Summer Issue 2005



Hutchinson v. Penske Truck Leasing Company - During a four week jury trial in December 2003, the plaintiff was permitted to enter into evidence various "studies" regarding truck "rollover" accidents in an effort to demonstrate that the truck he was operating at the time of the accident was defectively designed. Prior to the trial Bennett, Bricklin & Saltzburg LLP had filed on behalf of its client, Freightliner, a Motion in Limine to exclude evidence of those studies, contending that the plaintiff had made no effort to prove that the studies included the subject truck, or any truck at all manufactured by Freightliner. Nor was there any evidence that any of the "rollover" accidents were similar to the horrific, high speed rollover caused by the plaintiff. BBS asserted that the plaintiff had failed to prove the required pre-condition to admissibility, "substantial similarity" as required in a wide range of Pennsylvania cases.

After extensive argument, the trial judge denied Freightliner's motion and permitted evidence of the "studies" to be admitted at trial. The trial judge acknowledged that the subjects of the studies were not shown to be "substantially similar" to the accident at issue, but held that nonetheless the evidence was admissible on the issue of "Freightliner's state of mind".

Following admission of the evidence, the jury had awarded the plaintiff $5.5 million in compensatory damages and $10 million in punitive damages. On post-trial motions, the trial court struck the punitive damages award, but upheld the compensatory damage verdict. As a result, both parties appealed.

On appeal the Superior Court reversed the plaintiff's judgment stating:

"[B]y admitting the reports to show "state of mind" the trial court erred... "We stress that the proponent of the evidence bears the burden to establish the similarity between the other accidents and the accident at issue before the evidence is admitted."

The matter was sent back to the trial court for a new trial (although plaintiff's counsel intends to file a petition for rehearing en banc in the Superior Court).

The BB&S trial team was comprised of Bourne Ruthrauff, Dan Moraglia and Beth Carter. Ruthrauff also presented the oral argument before the Superior Court in February, 2005.

For further information, please contact Bourne Ruthrauff, Esquire.
Telephone: (215) 567-2883.





John Doe v. Nationwide Insurance Company - On June 28, 2003, Doe's Jaguar was stolen while parked on Chestnut Street in downtown Philadelphia. He made claim for the theft against Nationwide which referred the matter to its Special Investigations Unit when Doe initially reported that he still had all three keys to the Jaguar in his possession. (Shortly after the theft, Doe advised Nationwide that he had been mistaken and that one of the keys had been hidden in the car). During the course of its investigation, Nationwide began to develop evidence that Doe, who had purchased his policy through a Nationwide agent in 2002, had misrepresented his address at that time. Nationwide's agent reported that Doe had advised her that he had at least a part-time if not full time residence at his brother's home in Phoenixville, Pennsylvania. Nationwide's investigation suggested strongly that Doe was actually living full-time in Mullica Hill, New Jersey with his fiancé and child when the policy was purchased and at the time of the theft. As an example, neighbors in the Phoenixville area who were interviewed had never seen Mr. doe nor his silver Jaguar, while neighbors in Mullica Hill were well aware of him.

While Nationwide was investigating the issue, Doe instituted suit against both Nationwide and the agent making claim under the insurance contract and for punitive damages under Pennsylvania's bad faith statute. The institution of suit permitted Nationwide to subpoena Doe's cell phone records from Verizon wireless for the period beginning six months before the purchase of the policy until several months after the theft. When those records were obtained, they demonstrated that of approximately 22,000 calls made by Doe on his cell phone during that twenty month period, a total of eight of them had been made from the Phoenixville vicinity. Moreover, four of the eight were made on Thanksgiving Day, 2002, and (for those familiar with metropolitan Philadelphia geography) were then followed by calls from Oaks, Valley Forge, Conshohocken, Bala-Cynwyd and Philadelphia before finishing that evening with a call from – Mullica Hill.

Doe insisted on taking the matter to trial, contending that he had advised the Nationwide agent that he would be going back and forth to New Jersey. He contended that he had no motive to fabricate an address as his policy premiums were basically the same in Mullica Hill and Phoenixville. He also relied upon Pennsylvania case law which requires an insurer attempting to rescind a policy to demonstrate that the fraud upon which the rescission is based could not have been discovered by it within sixty days of the issuance of the policy. After the agent was dismissed from the case, trial proceeded in the United State District Court in Philadelphia before Judge Norma Shapiro. Following four days of trial, a jury concluded that Doe had misrepresented his address, that Nationwide had relied on the misrepresentation, that the misrepresentation was material to the issuance of the policy (Nationwide is not licensed to write insurance in New Jersey) and that Nationwide could not reasonably have discovered the fraud within sixty days of the policy's issuance. Accordingly, judgment was entered for Nationwide on the contract claim and the bad faith claims were dismissed.

For further information, please contact Louis E. Bricklin, Esquire. 
Telephone: (215) 665-3400.





Holtzman v. World Book - We reported some time ago on proceedings in the United States District Court for the Eastern District of Pennsylvania in plaintiff's Title VII and Pennsylvania Human Relations Act (PHRA) case. Ms. Holtzman had filed suit alleging employment discrimination; she claimed that men were favored over women for management positions and that she was deprived of such a position because of her gender. The Federal Court, finding that Holtzman had not been an employee of World Book at the time of the alleged discrimination, had entered summary judgment in favor of World Book on the Title VII claim, and dismissed the state law claim under the PHRA without prejudice.

Since our last report, Holtzman filed suit under the PHRA in the Court of Common Pleas of Bucks County. That Court also granted summary judgment in favor of defendant; Holtzman appealed to the Superior Court. The Superior Court held that plaintiff, having already litigated the issue of her employment status in Federal Court, was barred by the doctrine of issue preclusion or collateral estoppel from re-litigating that issue in state court. The Federal Court had held that Holtzman was merely an independent contractor to a company which in turn was an independent contractor to World Book; she was bound by that finding even in state court.

Even without issue preclusion, the Superior Court held that Holtzman could not have recovered under the PHRA, as her status as an independent contractor to an independent contractor to World Book did not afford her the protections of that Act. Although the PHRA was amended in the early 1990's to expand its protections to certain "independent contractors," it nevertheless would not have protected Ms. Holtzman as she was not World Book's independent contractor or its employee.

For further information, please contact Moira Clare Duggan, Esquire.
Telephone: (215) 665-3305





Martin v. Schlenker – This case was first reported in the Summer 2003 newsletter. The case involved a low speed, minor impact rear-end collision, with the plaintiff claiming serious injuries as a result. Plaintiff's physician opined, on direct examination, that plaintiff sustained a herniated cervical disc, that required surgery. Plaintiff sought to recover out-of-pocket medical expenses, future medical expenses, future lost wages and disfigurement relating to the surgery together with past, present, and future pain and suffering.

BB&S raised numerous issues at trial to rebut the claims of serious injury, including the facts that the plaintiff did not seek medical assistance on the date of the accident, she had never had her vehicle fixed, and was still driving the vehicle at the time of trial. In addition, plaintiff had never missed a day from work from the time of the accident until the date of trial. Further, while the physician to whom her attorney had referred her was suggesting surgery, there were no complaints of neck or back pain in the records of her family physician.

Last, defense counsel was able to get the surgeon to concede that it was possible certain portions of the plaintiff's treatment were solely for litigation purposes. The records reflected that the plaintiff seemed to return for treatment coincident with important stages of the litigation - right after her deposition, after the surgeon's records were subpoenaed, and three days before the surgeon's videotaped deposition. There were gaps as long as 20 months between some of these visits.

The jury awarded plaintiff $5,200 for her out-of-pocket medical expenses, but nothing for pain and suffering. The plaintiff appealed, claiming an inconsistent verdict. Oral argument was held before the Superior Court of Pennsylvania in October of 2004. The Court issued a memorandum opinion on June 9, 2005 upholding the verdict and denying the motion for a new trial on damages. In so doing, the Court noted the lack of property damage to the vehicles, the lack of immediate medical treatment, and the fact the family physician records had no mention of pain related to the incident. Further, the Court noted that the plaintiff received minimal treatment at "suspect intervals" and that her physician had conceded that the visits could have been related to litigation. Plaintiffs had not sought reconsideration or filed for review by the Supreme Court of Pennsylvania at the time of this newsletter.

For further information, please contact Kevin M. Blake, Esquire.
Telephone: (267) 654-1104





Condran v. Comcast et al. – During the afternoon of July 20, 2001, plaintiff stopped for a stop sign at Silver Spring Road in West Hempfield Township intending to turn left. Silver Spring forms a "T" intersection with Marietta Avenue, an east-west road with one travel lane in each direction. To the plaintiff's left was a retail pet supply business operated by the client of BB&S. Parked in front of the store, on Marietta Avenue was a tractor trailer, owned and operated by one of the other defendants, which was making a delivery to the pet supply store. After stopping, plaintiff pulled into the intersection and immediately was struck on the driver's side door by a truck traveling from plaintiff's left, owned and operated by the third defendant. As a result of a significant impact, plaintiff sustained multiple serious injuries. Although plaintiff made a remarkable recovery from many of his injuries, his chief continuing complaints at trial included double vision, partial hearing loss, a facial palsy, hypersensitivity, decreased strength, and various cognitive difficulties. Plaintiff's medical expenses amounted to approximately $250,000.00 and his vocational consultant projected an income loss in the range of one million dollars. At a mediation prior to trial, plaintiff's settlement demand was 2.5 million dollars.

The trial of this matter was bifurcated before the Honorable David L. Ashworth. Plaintiff had complete amnesia regarding the circumstances of the accident, having no memory for a period beginning a few days before the accident until three or four weeks after it. Through testimony of an expert and numerous witnesses, plaintiff contended that the tractor trailer which was parked to his left obstructed his sight line for vehicles coming from that direction. He also contended that the truck which struck his car was speeding, and that its operator, who had been traveling west, was additionally negligent by swerving to his left to avoid the accident, resulting in the impact occurring in the eastbound lane.

In addition, raising a novel legal argument under Pennsylvania law, plaintiff contended that the area where the tractor trailer was parked was possessed and controlled by the pet supply store. There was evidence that the operator of the store as well as several employees instructed drivers, including the driver who parked on Marietta Avenue at the time of the accident, to park in the lot.

BB&S argued that the pet supply store did not possess or control the area where the tractor trailer parked. As to the plaintiff's contention that because of the obstruction, he had to place himself in a position of danger, to see if any vehicles were coming, BB&S argued that the evidence was insufficient to establish that by inching forward, plaintiff could not have improved his sight line distance enough to know when it was safe to enter the intersection. In fact, BB&S contended that the evidence was consistent with the plaintiff seeing the oncoming truck and incorrectly concluding he had enough time to enter the intersection and make his left turn to travel east on Marietta Avenue.

After a one week trial, the jury deliberated approximately two and one-half hours before delivering a verdict in favor of all defendants. Post-verdict juror comments suggested that they did not feel that there was a basis for liability on the part of the pet supply store, and that they did not believe the evidence established that plaintiff had to enter the intersection and place himself in a position of danger in order to ascertain if it was safe for him to pull out.

The case was tried in Lancaster County's "technology courtroom." The judge, attorneys, jurors and the testifying witness each had monitors and in addition, there was a large screen monitor behind the witness's chair. Witnesses were able to make arrows and draw on photographs and diagrams, allowing the jurors to see instantaneously to what the witnesses referred. In a case where locations of buildings, individuals and vehicles figured prominently in the testimony of the fact and expert witnesses, and where animations recreating the accident were used, the courtroom's features played an important role in helping the jury better understand the fact testimony and expert contentions.

For further information, please contact Paul F. Lantieri, Esquire.
Telephone: (215) 665-3301






Estate of William Yurecka v. Jeffrey Piccioni-Zappala - On Sunday, May 12, 2002, Plaintiffs' decedent, WilliamYurecka, was operating his minivan northbound on the Pennsylvania Turnpike when he stopped to see whether he could render assistance in the form of "first aid" to the occupants of another vehicle that he observed off the highway on its roof. After parking his vehicle on the eastern shoulder of the northbound lanes, Mr. Yurecka and his wife Marie exited their vehicle and started toward the overturned vehicle.

Before the Yureckas reached the Zappalas' overturned vehicle, both Mr. and Mrs. Zappala had already exited their vehicle and were walking under their own power and without assistance towards the roadside where the Yureckas' vehicle and other vehicles had parked.

Before reaching the side of the highway, the Zappalas met the Yureckas who asked them whether they were injured. Both Mr. and Mrs. Zappala responded that they were okay. During her deposition, Marie Yurecka testified that neither Zappala appeared injured and that she had determined that the Zappalas were not in any imminent danger once she was able to talk to them and observe that they did not appear injured.

After advising the Yureckas that they were alright, Mr. and Mrs. Zappala accompanied the Yureckas to their parked vehicle where they waited for the police to arrive. The Yureckas allowed the Zappalas to wait under the rear hatch of their mini-van as it was "torrentially raining". The Zappalas were also given blankets by the Yureckas as both were soaked from the heavy rain.

As the Zappalas sat and/or stood at the rear of the Yureckas' minivan, another northbound vehicle, this one operated by Ronald M. Rockwell, went out of control and struck William J. Yurecka who had been standing at or near the left rear corner of his minivan on the shoulder of the road. Mr. Yurecka was killed by the impact.

After settling their claim against Rockwell, Mrs. Yurecka and her children commenced an action in the Court of Common Pleas seeking damages from the Zappalas for wrongful death and negligent infliction of emotional distress. The Yureckas invoked the "rescue doctrine," (danger invites rescue), contending that but for Mr. Zappala's original negligence and his need to be rescued from the result of it, Mr. Yurecka would never have been at the side of the highway and, therefore, never killed.

Representing the Zappalas, BB&S removed the matter to Federal Court and filed a motion for summary judgment. The motion was granted by the court which found that the rescue doctrine was not applicable given the facts of this case. Under the doctrine, the situation necessitating the rescue must warrant a reasonable belief that the peril facing the object of the rescue was urgent and imminent. If the rescuer has knowledge that the victim's condition is stable, requiring only medical attention, then there is no reasonable belief of continued peril and the doctrine does not apply.

Applying what the judge referred to as Pennsylvania's "narrow interpretation" of the doctrine to the facts of this case, the court held that the doctrine did not apply because the imminent peril had ceased prior to the accident that caused Mr. Yurecka's death. Accordingly, it was determined that any negligence on the part of the Zappalas in losing control of their vehicle was not a proximate cause of Mr. Yurecka's death. The case is presently on appeal to the United States Court of Appeals.

For further information, please contact Larry Berger, Esquire
Telephone: (215) 665-3316





Bennett, Bricklin & Saltzburg LLP is pleased to announce that effective July 1, 2005, we have combined our practice with Wagman, Kreider & Wright, of Lancaster, Pennsylvania.

Joining us, as of July 1, 2005, are three attorneys, Mike Wagman and Jeff Wright (as partners), and Jeff Ouellet (as an associate), and their staff. The practice of Wagman, Kreider & Wright will be merged with our own central Pennsylvania office, managed by Paul Lantieri. The firm's Lancaster office will locate in the offices which had been occupied by Wagman, Kreider & Wright located near Lancaster's courthouse. We anticipate that move will be completed during the early fall.

We feel very fortunate to be gaining three experienced and well respected attorneys. Mike Wagman founded WKOW, along with David L. Ashworth, in 1983. In 1989, the firm became Wagman, Ashworth & Kreider when David A. Kreider became a partner. Jeff Wright joined the firm as a partner in 1993. In January 2000, David L. Ashworth became a judge of the Lancaster County Court of Common Pleas and the partnership became Wagman, Kreider & Wright.

Mike Wagman is a native of York, Pennsylvania and entered law school following his discharge from the Air Force. He has been a member of the Bar since 1978, cleared for the United States District Court and has had an extensive litigation practice in various counties in Pennsylvania and in the federal courts.

Jeff Wright joined the Bar in 1984. He has tried a wide variety of civil cases in most of the counties in central Pennsylvania. His particular speciality has been the Motor Vehicle Financial Responsibility Law. Jeff has handled UM and UIM cases on a state-wide basis as well as various coverage issues in the state and federal courts.

Jeff Ouellet has been a member of the Bar since 1997, following his graduation from Washington & Lee School of Law where he was a member of the Law Review. After working for a Harrisburg firm from 1997 to 2001, and operating his own practice for two years, Jeff joined Wagman, Kreider & Wright in the fall of 2003. In addition to maintaining an insurance defense practice, Jeff has developed expertise in the area of sports law and is chairperson of the Pennsylvania Bar Association's Sports, Entertainment and Art Law Committee. He has given presentations on numerous sports related legal topics.

All three attorneys are active in various community and regional organizations. Jeff Wright has been on the board of directors of the Red Rose Transit Authority since 1989.

We believe that the addition of these fine lawyers will help us better serve our clients' needs throughout the state and in particular in central Pennsylvania.


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