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Archive for the tag “damage”

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 IntelligencerUpon 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!


My Articles:

Supreme Court Spotlight: No “Cure” for Injuries Caused by Vaccines?

Here is an article, by Theodore Y. Choi, Esquire who is a former associate at my firm.  He provides pretty interesting insights into vaccines and the liability for the potential damage they can cause.   This article can be found on my website here and was originally published in Upon Further Review on March 9, 2011, and can be seen here and on my website here.

The Discoverability of Psychiatric Records

The issue of the discoverability of one’s health records took center stage in the matter of Gormley v. Edgar, 2010 PA Super 71, a recent case heard by the Superior Court of Pennsylvania. The discovery process is designed to facilitate the exchange of information between the parties to litigation. Generally speaking, the standard of what can be requested and required to be revealed in discovery by a party is rather liberal. However, when psychiatric records are the subject of the discovery requests, there are significant limitations as to what a party can request.

There are two competing interests at work when requesting psychiatric records. The first interest is the party’s interest in the privacy of his psychiatric records. The second interest is the ability for an adverse party to adequately defend himself and, in the interest of fairness and equity, be able to secure sufficient documentation for that defense. These two interests come into conflict, obviously, when the documentation sought by one party consists of the documents the other believes to contain private information that he has a right to protect.

The right to the privacy of one’s psychological records has been codified as 42 Pa.C.S.A. Section 5944. The text of Section 5944 is as follows: “No psychiatrist or person who has been licensed under the act of March 23, 1972 (P.L. 136, No. 52), to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services on behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.”

It is interesting to note that when 42 Pa.C.S.A. Section 5944 was passed in 1976, it only made reference to psychologists and their records, and not psychiatrists and their records. Therefore, perhaps counter-intuitively, the Court drew a distinction between psychological records and psychiatric records. The Court has ruled that as the statute specifically refers to psychologists, and could have easily included psychiatrists, the legislature clearly intended to exclude psychiatrists and other sorts of mental health counselors from the privacy guaranteed by Section 5944 (see Miller v. Colonial Refrigerated Transportation Incorporated, 81 F.R.D. 741 (1979). However, in 1989 42 Pa.C.S.A. Section 5944 was revised to include psychiatric records.

The privacy guaranteed by Section 5944 is reinforced by the discovery standards set by Pa.R.C.P. 4003.6 which follows: “[i]nformation may be obtained from the treating physician of a party only upon written consent of that party or through a method of discovery authorized by this chapter. This rule shall not prevent an attorney from obtaining information from: (1) the attorney’s client; (2) an employee of the attorney’s client, or (3) an ostensible employee of the attorney’s client.” Therefore, on the strength of these two statutes and the cases decided thereunder, there is, at least in general, a guarantee of privacy for one’s own psychological and medical records. Obviously, one could argue that the treatment provided by a psychiatrist or other mental health professional is, at least in spirit, “medical” treatment inasmuch as someone seeks the help for healing of some sort.

Despite the guarantees above, and unfortunately for a party attempting to suppress the records describe above, the Court has made it clear that the privacy of such records is not absolute in certain circumstances. One of those circumstances is when a party raises psychological injuries as damages in a case. If a party raises psychological issues, the Court has effectively ruled that doing so functions as a waiver of the party’s privacy over one’s psychological records. To put it simply, a party “waive[s] her statutory privilege by filing [a] lawsuit and claiming psychological damages.” Helper v. Alvis, 63 Pa.D.&C.4th 129 (2003) and Premack v. J.C.J. Ogar, Inc., 148 F.R.D. 140 (E.D.Pa. 1993). Therefore, “in order to pursue psychological damages, the plaintiff must accede to discovery with respect to mental-health care providers with whom he or she has consulted.” Loftus v. Consolidated Rail Corp., 12 Pa.D.&C.4th 357 (1991). If the party continues to refuse to produce the records, it will be at the pain of dismissal of any and all claims for psychological injuries. Id.

The raising of a mental health condition as damages flowing from an accident was the issue raised in Gormley v. Edgar. The Plaintiff in the aforesaid matter alleged she suffered from anxiety as a result of an accident she claimed was caused by the Defendant. The Court ruled that by so doing she placed her mental health condition directly at issue, rendering her mental health records, at least in part, discoverable. The Court also ruled that if one alleges the aggravation of a pre-existing mental health condition, records of prior treatment for the same are also discoverable. Similarly, the Court finally ruled that mental health records predating the accident at issue are also potentially discoverable as a defendant may wish to prove that the mental health condition alleged pre-existed whatever a plaintiff alleges is its cause. Again, as stated above, these records only become discoverable when a party raises his mental health as an issue in the case.

Although, in general, a party must reveal his psychological records if one raises psychological injuries, the waiver described above is not completely unfettered. The Court recognizes that psychological records are extremely sensitive and the discovery process could inappropriately reveal irrelevant psychological issues of some sort. The Court has made at least three different options available in an effort to adequately, though perhaps imperfectly, balance the two conflicting interests at work in given a matter. The three options are as follows: (1) have formal discovery in the presence of counsel which would afford counsel the opportunity to object on the basis of relevance and other appropriate reasons. Marek et al. v. Keyer, M.D., et al., 733 A.2d 1268 (Pa.Super.1999). Presumably, a deposition of the psychologist(s) would be scheduled, who would be instructed to bring his file regarding a client with him to the deposition. Over the course of the questioning, the records would be produced as appropriate and the attorney would object as appropriate; (2) request the Court to conduct an in camera inspection of the records and if the records do not reveal the information one believes it does, the records will remain protected by Section 5944. Commonwealth v. Kyle, 367 Pa.Super. 4848 (1987); and (3) request the Court to order its own psychological evaluation under Pa.R.C.P. 4010(a)(3). Of course, this remedy would implicitly require the client to permit his records to be reviewed by the independent psychologist and would, presumably, have to respect the conclusions reached in the Court ordered psychological report. Obviously, more than either of the above options, this option carries with it the greatest risk of any undesirable information being revealed and used against the client.

In the final analysis, it appears that a party cannot be forced to reveal his psychological records to an opposing party. However, if he wishes to proceed with claims alleging psychological damages, that party may not attempt to suppress them. Instead, the opposing party has a right to see those records so that he may have a fair and equitable opportunity to raise a proper defense the claims leveled against him. The client has the options of withdrawing the psychological claims or moving forward and allowing the records to be revealed to the opposing party. If the client elects to move forward, he may have one or more of the three options above to mitigate the loss of privacy and successfully suppress, at least in part, his psychological records.

Originally published in Upon Further Review on June 8, 2010 and can be seen here and on my website here.

There’s No Business Like Snow Business

The winter of 2009–2010 saw the Philadelphia metro area get record breaking snowfall. Many feet of snow piled on the sidewalks, driveways, stoops, and porches of property owners all across the area made for many hours of shoveling, salting, and sweeping to ensure safe and clear pathways on which to walk. Although the Philadelphia area may never get six-plus feet of snow in one winter in the lifetimes of the readers of this article again, the area will certainly receive snow in varying amounts each winter. Given this, it is important for property owners to know their responsibilities regarding the removal of snow from their property and what they need to do to avoid civil liability.

There are two basic ways a property owner can be liable for the snow on his property: the first is a violation of City ordinance and the second is in a tort action. Obviously, both could be present in a single matter; however a violation of the City ordinance does not necessarily guarantee tort liability for the property owner, nor does a violation of a City ordinance guarantee tort liability.

The requirements of the Philadelphia City Code are pretty straightforward regarding property owners’ responsibility for the snow on their property. According to Philadelphia Code §10-720, a property owner must shovel a thirty inch (30”) wide path on their sidewalks within six (6) hours after the cessation of snow fall. The ordinance requires that the thirty inch (30”) wide path be thoroughly cleared of snow and ice. “Where the width of any pavement measured from the property line to the curb is less than 3 (three) feet, the path cleared may be only 12 inches in width. When the building in question is a multifamily dwelling the owner or his agent shall be responsible for compliance with the requirements of this section.” (quoting the above citation). Of course, when shoveling the snow, one may not dump the snow into the street; so doing is also a violation of this ordinance. If the City successfully tickets a property owner for a violation of §10-720, the property owner is liable to be fined between $50 and $300 per violation.

Whether one violates a City ordinance does not necessarily have any bearing on whether a property owner could be liable in tort to an individual who is injured due to the accumulation of snow and ice on his property. Like many issues sounding in tort, the standards by which liability is measured are somewhat flexible and based on common law determinations of what is and is not reasonable. Tort liability for snow and ice accumulation on one’s property falls into the somewhat nebulous and imprecise “hills and ridges” standard. Essentially, Pennsylvania tort law requires the snow and/or ice on one’s property to be in the form of “hills and ridges” before a property owner can be liable for damages suffered by someone falling on the snow and/or ice on his property. The basic rationale for such a standard, as the logic goes, is that a reasonable property owner will shovel and clear out his sidewalks within a reasonable amount of time. Of course, unlike the Philadelphia City Code, no specific amount of time is specified by the “hills and ridges” standard, it simply requires the snow and ice to be cleared away within a reasonable time. Naturally, this begs the question of how one is to determine what a reasonable amount of time to shovel snow is; this is where the “hills and ridges” analysis is applied. If the snow on a property owner’s sidewalks has been there for such a long period of time that it has developed hills and ridges, then it has been there long enough for the property owner to be liable if someone is injured attempting to walk on the ridged ice and snow. If the snow is smooth and fresh looking, then it is presumed that the snow is relatively newly fallen and, therefore, it is not reasonable to expect it to have been shoveled so quickly for liability to attach to the property owner. Based on this, it is the best practice for an attorney litigating an injury on snow on someone’s property to investigate the appearance of the snow and ice on which the injured person fell.

Clearly, then, while the standards for tort liability and a violation of the City ordinance certainly overlap, they are not exactly the same. Snow can certainly last more than six (6) hours after a snowfall and remain in smooth pristine condition. In other words, one could be in violation of the City ordinance for failing to shovel snow on one’s sidewalk, but not necessarily be liable for damages in tort if someone fell on that very same snow. That is primarily due to the fact that the City ordinance and the action in tort each exist for a slightly different purpose. The liability in a tort action is to ensure people take reasonable care of their property. Not every municipality has the same standards as Philadelphia, or even has standards at all, regarding when snow ought to be shoveled. The City ordinance is for the purpose of ensuring uniformity and safety on the City’s sidewalks, and perhaps for relieving the City of the responsibility of clearing them itself.

Although the winter of 2009–2010 has likely seen the last of the snow, when it returns in the future, it is important to ensure compliance with City ordinances and shoveling it within a reasonable time. Otherwise, it will be over the hills and ridges and through the woods to liability they go for property owners!

Originally published on April 7, 2010 in Upon Further Review and can be found here and on my website here.

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