be          product was not “split” as required
re-examination of the ‘831 Patent. In      found in an accused product exactly or     by the claim construction limitation
the meantime, the court granted all        by a substantial equivalent. A finding      for infringement of the “spring metal
of Bridgeport’s summary judgment           of literal infringement occurs when        adaptor.” Therefore, the court found
motions as to the ‘050 Patent and          each limitation of the claim is present    that there was no literal infringement
found that Bridgeport’s adaptor did not    in the accused device. Under the           because the failure to meet a single
infringe the ‘050 Patent. Eventually,      doctrine of equivalents, infringement      limitation is sufficient to negate literal
the court granted Bridgeport’s motion      is found when the accused device           infringement of a claim. Similarly, the
to lift the stay on the ‘831 Patent and    contains each limitation of a claim        court found during claim construction
considered the motion for summary          or its equivalent; however, there is       that the “spring steel adaptor” in
judgment on the ‘831 Patent.               no requirement for each component                             CONTINUED ON PAGE 23



22   Civil Litigation Update
Pennsylvania Federal                        Summary Judgment Granted                   certain conditions established an oral
Business Decisions                          on Breach of Contract Claim                contract between GM and the potential
                                            for Failure to Establish                   purchaser, HERC. Defendants based
CONTINUED FROM PAGE 22
                                            Actual or Apparent Authority               the oral contract allegation upon the
                                                                                       assertion that Fleck was an authorized
the ‘831 Patent also required the                                                      agent of GM with either actual or
adaptor to be split and was therefore            In General Motors Corp. v. Sable
                                            Motor Co. Inc., No. 07-CV-1493,            apparent authority to act on behalf
subject to the same analysis of the                                                    of GM. The court held that “actual
‘050 Patent. Accordingly, the court         2009 U.S. Dist. LEXIS 42490 (M.D.
                                            Pa. May 19, 2009) (opinion by J.           authority” can be expressed or implied.
applied the same reasoning to the term                                                 “Expressed actual authority” exists
“spring steel adapter” and found that       Jones), General Motors Corp. (GM)
                                            brought this action against Defendants     when a principal directly states that
Bridgeport’s adaptor does not literally                                                an agent has the authority to perform a
infringe the ‘831 Patent.                   by filing a one-count complaint
                                            seeking      “specific      performance     particular act on the principal’s behalf.
     The court further determined that                                                 Further, “implied actual authority” is
Bridgeport’s adaptor did not infringe       and enforcement” of a contract.
                                            Defendants       filed    counterclaims     to do all that is proper, necessary and
the ‘831 or ‘050 Patents under the                                                     ordinary in exercising the express
doctrine of equivalents. In its analysis    including breach of contract, bad faith,
                                            unjust enrichment and intentional/         actual authority delegated to it.”
of the ‘050 Patent, the court observed                                                 “Apparent authority” is based upon
that Arlington and Bridgeport’s             negligent misrepresentation. Plaintiff
                                            filed a motion for summary judgment         the principal’s acts or omissions which
adapters “achieved substantially                                                       “lead a reasonably prudent person to
the same function of being placed           on the counterclaims, which the court
                                            granted.                                   believe such authority had been given
in the junction box and achieved                                                       to the agent.”
substantially the same result;”                  Defendant Jack Sable owned
                                            and operated a Chevrolet dealership             The court found that Fleck did not
however, “the function and result was                                                  have either actual or implied actual
not achieved in substantially the same      pursuant to an agreement with GM.
                                            This agreement required GM’s               authority. Documents proved that
way.” The court observed that while                                                    GM did not vest its representatives
Bridgeport’s adaptor did not change in      approval of any change in ownership
                                            in the dealership. Sable entered into      or agents with actual authority to
its entirety, Arlington’s “spring metal                                                approve a modification to the terms of
adaptor” consisted of a diameter that       an asset purchase agreement with a
                                            corporation known as HERC, which           an application. Defendants also failed
changed in its entirety in order to fit                                                 to demonstrate that GM vested Fleck
within the junction box. Therefore, the     was subject to GM’s approval. GM
                                            denied the change in ownership             with apparent authority. Defendants
court found that Bridgeport’s adaptor                                                  did not present any evidence to reveal
did not infringe the ‘050 adaptor under     due to the lack of experience of the
                                            potential purchaser. A representative      that GM knew of Fleck’s alleged
the doctrine of equivalents.                                                           assurances to Defendants or that
     In the analysis of the ‘831 Patent     of the potential purchaser contacted
                                            a GM zone manager, William Fleck,          GM was aware of the manager’s
under the doctrine of equivalents, the                                                 assistance to help Defendants
court found that the purpose of the split   and claimed that the manager assured
                                            him the transfer would be approved         complete the second asset agreement.
ring in the ‘831 Patent was to allow                                                   Finally, Defendants did not present
the diameter of the adaptor to easily       upon certain conditions. Based on this
                                            representation, the potential purchaser    any evidence indicating that GM
change. On the contrary, Bridgeport’s                                                  was negligent in supervising Fleck.
adaptor did not include a split and         acted in reliance on these assurances
                                            to his monetary detriment, but GM          Therefore, GM could not be bound by
did not change in totality. Therefore,                                                 agency by estoppel. Accordingly, GM
Bridgeport’s adaptor worked in              denied the transfer again.
                                                 The parties all engaged in a          was not a party to the oral contract;
a different way to achieve the                                                         and therefore, could not be liable for
substantially same result. Further, the     proceeding before the Pennsylvania
                                            State Board of Vehicle Manufacturing       breaching the contract.
court found that Bridgeport’s adaptor                                                       Building upon the analysis for
did not contain every limitation of         Dealers and Salespersons. As a result,
                                            GM claimed an oral settlement was          determining Fleck’s authority, the
the ‘831 Patent and therefore, did not                                                 court also held that Defendants
infringe the ‘831 Patent under the          reached. GM filed this suit to enforce
                                            this alleged settlement agreement.         could not satisfy the first element of
Doctrine of Equivalents.                                                               promissory estoppel: a promise by
                                                 The     court    first     analyzed
                                            Defendants’ breach of contract             GM that it should have reasonably
— Contributed by Elaine J. Wizzard,
                                            counterclaim. Defendants claimed that      expected would induce action or
Esq. Picadio Sneath Miller & Norton,
P.C., Pittsburgh; ewizzard@psmn.com.        Fleck’s assurances of approval upon                           CONTINUED ON PAGE 24


                                                            PBA Civil Litigation Section Newsletter       Summer 2009         23
Pennsylvania Federal
Business Decisions

CONTINUED FROM PAGE 23



forbearance on part of the Defendants.
Because Fleck’s conduct did not result              Save the Date!
from actual or apparent authority,
GM could not expect that Defendants
would rely upon the representation of
its employee.                                         December 3, 2009
     Defendants also failed to
provide evidence to support a
claim for intentional or negligent
misrepresentation.      Fleck    acted       Committee/Section Day
ultra vires, therefore his actions
were not attributable to GM. Thus,          Holiday Inn East, Harrisburg
Defendants could not support a claim
for misrepresentation, and the court
granted GM’s motion for summary
judgment in its entirety.

— Contributed by Elaine J. Wizzard,
Esq., Picadio Sneath Miller & Norton,
P.C. Pittsburgh; ewizzard@psmn.
com. ■




                                 LEGISLATIVE ACTION CENTER
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         legislative process. The PBA Legislative Department has created a new Legislative Action
                Center to enable PBA members to contact their legislators quickly and easily.

        The Action Center allows members to send e-mails to their senators or representatives on
           important legislative issues facing the legal profession. Members also can create a
        message and download it to send via postal mail. Talking points on legislative topics and
              sample letters also are available. Visit the Legislative Action Center today at
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                          Department with questions at legislative@pabar.org.




24   Civil Litigation Update
Message from the Incoming                   would like to submit for consideration,    retreat will take place April 16
Chair                                       please contact Bridget. You might also     through 18, 2010 in Baltimore, Md.
CONTINUED FROM PAGE 1                       consider joining the group of terrific      Accommodations have been reserved
                                            authors who contribute the case            at the Renaissance Harborview Hotel,
perspectives. The Council continually       summaries that keep us all updated         located in Baltimore’s Inner Harbor,
looks for ways to enhance Section           on new appellate court decisions and       and we are in the planning stages
benefits to members, and we welcome          developments.                              of what promises to be terrific CLE
your thoughts and comments in this              Another benefit our Section has         programming, both on an informative
regard. We also welcome your ideas          traditionally offered is the opportunity   and entertaining basis. Please consider
for enhancing the professional and          for networking, thoughtful discussion,     bringing your family with you to take
personal lives of our membership            and fine dining at regional dinners         advantage of this fabulous location
through the betterment of civil             hosted in various commonwealth             and all it has to offer! The National
litigation practice in Pennsylvania.        locations. We have attempted to            Aquarium, the Maryland Science
     One of the many benefits of             change the venue for the dinners           Center, and the Gallery are just a
Section membership is the Section           annually to allow for greater access       few of the many family-friendly
newsletter, which is generally              and participation. We anticipate           attractions in close proximity to the
published on a quarterly basis. Our         hosting dinners in the central and         Renaissance Harborview. The Section
thanks go out to Bridget Gillespie          western regions this year. Please keep     typically subsidizes a significant
for her fine work as editor over             an eye out for more information on the     portion of the retreat expenses, and we
the past several years, and to the          regional dinners in upcoming editions      will strive to do so this year as well,
other members of the Newsletter             of the newsletter, and join us if you      so that the retreat can be a relaxing
Committee and the many authors              can.                                       and affordable experience, as well as
who have submitted articles and case            We have started preparing in           an engaging and exciting weekend
summaries. If you have an idea for          earnest for the 2010 PBA Civil             from both a personal and professional
an article, or a completed article you      Litigation Section Retreat. The            standpoint. We will keep you updated
                                                                                       on our plans and activities for the
Katherine V. Oliver, Esq. is chair of the PBA's Civil Litigation Section and a         retreat. In the meantime, please mark
partner in the State College office of McQuaide, Blasko, Fleming & Faulkner,            your calendars and plan to attend with
Inc., concentrating on insurance and general litigation. She can be reached at         your families! ■
kvoliver@mqblaw.com.


Message from the Outgoing                   the child had no counsel and often         judges and lawyers, and the headlines
Chair: Cleaning Our Own House               for modest transgressions of the law.      from northeastern Pennsylvania have
                                            There is ample talk that the continuing    only made those people more certain
CONTINUED FROM PAGE 1
                                            investigation could result in more and     in their convictions and added to their
                                            different sorts of charges against a       numbers.
office. Consider two judges and
                                            growing circle of defendants.                   There is no easy solution, but
a lawyer in Luzerne County who
                                                The Pennsylvania Supreme Court         there are steps that can only help.
pleaded guilty earlier this year in
                                            has taken dramatic steps to investigate    The legal community must publicly
a corruption scandal that has fairly
                                            the wrongdoing and to clear the            and resolutely condemn any proven
rocked the courthouse in Wilkes-Barre
                                            records of the kids who were the most      misconduct by judges and lawyers.
off its foundation, and which has
                                            visible and tragic victims here. But       First, we must do so because no group
reverberated throughout Pennsylvania.
                                            there are so many other victims, among     should be more offended by abuse of
By now, we are all familiar with the
                                            them the public’s trust in the legal       the legal system than ours. A judge
allegation in a civil lawsuit that one of
                                            system, not only in Luzerne County,        who ignores his oath and sells the
the judges accepted bribes for sending
                                            but across Pennsylvania. Too many          authority of his office deserves our
kids to a private juvenile-detention
                                            people harbor an innate distrust of        emphatic disapproval as lawyers and
center, often after a hearing at which
                                                                                       as citizens. Second, we must do so
David R. Fine, Esq. is outgoing chair of the PBA’s Civil Litigation Section and a      to make clear to the public that we
partner with K&L Gates in Harrisburg. The views expressed in this column are           do not in even a small way condone
his and are not necessarily those of the Pennsylvania Bar Association or its Civil     these crimes and that there is no “thin
Litigation Section.                                                                                      CONTINUED ON PAGE 26


                                                            PBA Civil Litigation Section Newsletter      Summer 2009        25
Message from the Outgoing                  which the results seem to bear no             At bottom, we have an inescapable
Chair:                                     resemblance to the merits, perhaps        responsibility here. First, we have
Cleaning Our Own House                     someone should have noticed. Let’s        a responsibility as the guardians of
                                           set aside the fair question of why no     the legal system that is so critical to
CONTINUED FROM PAGE 25
                                           one stepped forward earlier during        our society’s function. Second, we
                                           what federal prosecutors say was a        have a responsibility as people whose
pinstriped line” by which we protect
                                           many-year-long pattern of corruption.     profession has been besmirched by
our own no matter how evil their
                                           Instead, let’s simply agree that anyone   those who we are told viewed their
behavior.
                                           with knowledge or even suspicion          judicial offices not as high callings
     The legal community must take a
                                           of wrongdoing must step forward to        but as profit centers and who treated
leading role in cleaning up the mess
                                           speak with investigators now. It is no    those who came before them not as
left by those who have besmirched our
                                           time for reticence.                       persons to be afforded due process
profession. No one is as well equipped
                                                Once we have taken those steps       but as budget line items. Let’s not shy
as we to root out the problems, and no
                                           — condemning the malefactors and          away from calling evil what it is – evil.
one should have a greater incentive.
                                           joining in the cleanup — we must          Let’s take the lead on cleaning our own
Many lawyers and local bar groups
                                           demonstrate to our fellow citizens        house. And let’s take affirmative steps
in northeastern Pennsylvania have
                                           that the disgraced judges and lawyers     to rebuild our judiciary’s reputation
already joined in those efforts, and the
                                           are in no way representative of           with the people it serves.
rest of us must follow their lead. The
                                           our profession. I know judges and
leadership of the Pennsylvania Bar                                                                     ***
                                           lawyers in Luzerne County and across
Association has conferred with Chief
                                           Pennsylvania, and I know that the vast        A final, unrelated subject. With
Justice Ronald Castille to convey to
                                           majority are honorable people who act     the conclusion in June of my term as
the Supreme Court the association’s
                                           each day with integrity and a sense       chair of the Civil Litigation Section,
willingness to help.
                                           of duty. We must be sure the public       this will be my final newsletter
     There is another way lawyers and
                                           knows that those who appear in daily      column. Thank you for your patience
judges can help. We must accept the
                                           headlines represent only the smallest     in allowing me to share some of my
discomforting fact that the judges and
                                           fraction of the legal community.          views and for the correspondence you
lawyers who have pleaded guilty to
                                           Perhaps our bar association should        have occasionally sent to weigh in on
federal crimes could not have acted
                                           initiate a series of public service       the issues I’ve addressed. My time as
in a vacuum. If the allegations are
                                           announcements highlighting pro            chair was an honor and a joy, and it
correct, much of what went wrong on
                                           bono or community service provided        confirmed what I have long believed:
North River Street occurred in open
                                           by Pennsylvania lawyers and judges        lawyers and judges (rare exceptions
court. When a juvenile appears in
                                           to place the misconduct of a few in       notwithstanding) are among the
court, there are always others present
                                           its proper perspective. Perhaps we        sharpest, most interesting, most
who should know that the young
                                           as individuals should write opinion       creative and most enjoyable people
person should be advised of his or her
                                           pieces for our local newspapers           around. ■
right to counsel — and that something
                                           excoriating the wrongdoers but
is wrong when that does not happen.
                                           placing their terrible acts in context.
When there is a pattern of cases in




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26   Civil Litigation Update
Legislative Update
By Steven Loux, Esq.                      a violation of law or participation in      for the injury
                                          an investigation, hearing or inquiry        resulting     in
The PBA Legislative Department            held by an appropriate authority or in      the death. In
seeks to inform section members about     a court action relating to a violation of   determining
adopted or pending legislation that       law.                                        the       award
affect our practice areas. The section                                                amount       the
encourages members to express                      LEGISLATION                        judge or jury
opinions regarding any pending                                                        shall consider:
legislation’s importance or impact by     Below find bills by topic that were not      1) deprivation
                                                                                                             Steven Loux
contacting appropriate legislators,       in the previous Newsletter Update,          of      expected
the PBA Legislative Department or         or were included in that Update and         pecuniary and non-pecuniary benefits
the leaders of the section. To obtain     have since progressed in the House          to beneficiaries that would have
copies of any bill cited below, please    of Representatives or the Senate.           resulted from the continued life of the
e-mail Steven Loux at steven.loux@        Unless otherwise noted, reference to a      deceased; 2) loss of contributions for
pabar.org, call him at 1-800-932-         committee means a House Committee           support; 3) loss of parental, marital,
0311, ext. 2246, or directly access       for House bills, a Senate committee for     familial and household services; 4)
bills and other legislative information   Senate bills. The PBA has no position       reasonable funeral expenses not to
online at www.legis.state.pa.us.          on the bills and is providing each          exceed $15,000; and 5) mental anguish
                                          summary for informational purposes          and grief resulting from the death of a
           NEW LAW                        only. All dates refer to 2009.              deceased person. The bill was referred
                                                                                      to the Judiciary Committee on Mar.
The Preventable Serious Adverse           Jury Duty Exemptions                        25.
Events Act, Act 1 of 2009 (HB 84)         SB 347, sponsored by Sen. Stewart
— The act establishes a system for        Greenleaf (R-Montgomery), amends            HB 1804, sponsored by Rep. Dan
payment or reduction in payment for       Title 42 (Judiciary & Judicial              Frankel (D-Allegheny), amends Title
preventable serious adverse events        Procedure) exempting persons 75             42 adding that a benevolent gesture or
within Pennsylvania. A health care        years of age or older who request to be     admission by health care provider or
provider may not knowingly seek           excused from jury duty. The bill was        assisted living residence or personal
payment from a health payor or patient    referred to the Judiciary Committee on      care home prior to the commencement
for: 1) a preventable serious adverse     Feb. 20.                                    of a medical professional liability
event; or 2) any services required to                                                 action shall be inadmissible as
correct or treat the problem created by   SB 627, sponsored by Sen. Greenleaf,        evidence of liability or as evidence
a preventable serious adverse event       amends Title 42 exempting from jury         of an admission against interest. The
when that event occurred under their      duty judges and magisterial district        bill was referred to the Judiciary
control. The act also provides for        judges of Pennsylvania and judges           Committee on June 30. The bill is
duties of the Departments of Health       of the United States as defined in 28        identical to SB 208.
and State and for reporting by health     U.S.C. 451 (relating to definitions).
care providers.                           The bill was referred to the Judiciary      SB 907, sponsored by Sen. Edwin
                                          Committee on Mar. 16.                       Erickson (R-Delaware), amends
Banking        Code      Amendments                                                   Title 42, in arbitration, further
Including Employee Protections            Medical         Malpractice         and     providing for validity of agreement to
for Reporting Violations, Act 7 of        Professional Liability                      arbitrate, common law arbitration and
2009 (HB 985) — The act amends            HB 1095, sponsored by Jesse White           compulsory arbitration by specifying
the Department of Banking (DoB)           (D-Washington), amends Title 42             that no provision of a contract entered
Code further defining “institution”        providing for death action by adding        into between a patient of a health care
to include a business entity that was     that in awarding an amount of damages,      provider and the health care provider
subject to the supervision of the DoB.    the judge or jury shall consider all the    that provides for arbitration or binding
Further, a licensee may not bring a       facts and circumstances and provide         alternative dispute resolution of a
cause of action against an employee       an award based on the facts and             medical professional liability claim
for damages arising out of a report of    circumstances which shall compensate                           CONTINUED ON PAGE 28


                                                          PBA Civil Litigation Section Newsletter        Summer 2009        27
Legislative Update                            shall refer suspected insurance fraud        select and cut-your-own Christmas
                                              to the appropriate law enforcement           tree operation and pick-your-own-
CONTINUED FROM PAGE 27
                                              authorities. No person shall be subject      crop operation. For immunity to apply
against the health care provider shall        to civil liability for libel, violation of   to an agritourism activity operator,
be enforceable against the patient            privacy or otherwise by virtue of the        a notice must be conspicuously
if the provision of the contract was          filing of reports or furnishing of other      posted in at least two locations on
effective prior to the date on which the      information, in good faith and without       the premises where the agritourism
damages or losses that are the basis          malice, required by the legislation.         activity takes place on a sign at least
of the medical professional liability         The bill was referred to the Insurance       three feet by two feet that states,
claim occurred. The bill was referred         Committee on June 17.                        “You assume the risk of agritourism
to the Judiciary Committee on June 5.                                                      activities under Pennsylvania law.”
                                              SB 84, sponsored by Sen. Greenleaf,          The immunity covers liability in
Tort and Damage Immunity                      amends the Economic Development              a negligence action for personal
HB 1113, sponsored by Rep. Matt               Agency, Fiduciary and Lender                 injury or death to a participant in the
Smith (D-Allegheny), amends the               Environmental Liability Protection           agritourism activity who is injured or
Public School Code, in school health          Act. The bill adds “any nonprofit             killed as a result of that participation
services, providing for training of           corporation created and controlled           if the participant voluntarily and
school employees in diabetes care and         by a redevelopment authority”                intelligently undertakes participation
treatment. The bill includes language         to the definition of “economic                in the activity. The bill was referred to
providing for certain immunity from           development agency;” extends limited         the Judiciary Committee on Mar. 12.
civil liability: No physician, nurse,         environmental liability to economic
school employee, trained diabetes             development agencies which secure            SB 746, sponsored by Sen. John
personnel or school entity shall be           public funding for environmental             Rafferty (R-Chester), amends Title
liable for civil damages as a result of the   investigation,      remediation      or      42 providing immunity for physician
activities authorized by this legislation     redevelopment of or implementation           reporting of suspected use of controlled
when such acts are performed as an            of infrastructure improvements as            substances for illicit purposes. The
ordinary reasonably prudent person            part of postrehabilitation transfer          bill authorizes a physician licensed
would have acted under the same or            of title to a third party; and clarifies      under the laws of and practicing
similar circumstances. The bill was           that economic development agencies,          in Pennsylvania to report to law
referred to the Education Committee           its officers, directors, and others           enforcement authorities and disclose
on Mar. 25.                                   acting on the agency’s behalf are not        protected health information relating
                                              liable unless they directly cause an         to a patient if the physician has a good
HB 1739, sponsored by Rep.                    immediate release or exacerbate a            faith belief that the patient has used
Robert Godshall (R-Montgomery),               release of a regulated substance on or       a controlled substance prescribed by
amends The Insurance Company                  from the property. The bill passed the       the physician for an illicit purpose or
Law providing for antifraud plans             Senate 49-0 on Mar. 30 and passed the        is attempting to obtain a controlled
by adding definitions and requiring            House 191-0 on July 20.                      substance. Patient consent or
insurers licensed in Pennsylvania to                                                       authorization to disclose protected
develop an antifraud plan. The bill           SB 600, sponsored by Sen. Michael            health information under such
provides for the required contents            Brubaker        (R-Lancaster),     the       circumstances shall not be required.
of the plan and review of the plan            Agritourism Immunity Act, provides           No physician shall have a duty to
by the Insurance Commissioner. An             for limited immunity for persons             make such a report and no physician
insurer is required to submit annual          that sponsor farm-related tourism            shall be subject to administrative or
antifraud reports to the Commissioner         activities. “Agritourism activity” is        civil liability by reason of disclosing
and provides penalties for failure to         defined as a farm-related tourism             protected health information when
file a plan. The legislation requires          activity, regardless of whether a fee        making a report, or when cooperating
that every insurer licensed to do             is charged, which: 1) takes place on         with law enforcement authorities
business in Pennsylvania, and its             real property otherwise engaging             conducting an investigation, or when
employees, insurance producers,               in a normal agricultural operation;          testifying in a proceeding related
brokers and public adjusters, or              and 2) is designed for recreational,         to a report. The immunity shall be
public adjuster solicitors, who has a         entertainment or educational purposes.       narrowly construed. The amendment
reasonable good faith cause to believe        The term includes, but is not limited        may not be construed to grant a
that insurance fraud has occurred             to, a corn maze, hay maze, farm tours,                          CONTINUED ON PAGE 29


28   Civil Litigation Update
Legislative Update                         SB 855, sponsored by Sen. Larry            which the DoB is granted the power
                                           Farnese (D-Philadelphia), amends 42        to regulate a matter under this or
CONTINUED FROM PAGE 28
                                           Pa.C.S. § 8332 (relating to nonmedical     any other act and that grant of power
physician immunity to disclose             good Samaritan civil immunity),            requires the DoB to further define its
protected health information or other      adding to the exemption from civil         duties under that act, the DoB shall
confidential communications made by         liability a person who, at the time of     do so expeditiously and with concern
a patient seeking legitimate medically     rendering the emergency care, first         for both the regulated entities and
accepted treatment for addiction. The      aid or rescue or moving the person         the consumers that the act intends
bill received second consideration in      receiving emergency care, first aid or      to protect. The bill received first
the Senate on June 16.                     rescue to a hospital or other place of     consideration in the House and was re-
                                           medical care, possesses a reasonable       referred to Rules on June 16; and then
SB 842, sponsored by Sen. Richard          belief that the circumstances would        was reported as committed from Rules
Alloway II (R-Franklin), amends            result in the death or serious bodily      and re-referred to Appropriations on
Titles 18 (Crimes & Offenses) and 42       injury of the victim if no action is       July 2.
providing an actor is presumed to have     taken. The bill was referred to the
a reasonable belief that deadly force      Judiciary Committee on May 11.             HB 1670 and SB 915, sponsored,
is immediately necessary to protect                                                   respectively,    by     Rep.    Chris
himself or herself against death,          Miscellaneous                              Ross (R-Chester) and Sen. John
serious bodily injury, kidnapping          HB 911, sponsored by Rep. Anthony          Eichelberger (R-Blair), are similar
or sexual intercourse compelled by         DeLuca (D-Allegheny), amends               bills that amend Title 42, Chapter
force or threat if both of the following   subsection (d) of § 320 (relating to       43 (relating to dockets, indices and
exist: 1) the person against whom          annual and other reports; penalties)       other records), further providing for
the protective force was used was          of The Insurance Company Law by            form of permanent recordation and
in the process of unlawfully and           outlining documents, materials or          for copies of destroyed records. HB
forcefully entering, or had unlawfully     information that are confidential by law    1670 received first consideration in
and forcefully entered, a dwelling,        and privileged, and shall not be subject   the House and was then re-referred
residence or occupied vehicle; or the      to subpoena, discovery or the act of       to Rules on June 30, and was then
person against whom the protective         the Right-to-Know Law, or admissible       reported as committed from Rules
force was used had unlawfully and          in evidence in any private civil action.   and re-referred to Appropriations on
forcefully removed or was attempting       Neither the Insurance Commissioner         July 15. SB 915 was referred to the
to unlawfully and forcefully remove        nor any individual or person who           Judiciary Committee on June 5.
another against that other’s will from     receives documents, materials or
the dwelling, residence or occupied        information while acting under the         HB 1679, sponsored by Rep. Michael
vehicle and 2) the actor knew or had       authority of the commissioner shall        Gerber (D-Montgomery), the False
reason to believe that an unlawful and     be permitted or required to testify in     Claims Act, mirrors the Federal False
forceful entry or act was occurring        any private civil action concerning        Claims Act. The Act provides certain
or had occurred. Exceptions are            any confidential documents, materials       definitions and allows for treble
provided. Further, an actor who is         or information covered by this             damages for committing any one of
not engaged in a criminal activity and     section. The commissioner may use          the enumerated prohibited acts, and
who is attacked in any place where the     the documents, materials or other          also provides for the requirements of
actor has a right to be has no duty to     information obtained or created under      when damages can be limited. The
retreat and has the right to stand his     this section to further any regulatory     legislation allows the Pennsylvania
or her ground and use protective force,    or legal action brought as part of         attorney general to investigate and
including deadly force, if the actor       the commissioner’s official duties.         prosecute violations, as well as
believes it is immediately necessary       The bill passed the House 193-0 on         provides rules for when and how qui
to do so to protect himself or herself     Mar. 30, and it was then referred to       tam plaintiffs may bring an action.
against death, serious bodily injury,      the Senate Banking and Insurance           Further, the Act provides anti-
kidnapping or sexual intercourse by        Committee.                                 retaliatory discharge provisions to
force or threat. The legislation also                                                 protect qui tam plaintiffs, establishes a
provides for civil immunity for the use    HB 1656, sponsored by Rep. Peter           10-year statute of limitations, specifies
of force. The bill was referred to the     Daley     (D-Washington),     amends       the burden of proof, and provides for
Judiciary Committee on May 5.              the Department of Banking Code,            estoppel after plea agreements. The
                                           specifying that in those instances in                         CONTINUED ON PAGE 30



                                                           PBA Civil Litigation Section Newsletter       Summer 2009         29
Legislative Update                          SB 921, sponsored by Sen. Robert           House on July 7 and was re-referred to
                                            Tomlinson (R-Bucks), amends the            the House Appropriations Committee
CONTINUED FROM PAGE 29
                                            Board of Vehicles Act by providing         on July 8.
bill was referred to the Health and         definitions for “dual or dualing”
Human Services Committee on June            and “line-make.” The legislation           SB 973, sponsored by Sen.
12.                                         1) exempts car dealers who wish to         Tomlinson, amends the Home
                                            move to a dualing dealership and           Improvement Consumer Protection
SB 275, sponsored by Sen. Don               motorcycle      manufacturers       from   Act providing for the definition of
White (R-Indiana), the Coal Bed             mandatory arbitration; 2) mandates         “home improvement retailer;” and
Methane Well Dispute Resolution             that when a new line-make is added         further providing for procedures for
Act, provide for the establishment of       to the dealership, the dealership must     registration as a contractor and for
the Coal Bed Methane Review Board           get approval from the manufacturer         prohibited acts. The bill establishes
to resolve disputes between property        or distributor and prove that they         the Home Improvement Account in
owners over the location of coal bed        will have a secure line of credit; 3)      the General Fund, outlines its uses
methane wells and access roads. The         provides a mechanism for the filing         and stipulates the fund and interest
legislation specifies that nothing in the    of disputes between dealerships            earned shall be appropriated to the
act precludes a person from seeking         and manufacturers with regard to           attorney general for administering and
other remedies allowed by statute,          relocation and addition of line-makes;     enforcing the provisions of the Act
common law, deed or contract, nor           4) makes unreasonable expansion or         and to protect consumers with respect
does the act diminish or alter rights       construction of a dealership a coercive    to home improvements through
previously established or granted by        act under the current law; and 5) allows   consumer education and other means.
statute, common law, deed or contract.      for the return and reimbursement for       The bill passed the Senate 48-0 on July
The bill passed the Senate 50-0 on          certain vehicles that are not sold by      7 and was then referred to the House
Apr. 28 and was then referred to the        the dealership. The bill passed the        Consumer Affairs Committee. ■
House Environmental Resources and           Senate 50-0 on June 23, received
Energy Committee.                           first consideration as amended in the




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30    Civil Litigation Update
PBA Civil Litigation Section Newsletter   Summer 2009   31
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