Fall 2006

 

TRYING TO PLAY ON THE "HOMECOURT" - SECTION 1404(A) MOTIONS IN FEDERAL COURT Every litigator knows that the outcome of litigation is often influenced by the location where the case is heard. Rules of procedure give plaintiffs great latitude in selecting a forum for their suits, but that choice is not without bounds as revealed by the two cases discussed below. Both involved motions to transfer cases pending in the United States District Court for the Eastern District of Pennsylvania and both invoked the provisions of a federal statute, 28 U.S.C. section 1404(a) to accomplish the desired result. In Toll Brothers, Inc. v. Nationwide Mutual Ins. Co., Toll instituted suit against Nationwide after the insurance company failed to defend Toll in a lawsuit that had been started against it in a state court in Ohio. Toll had constructed a housing project near Columbus. When a pipe broke and flooded a recently-built home, the purchasers brought suit against Toll for negligence and fraud. The plumbing in the house had been installed by a plumbing contractor insured by Nationwide. Toll demanded that Nationwide defend it in the homeowners’ suit pursuant to an indemnity agreement in effect between Toll and its contractor and pursuant to a clause in the Nationwide policy which identified Toll as an additional insured under certain circumstances. When Nationwide refused to defend, Toll settled with the homeowners and then sued Nationwide for the amount of the settlement. Not surprisingly, though the Nationwide policy was issued in Ohio to an Ohio plumbing contractor for work surrounding an Ohio construction project and Nationwide handled the claim from its Columbus offices, Toll chose to bring suit in federal court in Philadelphia near its corporate headquarters in Bucks County. Section 1404(a) permits a federal court to transfer a case to another district in which it could have been instituted "for the convenience of the parties and the witnesses". Decisions interpreting the statute have concluded that courts should consider not only convenience but, also, concerns such as where the disputed transaction occurred, which state’s law is likely to apply, which court is likely to be most familiar with the law which will apply and where documents relevant to the transaction can be easily obtained.  Upon motion by Nationwide, and applying those criteria, Judge Thomas O’Neill ordered Toll’s lawsuit transferred to a federal district court in Ohio. Similarly, in Akins v. Radiator Specialty Co., plaintiff brought suit in federal court in Philadelphia against Radiator Specialty and United States Steel. The suit contended that plaintiff’s husband’s death was caused by benzene present in a product sold by Radiator Specialty, the benzene component of which was supplied by United States Steel. Investigation revealed that the decedent had used the product in question when he lived in the Altoona area, that he had never lived in eastern Pennsylvania and that the product had been purchased on all occasions in the Altoona vicinity. In addition, none of plaintiff's medical care was obtained in eastern Pennsylvania. United States Steel moved for a transfer of venue under section 1404(a) requesting that the case be moved to federal court in Pittsburgh, a judicial district which encompasses Altoona and which also happens to be the location of United States Steel’s headquarters. Judge Timothy Savage granted the motion. In doing so, he specifically rejected the plaintiff’s contention that because of United States Steel’s wealth, it could not credibly argue that it would be inconvenient for it to present witnesses in Philadelphia. Further information about the Toll case can be obtained from Louis E. Bricklin, (215) 665-3400, or Jordan Koko, (215) 665-3382. Further information about Akins can be obtained from Paul Lantieri, (215) 665-3301. Back to Top DEFENSE AWARD FOR SELLERBALLEGED FRAUD IN SALE OF CONDOMINIUM Doe v. Tayal - Doe, an attorney, and his wife, claimed that seller Mr. Tayal committed fraud by failing to disclose leaks in the master bedroom and the kitchen of a condominium he sold to them in October, 2003.  Plaintiffs’ claims included property damage, anxiety suffered by Mr. Doe and mold-related sinus allergies caused by the leaks.  They also claimed a $60,000 decrease in property value. Plaintiffs had viewed the condo at least twice before signing the Agreement of Sale.  On neither occasion did they speak with Mr. Tayal. Defendant argued that he did disclose the bedroom leak in the Seller's Property Disclosure Statement in the "Roof" section where he wrote: "leak fixed- room to be repainted- leak from deck", and plaintiffs received that prior to signing the Agreement of Sale and admitted in depositions and at the arbitration that they knew the leak referred to was in the master bedroom.  In addition, the Agreement of Sale provided (1) for a home inspection; (2) that it was the whole agreement of the parties; (3) that the buyers were purchasing the property in its present condition; and (4) that the buyers released the seller from all claims relating to any defects in the property. Finally, there was no evidence of leaks in the kitchen while Mr. Tayal owned the home. Plaintiffs did not ask their broker or Mr. Tayal for additional information about the leak, nor did they bring the leak to the attention of their own home inspector whose report states that: "The roof and exterior were not inspected at the request of the client."  In real estate transactions, fraud arises when a seller makes a knowing misrepresentation.  To prove fraud, plaintiff must demonstrate by clear and convincing evidence: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. Under the above clear language of the Disclosure Statement and the Agreement of Sale, defendant successfully argued that the plaintiffs expressly disclaimed the existence of the representation concerning the leak which they now argued induced them to purchase the property. There was no contention by plaintiffs that they did not understand the meaning of the provisions of the Agreement of Sale, or that they attempted to negotiate alterations to the Agreement. For further information, please contact Victoria M. Komarnicki, Esquire at (215) 665-3303. Back to Top ACTION WITHDRAWN IN FACE OF DEAD MAN'S STATUTE DEFENSE Goltman v. The Estate of Angel Vargas - Plaintiff alleged injuries, including a lumbar disc herniation, as a result of a head-on motor vehicle collision with the defendant’s vehicle. Liability was disputed because there was a question as to which vehicle crossed the center line of the roadway. Several months after the accident, the defendant died from causes unrelated to the accident. His estate and executor were named as the defendant in a subsequent lawsuit. In New Matter, the Estate raised the Dead Man’s defense pursuant to 42 Pa.C.S.A. 5930: "In any civil action or proceeding, wherein a party to a thing or contract in action is dead and his right thereto or therein has passed ... to a party on the record who represents his interest in the subject in controversy, neither any surviving or remaining party to such thing or contract, nor any other person whose interests shall be adverse to the said right of said deceased ... shall be a competent witness to any matter occurring before the death of said party." The defense is waived if the party raising it initiates discovery against the other litigant(s). In this matter, the plaintiff’s interests were clearly adverse to those of the decedent and he was therefore precluded from testifying as to his version of the accident. Plaintiff was unable to locate any independent witnesses to testify as to the circumstances of the accident. His attorney repeatedly sought settlement, but no offer was made. On the eve of arbitration, and after the statute of limitations had passed, plaintiff’s counsel withdrew the case with prejudice. For further information, please contact Charles J. Lanzalotti, Esquire at (215) 665-3365. Back to Top SUMMARY JUDGMENT - SLIP AND FALL Dowdall v. Costco - Plaintiff alleged that she fell as a result of a slippery substance on the floor at Costco Store. She and her husband had walked through a number of aisles that day, and entered one containing shampoo, soap, conditioner and oils. Both plaintiff and her husband walked halfway through the aisle without incident but, plaintiff suddenly fell as she walked with her husband to her right and their cart ahead of her. She did not see anything on the floor before she fell. After the fall, plaintiff observed a thick purple substance which she described as soap or conditioner covering an area two to three feet wide. There were no broken containers or any indication of where the liquid originated. No one saw any footprints in the substance although marks from a shopping cart through the side of the spill area were observed. A Costco employee testified that he believed the tracks were from the shopping cart being pushed by plaintiff’s husband. A floor walk sheet prepared by a Costco employee demonstrated that the area was clear twenty minutes earlier. In order to hold Costco responsible under Pennsylvania law, plaintiff had to demonstrate that the spill was caused by Costco or that Costco had actual or constructive notice that the spill existed. Constructive notice can be established by showing that the spill had been present for such a length of time that in the exercise of reasonable care it should have been discovered. Since Costco did not create the spill, nor have actual notice of it, plaintiff had to establish that Costco had constructive notice of the spill in sufficient time to correct the condition. Using the floor walk sheet and deposition testimony of the plaintiff and the Costco employee, Costco was able to convince the court that there was no evidence of notice, either actual or constructive, sufficient to place responsibility on the defendant. Summary judgment was granted and plaintiff’s complaint dismissed with prejudice. For further information, please contact Warren Sperling at 215-665-3334 Back to Top JURY TRIAL - DEFENSE VERDICT Elwell v. Maidenhelder - Plaintiff and defendant were involved in a motor vehicle collision on northbound Delaware Avenue in Philadelphia, Pennsylvania. The parties each disputed the extent of the damage to plaintiff’s vehicle as well as defendant’s speed at impact. Photographs were never taken of plaintiff’s vehicle after the collision, although photographs of defendant’s vehicle showed no discernible damage. Plaintiff was examined and released from the emergency room on the date of the incident. He alleged that he then had treatment with a physical therapy center for approximately six months as well as one visit with a neurologist in Bala Cynwyd. He testified that he missed four to five days from work and that his injuries completely resolved approximately nine months after the collision, at the end of his treatment. Defense counsel took the fact deposition of the physician who allegedly signed the plaintiff’s treatment notes at the physical therapy center. At the deposition, the physician refused to authenticate his signature on any of the treatment notes. Instead, he declined to answer questions pursuant to the rights afforded to him by the 5th Amendment of the United States Constitution and the Pennsylvania State Constitution. Prior to arbitration, counsel for the defendant argued that the records from the physical therapy center could not be considered since they could no longer be considered self-authenticating under Pennsylvania Rule of Civil Procedure 1305(b)(3). That Rule states, in effect, that records are admissible at arbitration to the extent that a records custodian could authenticate said records. The Philadelphia arbitration panel denied the objection to the records and awarded $15,000. Defendant appealed. Judge George Overton of the Court of Common Pleas of Philadelphia presided over a jury trial. Plaintiff had filed his Notice of Intention to Proceed to Trial under Rule of Civil Procedure 1311.1, which would allow the plaintiff to submit medical evidence without medical testimony and using the disputed records to support the claim. Defense counsel renewed the objection to the physical therapy records based on the physician’s refusal to authenticate them. Judge Overton agreed and plaintiff was precluded at trial from submitting any of the physical therapy records as well as any reports purportedly generated by the physician. After a two day trial, the jury found in favor of the defendant, holding that defendant’s negligence was not a factual cause of the plaintiff’s alleged injuries. For more information, please contact Kevin M. Blake, Esquire at (267) 654-1104. Back to Top SUPERIOR COURT OF PENNSYLVANIA UPHOLDS DEFENSE VERDICT IN A CASE INVOLVING AN ALLEGED ROAD RAGE Casale v. Rental World – Suit arose out of an incident which occurred on February 14, 2002 in Upper Dublin, Pennsylvania. Defendant was operating a work truck and traveling on Limekiln Pike when a minivan pulled out of a parking lot, cutting off defendant’s vehicle and causing him to apply his brakes in order to avoid striking the plaintiff. Defendant admitted that he honked his horn and made obscene gestures to the driver of the minivan. Plaintiff and her adult sister, who was riding in the front passenger’s seat of her car, admitted to making obscene gestures in return. Events escalated and after defendant cursed at the women, plaintiff’s sister rolled her window down to curse back and then threw a cup of coffee in defendant’s face. Defendant got out of his vehicle, reached into plaintiff’s car, grabbed a container of fast food soda from the sister and splashed the liquid on her lap. Plaintiff contended that defendant actually had the entire top half of his body inside their car and was thrashing about while throwing food and soda. Having completed his rant, defendant returned to his work vehicle as plaintiff put her car into gear and drove forward into the side of his truck, barely missing him. He then entered his truck and attempted to drive in reverse in order to separate the vehicles. As this occurred, plaintiff exited her vehicle and started to scream for help. Several construction workers who had been in the vicinity pulled defendant from his vehicle and held him until the police arrived. Despite protesting that plaintiff had driven into his vehicle, defendant was charged and convicted of careless driving and harassment. Plaintiff filed suit against defendant, alleging serious physical and psychological injuries as a result of the incident. The physical injuries allegedly occurred during the impact that occurred when plaintiff drove her vehicle into the side of defendant’s vehicle (she indicated that she was attempted to flee for help). The psychological injury was said to be post-traumatic stress disorder. Plaintiff’s treating doctor was Dr. Winegrad who saw her for a total of seven times between February and may 2002 with one additional visit in 2003. She attempted to have Dr Winegrad qualified as an expert in counseling and post-traumatic stress disorder but, after voir dire, the trial court found Dr. Winegrad unqualified to testify about psychological injuries or any treatment related thereto. Plaintiff also provided testimony from Ronald E. Coleman, Ph.D. Dr. Coleman saw her on eight occasions for counseling between February and April of 2002, with an additional visit in October 2004 for the sole purpose of updating the doctor’s testimony at trial. Robert Toborwsky, M.D., Ph.D. who had performed an independent psychiatric examination of the appellant/plaintiff, testified on behalf of the defendant. After the interview and having reviewed extensive records, Dr. Toborwsky, came to the conclusion that there was no objective evidence of a serious psychiatric injury. While he initially stated that appellant received reasonable treatment from Dr. Coleman, he noted at trial that his opinion had been based on the history given to him. After reviewing treatment records of her therapist, Barry Lessin, he noted that that Mr. Lessin felt that the anxiety she exhibited was caused by something other than the accident at issue. After a three day jury trial in the Court of Common Pleas of Montgomery County, a jury found in favor of the defendant, stating that his negligence was not a factual cause of plaintiff’s alleged harm. Since there was also a counterclaim for property damage, the jury nonetheless required to make a determination on the issue of liability. The jury found plaintiff to be 65% at fault, defendant 35%. Plaintiff filed post-trial motions and appealed from the order denying these. The Superior Court of Pennsylvania, in a memorandum, upheld the court’s decision. For more information, please contact Kevin M. Blake, Esquire at (267) 654-1104, blake @bbs-law.com. Back to Top FIRM NEWS OUR FIRM IS GROWING! In the last several months the firm has attracted and hired a number of new associates, and we now number 41 attorneys.