Legal Advice Blog: Legal Advice, Case Insights, & Local Law Information

With all of the political rancor getting worse and worse, I desperately look for uplifting, feel-good headlines in my news feed. Today I actually saw one.  It seems that a perky, up-and-coming young star won this year’s America’s Got Talent.  You may be asking, so what?  Well, for one thing, this newfound talent is only 12 years old.  Even more amazing to me is the instrument that she plays--a ukulele.  Her name is Grace Vander Wall.  Get used to hearing it.  I have a hunch she’s going to be around for a long time. Some of you are probably fans of the show and have watched Grace from the beginning.  Unfortunately, I didn’t.  I saw a headline now and then, but I really didn’t follow the show or Grace’s story.  Now that she’s won, she’s getting a lot of attention in the press.  In fact, I typed “Grace” into my search engine and her name was the first thing to come up.  That’s pretty impressive for a middle schooler from Suffern, NY, a town with only 10,000 people.  (Note:  when I googled “Suffern,” Grace’s name also popped up.  Go figure!) I watched some videos of Grace singing and being interviewed.  I have to say I really love this girl’s innocence and authenticity.  There’s no fluff here.  No gimmicks.  Just a girl and her raw talent.  That’s refreshing!  Many of the songs she performed were old favorites, but some of them were originals that she actually wrote herself.  I was also impressed by Grace’s backstory.  After watching someone play the ukulele, she used her birthday money to go out and buy one and then taught herself to play it by watching YouTube videos.  Hmmm…  Resourceful, driven and willing to invest in her own self-improvement.  That’s a pretty impressive resume for a tweenager! Being the winner of America’s Got Talent comes with a whopping $1 million prize and a gig in Las Vegas.  My hope and prayer is that Grace stays grounded and true to who she is.  In that regard, I’m encouraged by an interview where she was asked what she was going to do with the prize money.  Some of it, she said, would be donated to charity--probably a musical charity.  And what else?  Oh, yeah, she wants to buy a tree house! Never change, Grace.  That’s the best advice I can give you.  You keep on writing, playing and singing, and we’ll keep on watching!

I can sympathize with anyone who just wants this election to be over. It feels like it has been going on all our lives, and there are still two months to go. But there is one thing I am excited about that hasn’t happened yet – maybe the only really fun we could possibly squeeze out of the rest of this 550-day slog to the 2016 election. That is the upcoming presidential debates – they will be like nothing we’ve ever seen before. Since Nixon-Kennedy in 1960, the debates have featured watershed moments in election after election. Who would look good, who would sound smarter, or cooler under fire? Who would be crushed with some one-liner, doomed to be a punchline for the rest of their lives? You find out at the debates. In fact, the debates have become so important, that they’ve been reduced to a science. Professional gurus prepare the candidates, leading politicians stand-in for opponents at marathon practice sessions. The headliners take days off to prepare, wading through reams of their adversary’s prior statements and speeches, memorizing their talking points and anticipating the moderator’s questions. The stakes are four years in the White House, a personal 747, and a nice title: “leader of the free world.” Four years ago, two of the most disciplined, intelligent, and professional debaters ever to contest the Presidency went at it. Mitt Romney and Barack Obama had many differences, but they were both the kind of man who does his homework and shows up ready to play. Each performed brilliantly in one of the first two debates – Romney dominating the opener, and Obama staging an Ali-like comeback in round two. Jamie Bordas and I covered them in painstaking detail on the Bordas & Bordas Legal Review. It may be many years before we see two debaters that prepared and that skilled again. It certainly will not be what we see this year. This year, we have a matchup unlike any other. Trump v. Clinton will be an unprecedented event, in which the prior rules do not apply, and where the lessons of debates past will be worthless. Make fun if you want, but I am going to tailgate for these debates. Some early thoughts on the matchup: Hillary Clinton should be one of the easiest debaters to prepare for in history. She has a record almost twenty-five years long in public life. Her positions on the issues are known quantities that anyone can learn. The questions she’s had difficulty answering can easily be gleaned from hundreds of hours of interviews on TV and even before Congress. She has many strengths that got her to this point, but simulating credibility in a tricky spot and being lightning-quick on her feet are not among them. For the professional preparers, she’s a dream opponent. Naturally then, Trump has decided not to prepare. Clinton is known for doing her homework, so she will be as ready as anyone, but she has her work cut out for her. Trump presents unique challenges never before seen in presidential politics. Most politicians hate to deviate from what they’ve said before, or to change their positions – that’s the dreaded “flip-flop.” That’s why it’s easier to prepare for them – you know what they’re going to say. Trump has shown no hesitation in changing his positions to suit the moment. He was going to deport eleven million illegal immigrants with a “deportation force,” then we were only going to deport those who committed violent crimes (the Obama policy), then next it was: “they all have to go, before they can come back.” That’s a preparation nightmare because there are arguments and criticisms that apply to all three positions, but you don’t know which one you’ll get, or if Trump will slip away like an agile boxer and say you are attacking a position he doesn’t really hold. But even more challenging are Trump’s rhetorical moves that he’s used throughout the campaign to throw off his Republican opponents and skilled journalists. He says something without really saying it with “many people are saying . . .” He gives an answer that has no content but he delivers it like it does, “the best people will come up with a great plan and people will be very happy with it. Believe me.” He takes people off-guard by doubling down on indefensible positions, like his praise of brutal dictator Vladimir Putin. Trump is a master of changing the subject, usually back to himself, when he wants to get on track. Even when contradicting himself, or known facts, he speaks with absolute certainty and rarely backs down – putting pressure on his competitors, or the moderators, to either call him a liar to his face, or accept his statements and move on. And he uses insults and humor throughout his performance which makes him enjoyable to watch even for people who would never vote for him – that’s the odd charisma that has made him a successful reality TV star. How does Clinton prepare for that? Let me think about it and get back to you.

In order to hold insurance companies accountable for unfair insurance claims practices, in 1990, the Pennsylvania legislature passed 42 Pa.C.S.A. § 8371, otherwise known as Pennsylvania’s “bad faith” statute, which provides: In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions: (1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%. (2) Award punitive damages against the insurer. (3) Assess court costs and attorney fees against the insurer. Pennsylvania’s general assembly did not define “bad faith” conduct, instead leaving the issue for the Pennsylvania judiciary to decide. Pennsylvania courts have repeatedly held that mere negligent conduct, however harmful to the interests of the insured, is not sufficient to show bad faith.  So what constitutes bad faith conduct?  Since 1994, Pennsylvania courts have relied upon the framework established by the Superior Court in Terletsky v. Prudential Prop. And Cas. Ins. Co. 437 Pa.Super 108 (1994), which requires a plaintiff to satisfy a two-part test to prove bad faith conduct.  To successfully sue an insurance company for bad faith, an insured must first show that the insurance company did not have a reasonable basis for denying benefits under the policy.  Once this is shown, the insured must then satisfy the second prong of the test and prove that the insurance company knew or recklessly disregarded its lack of reasonable basis in denying the claim. Rancosky v. Washington National Insurance Company The Rancosky case arose out of a cancer insurance policy, which provides benefits to an insured diagnosed with an internal cancer while the policy is in effect including, inter alia, cash benefits and payment of surgical, hospitalization and treatment costs.  In 2003, Ms. Rancosky was diagnosed with ovarian cancer and she attempted to collect benefits under the policy.  When a dispute arose, she filed suit alleging bad faith in the Court of Common Pleas of Washington County. The trial court entered judgment in favor Washington National Insurance Company finding that Ms. Rancosky failed to prove the first prong of the Terletsky test.  Specifically, the trial court ruled that Ms. Rancosky failed to prove that Washington National Insurance Company had motive or self-interest or ill-will in denying her claim for benefits.   Ms. Rancosky appealed to the Pennsylvania Superior Court, who disagreed with the trial court and remanded the case back to the trial court for a new trial on Ms. Rancosky’s bad faith claim.  More specifically, the Superior Court held that the trial court erred in applying the Terletsky because the trial court used the “motive of self-interest or ill-will” language as part of the first prong of the Terletsky test, not the second and that because of this error, the verdict could not stand. The Pennsylvania Supreme Court The Pennsylvania Supreme Court will address two (2) questions:  (1) Whether this Court should ratify the requirements of Terletsky v. Prudential Property & Casualty Insurance Co. for establishing insurer bad faith under 42 Pa.C.S. § 8371; and, assuming the answer to be in the affirmative, (2) whether the Superior Court erred in holding that Terletsky factor of a “motive of self-interest or ill-will” is merely a discretionary consideration rather than a mandatory prerequisite to proving bad faith? Comment The Supreme Court should ratify Terletsky and hold that factors of “motive of self-interest or ill-will” are discretionary considerations rather than a mandatory prerequisite to proving bad faith.  At a bare minimum, the Court should rule that reasonable inferences of motive of self-interest or ill will is sufficient to prove bad faith conduct.  This is true because insureds already face substantial obstacles in establishing a bad faith claim in Pennsylvania.  As stated above, proof of the insurer’s “careless” conduct is insufficient to establish a claim for bad faith.  Second, policyholders must prove bad faith by “clear and convincing” evidence, which is a higher burden of proof that the “preponderance of the evidence,” i.e. “more likely than not” standard typically used in civil damage lawsuits.  Lastly, it is often very difficult, if not impossible, to offer direct evidence of an insurance company’s motive of self-interest or ill-will as serving the sole basis for a bad faith claim.  However, there are occasions where the circumstances surrounding the insurer’s conduct substantially infers this level of intent.  The Pennsylvania Supreme Court has held that a defendant acts recklessly when his conduct creates an unreasonable risk of harm to another and such risk is substantially greater than that which is necessary to make his conduct negligent. Hutchison v. Luddy, 870 A.2d 766, 771 (Pa.2005).  In other words, an insurance company should be held accountable for conduct that it knows or should know is creating an unreasonable risk of harm to its insured and that such risk has a high degree of probability of occurring.

September is Childhood Cancer Awareness Month. It breaks my heart that even one child has to suffer through cancer treatments. Families are literally torn apart when their little one is fighting to survive. Many times one parent travels with the child while the other parent is home with the other children holding down the fort until everyone is together again. Just the sad tales on Facebook of what these families go through is enough to make me cry. No one should have to set up Go Fund Me pages or hold benefits to get help paying for the expensive cancer treatments to save their child’s life, let alone have to have the additional worry of who is going to care for the family left behind while they are away taking care of their sick child. Over 250,000 children are diagnosed with cancer every year and sadly of those 250,000 diagnosed 91,250 will lose their life. Unfortunately, except for those over 65, the incidence of cancer among adolescents and young adults is increasing at a greater rate than any other age group. No ethnic group or socioeconomic class is spared. Despite these facts, childhood cancer research is terribly underfunded. To add insult to injury, two-thirds of the children that survive will have long-lasting chronic effects from the very treatments that killed the cancer they were stricken with. Even if one child dies, it is one too many. Join me in helping these children in any way you can. Give to the American Cancer Society, St. Jude’s Research Hospital, or a myriad of other organizations that specialize in childhood cancer research. Let’s give these children a fighting chance for survival. Let’s give them hope for a cure by giving today.

Unfortunately, many of the people who come to our firm for help have experienced a great tragedy in their lives. In instances where the wrongful conduct of another has caused a death, these families want to know whether or not they have what’s known as a wrongful death case. The easiest answer to that question comes in the form of an example.  Let’s say that during the course of a surgical procedure, a doctor commits an act of medical malpractice.  As a result of the malpractice, the patient requires a long admission to the hospital, incurs significant medical bills and suffers greatly before passing away months later. What type of case is this and what types of damages may the patient’s family recover?  Generally speaking, there are two separate causes of action in this scenario that are both based in the doctor’s underlying negligence.  The first cause of action is commonly known as a “survivorship” action.  This action is brought on behalf of the estate of the deceased patient for all of the damages the patient suffered while he or she was alive.  Said another way, the fact that the patient died does not end the right of the patient’s estate to recover those types of damages. The second cause of action is what’s known as a “wrongful death case.”  This wrongful death cases arises out of the same conduct as the survivorship case (the negligence of the doctor), but it differs significantly in terms of the types of recovery that are available.  The wrongful death case is not brought for the benefit of the estate of the deceased patient.  Instead, it is brought on behalf of, and for the benefit of, what the law calls the decedent’s “statutory beneficiaries.”  Again, generally speaking, the “statutory beneficiaries” are the members of the decedent’s immediate family and “next of kin.”  In this sense, the law recognizes that when a person dies as a result of the wrongful conduct of another, those who loved him or her the most suffer their own, special kind of loss that requires fair and adequate compensation. In the example above, there would be two causes of action contained in a single case:  a survivorship action and a wrongful death action.

The case of JonBenet Ramsey is receiving much attention recently in the wake of its 20th anniversary approaching in December. Many networks have conducted interviews including Dr. Phil who had Burke, JonBenet's brother, as a guest on his show (Part 1 airs today). There have been Dateline shows (September 9), and networks such as A&E and Investigation Discovery have aired recent documentaries. There is a new Lifetime movie set to air in November (there was an older Lifetime Movie made previously). Two decades later, this case is still getting major media attention. And its details, although so horrendous and heartbreaking, fascinate me. Mostly because I am haunted by the fact that this murder is still unsolved. I was a young child when the December 26, 1996 murder occurred and only vaguely remember it. I remember a lot of media coverage and tabloid photos at the grocery store checkout line. I was not privy to most of the details as I was only a young teenager. In recent weeks, I have researched a lot about the case, watched all the new and old informative shows, read books and articles. And I have begun to wish that I could actually solve this case myself! Background: JonBenet was a 6 year old beauty pageant winner. Her mom, Patsy, was a former Miss West Virginia who attended WVU. Her father, John, was a well-known businessman worth millions of dollars in 1996. The couple owned several homes. While residing in their Colorado home, on the evening of Christmas, they returned home from their friends' house and went to bed. Just before 6 am when Patsy awoke, she found a ransom note at the top of the steps. The note explained that the perpetrator(s) had JonBenet in their possession and stated that they wanted a sum of money before they would return her to the Ramseys. The note had specific instructions as to what the Ramseys could and could not do and it set forth a two hour window in which the kidnappers would call the Ramsey house. However, no call was ever made and hours after that time window passed, John Ramsey found his daughter dead in the cellar of their basement. She was covered in a white blanket. Her arms were bound over her head and her mouth was duct taped shut. She appeared to have been strangled. The autopsy later revealed that she had been the victim of blunt trauma to her head (no exterior signs present but her skull was fractured) that would have rendered her unconscious and eventually that alone would have killed her; although, the cause of death was stated as affixation from the strangulation. Theories: There are two schools of thought regarding what happened that night. No evidence has been strong enough one way or the other to indict someone for the murder. But those involved most heavily with the research of the case have come up with two main theories. Theory 1- An intruder did it:  This theory is based on the premise that an intruder came into the house sometime either when the Ramseys were gone at their friends' house on Christmas Day or after the Ramseys went to bed the night of December 25. The intruder abducted the little girl from her room and murdered her. Flaws with this theory/unanswered questions: The ransom note: There is a ransom note that suggests that this was a kidnapping. So at what point did the kidnapping go wrong and this become a murder? The ransom note was unusual as ransom notes go. It was long and it requested an odd amount of money (odd because the amount was so low compared with other ransom notes and in light of John Ramsey’s financial success.) It was written on Patsy Ramsey’s notepad, and with her pen. There was another draft that had been started and not finished. This meant that the intruder took significant time to write this note without fear of being caught in the act. This supports the idea that the intruder may have entered the house while the Ramseys were at their friends’ house and wrote the note while he was alone and had more time; however, if this were true, why leave the ransom note to be found at all, once the kidnapping became a murder? No evidence of forced entry: There was no sign that a person broke into the home which meant that if someone did in fact enter the house, it had to be someone who had a key or they entered through an unlocked door or window (again luck that someone would find an unlocked point of entry, or planned by someone in the house, or someone who had been in the house before?) It is unlikely that the average person would have walked around the whole house looking for unlocked doors or windows as the house was very large and there would be more of a chance of being seen by a witness. Why leave the body in the house?: If this was supposed to be a kidnapping and the kidnappers wanted money, then why didn’t they take the body from the house? Once the body was found, and the Ramseys knew their daughter was dead, the alleged kidnappers had no chance to recover their requested money. No ransom call was ever made: There was never a call during the hours the ransom note alleged a call would be made. Critics believe this is because the ransom note was staged by someone inside the house who could not make that purported call, or because it was not a kidnapping, but in fact a murder. Theory 2 – A Ramsey did it (John, Patsy or Burke): Other theorists suggest that someone inside the house that night killed JonBenet and staged the whole thing as a cover-up. Those that think John killed his daughter believe that he had been sexual molesting her (autopsy suggested repeated vaginal trauma) and then murdered her. Those that think Patsy murdered her daughter think that she got angry with JonBenet for wetting the bed (something that she did frequently) and struck her over the head with an object knocking her unconscious. She then staged the rest of the crime to make it look like a murder by strangulation and wrote a fake ransom note. Still there are those that think the older brother, Burke (who was 9 at the time) was playing with JonBenet and got angry and hit her in the head and the parents staged the whole thing to protect him.*Theorists suggest that the December 25th death date that the Ramsey’s chose for JonBenet’s tombstone corroborates this theory because it insinuates that the Ramseys knew their daughter was dead before midnight and spent the whole night staging the cover-up. Which is also why Patsy was still wearing the same clothes as the night before.* Flaws with this theory/unanswered questions: Killer profile: There was no sign of abuse of JonBenet at any point prior to that night and the family did not fit the typical FBI profile of someone who would kill their child. Ransom note and murder weapons: Although the note had been written on Patsy’s pad and her handwriting could not be ruled out as a match to the ransom note’s handwriting, the other pages ripped out have never been recovered. Moreover, the use of Patsy’s paintbrush to make the garrote is undisputed, but the rest of the rope used to tie JonBenet’s hands or the rest of the duct tape roll was never recovered. Why a cover up at all: Had an accident happened, the parents could have just called for help like any other accident with the hopes that JonBenet would be ok, unless there was an intent to kill from the beginning. And there would be no need to stage a cover up for their son as he was only 9. Why make it look like a kidnapping after a murder took place? Why not just dispose of the body elsewhere? Why leave it in your house and then suggest a kidnapping? Although we don't have answers to a lot of the plaguing questions as to what happened to the beautiful little girl, there are a few things we do know: 1- The crime scene was handled poorly which has led to the extreme difficulty in indicting and convicting anyone for this crime. The crime scene was entirely understaffed: Most of the day only one police officer was stationed at the house. This is mostly attributed to the fact that it was Christmas. The crime scene was never blocked off: When the officer arrived, this was a kidnapping, so the house was never secured from entry and exit. People came in freely and moved about the house and touched things. The Ramseys called their friends over who came and even cleaned up the kitchen (which was later found to be detrimental because pineapple was found in JonBenet’s small intestine and there was a bowl of pineapple on the kitchen table. The Ramseys could not account for how the pineapple got on the table or in JonBenet’s stomach). This also meant that there would be several more sets of fingerprints inside the home that could not have been proven to have gotten there during the commission of the murder.  Disrupted DNA: John Ramsey moved the body when he found it. This contaminated the murder scene because once the body was moved, all the evidence left on JonBenet’s body was disturbed. Now John’s DNA would be on his daughter, as was Patsy’s as she supposedly hugged and cried on JonBenet’s dead body. So authorities couldn’t be sure that such evidence got there from commission of the crime or by moving and weeping over the body. 2- The likelihood of this crime ever being solved is low. Without a direct match to the DNA found (there was a small amount of DNA found on JonBenet’s leg later revealed to be the DNA of an unidentified male) or an explanation of its existence (someone explaining how it got there/was planted there), or without a confession, the world may never know who killed JonBenet Ramsey. Patsy, one of the people in the house that fateful night, and a person one theory points to as the murderer, has already passed away. Patsy died in 2006 of ovarian cancer, which leaves only John, JonBenet's father and Burke, JonBenet's brother and/or the alleged unknown killer left to come forth with a confession. 3- This crime and case would play out much differently in 2016 with the advances in technology and forensics. With computer generated handwriting analysis, the ransom note studies could be done much more thoroughly and objectively. The advances in DNA analysis are enormous and too many to mention. Authorities have recently used a new advancement called “touch DNA” that can now help widen their search by not just including suspects, but also those related to suspects when analyzing DNA samples. The ability to track a person’s movements based on GPS in their cell phone or car, could have possibly explained what happened to the duct tape and extra rope, had someone in the house gotten rid of them. Alibis could have been discredited or supported. The District Attorney in this case felt strongly that there was not enough evidence to indict the Ramseys for murder. He is quoted as saying that he didn’t want to be the reason that an innocent person was behind bars. Could it be that he is now the reason that a murderer walks free? A case, a murder, that has broken our hearts, has made us think the unthinkable about parents and what they could do to their child, has made us worry that this could happen to us, has made us endure agonizing photos of horrific things done to a beautiful little girl, has plagued our minds with theories and autopsy findings, has haunted Americans for almost two decades, and may never be solved. JonBenet’s death may never be avenged. Eventually the anniversaries won’t be celebrated. Documentaries won’t be made. But that little girl will still be dead. JonBenet would be 26 years old today, but we will always remember her as the blonde little girl whose life was ended way too soon. Was this murder a cover-up? Was it “the perfect murder?"  Was this murderer “too good to ever get caught?" Or has our very own justice system failed us?

My kids will grow up and remember me yelling at the TV during the Army-Navy game. Lately, of course, none of that yelling has helped Army in the least, but at least I came by that type of conduct honestly. When I was a kid, I remember my dad yelling at the TV, too.  He’d only do it once a year and the target of his frustration, excitement, anger and joy was always the same:  The Pitt-Penn State game.  As a kid who grew up in Irwin, PA and went on to attend Pitt, my dad was a diehard Pitt football fan. Today, we are spoiled.  No matter where we live, virtually every game played by every team is available on one of the 500 TV channels or, at the very least, available to watch over the Internet.  Not back then. For work, my dad and mom eventually moved to Burlington, Vermont where I grew up.  There were not a lot of Pitt games on TV up there in the fall.  Undeterred, I remember my dad driving us 3 hours to Albany, New York because some Pitt game (Syracuse, I think) was on down there, but not at our house.  So we found a mall and sat in Sears for 4 hours watching the game. My grandparents still lived in Irwin, and I remember my dad sitting on the couch with the phone to his ear.  At the other end of the phone, my Grandpa Brown held the phone up to the radio so my dad could listen to the end of the games. Of course, for the Pitt-Penn State game, my dad didn’t have to go through all of that.  Pitt-Penn State was always on TV, even all the way up there in Vermont. It’s one of the tragedies of conference realignment that we lose so many of these annual rivalries.  Nonetheless, Pitt fans like my dad can put those frustrations away for this weekend.  Pitt-Penn State is back on.  The game is at noon at Heinz Field.  Although my dad can’t make it, I’m sure he’ll be home yelling at the TV.  Some things never change because some things shouldn’t change.

In July, the Superior Court of Pennsylvania in Donaldson v. Davidson Brothers v. LJF, Inc. issued a decision clarifying Pennsylvania’s Economic Loss Doctrine, the application of public policy considerations, and dismissing LJF’s Loss of Contract claim based upon Pennsylvania’s fact pleading rules. The case arises out of a tragic three-way motor vehicle accident on June 16, 2008 in Centre County, Penn., which resulted in a fatality. The Estate of Sarah Donaldson sued Davidson Brothers’ claiming that its west bound tractor-trailer rear-ended Ms. Donaldson’s vehicle, which thrust her car into opposing eastbound traffic causing a head-on collision with a tractor-trailer owned by LJF.  Davidson Brothers joined LJF into the litigation, but settled LJF’s property damage for $15,181.  LJF and Davidson entered into a settlement agreement resolving all claims, except any claims of loss of contract, which was preserved.  Later, LJF, in its Answer and Counterclaim to the joinder complaint, asserted liability claims against the Donaldson and Davidson including, inter alia, a claim for “loss of contract.”  Donaldson filed preliminary objections claiming that the Economic Loss Doctrine barred LJF’s counter claim; the trial court agreed and dismissed LJF’s counterclaim with prejudice.  Davidson later filed a motion for judgment on the pleadings on the same grounds, which the trial court granted, on July 24, 2015.  LJF appealed to the Superior Court arguing that Pennsylvania’s Economic Loss Doctrine did not bar recovery.  The Superior Court agreed with LJF, but nonetheless dismissed LJF’s counter claim for failing to plead the claim with legal sufficiency. The Economic Loss Doctrine provides that no cause of action exists for negligence that results solely in economic damages unaccompanied by physical injury or property damage.  In Margolis v. Jackson, the court denied recovery against third party negligent tortfeasor for loss of expected profits as indirect result of negligent incapacitation of claimants’ business partner.  In Aikens v. Balt. and Ohio R.R. Co., the court denied manufacturing plant employees claims for lost wages who did not suffer personal injury or property damage from train derailment, which damaged the plant.  In Robins Dry Dock & Repair Co. v. Flint, the United States Supreme Court decided that a charterer of a steamship could not recover damages for loss of use of the ship caused by the negligence of the company repairing the ship.  The US Supreme Court reasoned that claims for economic losses such as loss of contract, are not a foreseeable result of negligence. In this case, the trial court found that the allowance of damages to LJF for its loss of contract claims would be counter to public policy because claims for economic losses “such as loss of contract are not a foreseeable result of negligence.”  Further, the trial court determined that because LJF settled its property loss claim, the claim became “undeterminable,” and therefore did not exist.  Without a property damage claim, the trial court held that the Economic Loss Doctrine barred LJF’s claims for loss of contract. The Superior Court disagreed, stating that it was beyond serious dispute that “some” property damage occurred.  The court highlighted that there was no Pennsylvania case law that addressed or considered the effect of a release on the predicate condition of no claim for personal injury or physical damage.  Therefore, the Superior Court determined that the Economic Loss Doctrine did not bar LJF’s claim.  Furthermore, the Superior Court found the trial court’s reliance on the Aikens case to support its public policy analysis was misplaced.  In support of its holding, the Superior Court cited to the Pennsylvania Supreme Court’s decision in Mamlin v. Genoe., which provides, “It is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring .” While the Superior Court failed to find that the Economic Loss Doctrine and public policy considerations warranted dismissal of LJF’s loss of contract claim, it dismissed the claim under Pennsylvania Rule of Civil Procedure 1019(a).  Pennsylvania is a fact-pleading state. As a minimum, a pleader must set forth concisely the facts upon which his cause of action is based. The complaint must not only apprise the defendant of the claim being asserted, but it must also summarize the essential facts to support the claim. Landau v. Western Pennsylvania National Bank. The purpose of Rule 1019 is to require the pleader to disclose the ‘material facts’ sufficient to enable the adverse party to prepare his case.  In this case, the Superior Court concluded that LJF failed to present a well pleaded allegation of loss of contract. “A generic, barebones claim of “loss of contract,” - never clarified or explained in eight years of legal dispute - is legally insufficient and would not warrant submission to a jury.”

This is a very touchy subject with a lot of people. It is difficult to understand why anyone would want to take his or her own life.  Some people feel it’s wrong, but until you have walked in someone else’s shoes and feel the pain, suffering and sometimes loneliness, you need to be more caring and compassionate. We are not here to judge one another, but to help lift each other up. Just because we don’t understand what a person is going through doesn’t mean we can’t try to help a person who is thinking about suicide or provide support to a family member of someone who has attempted suicide. Hopefully, most of us will never know the feelings of gloom and doom, but a person who has these feelings only lets you see what they want you to see. You may never know how they really feel about themselves, because some, if not all of these wonderful people will not let you in or tell you what their problems are. It could be drugs, alcohol, depression or a personal issue that they are going through like being bullied.  (More suicides happen over bullying than you will ever know.) They may seem ok on the outside, but inside they are crying all the time and they know how to put on a good act to cover up their sadness. Some people don’t know who they can trust or who they can turn to in their darkest hour. The sad part is that there are signs that we may not recognize.  A strange e-mail, phone call or a text. You may have talked to them a few minutes before they are planning to end it all, and just talking to you may have saved their life or it may have pointed them in the right direction on where they need to go to get help with these feelings they are having. Some of our young people feel if they let their family and friends down, they are worthless and people are better off without them.  This couldn’t be further from the truth. We all have demons that we fight, but just remember if you are feeling blue or feel like hurting yourself, please call someone.  A suicide prevention hot line is available 24-hours a day to help you.  You are not crazy and you are not alone. The phone number and web address of the National Suicide Prevention Lifeline in the United States are as follows: 1 (800) 273-8255 www.suicidepreventionlifeline.org Please know people care about you and love you for who you are, not for what you have done, and almost everything someone has done or said can be fixed in one way or another. Life is a wonderful gift and our lives wouldn’t be the same without the special people in it. As someone once told me, if it wasn’t for that one person saying hi or smiling at them that day they would have gone home and ended it all. So smile, speak or wave at people… you may be the one who saves a life. Tomorrow isn’t just another day. It’s a gift from God and he wants you to have many tomorrows. I understand. I’ve seen firsthand how suicide can change a family. Rock on, people. Rock on.

The Superior Court of Pennsylvania recently reversed a trial court's decision to dismiss negligence claims filed by multiple Plaintiffs against UPMC and Maxim ("Defendants"), a medical staffing agency, for their failure to report an employee's criminal diversion of pain medications to the Federal Drug Enforcement Agency. Radiologic technologist David Kwiatkowski was an employee of Maxim, a medical staffing agency that placed him at UPMC. An investigation revealed that Kwiatkowski stole patients' IV pain medications, injected himself, substituted water in the used syringes, and placed the syringes on the shelves to avoid detection. UPMC immediately banned Kwiatkowski from all UPMC facilities; however, according to Plaintiffs, UPMC did not report Kwiatkowski’s diversion of drugs to the DEA as required by 21 C.F.R. § 1301.76(b), or to any other law enforcement, governmental, or licensing agencies. Between 2008 and 2010, Kwiatkowski worked at eight other hospitals, including Hays Medical Center in Hays, Kansas, where he encountered Plaintiffs, who were patients in the cardiac catheterization unit during his tenure there. Each received intravenously administered medication through a syringe that Kwiatkowski used to self-administer controlled substances, refilled with water, and replaced for use by unsuspecting staff upon patients. By that time, Kwiatkowski was infected with hepatitis C. Plaintiffs subsequently tested positive for the same strain of hepatitis C as that contracted by Kwiatkowski. Plaintiffs alleged that he transmitted that infection to them and others through contaminated needles. Plaintiff Elizabeth Murphy died due to the infection. Kwiatkowski was subsequently arrested in New Hampshire and charged with acquiring a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge in violation of 21 U.S.C. § 843(a)(3), and tampering with a consumer product with reckless disregard for the risk to another and placing another in danger of and actually resulting in death or bodily injury in violation of 18 U.S.C. § 1365(a)(3). Plaintiffs sued the Defendants alleging, among other things, that they knew or should have known that Kwiatkowski was a potential carrier of diseases associated with IV drug use, and without intervention, would continue to engage in theft of controlled substances in order to satisfy his addiction. Consequently, due to the Defendants failure to report Kwiatkowski's criminal conduct to the DEA, he was able to seek and obtain employment with other healthcare facilities, including Hays Medical Center and be in a position to continue to steal and use controlled substances, which directly affected the health and well-being of Plaintiffs. The Defendants filed motions to dismiss Plaintiffs' lawsuit arguing that they had no special relationship with Plaintiffs (as they were not UPMC patients), and therefore, no duty to Plaintiffs that would support a cause of action for negligence.  UPMC argued that it's duty only extended to its patients.  Maxim argued that it had no duty to report the information it received from UPMC regarding Kwiatkowski's diversion of drugs. The trial court agreed with UPMC based upon the case of Seebold v. Prison Health Services, Inc., 57 A.3d 123 (Pa. 2012), in holding that the law imposed no duty on the part of Defendants. The Superior Court agreed that the Defendants had no special relationship with Plaintiffs, however, the Court determined that where the defendant stands in some special relationship with the person whose conduct needs to be controlled, a duty may be imposed. Brezinski v. World Truck Transfer, Inc., 755 A.2d 36, 40 (Pa.Super. 2000).  The Court, citing Restatement (Second) of Torts, § 317, determined that because Kwiatkowski was alleged to an employee of Defendants when the duty to report arose, a special relationship may include a master's duty to control a servant.  The Court also referred to Restatement (Second) of Torts, § 319, which provides that: “One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.” We will continue to follow this case.

Leisa Forbes worked at our firm for nearly 10 years before moving with her husband back to the Washington, D.C. area about five years ago. Since she left, we have kept in touch via e-mail, as well as teleconferencing.  You see, Leisa was also an important and well-loved member of a longstanding bible study I’ve been a part of since joining the firm.  So every Tuesday evening, when a small group meets here at the Wheeling office for bible study, Leisa calls into the office and we put her on speaker phone so she can participate in bible study.  Not as good as having her here in person, but it’s almost like she never left! Last weekend, another longtime friend and coworker, Becky Murphy, and I made our now traditional (two years and counting) trek to D.C. to spend the weekend with our best buddy Leisa.  What a great time we have catching her up with the friends and co-workers she misses, as well as planning our weekend together.  This year, Leisa daringly drove us into downtown D.C. where she works, just minutes from the White House.  After a quick tour of her metropolitan office, we set out on foot to see the sites.  We walked to the White House (it’s a lot smaller in person) and then we toured Smithsonian American Art Museum. The art museum is so big we hardly made a dent in it.   It was great!  So much to see, so little time.  Ten thousand steps later, we were ready to head home.  Our nation’s capital has so much to offer and most of it is free!  We’ve already made plans for our next visit – The Holocaust Museum, and the Corner Bakery!  Thanks Leisa for being such a wonderful hostess.

Many years ago, I read an article discussing whether 9/11 should be an American holiday and, if so, how it should be celebrated. The article discussed how tragic of a day it was for our country, but the author ultimately concluded that he did not think 9/11 should be a day that people have off of work. His reasoning was that people need to remember the tragedy our country suffered, but he worried that a holiday would result in festivals, sales and parties. Surely 9/11 should not remembered by throwing a party or memorialized by sidewalk sales. As I was reading the article, I thought about how few people, myself included, actually understand the significance behind many of our country’s holidays. Sure, Independence Day is obvious, but how many people could give a complete history of why we celebrate St. Patrick’s Day, Cinco De Mayo, or Halloween? As I thought about Labor Day, I figured it was a holiday for our country’s laborers, but could not give much more information. The United States Department of Labor states that Labor Day was first recognized by the government in 1885. The day was set aside to celebrate the economic achievements of American workers and acts as a tribute to the contributions workers have made to the strength, prosperity and well-being of our country. Well over a century after the first observance of Labor Day, it is still uncertain who first proposed the holiday. The Department of Labor’s website states that some records credit Peter J. McGuire, who was the general secretary of the Brotherhood of Carpenters and Joiners and a co-founder of the American Federation of Labor. Mr. McGuire is quoted as saying that the day was created to honor those “who from rude nature have delved and carved all the grandeur we behold.” However, many others credit Matthew Maguire, a machinist, as founding the holiday. These individuals argue that Matthew McGuire proposed the idea in 1882, while serving as the secretary of the Central Labor Union in New York. These individuals allege that the first Labor Day celebration occurred on September 5, 1882 in New York City, shortly after Matthew McGuire’s proposal. The holiday was celebrated as the working class holiday and the idea spread with the growth of labor organizations. Regardless of which McGuire actually came up with the idea for Labor Day, I hope all of our readers learned something and enjoy a safe and relaxing Labor Day with their friends and family.