On the Pulse…Marshall Dennehey Is Happy to Celebrate Our Recent Appellate Victories*

September 1, 2015

John Hare and Shane Haselbarth (Philadelphia, PA) convinced the Superior Court of Pennsylvania to affirm the entry of summary judgment in favor of a large Japanese equipment manufacturer in a catastrophic brain injury case in a product liability action. The unanimous ruling adopted the argument made by Shane in the brief and John at the oral argument that there was no evidence of record that the driver of a vehicle passing the front-end loader saw its amber turn signal illuminated. The front-end loader turned left as the vehicle was passing, causing the loader’s bucket to sheer off the top of the vehicle and cause catastrophic injury to the vehicle’s passenger. The theory of defect was that the amber-colored turn signals and hazard lights were defective, but the court ruled that no element of the lighting array caused any injury because the driver saw only red brake lights. The Pennsylvania Supreme Court denied review, thus allowing the case to proceed back in the trial court without the lone deep pocket. Williams v. Komatsu American Corporation, 2014 Pa. Super. Unpub. LEXIS 2333 (Pa. Super. Oct 7, 2014), app. den’d, 2015 Pa. LEXIS 908 (Pa. Apr. 28, 2015).

Shane also successfully defended an appeal from a trial court dismissal of a case for the plaintiff’s failure to timely serve original process on the defendants. The Superior Court rejected the plaintiff’s argument that it demonstrated good faith and that a mere mistake ought not to bar claims, concluding instead that the expiration of the statute of limitations without any notice to the defendant of the pendency of the claim, and without properly reissuing the writ of summons and serving it in accord with the rules, does not toll the running of the statute of limitations. Smash PA, Inc. v. Lehigh Valley Restaurant Group, Inc., 2015 Pa. Super. Unpub. LEXIS 958 (Pa. Super. April 14, 2015).

Audrey Copeland (King of Prussia, PA) persuaded the Superior Court to affirm the entry of summary judgment for the defendant, a whitewater rafting company, in an appeal and cross-appeal involving the plaintiff’s claim of injury while chaperoning a school rafting trip. The court agreed with our defense and affirmed the trial court’s order in the plaintiff’s appeal, which held that Pennsylvania, not New York, law applied to the release signed by the New York resident/plaintiff, who was allegedly injured in Pennsylvania while rafting on the Lehigh River. The court acknowledged that the release was signed in New York, that the plaintiff’s state of residence had an interest in recouping her medical expenses and wage loss, and that New York did not enforce exculpatory clauses as a matter of public policy, unlike Pennsylvania. However, Pennsylvania law applied because the release protected the defendant, a Pennsylvania business, for an accident occurring in Pennsylvania, which had the right to expect that the exculpatory clause would be enforced under Pennsylvania law. The court also stated that the defendant should not be placed in jeopardy exceeding that created by Pennsylvania law just because the plaintiff was visiting from New York. The court further reversed the trial court’s order denying summary judgment to the defendant, rejecting the plaintiff’s argument that she was economically compelled to sign the release by her employer, the school (a non-party to the contract). The court noted that there was no evidence that the defendant economically compelled the plaintiff to sign the release and declined to expand a doctrine traditionally invoked between contracting parties to compulsion by a non-party under these facts. The court also found the release to be valid and enforceable and that it barred the plaintiff’s claims. McDonald v. Whitewater Challengers, Inc., 2015 Pa. Super. LEXIS 232 (Pa.Super. April 29, 2015).

Audrey also convinced the Commonwealth Court to affirm the decisions of the Workers’ Compensation Judge and Pennsylvania Workers’ Compensation Appeal Board that the employer’s initiation of a second utilization review relating to treatment provided to the claimant by a dentist did not constitute an unreasonable contest and that the original penalty awarded should not be increased to a greater percentage. The court also affirmed the determination that the claimant’s ongoing chiropractic treatment was not reasonable or necessary. The court acknowledged that palliative relief may be deemed reasonable and necessary, even when it only alleviates a claimant’s symptoms, but it found that the employer’s medical expert’s opinion regarding the lack of progression of pain improvement constituted substantial evidence supporting the decision that the treatment was not reasonable or necessary. Troutman v. Workers’ Comp. Appeal Bd. (Norristown Ford), 2015 Pa. Commw. Unpub. LEXIS 254 (Pa. Commw. Ct. April 10, 2015).

*Prior Results Do Not Guarantee A Similar Outcome

_{Defense Digest, Vol. 21, No. 3, September 2015}

_{Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2015 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}