May 2011 - Pennsylvania Legal Research Links

A Summary of Recent Pennsylvania Appellate Court Decisions
By Daniel J. Siegel, Esquire
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REPORTING DECISIONS THROUGH APRIL 29, 2011
PENNSYLVANIA APPELLATE COURT DECISIONS
I.
CIVIL LITIGATION
A. Employment Discrimination – Governmental Agency (Septa)
 Southeastern Pennsylvania Transportation
Authority v. City of Philadelphia, No. 2445
All decisions are “hyperlinked” to the
C.D. 2009 (Pa.Cmwlth., April 13, 2011)
slip opinion. All you have to do is
 Holding: Because
Septa
is
a
“click” (or “ctrl + click”) on the title
Commonwealth agency, the Philadelphia
of the case, and if connected to the
Commission on Human Relations lacks
Internet, your browser will open up
jurisdiction to regulate Septa's affairs and,
the decision for you to read in its
the ordinance creating the Commission
entirety. Try it and see!
does not give the Commission explicit
jurisdiction over Septa.
B.
Witnesses – Subpoenas
 Branham v. Rohm and Haas Chemical Co., 2011 PA Super 78 (April 12, 2011)
 Holding 1: An interlocutory order denying a motion to quash subpoena, and the question
of the extent of a trial court's subpoena power over a foreign corporation that is qualified to
do business in Pennsylvania and amenable to suit is entitled to appellate review.
 Holding 2: An out-of-state corporation that (a) is qualified to do business in Pennsylvania,
(b) is subject to suit in Pennsylvania courts, and (c) carries on a continuous and systematic
part of its general business is subject to personal jurisdiction and may be served with a
subpoena, within the Commonwealth.
C.
Asbestos Litigation – Summary Judgment
 Linster v. Allied Signal, Inc., 2011 PA Super 86 (April 21, 2011)
 Holding: A trial court may not grant summary judgment when the facts and circumstances
are sufficient to establish the required product identification and causal connection between
the plaintiff's disease and the defendant's product(s). Issues relating to the apportionment of
liability are separate from those related to causation and do not affect the sufficiency of a
plaintiff's proof as to the defendant's product(s).
Interlocutory Appeals
 Kronstain v. Miller, 2011 PA Super 89 (April 27, 2011)
 Holding: An order granting post-trial relief, i.e., ordering a new trial – following the grant
of a mistrial – is a non-appealable interlocutory order.
D.
© 2011, Law Offices of Daniel J. Siegel, LLC ● www.danieljsiegel.com ● Email dsiegel@danieljsiegel.com
The contents may be reproduced for non-commercial use provided proper attribution is given.
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A SUMMARY OF RECENT PENNSYLVANIA APPELLATE DECISIONS
BY DANIEL J. SIEGEL, ESQUIRE
MAY 2, 2011
_____________________________________________________________________________
E.
Medical Malpractice – Excess Liability & Joint and Several Liability
 Heim v. Medical Care Availability and Reduction of Error Fund, No. 5 MAP 2010 (Pa., April
28, 2011)
 Holding: Under the statutory scheme governing CAT Fund liabilities in 2000, the CAT
Fund’s excess coverage responsibility to a health care provider is measured from the
baseline of the provider’s own primary coverage. In this case, the floor was the physician's
$200,000 “basic coverage insurance” (as specified by the HCSMA, 40 P.S. §1301.701(d)
(superseded)). Therefore, any liability the defendant physician bore as the result of another
physician defendant's primary coverage, as well as associated delay damages and prejudgment interest, fell within the CAT Fund’s excess coverage obligation. This
responsibility now falls to the MCARE Fund, pursuant to 40 P.S. §1303.712(b).
II. UNEMPLOYMENT COMPENSATION
A. Necessitous and Compelling Reasons
 Fiedler v. Unemployment Compensation Board of Review, No. 1984 C.D. 2010 (Pa.Cmwlth.,
April 18, 2011)
 Holding: A claimant who leaves employment when compelled to do so by family
obligations (e.g., dealing with the death of child in a car accident) may be entitled to
unemployment compensation benefits, provided the claimant takes reasonable efforts to
preserve the employment relationship.
 Shupp v. Unemployment Compensation Board of Review, No. 1933 C.D. 2010 (Pa.Cmwlth.,
April 21, 2011)
 Holding: An employer's failure to pay the claimant in a timely manner and on an
established payday constitutes a necessitous and compelling reason to quit a job, thereby
entitling the claimant to unemployment compensation benefits.
B. Willful Misconduct
 Chapman v. Unemployment Compensation Board of Review, No. 1583 C.D. 2010
(Pa.Cmwlth., April 25, 2011)
 Holding: An employee who is aware of an employer's policy prohibiting the use of cell
phones while on duty, and who uses a personal cell phone to post comments on Facebook
about a coworker who had accidentally soiled her pants at work, is ineligible for
unemployment compensation benefits. This decision is one of many relating to the issue of
social media and the extent to which employees may be subject to discipline or
termination for violating an employer's policies.
III. WORKERS' COMPENSATION
A. Fee Review Petitions
 Dr. Jeffrey Yablon v. Bureau of Workers' Compensation Fee Review Hearing Office (PMA),
No. 2042 C.D. 2010 (Pa.Cmwlth., April 21, 2011)
 Holding: A workers' compensation carrier, which fails to notify a medical provider of its
intent to downcode a medical bill until more than 30 days had elapsed since the submission
of the bills, does not lose the right to "downcode" the charges. Rather, the procedures set
forth in 34 Pa. Code § 127.207 only provide penalties when the procedures regarding
downcoding are not followed, but do not bar an insurer's ability to downcode after 30 days
of the submission of the bill.
© 2011, Law Offices of Daniel J. Siegel, LLC ● www.danieljsiegel.com ● Email dsiegel@danieljsiegel.com
The contents may be reproduced for non-commercial use provided proper attribution is given.
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A SUMMARY OF RECENT PENNSYLVANIA APPELLATE DECISIONS
BY DANIEL J. SIEGEL, ESQUIRE
MAY 2, 2011
_____________________________________________________________________________
B.
Termination of Benefits
 Schmidt v. Workers' Compensation Appeal Board (IATSE Local 3), No. 1100 C.D. 2010
(Pa.Cmwlth., December 15, 2010) (ordered published on April 26, 2011)
 Holding: Benefits may be terminated even when the medical expert credited by the
Workers' Compensation Judge has testified that the claimant might experience symptoms in
the future. In so ruling, the Court affirmed the distinction between an "employer's medical
expert accepting the fact that the claimant suffered from pain" and "the medical expert
accepting the fact that the claimant suffered from pain."
C. Utilization Review Petitions
 Gary v. Workers' Compensation Appeal Board (Philadelphia School District), No. 1736 C.D.
2010 (Pa.Cmwlth., April 21, 2011)
 Holding: In a Utilization Review petition, an employer always retains the burden of proof.
In order to prevail, however, the carrier is not required to show a change in condition since a
prior UR determination, nor must its medical expert refer to prior UR determinations.
D. Voluntary Withdrawal from the Workforce
 City of Pittsburgh v. Workers' Compensation Appeal Board (Leonard), No. 650 C.D. 2010
(Pa.Cmwlth., January 21, 2011) (ordered published on April 20, 2011)
 Holding: Acceptance of a pension alone will not necessarily give rise to the presumption
that a claimant has voluntarily left the labor market. Rather, an employer must provide
sufficient evidence to establish that, under the totality of the circumstances, the claimant has
voluntarily left the workforce. Moreover, a claimant can rebut the presumption that he or
she has voluntarily left the workforce by voluntarily establishing that he or she is seeking
employment or that the work-related injury forced the claimant to retire.
IV. PENNSYLVANIA SUPREME COURT - GRANTING ALLOCATUR
The Pennsylvania Supreme Court has granted allocatur in the following matters on the issues stated:
A. Workers' Compensation
 City of Pittsburgh v. Workers' Compensation Appeal Board (Robinson), No. 564 WAL 2010
(April 6, 2011)
 Did the Commonwealth Court err by holding that, in a petition to suspend compensation
benefits based upon an alleged voluntary withdrawal from the workforce, the employer
bears the burden of showing by the totality of the circumstances that the claimant has
chosen not to return to the workforce?
 Phoenixville Hospital v. Workers' Compensation Appeal Board, No. 517 EAL 2010 (April 27,
2011)
 Did the Commonwealth Court err and misinterpret the meaning of §306(b)(2) of the
Workers' Compensation Act, 77 P.S. §512(2) in determining that a job is available to a
claimant for purposes of said Act even when a claimant applies to each individual job
contained in a labor market survey and does not receive an offer of employment?
 Did the Commonwealth Court err in failing to remand the matter to the Workers'
Compensation Judge for a determination of whether or not the jobs identified by the
employer's vocational expert were open and available in light of the fact that the holding of
Commonwealth Court in the within matter altered the status of the law at the time of the
decision rendered by the Workers' Compensation Judge?
© 2011, Law Offices of Daniel J. Siegel, LLC ● www.danieljsiegel.com ● Email dsiegel@danieljsiegel.com
The contents may be reproduced for non-commercial use provided proper attribution is given.
Page 3
A SUMMARY OF RECENT PENNSYLVANIA APPELLATE DECISIONS
BY DANIEL J. SIEGEL, ESQUIRE
MAY 2, 2011
_____________________________________________________________________________

Bowman v. Sunoco, Inc., No. 24 EAL 2010 (April 19, 2011)
 Did the Superior Court, in a decision of first impression and of statewide substantial
significance, disregard the public policy of the Commonwealth of Pennsylvania and the
plain meaning of the Penna [sic] Workers [sic] Compensation Act when it decided that a
third party release in the form of a "Worker's Comp Disclaimer" signed in consideration for
employment and receipt of compensation benefits, which further required the waiver and
eternal release any [sic] and all rights to make a claim, commence a lawsuit, or recover
damages or losses is not void against public policy when the language of the Disclaimer
openly conflicts with the language of section 204(a) of the Pennsylvania Workers [sic]
Compensation Act which expressly renders such agreements as void against public policy?
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© 2011, Law Offices of Daniel J. Siegel, LLC ● www.danieljsiegel.com ● Email dsiegel@danieljsiegel.com
The contents may be reproduced for non-commercial use provided proper attribution is given.
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