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A Summary Of Recent Pennsylvania Appellate Decisions

Mutual Automobile Insurance Co. v. Foster No.
2007  MAP  2003  (December  30,  2005)♦ Comm., Dept. of Labor & Industry v.
Workers' Compensation Appeal Board (Exel
Holding: An insurer may deny uninsuredLogistics) No. 37 WAP 2004 (December 28,
motorist benefits to an insured claimant who2005)
fails to report the accident to the police or
other governmental authority as required byHolding: An employer is not entitled to
the policy and the Motor Vehicle FinancialSupersedeas Fund reimbursement for
Responsibility Law, 75 Pa.C.S. §§compensation and medical bills paid while a
1701-1799.7. Justice Saylor filed aPetition for Forfeiture is pending because
concurring opinion, concluding thatthe petition for forfeiture was pursuant to
regardless of the language of the MVFRL, a§ 306(f.1)(8), and not § 413 or §
carrier may include a police notification430 of the Act. Justice Newman filed a
provision in the terms of an auto insurancedissenting opinion, in which Justices
policy. Justice Baer filed a dissentingCastille  and  Baer  joined.
opinion, joined by Justice Castille, in which
he characterized the provision at issue as a1.4.  NEW  RULES  OF  CIVIL  PROCEDURE
"technical escape hatch by which to deny
coverage in the absence of prejudice."►Disclosure of Legal Malpractice
Justice Nigro did not participate in theInsurance  Coverage
decision  of  the  case.
♦  Rule  of Professional Conduct 1.4(c)
1.2.  CIVIL  PROCEDURE
Effective July 1, 2006, lawyers in private
►  Service  of  Processpractice are required to notify their clients
if they do not have professional liability
♦ McCreesh v. City of Philadelphia No.insurance of at least $100,000 per occurrence
31  EAP  2005  (December  28,  2005)and $300,000 in the aggregate per year,
subject to commercially reasonable
Holding: After an action has been commenced,deductibles. The Rule also specifies the
a plaintiff must provide notice of the actionlanguage of the required disclosures, and
to the defendant in order for the purpose ofmandates that attorneys maintain a record of
the statute of limitation to be fulfilled. Athe disclosures for six years after
complaint should, therefore, only betermination of the representation of a
dismissed in those cases in which theclient.
plaintiff has demonstrated an intent to stall
the judicial machinery or when plaintiff's►Consumer  Credit  Transactions
failure to comply with the Rules of Civil
Procedure has prejudiced the defendant.♦ New Rules of Civil Procedure 1326 to
Justice Newman filed a dissenting opinion.1331
Justice Eakin also filed a dissenting
opinion,  joined  by  Justice  Nigro.Effective February 1, 2006, the Court has
promulgated Rules of Civil Procedure
The Supreme Court has yet again revisited itsgoverning proceedings to compel arbitration
decision in Lamp v. Heyman, 366 A.2d 882 (Pa.and to confirm an arbitration award in a
1976). In McCreesh, the Court now holds thatclaim arising from a consumer credit
a plaintiff need not strictly comply with thetransaction.
Rules by repeatedly reissuing a writ of
summons; instead, the Court looks to the good2.  SUPERIOR  COURT  OF  PENNSYLVANIA
faith efforts of a plaintiff to effectuate
service, including considering whether a2.1. ►Defamation - Conditional
defendant has actual notice of the litigationPrivilege
and is not prejudiced by the lack of strict
compliance with the Rules of Civil Procedure.♦  Moore  v.  Cobb-Nettleton
The facts here - in which plaintiff attempted
to serve the writ by certified mail in clear2005 PA Super 426 (December 21, 2005)
violation of the Rules - are certain toHolding: A social worker, who makes
generate further litigation. The true foodprofessional disclosures required by
for thought - and further litigation -Pennsylvania law, is entitled to a
appears in Justice Eakin's dissent, in whichconditional privilege in a defamation
he  states:lawsuit.
The "majority has developed a new rule2.2.  ►Learned  Intermediary  Doctrine
holding a trial court may only dismiss a case
where there is ineffective service in two♦  Lineberger  v.  Wyeth
distinct situations: (1) where the
plaintiff's actions evidence an intent to2005 Westlaw 3547682 (Pa. Super., December
stall the judicial machinery, or (2) where21, 2005) Holding: In a pharmaceutical
the plaintiff's failure to comply with thefailure to warn case, the plaintiff must
Rules of Civil Procedure has actuallyestablish both a duty to warn and a failure
prejudiced the defendant. . . .The majorityto warn. The plaintiff must also show that,
goes so far as to suggest that withouthad the defendant issued a proper warning to
prejudice, actual notice itself, much lessthe physician (the learned intermediary), the
proper  service,  may  be  unnecessary."learned intermediary would have altered his
or her behavior, i.e., would not have
1.3.  WORKERS'  COMPENSATIONprescribed the drug, and the injury would
have  been  avoided.
►Impairment  Rating  Evaluations (IREs)
This is an unpublished opinion, although
♦ Gardner v. Workers' Compensationcounsel for Wyeth has stated that he will
Appeal Board No. 14 EAP 2004 (December 28,request  that  the Court publish the opinion.
2005)
3.  COMMONWEALTH  COURT  OF  PENNSYLVANIA
Holding: An employer/workers' compensation
carrier must request that a workers'3.1. ►Workers' Compensation - Hepatitis
compensation claimant submit to an ImpairmentC
Rating Evaluation within sixty (60) days from
the date that the claimant receives, or comes♦ City of Philadelphia v. Workers'
into possession of 104 weeks of totalCompensation Appeal Board (Sites) No. 1410
disability benefits in order to obtain theC.D.  2005  (December  21,  2005)
automatic relief under 77 P.S. § 511.2(2).
If an employer fails to request an IRE withinHolding: Hepatitis C may be deemed an
this time period, it may still request an IREoccupational disease even if the condition
at a later date pursuant to 77 P.S. §was not specifically identified as an
511.2(6), but must utilize the traditionaloccupational disease until after the
administrative process in order to modify aclaimant's  diagnosis.
claimant's disability status. Justice Nigro
filed a concurring opinion, and Justice3.2. ►Workers' Compensation -
Newman  filed  a  dissenting  opinion.Suspension/Bad  Faith
Workers' compensation practitioners who had♦ Virgo v. Workers' Compensation Appeal
been awaiting the decision in Gardner nowBoard (County of Lehigh-Cedarbrook) No. 1167
know that an employer/insurer can request anC.D.  2005  (December  22,  2005)
IRE up to two times within any twelve-month
period. The only limitation on an employer'sHolding: An employer is entitled to a
right to an IRE is that the employer cannotsuspension of benefits when an employee is
avail itself of the automatic relief underdischarged from employment because of "bad
the Act if the exam is not requested withinfaith" in carrying out her job
60 days of the employee's receipt of 104responsibilities. This is a classic example
weeks of benefits. In reality, this meansof bad facts making bad law (at least for
that a workers' compensation carrier is nowworkers' compensation claimants). One of the
able to reduce virtually every claimant tomost common questions raised by injured
partial disability status at any time afterworkers is what happens if they return to
the claimant has received two years ofwork at light duty and are then fired because
benefits. Although a claimant can try toof allegedly unsatisfactory job performance.
defend against a modification petition basedThis case answers the questions, holding that
upon an IRE, the fact that literally noworkers' compensation benefits may be
claimant can meet the statute's requirementsuspended under those circumstances. Of
that he or she have a 50 percent impairmentcourse, in this case, the employee did not
means that any defenses will, at best, delayhave a "clean" record, and it was easy for
the  inevitable.the Court to uphold the suspension. What
happens, however, when the unsatisfactory
►Physical  Versus  Mental  Injuriesperformance occurs only after the employee is
at light duty and, as employees frequently
♦ Panyko v. Workers' Compensationclaim, their firing is a pretext because the
Appeal Board No. 37 WAP 2004 (December 28,employer only wants them to work at full
2005)duty?  Time  will  tell.
Holding: A claimant who suffers a purelySUPERIOR COURT OF NEW JERSEY, APPELLATE
physical injury, such as a heart attack,DIVISION  OPINION
because of a psychic reaction to a working
condition, is not required to establish that►  Doe  v.  XYC  Corp.
the working condition was abnormal. Thus,
claimants allegedly suffering from physicalNo.  A-2909-04T2  (December  27,  2005)
injuries are not required to show that their
injuries are the result of abnormal workingHolding: An employer on notice that one of
conditions. Rather, they need only show thatits employees is using a workplace computer
(1) they are suffering from an objectivelyto access pornography, possibly child
verifiable physical injury, and (2) thepornography, has a duty to investigate the
injury arose in the course of employment andemployee's activities and to take prompt and
was related thereto. Justice Saylor filed aeffective action to stop the unauthorized
concurring opinion, and Justice Newman filedactivity, lest it result in harm to innocent
a  dissenting  opinion.third parties. No privacy interest of the
employee stands in the way of the duty on the
►Supersedeas  Fund  Reimbursementpart of the employer.



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