Civil Procedure

Interlocutory Appeals – When is the Right Time?

The term itself sounds alien – “interlocutory.” It refers to interim court decisions that usually aren’t appealable. Yet, the Pennsylvania Appeals Court Rules permit parties to appeal from some interlocutory rulings. The rub is when and how, two considerations lawyers may not think about or understand. Today, we won a case in which the Superior Court concluded that it could decide an interlocutory appeal based on Pennsylvania Rule of Appellate Procedure 341(c). The decision in Sawyers v. Davis is interesting because, to convince the Court, we had to carefully nuance the arguments in our brief and particularly at oral argument. The result: the plaintiff whose case was tossed gets her day in court. Click here to read the Superior Court decision in Sawyers v. Davis.

So, when can you appeal an interlocutory order? Attorneys need to closely review Pennsylvania Rule of Appellate Procedure 311, which says an “appeal may be taken as of right” without a final order, namely: orders affecting judgments; orders involving attachments, change of criminal venue or venire, injunctions, peremptory judgment in mandamus, new trials, or partition; and orders relating to venue or personal or in rem jurisdiction, preliminary objections in eminent domain matters and certain Commonwealth criminal appeals. There is a catch-all for “other cases” in which an “order is made final or appealable by statute or general rule, even though the order does not dispose of all claims and all parties.” Rule 311(a)(8).

A real nuance is Rule 311(f), which specifically addresses appeals following an administrative remand. Parties may appeal as of right: “(1) an order of a common pleas court or government unit remanding a matter to an administrative agency or hearing officer for execution of the adjudication of the reviewing tribunal in a manner that does not require the exercise of administrative discretion; or (2) an order of a common pleas court or government unit remanding a matter to an administrative agency or hearing officer that decides an issue that would ultimately evade appellate review if an immediate appeal is not allowed.”

Recently, the Commonwealth Court threw out an appeal because the Environmental Hearing Board’s decision was not appealable as of right under Rule 311(f)(1). In the case, Sunoco appealed from an Environmental Hearing Board Order sending a dispute back to DEP for further consideration. The Court concluded that the appeal did not satisfy Rule 311(f)(1) or (2) because the DEP would have to exercise administrative discretion and the issue would not evade appellate review.

Additionally, Rules 312 and 1311 address interlocutory appeals by permission and require you to file a petition to permission from an interlocutory order with the statement contained in 42 Pa. C.S. § 702(b).

Determining whether you can file an interlocutory appeal can be complicated. Our office regularly assists attorneys deciding whether they can file an appeal, and can assist at any point in the litigation. Just give us a call at (610) 446-3457.

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May I instruct the witness not to answer?

Even seasoned attorneys sometimes struggle with whether a communication is privileged or protected by the work product doctrine. Whatever the attorney decides can have significant implications in discovery and the trajectory of a case.

In Cohen v. Ellwood Crankshaft and Machine Co., No. 11212 C.A. 2016 (Pa. Ct. Comm. Pl. Lawrence Cnty. Aug. 29, 2019), the trial court denied a motion to compel a witness to answer questions that called for privileged information. Plaintiff had alleged a claim for premises liability against the property owner (Ellwood) because he was injured at work. Ellwood then filed a third-party complaint against Plaintiff’s employer (Mascaro) seeking indemnification based on their contract. During the deposition of Mascaro’s corporate designee, who was its corporate counsel, Ellwood’s attorney asked questions regarding the applicability and enforceability of the indemnification clause. The designee answered questions concerning the factual basis for the denial of indemnification, but Mascaro’s attorney instructed the witness not to answer questions concerning the legal basis for the denial, arguing the questions called for “mental impressions or opinions concerning the ultimate legal issues of this case.”

The trial court agreed with Mascaro that the questions sought “conclusions and opinions regarding an issue of law that will ultimately be decided by the Court,” and therefore are protected by Pa. R. Civ. P. 4003.3. Rather, such questions would only be proper in actions for malicious prosecution or abuse of process.

The applicability of the attorney-client privilege and work product doctrine is fraught with serious implications. Our office regularly assists attorneys encountering these and other difficult questions, and can assist at any point in the litigation. Just give us a call at (610) 446-3457.

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Plaintiffs Must Be Careful Using Social Media When Pursuing Injury Claims

According to recent surveys, two-thirds of all American adults use Facebook, with the majority using it on a daily basis. Social media platforms are ever-growing and changing, with 78% of people under the age of 24 now using Snapchat, and 71% using Instagram. Using these platforms to make statements or post photos has become second-nature for many, and you might not realize the risks of using social media if you are in the midst of a legal battle. If you are pursuing a legal claim, especially for personal injuries, workers’ compensation, or other claims involving physical and emotional injuries, you must be cautious when using social media. Any information that you post may be seen and requested by the other side, and even information you believe is private can be discoverable.

Recently, a Monroe County Court of Common Pleas Judge granted a defendant’s motion to compel discovery, including access to the plaintiff’s Instagram account, in a personal injury lawsuit. In that case, defense counsel offered publicly viewable posts from the plaintiff’s account that seemed to show physical activity inconsistent with her alleged injuries. The facts of that case are particularly interesting because while the plaintiff’s account was publicly viewable at the time of the offered posts, she had since changed her account to private. The Judge determined that full access to the account, which plaintiff had previously denied existed, was relevant to verifying the extent of her injuries and rehabilitation.

If you are in litigation or considering pursuing a claim for injuries, you should refrain from communicating about your case or disclosing anything on the internet or social media. While you do not need to stop using social media or the internet altogether, you must be very careful about what information, videos, photographs, and so on that you post online. Like the example above, photographs and other posts can be used by the other side to argue that your injuries have not prevented you from certain activities. In addition, embarrassing or profane materials could be used to try to attack your character.

We regularly represent injured persons, and we always advise our clients of the implications of social media use when pursuing claims for workers’ compensation or personal injury matters. If you have been injured in an auto accident, slip and fall, work-related, or other accident, call our office at 610-446-3457 to set up a consultation with our attorneys. We can guide you through the process, and advise you about what you should expect and consider when pursuing your claim.

 

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Don’t let your claim turn into a pumpkin because you should have called a lawyer

The decision to file a lawsuit can be tricky. Generally, a person may only file a lawsuit within a limited time period, known as the statute of limitations. If you wait until the last minute, your claim might change from a lawsuit into a pumpkin on its way to the courthouse.

For the following personal injury claims, the statute of limitations is two years: Negligence, Toxic Tort, Wrongful Death, Medical Malpractice, Products Liability, and Fraud. See 42 Pa. C. S. § 5524. This time limit begins to run on the date the injury occurred.

A lawyer can help you determine whether an exception applies. Exceptions have applied when an injury is not discovered until much later or could not be discovered until more than two years after the act that caused the harm. But in most cases, the statute of limitations for personal injury claims is two years, and you shouldn’t assume it’s longer.

A lawyer can also investigate the claims and explain the likelihood of success before being hurled into protracted litigation.

So talk to a lawyer about your case.

When you retain our law firm:

  1. We investigate your claim
  2. We evaluate the case in a holistic manner
  3. We prepare the most effective complaint possible
  4. We consider all of the potential claims
  5. We have time to address any procedural questions
  6. We make informed decisions that lead you to a successful result.

We believe it is best to retain a lawyer as soon as possible to discuss your claim. Contact a lawyer at the Law Offices of Daniel J. Siegel, LLC at 610-446-3457 for a free consultation.

 

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Third Circuit Scrutinizes Mailbox Rule

In a recent Opinion, the U.S. Court of Appeals for the Third Circuit has dramatically weakened the “mailbox rule,” which created a presumption that a letter was presumed to be received once the sender deposited it into a mailbox. It is about time that the courts examined this rule more closely, particularly in this day and age when it is possible to track the progress and delivery of every letter and every package. This decision suggests that the long standing mailbox rule may soon be facing even more scrutiny by the courts.

In Lupyan v. Corinthian Colleges, Inc., the Court focused on whether the Plaintiff had received a letter with information about her rights under the Family Medical Leave Act, and therefore, whether she had received notice, rather than the merits of the claim. Defendants (Plaintiff’s employer) claimed the letter had been sent; the Plaintiff denied receiving it. Relying on the mailbox rule, the Defendants provided affidavits from their staff that the letter was sent, and the District Court granted Summary Judgment in their favor.

On appeal, the Third Circuit determined, however, that it was unfair to automatically presume that the Plaintiff had received the letter simply based on “self-serving” affidavits from the Defendants’ employees. The Court also commented on the relatively easy alternatives now available through the post office and other mailing companies that  would have provided the Defendants with actual proof that the letter was sent.

The Court’s focus was on the unfairness that this weak presumption under the mailbox rule created for the Plaintiff, stating that “individuals in [the Plaintiff]’s position have no way of establishing that they did not receive a disputed letter, other than to ‘prove a negative.’ Where ordinary mail is used, requiring more than a sworn statement to dispute receipt elevates the weak presumption intended by the mailbox rule to a conclusive presumption that would be equivalent to an ironclad rule.”

With today’s technology and varying postal options, anyone can easily obtain proof that a letter was mailed and received. Attorneys should use, and should advise their clients to use, a method of mailing important documents that makes it easy to prove that the items were delivered, especially now that the mailbox rule is under scrutiny.

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No Discovery of Communications Between Counsel and Experts

On July 10, 2014, the Pennsylvania Supreme Court erased any doubt that it intended to bar all discovery of communications between counsel and experts by amending Pa.R.Civ.P. 4003.5 to prohibit such communications. The amendment, effective August 9, 2014, confirms the Supreme Court’s Opinion in Support of Affirmance in Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, 91 A.3d 680, 689 (Pa. 2014), in which an evenly-divided Court affirmed an en banc decision of the Superior Court. The Order amending Rule 4003.5 is not surprising in light of the fact that Justice Stevens, who did not participate in the Supreme Court’s deliberations, was a member of the Superior Court majority that upheld the ban on this type of discovery. Click here to view the Order amending Rule 4003.5, the Comment to the amendment, and the Barrick Opinions.

Under revised Rule 4003.5(a)(4), a “party may not discover the communications between another party’s attorney and any expert who is to be identified pursuant to subdivision (a)(1)(A) or from whom discovery is permitted under subdivision (a)(3) regardless of the form of the communications, except in circumstances that would warrant the disclosure of privileged communications under Pennsylvania law.” The Rule states that it “protects from discovery draft expert reports and any communications between another party’s attorney and experts relating to such drafts.” While Rule 4003.5(a)(2) continues to permit further discovery beyond interrogatories “upon cause shown,” the tone of the Rule and the comments to the Rule make it clear that such discovery is not favored.

In Barrick, an evenly-divided Pennsylvania Supreme Court affirmed the Superior Court’s prior ruling that communications between counsel and an expert are privileged material pursuant to Pa.R.C.P. 4003.3 and 4003.5. In the April 29, 2014 ruling, the three Justices who supported affirmance noted that “Rule 4003.3 balances the general rule of expansive discovery with the deep-rooted protection of attorney work product, and that “attempting to extricate the work product [provided to an expert] from the related facts will add unnecessary difficulty and delay into the discovery process.”

Conversely, the three Justices who supported reversal noted that the “Court’s procedural rules do not establish a categorical prohibition against discovery of all correspondence between an attorney and an expert. [Consequently,] purely factual or other information — such as evidence and scientific doctrines that an expert may consider when forming an opinion — that does not represent core attorney work product, although contained within communications between counsel and an expert witness, does not fall within Rule 4003.3’s protective scope … therefore, we would hold that it may be discovery — so long as the mandates of Rule 4003.5 [concerning discovery related to expert testimony] are satisfied.”

Justice Saylor, who authored the Opinion in Support of Reversal, dissented from the Order implementing amended Rule 4003.5. Chief Justice Castille and Justice Eakin, who joined in the Opinion in Support of Reversal, did not dissent from the Order amending Rule 4003.5.

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A Divided Pennsylvania Supreme Court Affirms That Communications Between Counsel and an Expert Are Not Discoverable

In the long-awaited decision in Barrick v. Holy Spirit Hospital, an evenly-divided Supreme Court today held that communication between counsel and an expert are privileged material pursuant to Pa.R.C.P. 4003.3 and 4003.5. In so ruling, the three Justices supporting affirmance noted that “Rule 4003.3 balances the general rule of expansive discovery with the deep-rooted protection of attorney work product, and that “attempting to extricate the work product [provided to an expert] from the related facts will add unnecessary difficulty and delay into the discovery process.”

The three Justices supporting reversal argued that “This Court’s procedural rules do not establish a categorical prohibition against discovery of all correspondence between an attorney and an expert.” Consequently, “purely factual or other information — such as evidence and scientific doctrines that an expert may consider when forming an opinion — that does not represent core attorney work product, although contained within communications between counsel and an expert witness, does not fall within Rule 4003.3’s protective scope … therefore, we would hold that it may be discovery — so long as the mandates of Rule 4003.5 [concerning discovery related to expert testimony] are satisfied.”

Click here to read all of the Opinions in Barrick.

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Rules Change: Only Cite to the National Reporter System (A.2d or A.3d, for Example)

By Order dated April 14, 2014, the Pennsylvania Supreme Court eliminated the requirement that briefs include parallel citations to the state court cites. From now on, you only need to cite to the National Reporter System. This means you only need to cite to A.2d or A.3d Reporters, and not to Pa. or Pa. Super. Ct. as in the past. Below are links to the Order and the revised Rule (Pa.R.A.P. 2119).

Order:  http://www.pacourts.us/assets/opinions/Supreme/out/242aplt.pdf?cb=1.

Rule:  http://www.pacourts.us/assets/opinions/Supreme/out/242aplt-attach.pdf?cb=1.

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The Best Way to Learn What the Pa. Supreme Court is Doing May Be Twitter

Want to know what the Pennsylvania Supreme Court has ruled on any given day? Or what else is happening in the Pennsylvania courts? If you do, you may think that the best way to do so is to visit the Court’s website every day. Guess what, that may not be the best way, as I have learned from discussions with the Administrative Office of Pennsylvania Courts. No, they’re not dissing the Court’s website, which is thorough and posts decisions promptly. However, there is another method Twitter. Yes, Twitter. I’ve tried it, and agree.

Here’s how. Visit Twitter and navigate to the Court’s Twitter feed at https://twitter.com/PACourts. Of course, you should have a Twitter account to do this, but you don’t have to.

Next, click “Follow” to follow the Courts. This means that you will receive notices about the Court’s Tweets. But even better is receiving the Tweets by text message. How do you do that?

  • Log in to twitter.com and click on the gear icon.
  • Select Settings from the drop-down menu.
  • Click on the Mobile tab.
  • Choose your country from the first drop-down menu.
  • Enter your mobile number.
  • Click Activate phone to begin verifying your phone.
  • You will be directed to send the word ‘GO’ via text message to Twitter.
  • Text the verification code from your phone to that short code.
  • After Twitter receives the verification code from you, your mobile device will be added to your Twitter account!

Next, enable receipt of text messages from the Courts. Here’s how:

  • Turning on Tweet notifications from a specific person
  • Visit your Settings page.
  • Click the Mobile tab.
  • Look for the area labeled Text notifications.
  • Check the box for Tweets from people you’ve enabled for mobile notifications to receive text message notifications any time a specific person Tweets.
  • Visit the profile page or click on the username of the user whose updates you want to receive via SMS (for the Court, type https://twitter.com/PACourts in your browser’s URL bar, or click through from your following page).
  • Click the person icon on the user’s profile and select Turn on mobile notifications from the drop-down menu.
  • If you no longer wish to receive text message updates from this user, select Turn off mobile notifications, from the same drop-down menu.

That’s it. You’ll receive text messages whenever the Court issues decisions, and with other helpful information.

Now, if you don’t want to join Twitter,  you can get updates on your phone without a Twitter account. Use “Fast Follow.” Here’s how:

  • Just text “follow PACourts to 40404 in the US.

Hope you find the Twitter feed as helpful as we do.

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New Pa. Appellate Cases Tackle Medical Malpractice Jury Instructions and Delay Damages

Jury Instructions – Error in Judgment In Passarello v. Grumbine, the Pennsylvania Supreme Court ruled that an “error in judgment” jury instruction should never be given to the jury in a medical malpractice action. “If a defendant desires an instruction that conveys the principle that an unfortunate result does not by itself establish negligence, he or she may request from the trial court an instruction, in the appropriate case, that an unfortunate result does not be itself establish negligence. There is no need to resort to the use of ambiguous and problematic phrases such as ‘error in judgment’ or ‘mistake in judgment.'”

Click here to read the majority Opinion.

Click here to read Chief Justice Castille’s dissenting Opinion.

Click here to read Just Saylor’s concurring and dissenting Opinion.

Click here to read Justice Eakin’s dissenting Opinion.

Delay Damages – In Roth v. Ross, the Superior Court ruled that Pa.R.Civ.P. 238 delay damages should be awarded on future medical expenses.

Click here to read the Opinion.

To receive our monthly newsletter summarizing Pennsylvania appellate decisions, click here.

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