Pennsylvania Case Law

Voter ID Decision – A Public Opinion Not Available to the Public?

Today, Commonwealth Court Judge Robert Simpson issued his long-awaited decision concerning Pennsylvania’s controversial legislation requiring voters to show identification before being able to vote. Specifically, Judge Simpson preliminarily enjoined the Commonwealth (and election officials) from requiring voters to show ID prior to being permitted to vote.

The decision, in Applewhite v. Commonwealth, is extremely important (regardless where you stand on the issue, particularly with the presidential election just weeks away (on November 6, 2012) and with Pennsylvania considered a crucial state in the battle for the White House. What is surprising is that the decision was issued as a “Memorandum Opinion” and “Opinion Not Reported,” which means that the decision has no precedential value. Perhaps the Court will reconsider and determine that the Opinion has precedential value.

Click here to read the decision.

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Comments About the May Appellate Decisions Newsletter

I have received two interesting points about cases in my newsletter. Marc Jacobs of Galfand Berger rightly notes that in MV Transportation v. WCAB, the Court indicated that an employer could file one utilization review petition for multiple physical therapists if the UR request names the doctor prescribing the physical therapy for review and not the physical therapists.

In addition, J. Brendan O’Brien of OBrien, Rulis, & Bochicchio, LLC noted that in Stancell v. WCAB, the Court also upheld the termination of benefits because Claimant made no complaints about the injured body part when asked by the IME physician or in her testimony, and it was not addressed by her expert.

Thanks to Brendan and Marc for their comments. 

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Read the Latest Pennsylvania Appellate Decisions

Our periodic newsletter, “A Summary of Recent Appellate Decisions from Pennsylvania and Other Jurisdictions,” is now available, featuring summaries of important decisions from the Pennsylvania Supreme, Superior and Commonwealth Courts, as well as the U.S. Supreme and other federal courts. The newsletter focuses on decisions relating to civil procedure, causes of action, automobile law and workers’ compensation, with a variety of other cases, etc. to review. Click here to read the newsletter.  To subscribe to the newsletter, click here to send an email.

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Pa. Supreme Issues Mixed Decision on Workers’ Compensation Offsets

The Pennsylvania Supreme Court has affirmed in Commonwealth v. WCAB (Harvey), No. 14 EAP 2009 (April 29, 2010), that the use of actuarial data to calculate pension offsets for injured employees who also receive pension benefits from a defined benefit plan is permissible. Affirming the Commonwealth Court, Justice Saylor held that “actuarial assumptions and calculations may form the basis for a reasoned determination of the employer-funded component of a defined-benefit plan.” (emphasis supplied). In essence, the Court affirmed the procedure that has been used by the Commonwealth and others for many years to calculate these offsets, but the Court also affirmed the “practical necessity of expert opinion testimony in matters [such as this].”

As co-counsel for the injured worker, with Attorney Marla Joseph, I am disappointed that the Court did not require the use of specific calculations when, as in a case such as this, the numbers were available. But, by not foreclosing a claimant’s ability to challenge the calculations and the assumptions underlying them, injured workers will now have to employ actuaries to establish when improper and inaccurate calculations form the basis for a claimed offset — the Court stated: “Finally, we acknowledge Claimant’s concern with burden shifting, but, at least as a practical matter, some burden of going forward with contrary evidence generally ensues after a party bearing the initial burden puts forward a credible prima facie case.”

To read Harvey, click here.

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Supreme Court Denies Allocatur – Affirming Our Commonwealth Court Victory in Amodei

On March 30, 2010, the Pennsylvania Supreme Court declined to hear the employer’s appeal in Philadelphia Gas Works v. Workers’ Compensation Appeal Board (Amodei), which means that the en banc (full court) decision of the Commonwealth Court has been affirmed and is the law of Pennsylvania. In Amodei,  the Commonwealth Court ruled that, when an employer seeks an offset from workers’ compensation benefits for pension benefits paid to a claimant, the offset must be calculated based upon the net amount of the benefits received by the employee. This unanimous decision effectively overruled Steinmetz v. Workers’ Compensation Appeal Board (Cooper Power Systems), 858 A.2d 182 (Pa.Cmwlth. 2004). Our office represented the claimant, John Amodei, in Philadelphia Gas Works v. Workers’ Compensation Appeal Board (Amodei), No. 350 C.D. 2008 (Pa.Cmwlth., February 4, 2009). In fact, we were retained by the claimant specifically to handle his appeal in this case, which applies to all pension offsets asserted against injured workers’ benefits and will eliminate the inequity that resulted when injured workers’ benefits were reduced by the gross amount of their pensions rather than the net.

Of note, following the Amodei decision, we were retained and serve as co-counsel with Marla Joseph, Esquire in Commonwealth v. Workers’ Compensation Appeal Board (Harvey), another workers’ compensation/pension offset case. We are awaiting the Supreme Court’s decision in this case, which addresses how pension offsets are calculated for workers in defined benefit plans. In Harvey,  the Commonwealth Court ruled against the injured worker and we were able to convince the Pennsylvania Supreme Court to hear the case (it denied requests to do so many times before). This is another example among many of cases in which we represented a successful party on appeal, were specially retained to handle an appeal, or otherwise were consulted as appellate counsel. Most notably, in McElheney v. Workers’ Compensation Appeal Board (Kvaerner Phila. Shipyard), 940 A.2d 351 (Pa. 2008),  we authored the injured worker’s brief with counsel, Steiner, Segal, Muller & Donan. In McElheney, the Supreme Court of Pennsylvania held that a worker injured while on a ship in a graven dry dock was not injured upon the “navigable waters of the United States,” and was therefore entitled to benefits under boththe federal Longshore and Harbor Workers’ Compensation Act and the Pennsylvania Workers’ Compensation Act. The Court ruled that the graven dry dock, which by definition was cut and dug out of the land, was not within the limits of the navigable waters of the United States.

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Commonwealth Court Pension Decision – We’re Heading to the Pennsylvania Supreme Court

 

Our office represented the claimant, John Amodei, in Philadelphia Gas Works v. Workers’ Compensation Appeal Board (Amodei), No. 350 C.D. 2008 (Pa.Cmwlth., February 4, 2009), in which the Commonwealth Court ruled that, when an employer seeks an offset from workers’ compensation benefits for pension benefits paid to a claimant, the offset must be calculated based upon the net amount of the benefits received by the employee. This unanimous decision by an en banc panel of the Commonwealth Court effectively overruled Steinmetz v. Workers’ Compensation Appeal Board (Cooper Power Systems), 858 A.2d 182 (Pa.Cmwlth. 2004), as noted in one of the two concurring opinions. This decision applies to all pension offsets asserted against injured workers’ benefits and will eliminate the inequity that resulted when injured workers’ benefits were reduced by the gross amount of their pensions rather than the net.The employer, Philadelphia Gas Works, has filed a Petition with the Pennsylvania Supreme Court requesting that the Court hear the case and, presumably, reverse. Our office, which regularly handles appeals, has opposed the request. We will have to wait and see whether the Supreme Court will determine that the issues presented are of sufficient signficance for the Court to hear the case. 

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Pa. Supreme Court Punts

With the Super Bowl just moments away, it seems fitting that the Pennsylvania Supreme Court “punted” rather than decide an issue of importance to all attorneys who handle medical malpractice cases in the state. On January 28, 2009, just a few days before the big game, the Court issued its long-awaited decision in Gbur v. Golio, No. 23 WAP 2008. The issue before the Court was one of great importance: interpretation of the MCARE Act’s same-subspecialty requirement as it relates to the admission of expert testimony to establish the standard of care in a medical malpractice action. The result – a divided Court (3 to 3 with Justice McCafferty not participating), affirmed the trial court and Superior Court. The reasoning – there’s the rub.

Justices Saylor, Eakin and Todd affirmed, holding that the issue before the Court had not been properly preserved. On the other hand, Justice Greenspan issued a concurring Opinion, joined by Chief Justice Castille and Justice Baer, concluding that the issue had been preserved and arguing that the expert physician was eligible for a waiver of the MCARE Act’s requirements under Section 512(c)(2) of the statute. Although it is not unreasonable to assume that at least one member of the Saylor-Eakin-Todd Justices would likely have voted to affirm – thus permitting the waiver here, such a conclusion remains conjecture.

If nothing else, the opinions are interesting, well-written, and will certainly generate more litigation and more appeals. They should also educate practitioners that they must be very careful when preserving issues, something lawyers who do not handle appeals tend to forget. And when they do, appellate lawyers (including moi) are left to create interesting arguments designed to put the preserved round peg into a tight-fitting square hole.

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A Georgia Case – HIPAA for Pa. Lawyers?

I have authored a newsletter primarily summarizing Pennsylvania appellate court decisions for over two decades. Every once in a while I include cases from other states. The January 2009 newsletter includes a Georgia Supreme Court case. Why?

The Georgia case, Moreland v. Austin, is important because it is one of the few cases addressing HIPAA ( the Health Insurance Portability and Accountability Act) in the context of personal injury/malpractice litigation. In Moreland, the Georgia Supreme Court ruled on November 3, 2008 that HIPAA’s Privacy Rule  precludes a defendant’s attorney from informally interviewing a plaintiff’s prior treating physicians in a medical malpractice action. The Court specifically found that “[a]fter reviewing HIPAA, Georgia law, and the case law of other jurisdictions … HIPAA preempts Georgia law with regard to ex parte communications between defense counsel and plaintiff’s prior treating physicians because HIPAA affords patients more control over their medical records when it comes to informal contacts between litigants and physicians.” This is a well-written opinion that has implications in litigation throughout the country, including Pennsylvania.

It’s safe to say that Georgia cases aren’t cited often in the Keystone State; Moreland may well be the exception. 

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Last Minute Surge in Appellate Decisions Unlikely

As the end of 2008 approaches, I harken back to prior years, when Justices were leaving the Pennsylvania Supreme Court (generally as the result of mandatory retirement). In each of those years, the Court would issue a flurry of decisions, presumably so that the departing Justice’s vote would “count.” Oddly, many of these December 31st opinions were not released until days (or weeks) into the new year, but always dated the 31st; the assumption among attorneys has traditionally been that the Court had agreed on the opinions but needed to “finish” their content. Regardless, for Court watchers, it was an interesting time. For me, as the author of a Newsletter analyzing appellate decisions, it was difficult to know when the Court’s calendar was “complete.” This year, with no Justices retiring, the Court has been relatively quiet, issuing its regular complement of decisions. That said, the Court’s docket (as well as the Commonwealth and Superior Court’s) is filled with interesting cases, many relevant to civil practitioners who handle motor vehicle, malpractice, products liability, workers’ compensation and other cases. 2009 should be an interesting year for court watchers. Time will tell.

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Greetings from Dan Siegel – Please Join in the Blog

Welcome to the Pennsylvania Law Blog, a service of the Havertown Law Offices of Daniel J. Siegel. The Pennsylvania Law Blog is designed to spur debate about issues confronting Pennsylvania legal practitioners, including case law, trends in the law, new or revised rules, ethics and professionalism. Please feel free to join in the discussion (no personal attacks, please) and to offer your views about Pennsylvania law.

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