Don’t Like An Award From Compulsory Arbitration? You Must Appeal

Can a party to a case where a judgment has been entered in compulsory arbitration have that judgment modified without appealing? This is the underlying question in the recent matter heard by the Pennsylvania Superior Court, captioned as Blucas v. Agiovlasitis, 2018 Pa.Super. 25.

In Blucas, tenants brought suit against their former landlord for the return of their security deposit. The landlord, of course, claimed the leasehold had damages for which he incurred expenses and he needed compensation/reimbursement from the tenants.

The case was tracked into compulsory arbitration pursuant to 42 Pa.C.S.A. Section 7361. After a hearing before a panel of arbitrators, a judgment was entered awarding the tenants $10,000 and the landlord $1,450, for a net award to the tenants of $8,550.

Pursuant to Pa.R.C.P. 1307 and established case law, the entry of an award following compulsory arbitration has the force and effect of a final judgment. The court contrasted an award flowing from compulsory arbitration with one following statutory or common law arbitration. Unlike an award from compulsory arbitration, a party must petition the trial court to confirm an award from statutory or common law arbitration 30 days or more following the date of the award. For an award from compulsory arbitration neither party must file a præcipe to enter judgment on the award.

In July 2016, an award and notice of the same was entered on the docket in this matter, and was final (unless appealed). A judgment on the award was entered in November 2016. Within less than two weeks following the entry of the judgment in Blucas, the landlord remitted a check to the tenants for the full amount of the judgment ($8,550). Pursuant to Pa.R.C.P. 1307, a party must file an appeal within 30 days from when the award and notice are entered on the docket in order to further litigate the matter. No appeal was ever filed. Instead of appealing, the tenants, in April 2017, filed a motion for costs and prejudgment interest (motion) requesting a recalculation of the award.

The court reviewed the various case, statutory, and procedural laws applicable to the instant matter, and unequivocally concluded that the sole remedy for an adverse or unsatisfactory compulsory arbitration award is an appeal within 30 days from the award and notice. The only exception to the above the court could discern is Pa.R.C.P. 1307(d), which provides for a means to “mold” a previously entered award for obvious errors, in either arithmetic or language, that do not go to the substance and/or merits of the award.

The tenants’ motion did not address basic errors in arithmetic and language but, rather, asked the trial court to award them additional damages in prejudgment interest and costs. Inexplicably, and without citing support, the trial court granted the tenants’ motion, which led to the landlord’s appeal to Pennsylvania Superior Court, resulting in the decision, cited above, that is the subject of this article.

Superior Court noted that the motion did not comply with the law and procedure cited above.  The motion clearly is not an example of “molding.” More importantly, it was not filed within 30 days of the award.  The trial court was unclear as to precisely how it calculated the award and what the figures in the award exactly represented (e.g., interest and costs? security deposit? pet deposit? etc.). As a result, there is no way for Superior Court to even attempt to “mold” the award regarding prejudgment interest, even if it could. Consequently, as the tenants did not file an appeal of the compulsory arbitration award, the trial court was without authority to attempt to revisit the award with regard to prejudgment interest.

As always, it is absolutely critical for practitioners to be totally cognizant of the applicable deadlines and time periods mandated by law or procedure and act accordingly to ensure compliance with the same and opportunity to litigate a matter as fully as possible.

Originally published in The Legal Intelligencer on March 19, 2018 and can be found here.

A Collection of Personal Injury Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of personal injury legal principles.  These writings have been published in The Legal Intelligencer, Upon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

Musings:

• The Grounds for the Famous McDonald’s Coffee Case
• The Philadelphia Zoo Tries to Put Bars Around its Visitors
• Local Ice Rink Tries to Put Lawsuits on Ice

My Articles:

• There’s no Business Like Snow Business
• Fallout for Injuries Sustained by Contractor’s Employee

Vacant Property is Irredeemable after Sheriff Sale, Commonwealth Court Rules

If one wishes to take advantage of his right to redeem a piece of real estate subsequent to a sheriff’s sale, it is critical to act in a timely manner, otherwise one may miss the opportunity to do so.

53 P.S. Section 7293 lays out the time line to take action in redeeming a property; however, there was some ambiguity in precisely interpreting just when the deadlines occur. The Court, in the recent matter, and case of first impression, Brentwood Borough School District v. HSBC Bank USA, 111 A.3d 807, helped clarify some of the aforesaid ambiguity.

In Brentwood, Defendant HSBC is the mortgagee on a property which was sold at sheriff’s sale to a third party called Grove Properties, Inc. due to delinquent taxes. Within about five months, HSBC filed to redeem the property pursuant to 53 P.S. Section 7293(a). According to 53 P.S. Section 7293(a), a party must file to redeem a property within nine months from the date of the acknowledgment of the Sheriff’s Deed which conveys a property following a sheriff’s sale.  The trial court ruled against HSBC on this issue, asserting that HSBC only had ninety days to file to redeem, however on appeal the Commonwealth Court realized the trial court mistakenly applied the time line laid out in 53 P.S. Sections 27101-27605, and reversed the ruling of the trial court and confirmed the nine month time period.

The primary issue the Court focused upon was whether the property was vacant pursuant to 53 P.S. Section 7293(c), which made the case one of first impression. Section 7293(c) states that “there shall be no right of redemption of vacant property by any person after the date of the acknowledgment of the sheriff’s deed therefor.” Defendant argued that the property was not vacant because the occupant of the property at issue only temporarily stayed at her friends’ house to save money. She also left her belongings at the subject property. Based on the above, the Defendant asserted that, at most, the occupant of the property was only temporarily absent from it, which does not constitute its vacancy, as a property cannot be vacant if its occupant intends to return. In support of its argument, Defendant cited to how the term “occupied” is used in other cases and statutes.

The Court ruled that the term “occupied” must first be interpreted in the context of the Municipal Claims and Tax Liens statute (i.e.: 53 P.S. Section 7101 et seq). Pursuant to that statute the occupancy must be as a residence and not as a storage unit. Per the Court, the purpose of the statute is to increase the collection of taxes and to free land to bear its share of the tax burden. As a result, the Court reasoned, the statute must be interpreted to take consideration of the ability of the municipality to convert a house sold at sheriff’s sale back to productive use as quickly as possible.  Therefore, the Court deduced that the legislature intended the redemption period should be brief which, in this case, is nine months’ time.

The Court observed that “occupied” is a factual determination to be made and applied on a case-by-case basis. The factors to consider in looking at a case include: “whether anyone was habitually physically present at the property, i.e., regularly sleeping and eating there and using it as a place to dwell; whether any lack of physical presence was due to temporary illness, travel or renovation; whether the property was unsecured, damaged or uninhabitable; and whether the basic and necessary utilities such as water, electric and gas were operational.” The instant matter revealed a property which had no person habitually present in it before the sale. It had no running hot water or gas and, therefore, no means to bathe or cook, essentially making it uninhabitable.  Further, it also revealed that the occupant simply could not afford to reside at the property any longer. As a result, the Court resolved that the property was unoccupied. As the property was unoccupied, Defendant could not redeem the property after the date of the acknowledgment of the sheriff’s deed under the statute.

In light of the above, Defendant argued that disallowing them from redeeming the property was unjust as it “could not reasonably be deemed to be on notice that while [the occupant] kept all her belongings at the Property and frequently returned to the Property that she would later claim that she did not reside there anymore, and Defendant would suddenly be precluded from redeeming its interest in the Property.” The Court was not convinced. The Court was satisfied that the Defendant received all required statutory notices under the applicable law.

In sum, the Court ruled that the statute at issue is designed for a speedy and efficient process to return a property sold at sheriff’s sale to productive use and a property with no working utilities and no one physically inhabiting the property is vacant (or unoccupied) despite the occupant’s intention to move back in or leaving her belongings in the property.

Originally published on October 3, 2017 in Upon Further Review and can be viewed here.

Redemption Available Immediately After a Sheriff’s Sale

In the recent matter of City of Philadelphia v. F.A. Realty Investors Corp., 95 A.3d 377 (Pa.Cmwlth.2014), the Court had the opportunity to tackle a matter of first impression when interpreting 53 P.S. Section 7293 with regard to when a property owner may redeem his property after a sheriff’s sale.

In F.A., the piece of real estate at issue (“the Property”) was subject to a tax delinquency which led to an order by the trial court to sell the Property at a sheriff’s sale in order to satisfy the aforesaid tax delinquency. Not long after the order was entered, the Property was sold at sheriff’s sale. Immediately after the sale, Defendant filed to redeem the Property, but its petition to do so was dismissed by the trial court.

According to 53 P.S. 7293, a property owner may redeem a property sold at sheriff’s sale “at any time within nine months from the date of the acknowledgment of the sheriff’s deed therefore, upon payment of the amount bid at such sale.” The City of Philadelphia argued that Defendant’s immediate action to redeem the Property was premature as it acted prior to the acknowledgment of the deed. The trial court agreed with the City’s interpretation and application of the statute when it dismissed Defendant’s petition.

When interpreting the statute cited above, the Court first noted that, per 1 Pa.C.S. Sections 1921 and 1922, and the cases decided thereunder, statutory construction ought not lead to an absurd result, and when there is ambiguity in the language of a statute, the court may look to the intent of the legislature to help provide interpretive guidance. The Court also explained that the redemption statute is to be liberally construed in order to effect justice, pointing out that the purpose of sheriffs’ sales is not to strip a property owner of his real estate, but simply to collect on municipal claims.

Defendant argued that making them wait until the sheriff’s deed is acknowledged would likely, and unjustly, lead to unnecessary additional fees, costs, taxes, and/or interest and, therefore, its prompt action could avoid these costs.

The Court observed that the applicable statute has at least two interpretations. The first being that the phrase “at any time” literally means at any time, without regard to when the acknowledgment occurs, as long as it is within the nine month time frame. The second interpretation begins the nine month period for redemption at the time of acknowledgment.

As the language is, in the Court’s view, ambiguous, it looked to legislative intent and, on that basis concluded that the legislature would not try and increase a property owner’s difficulty to redeem property. Indeed, a property owner may retain possession of a house sold at sheriff’s sale until the sale is completed by the acknowledgment and delivery of the deed obtained at the sale. As a result, the Court believed it would be an absurd result to disallow a property owner from redeeming his property while he is in possession of it simply because the deed had technically not been acknowledged.

Finally, Pennsylvania law prohibits the redemption of a vacant property after the date of acknowledgment. In light of the above, namely that absurd results are to be avoided and that the purpose of sheriffs’ sales is not to strip someone of his property but merely to ensure municipal claims are satisfied, it would seem that the City of Philadelphia’s arguments would disallow someone from redeeming a vacant property at all. In other words, if a property is vacant, an owner cannot redeem it after acknowledgment and, if the City’s interpretation of 53 P.S. 7293 is correct, he would not be able to redeem it before either, and this would be an absurd result, not to mention an unjust one, preventing an owner from redeeming his property.

So, in sum, in light of the above, and after review of the applicable statutes, the Court ruled that a property owner can redeem his property sold at sheriff’s sale at any time up to nine months after acknowledgment of the sale.

Originally published in Upon Further Review on June 7, 2017 and can be found here.

Redemption Available Immediately After a Sheriff’s Sale

In the recent matter of City of Philadelphia v. F.A. Realty Investors Corp., 95 A.3d 377 (Pa.Cmwlth.2014), the Court had the opportunity to tackle a matter of first impression when interpreting 53 P.S. Section 7293 with regard to when a property owner may redeem his property after a sheriff’s sale.

In F.A., the piece of real estate at issue (“the Property”) was subject to a tax delinquency which led to an order by the trial court to sell the Property at a sheriff’s sale in order to satisfy the aforesaid tax delinquency. Not long after the order was entered, the Property was sold at sheriff’s sale. Immediately after the sale, Defendant filed to redeem the Property, but its petition to do so was dismissed by the trial court.

According to 53 P.S. 7293, a property owner may redeem a property sold at sheriff’s sale “at any time within nine months from the date of the acknowledgment of the sheriff’s deed therefore, upon payment of the amount bid at such sale.” The City of Philadelphia argued that Defendant’s immediate action to redeem the Property was premature as it acted prior to the acknowledgment of the deed. The trial court agreed with the City’s interpretation and application of the statute when it dismissed Defendant’s petition.

When interpreting the statute cited above, the Court first noted that, per 1 Pa.C.S. Sections 1921 and 1922, and the cases decided thereunder, statutory construction ought not lead to an absurd result, and when there is ambiguity in the language of a statute, the court may look to the intent of the legislature to help provide interpretive guidance. The Court also explained that the redemption statute is to be liberally construed in order to effect justice, pointing out that the purpose of sheriffs’ sales is not to strip a property owner of his real estate, but simply to collect on municipal claims.

Defendant argued that making them wait until the sheriff’s deed is acknowledged would likely, and unjustly, lead to unnecessary additional fees, costs, taxes, and/or interest and, therefore, its prompt action could avoid these costs.

The Court observed that the applicable statute has at least two interpretations. The first being that the phrase “at any time” literally means at any time, without regard to when the acknowledgment occurs, as long as it is within the nine month time frame. The second interpretation begins the nine month period for redemption at the time of acknowledgment.

As the language is, in the Court’s view, ambiguous, it looked to legislative intent and, on that basis concluded that the legislature would not try and increase a property owner’s difficulty to redeem property. Indeed, a property owner may retain possession of a house sold at sheriff’s sale until the sale is completed by the acknowledgment and delivery of the deed obtained at the sale. As a result, the Court believed it would be an absurd result to disallow a property owner from redeeming his property while he is in possession of it simply because the deed had technically not been acknowledged.

Finally, Pennsylvania law prohibits the redemption of a vacant property after the date of acknowledgment. In light of the above, namely that absurd results are to be avoided and that the purpose of sheriffs’ sales is not to strip someone of his property but merely to ensure municipal claims are satisfied, it would seem that the City of Philadelphia’s arguments would disallow someone from redeeming a vacant property at all. In other words, if a property is vacant, an owner cannot redeem it after acknowledgment and, if the City’s interpretation of 53 P.S. 7293 is correct, he would not be able to redeem it before either, and this would be an absurd result, not to mention an unjust one, preventing an owner from redeeming his property.

So, in sum, in light of the above, and after review of the applicable statutes, the Court ruled that a property owner can redeem his property sold at sheriff’s sale at any time up to nine months after acknowledgment of the sale.

Originally published in Upon Further Review” June 7, 2017 and can be seen here.

The Gist of a Legal Malpractice Action

There are times when a disgruntled client believes his case was mishandled by his attorney to such an extent that he needs to bring suit against the attorney to make him whole. When bringing such a suit, a client can bring an action against his attorney sounding in tort for legal malpractice and/or an action sounding in breach of contract.

A malpractice claim addresses whether an attorney performed his duties according to the accepted standards of practice and is subject to a two year statute of limitations. A breach of contract claim addresses whether the attorney fulfilled his duties according to the contract that an attorney has with his client and is subject to a four year statute of limitations. According to the so-called “gist-of-the-action” rule, a litigant may not bring a tort claim (e.g.: legal malpractice) against someone if the legal duty that is claimed to have been breached by the opposing party is created by the terms of a contract.

It is not uncommon for both legal malpractice and breach of contract claims to be raised simultaneously by disgruntled clients against their attorneys, and the recent matter of New York Central Mutual Insurance Company and St. Paul Mercury Insurance Company v. Margolis Edelstein and Michael T. Savitsky, United States Court of Appeals for the Third Circuit, Case No. 15-1541 helps provide guidance regarding which is the more appropriate claim.

The New York Central matter centered on an attorney’s representation of an automobile insurance company with regard to the coverage it elected to provide (or lack thereof) for an automobile accident. At the conclusion of the case, the insurance company believed it received poor, indeed substandard, legal advice from its attorney which, as a result, led to its suing its attorney for breach of contract. The defendant attorney filed a motion to dismiss (which was granted, leading the insurance company to appeal to the Third Circuit) based on the “gist-of-the-action” rule. The successful argument proffered by the attorney was that, regardless of the labeling provided by the insurance company, its claim was actually a malpractice claim. The impact of a breach of contract claim being construed as a malpractice claim is that it shortens the applicable statute of limitations from four years (for contracts) to two years (for torts), which would lead to the dismissal of the insurance company’s claims as they were filed more than two years after the incident giving rise to its case against its attorney.

The Court indicated that a claim for breach of contract must arise from the duties created by a contract and not duties created through a “broader social duty.” The duty at issue under a contract claim must be one which a party would not otherwise have been obliged to do but for the terms of the contract.

According to the Court, the obligation for an attorney to perform his duties competently is one which looks to “broader social duties” and not simply the specific terms of a contract. According to the contract at issue, the attorney in this case was tasked with researching, drafting, and communicating a legal opinion to the insurance company regarding exposure to civil liability flowing from a specific automobile accident. To that end, the Court observed that the attorney did research, draft, and communicate the aforesaid legal opinion to the insurance company. Consequently, the attorney did not breach the contract. The insurance company’s claim is, more-or-less, that the attorney did a poor job in researching, drafting, and communicating the legal opinion, which is distinct from claiming the attorney did not perform the tasks he was contracted to do. In other words, as the Court pointed out, the insurance company’s claim “arises from [the attorney’s] negligent performance of his contractual duty obligations and, therefore, sounds in tort.”

Due to the above, the Court construed the breach of contract claim against the attorney as a malpractice claim, and, therefore, applied the two year statute of limitations for a malpractice claim to the insurance company’s claims, which resulted in the dismissal of those claims due to being time barred.

The decision above is beginning to be adopted generally as it has already been applied in the matter of Rinker v. Amori, Case No.: 3:15-1293, 2016 US Dist. Lexis 36712 at 19-20 (M.D. Pa. Mar. 22, 2016) and is consistent with the Pennsylvania Supreme Court case Bruno v. Erie Insurance, 106 A.3d 48 (Pa. 2014).

So, practitioners should be aware and vigilant to ensure they are compliant with the “gist-of-the-action” rule, and remember that, regardless of how a case is labeled, a court will look to the substance of the claims made to determine whether it sounds in contract or in tort.

Originally published on September 26, 2016 in Upon Further Review and can be seen here.

Lacking of Specificity About Specificity

F.R.C.P 8(a) and 8(c) requires so-called notice pleading for the claims made in pleadings. Notice pleading requires a party to plead with specificity sufficient to give an opposing party notice of what the claim(s) being made are. A question has arisen in federal court as to whether affirmative defenses, a type of pleading typically filed by a defendant against a plaintiff’s complaint, need to meet the specificity requirement mentioned above.

The U.S. Supreme Court, in the matters of Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), appeared to create new pleading standards; however their application to affirmative defenses is unclear.

The matter of Tyco Fire Products v. Victaulic, 777 F.Supp.2d. 893 (E.D.Pa.2011), in the Eastern District of Pennsylvania attempts to address the ongoing development of the pleading requirements for affirmative defenses.

As is typical, the defendant in Tyco filed a list of affirmative defenses in conclusory form responding to various legal claims. The plaintiff, in response, filed a motion to dismiss the affirmative defenses on the basis that they lacked the necessary specificity per the rules cited above.

When analyzing the arguments presented pursuant to the aforesaid motion, the court noted that F.R.C.P. 8(a) does not apply to affirmative defenses as, per this court, they are dealt with by F.R.C.P. 8(c). Prior to Twombly, affirmative defenses would only be stricken if no set of facts could be inferred to support them. Since the Twombly decision, some say the pleading requirements have risen to something above a speculative level and/or a formulaic recitation of labels or conclusions, and some sort of factual allegations are now required.

In light of the above, the court pointed out that lower courts across the country are divided as to how these Supreme Court cases apply to affirmative defenses; indeed, the court noted, many courts have taken the position that these cases do not apply to affirmative defenses. Significantly, some courts have recognized that as the Supreme Court only interpreted F.R.C.P. 8(a), and not 8(c), there should be no change to the application of 8(c) to affirmative defenses. By contrast, other courts interpret the applicable law as having always required fair notice for all pleadings, including even affirmative defenses.

The U.S. District Court of the Eastern District of Pennsylvania, in Tyco, was more persuaded by the argument that as the Supreme Court interpreted 8(a) and 8(c) differently, affirmative defenses do not require the specificity of other pleadings and need not be plausible to survive. Affirmative defenses need only to provide fair notice of the issues and arguments raised without the specificity required in other sorts of pleadings like complaints and counterclaims. The court argued that it would only strike affirmative defenses challenged on the basis of specificity only if they cannot meet this very low standard, which it believes is consistent with the language of 8(c). Indeed, the court observed that its interpretation is consistent with the fact that no responsive pleading to affirmative defenses is legally or procedurally required. Further, requiring greater specificity imposes an unreasonable burden on parties who risk waiving the defenses they do not raise at the pleading phase due to having insufficient information to raise them as affirmative defenses at the time of filing.

The court admitted that this area of the law, namely the interpretation of F.R.C.P. 8(a) and (c) relative to affirmative defenses, is still very fluid and variable. As a result, it is important for the practitioner to ensure he is familiar with the prevailing interpretation when filing affirmative defenses.

Originally published in The Legal Intelligencer Blog on August 5, 2016 and can be seen here.

Federal Courts Interpret Federal Law Even in State Court

In the matter of James v. City of Boise, Idaho (136 S.Ct. 685 (2016)), the Supreme Court of the United States has clarified for all state courts, including Pennsylvania, who/what has the ultimate authority, and indeed the jurisdiction, to interpret and apply federal law.

 

The Plaintiff in the James matter filed a claim under 42 U.S.C. Section 1983 against the city of Boise and some of its police officers after she was bitten by one of their police dogs while they were responding to a burglary call.

 

Plaintiff brought suit in her local state trial court.  Plaintiff was unsuccessful at trial which led to her appealing the matter all the way to Idaho’s Supreme Court.  The Idaho Supreme Court affirmed the dismissal of Plaintiff’s case and awarded the Defendants appellate attorneys’ fees.  Plaintiff again appealed, this time to the Supreme Court of the United States.

 

Pursuant to 42 U.S.C. Section 1983, the court may elect to award reasonable attorneys’ fees to a prevailing party in a civil rights law suit.  The United States Supreme Court, in the matter of Hughes v. Rowe, 449 U.S. 5 (1980), interpreted 42 U.S.C. Section 1988 to allow attorneys’ fees to be assessed only if the underlying action was frivolous, unreasonable, or without foundation.

 

When deciding the James case, the Idaho Supreme Court decided, unilaterally, that it was not bound by United States Supreme Court’s interpretation of 42 U.S.C. Section 1988 as enunciated in the Hughes matter.  The logic employed by the Idaho Supreme Court led it to conclude that while the United States Supreme Court can determine how federal courts can assess attorneys’ fees, it has no authority to do so for state courts such as the Idaho Supreme Court.  As a result, the Idaho Supreme Court ruled that it, and/or its lower courts, could assess attorneys’ fees without a prior determination of whether the underlying matter was frivolous, unreasonable, or without foundation.

 

Upon review of the Idaho Supreme Court, the United States Supreme Court, in no uncertain terms, reversed the Idaho Supreme Court, indicating that federal statutes are definitively interpreted by federal courts, with the Supreme Court, of course, being the ultimate authoritative federal court, and those interpretations, must be respected by state courts.

 

In support of its decision, the United States Supreme Court went back to 1816 in citing Justice Story in Martin v. Hunter’s Lessee, 1 Wheat. 304, 348 when he ruled “the laws, the treaties, and the constitution of the United State would be different in different states, and might, perhaps, never have precisely the same construction, obligation, or efficacy, in any two states.  The public mischiefs that would attend such a state of things would be truly deplorable.”

 

In short, the Idaho courts, or the courts of any state including those in Pennsylvania, are bound by the United States Supreme Court’s interpretation of federal law regardless of whether the underlying matter is a state case or in state court.

Originally published in The Legal Intelligencer Blog on April 7, 2016 and can be seen here.

Fallout for Injuries Sustained by Contractor’s Employee

When construction is taking place on a piece of real estate, and an employee of the contractor doing the work is injured there, who bears the potential tort liability for the injury, the property owner, the general contractor, or both?  Luckily Pennsylvania law provides a way to discern how liability should be distributed if there is no existing contract between the contractor and property owner which addresses the liability question.

The basic legal principle is foundational, well established, and has manifold case support in Pennsylvania.  The standard of care present in such a case mirrors the standard of care a property owner has to an individual on the property owner’s land.  The standard of care a property owner has depends upon whether the individual on the property owner’s land is a trespasser, licensee, or invitee.  Under Pennsylvania law, the employee of a general contractor who is authorized to be on the property falls within the classification of business invitee, and therefore, the duty of care owed to a business invitee is the highest duty owed to any entrant upon the property.

Pennsylvania “case law sets forth the duty that a possessor of law owes to business invitees as follows:  A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, and only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.”  Chenot v. A.P. Green Services, Inc., et al., 2006 Pa.Super. 52, 63 (2006)  Therefore, a property owner is potentially liable for the injuries sustained by a contractor’s employee while on the property.

In addition, there is no doubt that a duty of care attaches to a contractor for the injuries sustained by its employees.  Suffice it to say, a contractor has a duty, for which it can be held liable if breached, for injuries sustained by its employees while they are engaged in working for the contractor at the property.  However, the duty of care applied to a contractor does not lessen or relieve the property owner of his/her/its duty of care over business invitees/visitors.  Despite a contractor’s duty of care, a property owner “must [still] protect an invitee not only against known dangers, but also against those which might be discovered with reasonable care.” The court in  Gutteridge v. A.P. Green Services Inc., A.W. et al., 804 A.2d 643, 657 (Pa. Super. 2002) stated that a property owner ‘“owes a duty to warn an unknowing contractor of existing dangerous conditions on the landowner’s premises where such conditions are known or discoverable to the owner.”’  Finally, it should also be noted that the property owner’s duty to warn remains regardless of whether a contractor ‘“exercises full control over the work and premises entrusted to him.’”  (See Gutteridge).

Based upon the above, it is abundantly clear that a property owner can be held liable for the injuries sustained by a contractor’s employee working at his property if he breaches the duty of care described above and does not fulfill his duty to warn.  Consequently, the highest standard of care that a property owner ought to maintain applies to an employee of a contractor at the property who is authorized to be working there.  Such an employee is a business invitee of the property owner.  Therefore, to that end, a property owner has a duty to protect such an employee from known dangers at the property and those which could be discovered with reasonable care.  The liability of the property owner is supplemental to, and/or in addition to, any liability the contractor may also have for his employee’s injuries.

Originally published in The Legal Intelligencer on January 28, 2016 and can be found here.

Superior Court Relaxes Rules for Requests for Admissions

The discovery process is one of the most critical parts of litigation.  As any practitioner knows, the discovery process has very specific and procedurally established deadlines.  While these deadlines are frequently missed, and subsequently compelled through court order, one form of discovery carries with it, in theory at least, much stricter deadlines, namely Requests for Admissions.

According to Pa.R.C.P. 4014(b) a party who receives Requests for Admissions has thirty (30) days to answer them; otherwise the requests are deemed conclusively established.

Just how “conclusively” the requests are established was explored in the recent matter of Krepps v. Snyder, 112 A.3d 1246 (Pa.Super.2015).  The underlying matter involved a malpractice claim against a podiatrist.  The malpractice allegedly involved the podiatrist misapplying amputation prevention procedures to the Plaintiff which resulted in the partial amputation of the Plaintiff’s leg.

At the trial level the court refused to allow the Plaintiff’s admissions to be conclusively established.  On the last day of the trial, the Plaintiff attempted to introduce the requests for admissions as conclusively established due to the Defendant’s failure to respond to them in a timely or complete fashion.  In response to the Plaintiff’s request to introduce the requests for admissions, the trial court denied the requests on the basis that the Plaintiff’s timing was inappropriate in introducing the requests at the end of trial, that their relative value in the face of the other evidence proffered during the trial was low, and it was the court’s belief that the Plaintiff was not prejudiced by the late (or lack of) responses to the requests for admissions.  Instead, the court, used a rather liberal application of Pa.R.C.P. 126 (the rule which states that the Rules of Civil Procedure ought to be applied and construed liberally) to negate the clear terms of Pa.R.C.P. 4014(b).  Despite the above, it is also worth noting that the court – rather counter intuitively – also recognized that the admissions “in principle” should be deemed established, but still refused to deem them as such.

The Plaintiff appealed the trial court’s decision to not find the admissions conclusively established to Pennsylvania Superior Court.  In its review of the trial court’s decision, the Superior Court highlighted the portion of Pa.R.C.P. 4014(b) which indicates that the thirty (30) day deadline noted above may be modified to a “shorter or longer time as the court may allow.”  Furthermore, it deferred to the Pennsylvania Supreme Court’s decision in Stimmler v. Chestnut Hill Hospital, 602 Pa. 539 (2009) which indicated that the purpose of Pa.R.C.P. 4014(b) is to help expedite the discovery process and placed the onus to enforce the requests for admission on the party requesting them.  The Supreme Court went on to say that Rule 4014(b) permits the “withdrawal of or amendment to answers to requests for admissions ‘when the presentation of the merits of the action will be subverted thereby’ and where the requesting party has failed to establish that the withdrawal of or amendment to requests for admissions will prejudice the party ‘in maintaining the action or defense on the merits.”’

Additionally, the Superior Court looked to precedent in suggesting that the Rules of Civil Procedure, while compliance with them is expected, are to be understood as not ends in themselves which, in turn, discourages their rigid application.  In short, the Rules are to serve the interests of fairness and justice and the court merely looks for substantial compliance to them.

The Plaintiff argued that an eleven (11) month delay on responding to the requests for admissions substantially affected him and the litigation and, moreover, could not be considered substantial compliance.  The Plaintiff also claimed that the trial court’s refusal to enter the admissions into evidence adversely prejudiced his efforts to prove his case as, he argued, the admissions filled in some gaps left open by the other evidence presented at trial.

In reviewing the trial court’s decision, the Superior Court could not conclude that the trial court erred in allowing Pa.R.C.P. 126 to effectively negate the requirements of Pa.R.C.P. 4014(b) in this matter, if only because 4014(b) specifically allows the court to expand or contract those requirements (see above).  The Superior Court did view the long delay in responding to the Admissions with disfavor, but it also took note of the fact that even with the long delay the Plaintiff still received responses to them from the Defendant eighteen months prior to the start of trial, which was more than enough time for Plaintiff to seek further discovery if need be.  Further, the Plaintiff argued that the trial court’s failure to admit them could have given the jury the appearance that the issues in the Requests were “debated” rather than established.  The Superior Court agreed in theory to the Plaintiff’s argument, but ultimately did not find it persuasive enough to overturn the trial court’s decision as the Superior Court agreed with the trial court that the timing of the responses were not prejudicial regardless (see above).  In making this decision, the Superior Court looked to the matter of Estate of Borst v. Edward Stover Sr. Testamentary Trust, 30 A.3d 1207 which “observed that ‘[t]he test of prejudice turns on whether a party opposing the withdrawal [of an admission] is rendered less able to obtain the evidence required to prove the matters which had been admitted”’ and in reviewing the instant matter, the Superior Court could not find that the Plaintiff had been so prejudiced.  The Superior Court also ruled that trying to admit the Requests at the end of trial – after two days’ worth of testimony – was inappropriate as they should have attempted to admit them at the start of trial.  Finally the Superior Court noted that the discovery rules are designed to streamline the litigation and facilitate the eliciting of evidence and are not designed to be punitive; indeed, the court pointed out, that fairness and justice are not always served by strict application of the rules.

Despite what appears to be the very plain language of Pa.R.C.P. 4014(b), the court, through this ruling, appears to have taken some of the teeth out of the Rule and its application in matters where a party does not comply with its thirty (30) day deadline.  Practitioners, both those sending and receiving discovery, should be aware of how the court has applied this rule and how to remain compliant with the same.

Originally published in The Legal Intelligencer on November 19, 2015 and can be seen here.