by Mark Bauman | Dec 15, 2021 | General Liability and Casualty, Legal News
In Kisak v. Wheeling Park Comm’n, 898 A.2d 1083 (Pa. Super. 2006), a husband and wife, residents of Pennsylvania, were playing miniature golf in West Virginia when the wife fell and sustained an injury. The miniature golf park was owned by the Wheeling Park Commission which is a political subdivision of the City of Wheeling, West Virginia which is a public corporation. Suit was filed in Allegheny County, Pennsylvania. The corporation filed preliminary objections claiming improper venue and alleged that it neither owned property nor conducted any business within Allegheny County. The trial court agreed and dismissed the action and an appeal followed.
In the appeal, the plaintiffs argued that the corporation regularly conducted business in Allegheny County by way of advertising and produced a chart indicating that most of the corporations advertising was in the Pittsburgh, Allegheny County, Pennsylvania area.
The Superior Court disagreed. It stated to determine if business contacts amount to regularly conducting business for purposes of establishing venue, it will continue to apply the “quality” and “quantity” test as set forth by the Pennsylvania Supreme Court in Purcell v. Bryn Mawr Hospital, 525 Pa. 237, 579 A.2d 1282, 1284 (1990). It held that that the advertising done by the corporation is incidental to and not essential to the corporations operation of its park.
The trial court sustained the preliminary objections and dismissed the complaint based on lack of venue. On appeal, the claimant and husband asserted that the trial court erred because the foreign state park commission advertised through radio stations, television stations, newspapers, and billboards in the forum county. The appellate court found that such advertising activity was not a sufficient basis on which to conclude that the foreign state park commission regularly conducted business in the forum county and that since transfer to another county in the state was not possible, the case had to be dismissed.
by Mark Bauman | Dec 14, 2021 | General Liability and Casualty, Legal News
The Pennsylvania Superior Court reversed a criminal contempt order issued by a Philadelphia Court of Common Pleas trial judge and ruled that an attorney is permitted to speak with his expert witness during a break from direct examination. Yoskowitz v. Yazdanfar, 900 A.2d 900 (Pa. Super. 2006).
In Yoskowitz, Judge Eugene E.J. Maier issued a criminal contempt order against F. James Gallo, Esquire for talking to his expert witness during a break in testimony. This was one of two criminal contempt orders issued by Judge Maier against Mr. Gallo.
Mr. Gallo was initially cited for contempt after seeking the assistance of plaintiff’s counsel in operating the video/DVD equipment he sought to use while questioning his expert witness. Plaintiff’s counsel objected and, after a sidebar, Judge Maier ruled that Mr. Gallo’s request was improper. Mr. Gallo then commented on the substance of the sidebar in front of the jury prompting the first contempt ruling.
Mr. Gallo then indicated that he was finished with the direct examination of the expert witness and the court took a brief break. During the break, Mr. Gallo had a conversation with his expert witness. The technical staff then arrived to help operate the video/DVD equipment and Mr. Gallo’s request to continue his examination was granted. Mr. Gallo’s discussion with the expert witness during the break prompted the second contempt ruling that is the subject of the appeal.
Judge Maureen Lally-Green of the Superior Court noted that there was little case law on the issue and the Pennsylvania Rules of Evidence do not address the right of a witness to consult with counsel prior to cross-examination. Judge Lally-Green turned to 42 Pa.C.S.A. §4132(3) regarding criminal contempt on the basis of misbehavior. According to the section, there must be proof beyond a reasonable doubt that there was “misconduct; in the presence of the court; committed with the intent to obstruct the proceedings; which obstructs the administration of justice.” Judge Lally-Green opined that “the record before us, in light of relevant case law, and custom, does not support a conviction for criminal intent” and the Superior Court reversed the criminal contempt order.
by Mark Bauman | Dec 13, 2021 | General Liability and Casualty, Legal News
The issue of when and under what circumstances an employer can request that an employee undergo a medical examination under the Americans with Disabilities Act was recently decided in the case of Ward v. Merck & Co., 17 Am. Disabilities Cas (BNA) (E.D. Pa. 2006).
Ward was hired by Merck as a chemist in 1996. By October 2002, Ward’s supervisors noticed that Ward had become more introverted in the workplace. Ward had been diagnosed with anxiety disorder, for which he refused the recommended treatment. Merck was not aware of the diagnosis. At one point, Ward had resigned citing job-related stress, but withdrew his resignation when asked to reconsider. Ward took a three week leave of absence when he was diagnosed as possibly suffering from schizophrenia following an incident of screaming at co-workers in the cafeteria regarding the quality of food. Upon his return from the leave of absence, Ward’s behavior and performance deteriorated to the point where his supervisors became concerned for his well-being and the well-being of his co-workers. Merck subsequently requested that Ward undergo an examination with occupational health. Ward did not agree that his “behavior, performance or productivity” had changed and did not agree that an examination was necessary. Ward, therefore, did not undergo an examination. Merck suspended Ward with pay and warned that he would be terminated if he did not agree to an examination. Merck advised Ward that “the approach the company has chosen to take at this time by sending you for a fitness-for-duty evaluation is specifically intended not to punish or discipline you even though your workplace productivity and performance has been well below acceptable standards and your behavior has often been unprofessional.” Ward continued to refuse to submit to an examination and was terminated.
Ward sued asserting claims under the ADA. He claimed that the examination violated 42 U.S.C. 12112(d)(4) of the ADA which states that “[a] covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”
Upon finding that this portion of the ADA pertained to non-disabled employees, the court analyzed whether Merck’s request for examination in this case was “job-related and consistent with business necessity.” The court stated in order to meet this test, “there must be sufficient evidence for a reasonable person to doubt whether an employee is capable of performing the job, and the examination must be limited to determining an employee’s ability to perform essential functions.” The court further noted “an employee’s behavior cannot be merely annoying or inefficient to justify examination” but there must be a “reasonable belief based upon objective evidence” that the employee’s ability to perform the essential functions of the job is “impaired by a medical condition or the reasonable belief that an employee will pose a direct threat due to a medical condition.” In the current case, the court found that Merck’s requested medical examination was justified, noting that Ward’s behavior “posed more than a mere inconvenience for his supervisors.”
by Mark Bauman | Dec 12, 2021 | General Liability and Casualty, Legal News
The U.S. District Court for the Eastern District of Pennsylvania ruled that an Administrative Law Judge misapplied the “treating physician rule” when he concluded that a doctor’s objectivity was undermined because he was an advocate for the claimant in his workers’ compensation litigation. Somenski v. Barnhart, 109 Soc. Sec. Rep. Service 143 (E.D. Pa. 2006).
The claimant, Frances Somenski, a longshoreman, sought disability benefits alleging he became disabled due to anxiety and post traumatic stress disorder resulting from a work accident when he was exposed to oxygen deprivation and where two of his co-workers died. He also alleged disability due to injuries to his legs. His claim was initially denied after which he requested a hearing before an Administrative Law Judge (“ALJ”). The ALJ denied the claim but an Appeals Counsel vacated the decision and a new hearing before an ALJ was held. The ALJ denied the claim a second time and the Appeals Counsel affirmed. Claimant thereafter sought a judicial determination from the appealed to the United States District Court.
The claimant asserted that the ALJ discounted the opinions of several of the his treating physicians, one of whom had treated the claimant for ten years, and instead relied upon the opinions of state agency psychologists who had never examined the claimant. The U.S. District Judge Michael Baylson agreed and found that the ALJ violated the “treating physician rule.” This rule, as articulated by the Third Circuit Court of Appeals in Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000), provides that the primary principle behind determining eligibility for benefits is that the ALJ “accords treating physicians’ reports great weight, especially when their opinions reflect expert judgment based on a continuing observation of the patient’s condition over a prolonged period of time.” Id.
Judge Baylson held that in Mr. Somenski’s case, it was “error to disregard medical findings of examining physicians offered as part of a workers’ compensation hearing even though it may be adversarial in nature, because this does not affect the reliability of the testimony.”
by Mark Bauman | Dec 11, 2021 | General Liability and Casualty, Legal News
The Superior Court of Pennsylvania dismissed a subcontractor’s mechanics’ lien for failure to issue the requisite notice under Pennsylvania law. Wentzel-Applewood Joint Ventures v. 801 Market Street Associates, 878 A. 2d 889 (Pa. Super. 2005). As a result of this failure, a subcontractor may have lost the ability to collect over $250,000 from a now-bankrupt general contractor.
This case involved the conversion of several floors of a Center City, Philadelphia building from a retail space into an “item processing center” and offices. The general contractor retained the services of a subcontractor, who provided and installed drywall, studs, doors, windows, ceilings, and millwork. However, following completion of the job, the contractor filed for bankruptcy protection and in turn, the subcontractor provided formal written notice of its intent to file a mechanics’ lien in state court.
However, in response to preliminary objections of the named parties, the trial court dismissed the subcontractor’s lien for failure to issue, prior to completion of its work, the required preliminary written notice of its intent to file a lien. The subcontractor appealed this decision to the Superior Court.
According to Pennsylvania’s Mechanic’s Lien Law, if the work done is deemed to be “alterations and repairs,” a subcontractor must give “the owner, on or before the date of completion of his work, a written preliminary notice of his intention to file a claim if the amount due or to become due is not paid.” However, if the work is categorized as “erection and construction,” no such requirement exists. Therefore, the Superior Court’s decision hinged upon the classification of the work done as “alterations and repairs” or “erection and construction.”
The Superior Court cited prior decisions where Pennsylvania courts have deemed improvement of real estate as “erection and construction” “where the adaptation (1) is substantial enough in its own right to constitute a new structure, or (2) creates a significant change in the use of the existing structure.” In this case, the Superior Court held that the renovations were not substantial enough in their own right to constitute a new structure. This decision was based, in part, upon the deposition testimony of the subcontractor’s principal, who “established that prior to the alterations, the renovated floors were ‘retail, old space'” as used in commercial operations, and after construction, “the floors were used in … commercial operations … as ‘office space’ and ‘processing area.'” Because of this characterization of the construction, the subcontractors failed to fulfill the requirements imposed upon them, which cost them the ability to collect compensation for their work, an outcome that would have been avoided had the subcontractors simply filed a timely notice.
