| pellate Procedure | | | | Holding: A bright yellow swing-arm gate erected |
| A. Appealability of Order | | | | by a utility on land left open without any fee and |
| 1. The Law Office of Douglas T. Harris, Esquire v. | | | | without any apparent business motive constituted |
| Philadelphia Waterfront Partners, LP, 2008 PA | | | | “land” for purposes of the |
| Super 222 (September 22, 2008) | | | | Recreational Use of Land and Water Act, 68 P.S. |
| Holding: An appellant that invokes the | | | | §§ 477-1 - 477-8, entitling the |
| “colorable claim” standard for | | | | defendant to immunity under the Act. |
| determining whether underlying Orders are | | | | G. Products Liability/Strict Liability |
| collateral in nature, fails to satisfy this standard | | | | 1. Commonwealth, Dept. of General Services v. |
| when it implicitly waived the claim of | | | | U.S. Mineral Products Co., No. 75 MAP 2007 (Pa., |
| attorney-client privilege pursuant to Pa.R.A.P. | | | | September 26, 2008) |
| 302(a) based upon counsel’s failure to | | | | Holding: Because the incineration of building |
| invoke and/or assert the privilege before the trial | | | | materials was not an intended use of the product, |
| court. Because the Orders subject to appeal were | | | | strict liability is not available for the harm caused |
| not collateral in nature, the Court did not have | | | | by the unintended use. |
| jurisdiction to consider the merits of the appeals. | | | | III. Civil Procedure & Trial |
| II. Causes of Action | | | | A. Indemnification |
| A. Generally | | | | 1. Lane v. Commonwealth, Dept. of |
| 1. Schmidt v. Boardman Co., 2008 PA Super 203 | | | | Transportation, 2008 PA Super 157 (July 17, |
| (September 2, 2008) | | | | 2008) |
| Holding: Emphasizing that the tort of infliction of | | | | Holding: The defendant/general contractor was |
| emotional distress is a distinct and separate cause | | | | not entitled to indemnification from a defendant/ |
| of action in Pennsylvania, the Court ruled that a | | | | subcontractor that performed the work at the |
| bystander who witnesses injury to a close | | | | site of the injury because the jury found that the |
| relative can recover emotional distress damages | | | | subcontractor was not negligent and, therefore, |
| when the injured person’s underlying | | | | the general contractor was seeking indemnification |
| cause of action is based on strict liability. The case | | | | for its own negligence. The decision affirmed that, |
| also provides a detailed analysis of when a party | | | | if parties intend to include a provision in a contract |
| is subject to liability under the product line | | | | that covers losses because of the indemnitee's |
| exception to the general rule that a successor | | | | own negligence within the scope of their indemnity |
| company does not incur the liability of the selling | | | | agreement, they must do so in clear and |
| company. | | | | unequivocal language. |
| B. Dog Bites | | | | B. Concurrent Claims |
| 1. Underwood v. Wind, 2008 PA Super 158 (July | | | | 1. State Farm Mutual Automobile Insurance Co. v. |
| 18, 2008) | | | | Ware’s Van Storage, 2008 PA Super 134 |
| Holding: In a dog bite case, jury instructions were | | | | (June 24, 2008) |
| proper that stated that: (1) the defendant was | | | | Holding: An insurer’s subrogated claim for |
| negligent per se because her dogs escaped from | | | | property damage reimbursement need not be |
| her property and were running free because the | | | | joined with the insured’s personal injury |
| instructions advised jurors to consider whether | | | | claim because the right to recover on each claim |
| the defendant’s explanation for the | | | | existed independently pursuant to Pa.R.Civ.P. 1020. |
| dogs’ escape was reasonable; and, (2) the | | | | C. Judgments by Confession |
| dogs’ actions could be considered by the | | | | 1. RAIT Partnership L.P. v. E Pointe Properties I, |
| jury in determining the dogs’ dangerous | | | | Ltd., 2008 PA Super 225 (September 26, 2008) |
| propensities because the propensity to attack | | | | Holding: A confession of judgment that includes an |
| may be proven by a single incident inflicting | | | | attorney’s collection commission of 15 |
| severe injury or attack on a human being. The | | | | percent was enforceable. |
| jury instructions constituted reversible error, | | | | D. Releases |
| however, when they failed to distinguish between | | | | 1. Haas v. Four Seasons Campground, Inc., 2008 |
| the tenant “keeper of the dog” | | | | PA Super 136 (June 26, 2008) |
| and the landlord, because the court included the | | | | Holding: A defendant that operated a camp |
| phrase “or should have known” in | | | | ground in New Jersey, was incorporated in New |
| addition to the correct standard, “knows | | | | Jersey, operated an interactive website |
| of the presence of a dangerous animal,” | | | | advertising the camp ground but did not allow |
| when instructing the jury on the standard of care | | | | seasonal contract purchases to be made online, |
| applicable to an out-of-possession landlord. | | | | mailed brochures and newsletters to Pennsylvania |
| C. Medical Malpractice | | | | residents, purchased products from Pennsylvania |
| 1. Toney v. Chester County Hospital, 2008 PA | | | | vendors, made a significant number of direct sales |
| Super 268 (November 12, 2008) | | | | to Pennsylvania residents, and published a toll-free |
| Holding: A cause of action for negligent infliction of | | | | number, had insufficient contacts with |
| emotional distress is restricted to four factual | | | | Pennsylvania to allow Pennsylvania courts to |
| scenarios: (1) situations where the defendant had | | | | exercise jurisdiction over the defendant when the |
| a contractual or fiduciary duty toward the plaintiff; | | | | accident occurred in New Jersey on campgrounds |
| (2) the plaintiff was subjected to a physical | | | | occupied by the plaintiff under a contract signed in |
| impact; (3) the plaintiff was in a zone of danger, | | | | New Jersey. |
| thereby reasonably experiencing a fear of | | | | 2. Tayar v. Camelback Ski Corp., 2008 PA Super |
| impending physical injury; or (4) the plaintiff | | | | 204 (September 18, 2008) |
| observed a tortious injury to a close relative. | | | | Holding: Addressing the enforceability of releases |
| Thus, a Complaint alleging that a mother was | | | | relating to recreational activities by commercial |
| advised that her unborn child was normal and | | | | entities, the Court concluded that the phrase |
| healthy, but was instead born with profound | | | | “negligence or any other improper |
| physical deformities, states a cause of action for | | | | conduct,” when used in a release of |
| negligent infliction of emotional distress. | | | | liability, without other warnings, does not clearly |
| Conversely, the Court concluded that the facts | | | | convey the releasor’s intent to waive all |
| did not support a claim for intentional infliction of | | | | claims against the facility for reckless or intentional |
| emotional distress. The Court added that, as | | | | conduct. |
| defined in Section 46 of the Restatement | | | | 3. Ford Motor Co. v. Buseman, 2008 PA Super |
| (Second) of Torts, a claim for intentional infliction | | | | 146 (July 7, 2008) |
| of emotional distress has never been explicitly | | | | Holding: Summary judgment is appropriate in a |
| recognized as a cause of action by the | | | | claim against a vehicle manufacturer and dealer |
| Pennsylvania Supreme Court, although the | | | | when the plaintiff had previously executed a |
| Supreme Court has cited the section as setting | | | | release discharging the driver of the vehicle |
| forth the minimum elements necessary to sustain | | | | involved in the accident and “all other |
| such a cause of action. | | | | persons, firms, or corporations.” |
| 2. Sabo v. Worrall, 2008 PA Super 223 | | | | E. Standing |
| (September 18, 2008) | | | | 1. Information Systems Services, Inc. v. Platt, No. |
| Holding: Counsel’s paralegal’s failure | | | | 109 MAP 2007 (Pa., August 19, 2008). |
| to submit a Certificate of Merit, when the | | | | Holding: A shareholder may not maintain a cause |
| statement was secured prior to the filing of the | | | | of action in a Pennsylvania court on behalf of a |
| judgment of non pros, was an inadvertent | | | | foreign corporation that lacked good standing in its |
| mistake or oversight that constituted a | | | | home state and failed to obtain a certificate of |
| reasonable explanation or legitimate excuse | | | | authority in Pennsylvania. |
| warranting relief from a judgment of non pros. | | | | IV. Evidence |
| 3. Glenn v. Mataloni, No. 264 C.D. 2008 (Pa.Cmwlth., | | | | A. Character |
| June 4, 2008) | | | | 1. Stumpf v. Nye, 2008 PA Super 122 (June 3, |
| Holding: A trial court properly denied a motion to | | | | 2008) |
| open a judgment of non pros when the petitioner | | | | Holding: Evidence of previous violence tending to |
| (a pro se prisoner) failed to include in his pleading | | | | show a character or a trait of character is not |
| specific reasons why he needed extra time to | | | | admissible under Pa.R.E. 404 and 405. In addition, |
| obtain a Certificate of Merit in accordance with | | | | evidence that the plaintiff pled guilty to disorderly |
| Pa.R.Civ.P. 1042.3. | | | | conduct was properly excluded because guilty |
| 4. Dental Care Associates, Inc. v. Keller Engineers, | | | | pleas to summary offenses and other minor |
| Inc., 2008 PA Super 143 (July 2, 2008) | | | | matters are generally inadmissible in subsequent |
| Holding: An Order denying a Petition to Strike | | | | civil proceedings arising out of the same incident. |
| Open Judgment of Non Pros was proper when | | | | V. Insurance -- Motor Vehicle |
| the non pros was entered as the result of the | | | | A. UM & UIM Coverage -- Reduction of |
| plaintiff’s failure to timely file a Certificate | | | | Limits & Stacking |
| of Merit within the time specified under Pa.R.Civ.P. | | | | 1. Nationwide Insurance Co. v. Schneider, No. 11 |
| 1042.3. | | | | MAP 2007 (Pa., November 19, 2008) |
| D. Negligence | | | | Holding 1. Section 1733 of the Motor Vehicle |
| 1. Craig v. Amateur Softball Assoc. of America, | | | | Financial Responsibility Law does not require |
| 2008 PA Super 123 (June 4, 2008 ) | | | | primary underinsured motorist benefits to be |
| Holding: The defendant softball association owed | | | | exhausted before secondary coverage is |
| no duty of care to the plaintiff, a softball player | | | | implicated. Affirming the Superior Court, and |
| who was not wearing a helmet and suffered a | | | | stating that Section 1733 of the MVFRL |
| head injury while playing a slow-pitch softball | | | | “makes no mention of exhaustion of |
| game. Under these circumstance, the softball | | | | limits,” the Court noted that the claimant |
| player assumed the risk of injury inherent to the | | | | had followed the statutory order of priority by |
| sport. | | | | first pursing recovery from the insurer of the |
| E. Non-Profit Organizations | | | | vehicle he occupied at the time of the accident, |
| 1. Colmar Volunteer Fire Co. v. Dept. of State, | | | | which is all that was required by Section 1733. |
| Bureau of Charitable Organizations, No. 2023 C.D. | | | | Holding 2: Examining consent to settle clauses in |
| 2007 (Pa.Cmwlth., June 5, 2008) | | | | the context of UIM claims, the Court declined to |
| Holding: A volunteer fire company was required to | | | | determine whether a showing of prejudice is |
| provide Bureau of Charitable Affairs with audited | | | | required of all insurers. Rather, the Court stated |
| financial statements for the fiscal years in | | | | that it remains “the prevailing law of this |
| question, and was prohibited from soliciting | | | | Commonwealth under Lehman and its progeny |
| charitable contributions until it properly registered | | | | unless and until a meritorious challenge to the rule |
| with the Bureau. In this case, the volunteer fire | | | | is presented to this Court.” |
| company’s use of a professional | | | | B. UM & UIM Coverage -- Regularly Used |
| fundraising entity for a direct mailing campaign | | | | Non-Owned Vehicle Exclusion |
| disqualified it from the exemption for volunteer | | | | 1. Government Employees Insurance Company v. |
| firefighter organizations under Section 6(a)(3)(ii) of | | | | Ayers, 2008 PA Super 193 (August 18, 2008) |
| the Solicitation of Funds for Charitable Purposes | | | | Holding: A household vehicle exception, which |
| Act, 10 P.S. § 162.5(a) and required it to | | | | precluded the claimant from stacking the UIM |
| register with the Bureau of Charitable | | | | coverage contained in his truck’s policy on |
| Organizations. | | | | top of the UIM coverage contained in his |
| F. Political Subdivision Tort Claims Act | | | | motorcycles’ policy, does not violate the |
| 1.Stanton v. Lackawanna Energy, Ltd., 2008 PA | | | | Pennsylvania Motor Vehicle Financial Responsibility |
| Super 132 (June 23, 2008) | | | | Law or public policy. |
