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Imagine a situation in which your home catches on fire and causes substantial damage. Following the fire, you prudently submit your claim to your homeowner’s insurance carrier. After the claim is submitted, eventually an insurance adjuster comes out to your home and assesses the damage. During the investigation process, you are cooperating with the insurance carrier. After the investigation is complete, you speak with your insurance carrier to see how it will help you out in this dire situation. To your dismay, the insurance carrier tells you your claim is denied and list a number of reasons why the claim was ultimately denied. A couple days later you receive a letter outlining the reasons why the claim was denied. The aforementioned letter is what is called a denial letter.nnA denial letter is a letter from the insurance carrier which is supposed to clearly articulate why your specific claim is being denied. Indeed, the denial letter should be able to explain how the facts of your particular loss interplay with the policy language and how and why the insurance carrier came to its ultimate conclusion on your claim. In the event that an insurance carrier denies your claim over a telephone call, you should request that the denial be sent to you in writing. Having your denial in writing is beneficial for a number of reasons, such as it helps memorialize the exact date of the denial, it outlines the specific reasons why the insurance carrier denied the claim and the applicable insurance policy language the insurance carrier is relying on to deny your claim.nnAs you can imagine, a denial letter is essential in your potential claim and the denial letter will help assist an attorney in evaluating your potential claim. In fact, it is important that you keep all correspondences from your insurance company during the pendency of a claim. Maintaining all correspondences between you and your insurance carrier helps provide a clearer picture of the events of your claim.nnIn sum, a denial letter is a crucial part of a potential insurance claim. It is paramount that you keep the denial letter, if you receive one, and have it readily available if you end up contacting an attorney to evaluate your potential claim. If an insurance carrier ends up denying your claim, keep in mind you are potentially not without options to obtain the benefits you are entitled to as a result of your loss.

In Smith v. Wells, 2019 PA Super 181, the Superior Court reversed a trial court’s decision to uphold a jury decision that was against the law. Plaintiff Richard Smith was traveling on the Pennsylvania Turnpike when saw braking ahead. He successfully brought his vehicle to a complete stop within the assured clear distance between his vehicle and the car ahead. However, Defendant Andrew J. Wells, who was driving a Jeep Grand Cherokee behind Mr. Smith’s Buick, did not. Mr. Wells admitted that he did not see the illuminate brake lights of Mr. Smith’s vehicle until it was too late. He also stated, “I didn’t stop quick enough, I guess, and rear-ended the car in front of me.” As a result Mr. Wells’ Jeep rear-ended Mr. Smith’s Buick, and propelled it into the stopped car that was in front of Mr. Smith. Mr. Smith filed suit against Mr. Wells for physical injuries he claims resulted from the accident. At trial, Mr. Wells’ attorney, in his opening statement to the jury, stated that the collision was Mr. Wells’ “fault . . . no question about it.” Thereafter, the evidence introduced at trial, and defense counsel’s closing remarks focused on whether Mr. Smith was actually injured by the wreck. The defense’s theory was that Mr. Smith suffered from pre-existing injuries, which resulted from three (3) prior automobile accidents. At no point during trial did Mr. Wells defend his conduct in operating his vehicle. Accordingly, Mr. Smith asked the trial court to instruct the jury that Mr. Wells negligently drove his vehicle and so breached the standard of care as a matter of law. The trial court denied that motion and authored a verdict slip asking the jury to determine whether Mr. Smith was negligent. Surprisingly, the jury’s response to this question was in the negative. Mr. Smith moved for judgment notwithstanding the verdict (JNOV) on the question of negligence, essentially arguing that the jury’s verdict was contrary to the law. The trial court denied Mr. Smith’s request. Thereafter, Mr. Smith filed a post-trial motion seeking the same result. After the trial court denied Mr. Smith’s post-trial motion, Mr. Smith appealed to the Pennsylvania Superior Court asking them to decide whether “the evidence . . . established Mr. Wells’ negligence warranting a directed verdict or judgment notwithstanding the verdict. A plaintiff must prove four things in a negligence action: (1) a duty to act or not act within “a reasonable standard of conduct for the protection of others against unreasonable risks”; (2) breach of that duty; (3) a “close, causal connection between the conduct and the resulting injury”; and (4) harm to the plaintiff. W. Prosser, LAW OF TORTS § 30 at 143 (4th ed. 1971). By returning a verdict of no negligence, the jury exculpated Mr. Wells on the second element and found that he had conformed his conduct to the standard of reasonable care. The trial court relied upon Cirquitella v. C. C. Callaghan, Inc., 200 A. 588 (Pa. 1938) in denying Mr. Smith’s motion for JNOV. In Cirquitella, the defendant was following 20 feet behind a funeral procession at about eight to ten miles per hour through city streets. “The day was cold, and snow and ice were upon the street.” The Superior Court determined that Cirquitella offered little insight into how drivers should conduct themselves, during rush hour, on the Turnpike, in the 21st century. Moreover, the Court noted the PA Motor Vehicle Code, 75 Pa.C.S.A. §§ 101 – 9805, including the concept of negligence per se did not exist when the Supreme Court of Pennsylvania decided Cirquitella. Furthermore, the Court made clear, despite the Cirquitella holding that: the mere happening of a rear-end collision does not constitute negligence as a matter of law on the part of the in the rear . . . the manner in which an accident occurs is a circumstance to be considered in determining the issue of negligence. Where, as here, a vehicle has been struck in the rear while slowing for a traffic signal, there is an inference to be drawn that the driver of the offending vehicle either was not sufficiently vigilant or failed to have his vehicle under such control that he could bring it to a stop within the assured clear distance ahead. Cianci v. Burwell, 445 A.2d 809, 810 (Pa. Super. 1982). The Cianci Court further explained that a driver who rear-ends a car may inculpate himself by his own words; and, that Mr. Wells did so in this case. Finally, the Court analyzed 72 Pa.C.S.A. § 3361, which states: No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions. The Court held that by its plan language, this clause prohibits anyone from driving at any “speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead.” Ultimately, the Court held that Mr. Wells drove at a speed that made it impossible for him to stop his vehicle within the assured clear distance ahead; and, that the trial court erred in its statutory construction when it did not find Mr. Wells’ violation of second clause of Section 3361 to be negligence per se. Consequently, the Superior Court reversed the trial court’s decision regarding the JNOV, and remanded the case back to the trial court for a new trial on causation and damages, only.

Rideshare services, such as Uber and Lyft, have become a widely-known and commonly-used amenity in this day and age. These services serve as a major convenience in a lot of circumstances, such as where parking may be difficult to find or expensive, where weather may be too inclement for walking to another location, or when you are in an unfamiliar city and may not have access to a vehicle or be sure where you are going. They have also helped to increase safety by providing an easy and affordable alternative for those who may have consumed alcoholic beverages and should not be behind the wheel. People can plan ahead to have a fun and safe night out in pretty much any city and state, and can easily access a secure ride in case of an emergency or other unexpected situation that requires transportation. However, there are a few tips to keep in mind to ensure your own personal safety and security while utilizing rideshare services. Check vehicle information before getting into the car Always check to make sure that the vehicle you are about to enter is the same make, model, and color as the one identified on your app before opening the door to get into it. Verify that the license plate matches the state and number on the app. This will help ensure that the driver of the vehicle is one that has been checked and approved to work for the rideshare service, and that you are not being scammed or putting yourself at risk. Though those situations are unlikely, it is always better to be safe than sorry and to take the few extra moments to double-check your vehicle’s information, even if you feel rushed to get into the vehicle and on your way. On a less risky note, doing this can also save you the embarrassment of trying to get into the wrong vehicle, or even worse, a vehicle that is not even a rideshare, which happens more than many people may think! Schedule your pick-up for a safe location Avoid requesting your driver to pick you up in a location that can pose safety risks to you, the driver, or other pedestrians or drivers. While it can be more convenient to try to have the driver pick you up at the exact location you are waiting, avoid scheduling your pick-up where it would require your driver to stop in traffic, make any kind of risky or illegal turn or stop, or impede pedestrians, such as in a crosswalk or over a sidewalk. You should also try to arrange for pick-up in a well-lit area, and wait inside if you can. Waiting outside with your phone in hand could indicate to scammers that you are waiting for a ride or could distract you from paying attention to your surroundings. The same goes for drop-offs. Never get out of the car on the side of traffic or if you see any oncoming vehicles. Wait until the car has come to a complete stop in the appropriate location to exit the vehicle. Pay attention to your route while on the ride Uber and Lyft provide GPS services and pre-planned routes to help them deliver riders to their destination, so it can be easy to zone out and be immersed in your phone or conversation with a companion while you are riding, but keep an eye on where you are headed while in the car to ensure that nothing is amiss. Most drivers will also welcome suggestions for alternate routes if you are aware of a construction or road closing that GPS may not identify or the driver may not know about, so don’t be afraid to make that suggestion if necessary. Use good judgment in determining if a rideshare is appropriate While rideshares are undoubtedly an excellent choice to avoid driving while intoxicated, if you or a companion are excessively intoxicated, making other arrangements to get home safely or waiting until you have gained your bearings a bit more is often the wise choice. In addition to concerns about your own personal safety, particularly if you are riding alone, taking a rideshare if you are significantly intoxicated can put the driver in an uncomfortable situation where they too may feel unsafe dealing with their passenger in the event the passenger becomes physically ill, falls asleep, or otherwise acts in an unruly manner during their ride. Report incidents to the rideshare company Rideshare companies generally take the safety of both their riders and drivers seriously, and have easy ways to report an issue, incident, or concern to the company through the app. If something happens that makes you or a riding companion feel unsafe, including that your driver has engaged in risky driving behaviors, makes inappropriate comments, or that the vehicle seems in disrepair or did not match the description you were given, you should report the situation to the company. This helps to keep safety a key component of ridesharing, and helps ensure that the benefits of the service far outweigh any risks.

In Krappa v. Lyons, the Pennsylvania Superior Court revisited Pennsylvania’s Peer Review Protection Act (“PPRA”) in determining whether a physician’s credentialing file is immune from discovery. Plaintiff’s complaint raised thirteen (13) counts against multiple Defendants, including wrongful death and survival claims. Count II asserted a negligence claim against Frank Piro, M.D. with respect to his interpretation of a CT scan in January 2008. Count VIII asserted a corporate liability claim against Defendant Community Medical Center (“CMC”) with respect to the hiring, training, and/or supervising physicians, including Dr. Piro. During the course of discovery, the Plaintiff sought unredacted copies of CMC’s files for Dr. Piro. CMC and Dr. Piro objected to the production and asserted the information requested was privileged pursuant to the PRPA. Plaintiff filed a motion to compel CMC to produce the unredacted and complete credentialing materials for Drs. Piro. In the motion, Plaintiff sought production of unredacted credentialing files, based on the recently decided Pennsylvania Supreme Court decision Reginelli v. Boggs, 181 A.3d 293 (Pa. 2018). CMC asserted that Reginelli was inapplicable, arguing that its credentialing committee constituted a “review committee” whose records must remain confidential under the PRPA. Further, CMC insisted that the performance evaluations in its files satisfied the PRPA’s definition of “peer review” materials. The trial court conducted an in camera review of the unredacted credentialing file for Dr. Piro, and entered an order compelling the production of the unredacted files. CMC appealed the trial court’s decision to the Superior Court. CMC framed the issue as follows: Did the trial court err, as a matter of law, in construing Reginelli, as announcing a blanket rule depriving all previously-protected credentialing committee materials of peer review protection, when the issue of a credentialing committee’s review of physician performance was not before the Supreme Court; to the extent the Supreme Court addressed credentialing materials, it limited its discussion to that part of the credentialing process concerned only with factual review of professional qualifications, such as board certifications, and professional activities, such as service on professional organizations; and the Court reaffirmed that the peer review privilege protects the records of any review committee when one professional health care provider is evaluating the performance of another professional healthcare provider? The PRPA provides the following evidentiary privilege: § 425.4. Confidentiality of review organization’s records The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions or other actions of such committee or any members thereof: Provided, however, That information, documents or records otherwise available from original sources are not to be construed as immune from discovery or used in any such civil action merely because they were presented during proceedings of such committee, nor should any person who testifies before such committee or who is a member of such committee be prevented from testifying as to matters within his knowledge, but the said witness cannot be asked about his testimony before such a committee or opinions formed by him as a result of said committee hearings. 63 P.S. § 425.4 The PRPA also defines the following pertinent terms: § 425.2. Definitions As used in this act: “Peer review” means the procedure for evaluation by professional health care providers of the quality and efficiency of services ordered or performed by other professional health care providers, including practice analysis, inpatient hospital and extended care facility utilization review, medical audit, ambulatory care review, claims review, and the compliance of a hospital, nursing home or convalescent home or other health care facility operated by a professional health care provider with the standards set by an association of health care providers and with applicable laws, rules and regulations. “Review organization” means any committee engaging in peer review, including a hospital utilization review committee, a hospital tissue committee, a health insurance review committee, a hospital plan corporation review committee, a professional health service plan review committee, a dental review committee, a physicians’ advisory committee, a veterinary review committee, a nursing advisory committee, any committee established pursuant to the medical assistance program, and any committee established by one or more State or local professional societies, to gather and review information relating to the care and treatment of patients for the purposes of (i) evaluating and improving the quality of health care rendered; (ii) reducing morbidity or mortality; or (iii) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care. It shall also mean any hospital board, committee or individual reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto. It shall also mean a committee of an association of professional health care providers reviewing the operation of hospitals, nursing homes, convalescent homes or other health care facilities. 63 P.S. § 425.2. In analyzing this case, the Superior Court revisited Reginelli wherein the Pennsylvania Supreme Court granted allowance of appeal to determine whether a medical service provider and hospital had any entitlement to the PRPA’s evidentiary privilege with respect to the performance file of an independently contracted emergency medicine physician. The Supreme Court engaged in statutory interpretation of the pertinent provisions of the PRPA and determined, “the PRPA’s evidentiary privilege is reserved only for the proceedings and documents of a review committee.” Reginelli, 181 A.3d at 304. The Court reasoned: The terms “review committee” and “review organization” are not interchangeable, as they connote distinct types of entities under the PRPA. The first sentence of the definition of “review organization” defines the type of entity that constitutes a “review committee,” namely, “any committee engaging in peer review.” The second sentence, in contrast, contains no reference to peer review, and instead refers to a “hospital board, committee or individual” involved in the review of “the professional qualifications or activities of its medical staff or applicants thereto” by a “hospital board, committee or individual.” This second category of “review organizations” does not involve peer review, as that term is defined in the PRPA, which is limited to the evaluation of the “quality and efficiency of services ordered or performed” by a professional health care provider. Review of a physician’s credentials for purposes of membership (or continued membership) on a hospital’s medical staff is markedly different from reviewing the “quality and efficiency of service ordered or performed” by a physician when treating patients. Accordingly, although “individuals reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto,” . . . are defined as a type of “review organization,” such individuals are not “review committees” entitled to claim the PRPA’s evidentiary privilege in its section 425.4. Professional “qualifications” would include, for instance, a physician’s continuing maintenance of his or her board certifications, and “activities” could include clinical research initiatives, continuing education, service on professional committees or organizations and, more broadly speaking, other qualifications deemed necessary by the hospital. Credentials review permits a hospital to retain, and then maintain, a medical staff of quality professionals. Therefore, the Reginelli Court indicated that the PRPA does not extend its grant of an evidentiary privilege to materials that are generated and maintained by entities reviewing the professional qualifications or activities of medical staff “i.e., credentials review.” Additionally, “the performance file was not generated or maintained by MVH’s peer review committee,” and the PRPA’s evidentiary privilege did not apply. In this case, the Superior Court confirmed the trial court’s determination that the files at issue “consist entirely of credentialing materials of Dr. Piro.” Regarding the applicability of the PRPA, the Superior Court determined that materials in the doctors’ personnel files are generated and maintained by CMC’s credentialing committee. The Court held that the PRPA’s protections do not extend to the credentialing committee’s materials, because this entity does not qualify as a “review committee.” Accordingly, the Superior Court affirmed the trial court’s decision to order the production of Dr. Piro’s credentialing file, and remanded the case back to the trial court for further proceedings.

One of the most important services a person can provide to his or her community is to serve as a juror. Unfortunately, far too many people are misinformed about jury duty and what it involves, so they view it as a huge inconvenience that is to be avoided at all costs. In this blog entry, I hope to eliminate some of the misconceptions about serving on a jury, so that at least some of the readers may see jury service in a different light. You will first learn of being called for jury duty when you receive a letter in the mail from the Circuit Clerk in the county where you reside. The letter will inform you that you have been called to serve as a juror during a particular term of court, which lasts four months. You will also be given a questionnaire to complete, which is very important. The questionnaire provides information about you to the parties whose case you may be hearing, so it is important for you to carefully and completely answer all of the questions listed. Those questions allow the attorneys to make an informed decision about whether or not you would be a good juror for their particular case. Finally, you will be given instructions about when and where to call to determine if you need to report for jury duty. If you are one of the individuals called for jury duty, you will be asked to report to the county courthouse at 8:30 or 9:00, depending upon the practice of the particular judge presiding over the case. Once you arrive, the judge will give you a brief explanation about what is about to happen. You will take an oath promising to answer questions truthfully, after which the judge will briefly tell you about the pending case and the attorneys handling it. He will then ask you a series of general questions about your familiarity with the case, the parties, or the attorneys representing them. It may turn out that the plaintiff is your neighbor, or the defendant is someone that you have worked with for 20 years. There are all sorts of things that can come out in this first round of questioning, which is simply intended to determine whether or not there is some obvious reason why you should not serve as a juror. Once the judge has finished his questions, the lawyers will likely be given the opportunity to question you further. The questions they ask are usually designed to uncover information that will help the attorneys figure out your feelings on particular issues. For instance, a question I frequently ask of jurors is whether or not they or a member of their family has worked in the insurance industry. If my case is against Liberty Mutual Insurance for failing to properly evaluate and pay a claim, I probably don’t want an employee of State Farm on my jury. I think you get the point here. Depending upon the situation, an attorney may ask the Court to strike a juror “for cause” if that juror answers a question in a way that indicates he or she may be biased against one side or the other. The Court’s ruling will depend upon the specific circumstances of each case. After the attorneys have finished asking their questions, each party will be given an opportunity to eliminate two jurors from the pool. No reason is necessary; sometimes, a lawyer will look at a juror and just get the feeling that he or she isn’t right for the case presented. These are call peremptory strikes, and they are completely within the discretion of the attorney, save for one exception we don’t need to get into here. Finally, we will end up with six jurors and, in cases expected to last several days, one or two alternates. No one knows who the alternates are until all of the evidence has been presented, at which time the judge will excuse the alternates. Frustrating to the alternates, I’m sure, but necessary to make sure all jurors remain focused and attentive. When the case is submitted for consideration, the jurors retire to the jury room, select a foreperson, and begin their deliberations. Sometimes deliberation takes an hour; sometimes it takes several days. In the end, the verdict must be unanimous. The verdict is presented to the judge, and the trial phase of the case is concluded. The American system of jurisprudence, with its provision for trial by a jury of one’s peers, is unique in the world. It separates us from the other nations who envy our prosperity and our freedom. Being a part of such a unique and valuable system is an opportunity we should all value.

I’m confident that most people who regularly read our blogs have, at one time or another, seen one of our attorneys refer to a “deposition”. It occurs to me that while many of you may be familiar with the term, you may not be quite as familiar with what it actually involves. In the few paragraphs that follow, I’ll try to give you a basic understanding of what happens in a deposition, and why a deposition is taken in the first place. A deposition is started when an attorney for one of the parties to a lawsuit files a Notice with the Court, indicating that he/she wants to depose a certain party or witness. In most cases, the attorneys will work together to agree upon a date for the deposition that causes the least scheduling problems for all concerned. When the date and location of the deposition have been agreed upon, everyone shows up as provided for in the Notice. The attorneys for each party to the suit will be present, and sometimes (though not very often) the parties themselves will make an appearance. There will also be a court reporter present, who is responsible for taking down every single word that is uttered by anyone in the room. (I am always amazed at the ability of a court reporter to accurately take down what is being said, when often times 2 or even 3 people are talking at the same time.) Finally, in many cases there will also be a videographer in attendance, who is actually digitally recording the entire process. If that happens, the camera is always focused on the witness, and never on anyone else in the room. Everyone else who is present will have a microphone to make sure that the audio is captured as well. Once everyone gets settled in and we are confident that all of the equipment is working as it should be, the court reporter will administer the oath to the witness, and the deposition begins. The attorney who schedules the deposition will start the process, usually beginning by informing the witness about what will be happening in the hope of making him/her relax a bit. The attorney then starts asking questions, seeking to develop whatever information he was seeking when he scheduled the deposition. There are very, very few limits on what an attorney is permitted to ask a witness in deposition, and for that reason it’s tough to predict how long they may last. I’ve seen depositions last 10 minutes, and I’ve seen them last 10 hours or more. Everything depends upon the complexity of the case, the cooperation of the witness, and the experience of the attorney doing the questioning. So, what is the point of all of this? I always tell clients that there are three reasons that depositions are taken. First, the lawyer wants to “size up” the witness. He wants to see what kind of an impression the witness will make. Is he a nice guy that a jury will like? Or is he an arrogant jerk that will cause a jury to turn against him? Second, the lawyer wants to find out everything that witness knows about the issues at hand. The only way to do that is to question the witness at length, sometimes asking the same question in 2 or 3 different ways, so that you can be sure to uncover every last bit of information. Finally, the attorney wants to “lock in” the witness’ testimony for the record. That way, if the case goes to trial and the witness testifies inconsistently with the testimony he gave in his deposition, the attorney can use the deposition transcript to make the witness look bad. The questioning would go something like this: Q. “Mr. Witness, do you recall when I took your deposition back in August of last year?” A. “Yes, I do.” Q. “And do you remember when I asked how familiar you were with the scene of the accident, and your answer was ‘not very’? If you need to check, that question appears at page 17 of your deposition transcript, at line 20.” A. “Yes, I see it.” Q. “And you just told this jury that before this accident, you drove by the scene at least two times every day! In August you said you were not familiar with the scene, and now you’re telling us that you drove it daily! So, which answer are we to believe?” I think you get the point. Deposition testimony can be a powerful tool to make a witness appear to have a faulty memory at best, or to be a liar at worst. Depositions are a routine part of the litigation process. Our attorneys here at Bordas & Bordas have handled literally thousands of them throughout our respective careers. We will make sure that you are properly prepared and properly protected throughout the entire process.

With the ending of the month of May, and the beginning of June upon us, it is clear that we have entered into the anticipated time frame known as “Wedding Season.” For those of you who will be getting married this summer or next summer, one issue that may be on your mind is that of obtaining insurance coverage for your big day. You may think to yourself- why do I need event insurance for my wedding? Shouldn’t that be the wedding venue’s responsibility? While these thoughts are common- you should not push them aside. Speak with the wedding coordinator at your wedding venue to determine if insurance coverage is in place for your wedding in the event there is property damage or bodily injury. You should inquire to determine if you need to obtain “host liquor liability insurance” which covers alcohol-related incidents that you may be responsible for. As you can tell, there are several different types of wedding insurance coverage that you could obtain and may be responsible for acquiring based on your venue. As we all know – weddings are a time of happiness and excitement, however, it’s important not to forget that accidents and injuries do happen at weddings and wedding receptions, especially if alcohol is involved. You don’t want to be left on the hook for such incidents simply because you forgot to purchase event insurance. While wedding or event insurance may seem like an uncommon or odd type of insurance to purchase, it is a valid form of insurance and thus, should any claims need to be made under your policy, the insurance company continues to have a duty to handle your claim in good faith.

Business and golf go together like butter and popcorn. Like business, though, it helps to know your golf. And this past January, a very old rule was changed for those hitting the fairways. Did you know it’s now OK to putt with the pin in and even knock your ball against the flagstick? Beginning last Jan. 1, that’s exactly the case. Before this year, hitting the flagstick with your ball from on the green resulted in a two-stroke penalty. The new rule, though (to be specific, USGA Rule 13.2a(2)) says, “There will no longer be a penalty if a ball played from the putting green hits a flagstick left in the hole.” Players will still have the option to remove the flagstick or to have someone tend the pin and remove it after the ball is struck. But the USGA has been concerned about pace of play, thus the change. Also, most players these days don’t use caddies. On the PGA Tour, players like Bryson DeChambeau have already left the pin in. So, know your rules. Post your lowest score. And, maybe, just maybe, earn a little business while doing so.

If you watched my Bordas Beat session, you will know that I put on weight at Christmastime because I can’t say no to Christmas cookies. Saying that I ate three dozen cookies is probably a conservative number. The baby cream horns are my absolute favorite and probably the most fat-filled, but I can’t say that I turned down a sampling of all the other kinds either. Since I am going to the beach this summer, I have to get those Christmas cookie pounds off, so I thought I would try intermittent fasting. The optimal time for eating is between 10:00 a.m. to 6:00 p.m., but that doesn’t work for me since I don’t get home until around 7:00 in the evening, so I chose 12:00 p.m. to 8:00 p.m. It really wasn’t a hardship for me since I have never been a breakfast eater. The first week was a little difficult because I’m used to having a snack around 10:00 a.m. to hold me over until noon. After I got used to missing my morning snack, it hasn’t been bad at all. I drink the bulk of my water allotment in the morning, which helps with feelings of hunger. I don’t drink soda or juice because of the sugar content. Don’t forget that calories add up to weight gain, so even if something says fat free, it’s really not because most fat free foods have a high sugar content which turns into fat. If you’re a coffee drinker, unless you like it black, you’ll have to say goodbye to creamer or sugar during the fasting period. You also can’t eat everything in sight during your eight-hour eating window. The goal is to eat healthy. I find counting fat grams works best for me, but someone else might count calories instead. Everyone will find what works best for them. Just to put your mind at rest, you can have a cheat day. I allow myself one cheat day per week for one meal only. I also stay within my 8 hour eating period to keep my schedule the same every day. Although intermittent fasting is a good choice for me, it isn’t for everyone. If you are a Type-1 diabetic, suffer from any form of anxiety or have or have had an eating disorder, this is not a good choice for you. In any case, please check with your doctor before starting any kind of weight loss program to make sure your dieting plan makes sense and is safe for you. Your doctor may want to monitor your progress to make sure you stay healthy and get favorable results. From studies performed, if done correctly, the benefits of intermittent fasting can improve LDL and triglyceride levels, as well as lower inflammation and normalize blood pressure. It also regulates fat-regulating hormones. From all the positive things I have read, and since it’s relatively painless, I will be intermittent fasting for the rest of my life to maintain a healthier lifestyle. Once I reach the weight I want to maintain, I will have an entire cheat day. I’m finishing up my sixth week and have lost around 18 pounds with minimal effort. While I have lost my Christmas cookie weight, I thought I may as well go all out and get the rest of my unwanted weight off so I started back on the treadmill. I should be at my goal weight before I hit the beach. If you’re looking for a way to lose weight and not suffer overly much, try intermittent fasting. It’s definitely working for me. I feel better, I sleep better, my blood pressure is great, and best of all, I look better with the extra weight dropping off. Beach body, here I come!

Unfortunately, it seems that the day has long passed where being “a man (person) of your word” meant something. Have you ever wondered what you could do if somebody doesn’t fulfill their obligations? For me, to explain all the aspects of suing for a breach of contract would take up a lot of space. Contracts is a single class in law school, with many offshoots. However, the essential aspect of pursuing a breach of contract, is ensuring you have a contract that you can enforce. First, one must understand there are certain contracts that must be in writing to be enforceable. In general, some of the types of agreements that must be in writing include: those involving: the sale of an interest in real property (land and buildings), the sale of goods in excess of $500 (if it falls within the Uniform Commercial Code or UCC), leases of real property in excess of one year, residential construction and home improvement contracts and certain other specific types of agreements. Now if the contract is in writing or is the type that need not be in writing, what must you prove to enforce the contract? In short there must be 1) an offer, 2) an acceptance and 3) exchange of consideration. By consideration we mean one side must be giving something in exchange for getting something. Thus, a gift given or a promise to do something without receiving consideration back, is not an enforceable contract. Although, depending on the circumstances a promise can be enforced, the law of the contracts includes very specific elements that must exist if you are to enforce an agreement. The Restatement 2d of Contracts defines a contract as “a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” Formation of a contract requires “a bargain in which there is a manifestation of mutual assent to the exchange and a consideration.” Restatement 2d of Contracts, § 17 (2nd ed. 1981). The elemental aspects necessary to give rise to an enforceable contract are "offer", "acceptance", "consideration" or "mutual meeting of the minds." Schreiber v. Olan Mills, 627 A.2d 806, 808 (Pa. Super. Ct. 1993). There must be a meeting of the minds on all terms in a contract. Onyx Oils & Resins Inc. v. Moss, 367 Pa. 416, 420, 80 A.2d 815, 817 (1951). A meeting of the minds requires the concurrence of both parties to an agreement, or they have failed to operate an enforceable contract. DOT v. Pa. Indus. for the Blind & Handicapped, 886 A.2d 706, 713 (Pa. Commw. Ct. 2005). It is important to note that the phrase ‘meeting of the minds’ does not require a literal meeting, as the two parties do not need to have identical thought processes at the time of the bargain. 1-2 Murray on Contracts § 31 (2011). The use of such a standard would be unworkable, as it would be impossible to prove the subjective intention of either party at any time. Id. Under Pennsylvania law, the test for enforceability of an agreement is “whether both parties have manifested an intention to be bound by its terms and whether the terms are sufficiently definite to be specifically enforced.” Channel Home Centers, Div. of Grace Retail Corp. v. Grossman, 795 F.2d 291, 298-99 (3d Cir. 1986). Specifically, Pennsylvania uses a three-part test to determine whether a contract is enforceable: 1) whether both parties manifested an intention to be bound by the agreement; 2) whether the terms of the agreement are sufficiently definite to be enforced; and 3) whether there was consideration. Jenkins v. City of Schuylkill, 658 A.2d 380, 384 (Pa. Super. Ct. 1995). Except for when the law requires a written contract, the lack of a written agreement would not prevent a contract from being enforced, so long as the parties agree upon essential terms and intend them to be binding, "a contract is formed even though they intend to adopt a formal document with additional terms at a later date.” Johnston v. Johnston, 499 A.2d 1074, 1076 (Pa. Super. Ct. 1985). Hopefully, you have more information to enforce an agreement you have entered into with a person who is not a person of their word; whether it evolve from the purchase of used car listed in the newspaper or the brother in law who backs out splitting the cost of a family vacation. Hopefully, neither of those have or will occur to you, but if they do you will have a better understanding of what you need to have in order to enforce a contract when the person is not living up to their agreement.

Recently, in Marshall v. Brown’s IA, LLC (“ShopRite”), the Pennsylvania Superior Court vacated judgment as a result of the trial court’s failure to provide the jury with an adverse inference jury instruction. While shopping at ShopRite, Ms. Marshall slipped on water and fell, aggravating a pre-existing injury to her hip and back. ShopRite employees summoned medical assistance, and an incident report was prepared immediately thereafter. The incident report revealed that Ms. Marshall stated that she was getting a pepper in the produce department when she slipped and fell on water. Approximately two weeks later, ShopRite received a letter of representation from Ms. Marshall’s counsel requesting that ShopRite retain surveillance video of the accident and area in question for six hours prior to the accident and three hours after the accident. Additionally, the letter cautioned: If any of the above evidence exists, and you fail to maintain same until the disposition of this claim, it will be assumed that you have intentionally destroyed and/or disposed of evidence. Please be advised that you are not permitted, and are in no position, to decide what evidence plaintiff would like to review for this case. Accordingly, discarding any of the above evidence will lead to an Adverse Inference against you in this matter. While Ms. Marshall’s slip and fall was captured on the store’s video surveillance system, ShopRite decided to preserve only thirty-seven minutes of video prior to Ms. Marshall’s fall and approximately twenty minutes after, and permitted the remainder to be automatically overwritten after thirty days. Ms. Marshall filed a claim against ShopRite alleging that it was negligent in failing to keep its premises safe by failing to remove water on the floor that it knew or should have known was present and posed a risk to its customers. The case proceeded to a jury trial, and in his opening statement, counsel for ShopRite told the jury that it wasn’t possible to tell from the video if there was water on the floor, how it got there or when it got there. ShopRite’s Risk Manger testified that it was ShopRite’s “rule of thumb” to preserve video surveillance from twenty minutes before and twenty minutes after a fall, but offered no explanation why it deviated from its typical practice. It was his opinion that the video produced was sufficient to see the defective condition if it could be seen at all, and because the substance on the floor could not be seen on the retained portion of the video, he maintained it “would be a fool’s errand” to go back several hours as requested. He added that it was impractical and costly to retain the requested six hours of pre-incident videotape. ShopRite also offered evidence of its reasonable care in keeping the store premises safe for customers. Managers testified that employees were trained in the importance of preventing slip and falls, and described financial incentives for employees who located and cleaned up spills. The store also uses the Gleason system, an electronic monitoring system whereby an employee walks around the store every hour on a designated route that passes thirty-five buttons. As the employee inspects the floor in each area near the button, he or she uses an electronic wand to press the button indicating whether there was a wet spill, dry spill, or the area was clear. The system creates a log for each of the walk-throughs. Ms. Marshall fell almost fifty minutes after the last Gleason inspection. At trial, Ms. Marshall contended that ShopRite’s conscious decision not to retain the video evidence constituted spoliation, which entitled her to an adverse inference charge to the jury. Specifically, Pa.S.S.J.I. 5.60, relating to spoliation of evidence, provides: If a party disposes of a piece of evidence before the other party had an opportunity to inspect it, and the party who disposed of the evidence should have recognized the evidence was relevant to an issue in this lawsuit, then you may find that this evidence would have been unfavorable to them, unless they satisfactorily explain why they disposed of this evidence. ShopRite argued that because the video did not show water of the floor, the destroyed video would have no relevant evidence. Moreover, ShopRite claimed that by following its retention policy, it did not act in bad faith in deleting the additional video requested. The trial court determined that Ms. Marshall’s counsel’s request to preserve the video did not make it relevant. The court also concluded that ShopRite did not act in bad faith; and therefore, refused to give the requested adverse inference charge. However, the court permitted Ms. Marshall’s counsel to argue to the jury that it should infer from ShopRite’s decision not to retain more of the video prior to Ms. Marshall’s fall that the video was damaging to ShopRite. In his closing argument, counsel for Ms. Marshall told the jury that ShopRite intentionally decided to eliminate the requested portions of the video because it was harmful to them, and that the water was on the floor long enough that, with reasonable care, they should have seen and remedied it. ShopRite maintained that because one could not discern water on the floor in the existing video, it could not be reasonably expected to show water during any other portion of the video.  Ultimately, the jury found in favor of ShopRite, and Ms. Marshall’s appealed the decision claiming that the trial court erred in refusing to give the requested spoliation instruction to the jury. The Pennsylvania Superior Court found that where a party destroys or loses proof that is pertinent to a lawsuit, a court may impose a variety of sanctions, among them “entry of judgment against the offending party, exclusion of evidence, monetary penalties such as fines and attorney fees, and adverse inference instructions to the jury.” Hammons v. Ethicon, Inc., 190 A.3d 1248, 1281 (Pa.Super. 2018). The Adverse Inference doctrine “attempts to compensate those whose legal rights are impaired by the destruction of evidence by creating an adverse Inference against the party responsible for the destruction.” Duquesne Light v. Woodland Hills Sch. Dist., 700 A.2d 1038, 1050 (Pa.Cmwlth. 1997). The duty to retain evidence is established where a party “knows that litigation is pending or likely” and “it is foreseeable that discarding the evidence would be prejudicial” to the other party. Where spoliation has occurred, the trial court must weigh three factors in assessing the proper penalty: “(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future.” Gavin v. Loeffelbein, 161 A.3d 340, 353-54 (Pa.Super. 2017). Ultimately, the Court determined that the missing video was relevant because it may have shown when the spill occurred, or whether other customers may have slipped, and/or it could have been probative as to whether ShopRite’s inspection and safety precautions were being followed. Moreover, the Court found that ShopRite intentionally, unilaterally and arbitrarily preserved thirty-seven minutes of footage prior to the fall without any explanation as to why it deviated from its usual practice, why thirty-seven minutes in particular were preserved, or who made that decision. In fact, ShopRite’s Risk Manger disavowed any knowledge of who made the decision to retain only a portion of the video. The Court further explained that the thirty-seven minutes prior to Ms. Marshall’s fall did not even include the fifty minutes that elapsed after the last Gleason inspection of the area. Furthermore, conspicuously absent was testimony from anyone at ShopRite that he or she watched the video for the six-hour-period prior to the fall before determining that it did not contain any relevant evidence. Finally, the Court held that the trial court’s finding that there was no spoliation because ShopRite did not act in bad faith was based on an incorrect application of the doctrine. The Court explained that spoliation may be negligent, reckless, or intentional; a party’s good or bad faith in the destruction of potentially relevant evidence goes to the type of sanction that should be imposed, not whether a sanction is warranted. Thus, the Court held that ShopRite’s conduct herein constituted spoliation, and remanded the case back to the trial court for a new trial.

To many people, the thought of hiring a lawyer is an intimidating idea they would like to avoid. Many people are of the opinion that they can resolve an issue or work out a problem on their own without legal assistance. In some situations, this may in fact be true. However, there are many situations as outlined below in which obtaining legal representation is your best option: When the laws that you are dealing with are complicated. For example, if you are running your own business and needing legal assistance with contracts, HR issues, tax dilemmas, and/or other areas that require specific expertise – it is helpful to retain an attorney who is familiar with the area of law at hand who can help you navigate any nuances so as to ensure you are in full compliance with constantly changing laws and to avoid other issues that may arise rather than to incur the costs of doing this research and work on your own; When you are dealing with individuals who have an upper hand in the situation. This type of scenario is often at play when a person is dealing with insurance companies - whether that be in regard to a property damage claim, an automobile accident, a claim for life insurance benefits, etc. In these situations, the insurance companies who hold the money or benefits you are requesting will often try to control the situation or do what they can to avoid having to pay you what you deserve. Having an attorney who handles these situations and who can negotiate on your behalf is beneficial as you will likely make out better in the end than if you had dealt with the situation on your own. When you are dealing with complicated procedural requirements. Whether you are involved with a criminal matter, disputing an issue with the DMV, or some other type of board or appeal panel– it is often helpful to retain an attorney who can gather evidence, call witnesses, and ensure certain procedural requirements are met so that your interests are well represented and a procedural mistake is not made on your part which can prove fatal to the interest or right that you are trying to protect. When you are partaking in estate planning or trying to work out child custody issues. Matters that involve these two areas of the law are very personal and often emotional. Hiring an attorney to assist you with estate planning type matters and child custody issues is often in your best interest as attorneys can think in a level headed manner and can see the overall picture at hand which can then enable them to assist you in preparing for the future or working out an issue with a relative that you could otherwise not do so on your own. If you know you are going to be sued or are planning to take legal action. It is never a bad idea to consult with an attorney when you know that you are soon going to be involved in legal action. The legal system can be complicated and handling a legal matter on your own can be time consuming as well as frustrating without having the experience of an attorney to assist you with your legal matter. In sum, contacting an attorney who is well experienced in the area of law in which you are dealing is never a bad idea so as to ensure that your interests and rights are protected.