WINTER ISSUE 2008

Summary Judgment Granted where Plaintiff Could Not Prove Negligence.

The plaintiff, who was operating a motor vehicle, was injured when a second automobile slid on ice and snow through an intersection controlled by a stop sign. The road controlled by the stop sign was owned by a homeowners association. Plaintiff argued that the association and its management company were negligent for failing to clear the road before the accident. The management company moved for summary judgment, arguing that the plaintiff could not prove negligence on its part.

The proven facts were that it began snowing at 4:00 a.m. and the accident occurred at 7:30 a.m. It was known that the management company called the snow removal company, but it was not known what time snow began to accumulate, what time the call was made to the snow removal company, or what time snow removal commenced. The management company argued that if the missing facts were known, plaintiff could perhaps argue that there was a deviation from some standard of conduct. However, without knowing when snow began to accumulate, when the roads became slippery, and when a call was placed to the snow removal company, there was no way to prove a deviation from a
reasonable standard of care.

The court agreed, holding that there was a lack of proof as to essential facts. The plaintiff was unable to show how long the ice or snow condition was present and, therefore, could not show that the management company had sufficient time to remove the snow. Thus, the plaintiff could not show a lack of reasonable care, and summary judgment was entered.
Susan DiDanielle vs. Mark Blankley, Superior Court of New Jersey, Atlantic County, No. ATL-L-3911-04; Judge Steven P. Perskie.

For more information please contact Michael Dolich, Esq., at 215-665-3313 or dolich@bbs-law.com.

 

BB&S Current Events

Woman’s Day Luncheon
On October 29, 2007, Bennett Bricklin and Saltzburg LLP held its Women’s Day Luncheon at the Rittenhouse Hotel in Philadelphia. The keynote speaker, Debra Condren, Ph.D., who recently authored a book on women and ambition, discussed the inner turmoil women confront when dealing with work vs. family vs. self and self worth. Because the demands of ambition, employment, and family often cause women to place their health care on a back burner, Michele
Black of the Philadelphia Affiliate of Susan G. Komen for the Cure, and Robin Cohen of the Sandy Rollman Ovarian Cancer Foundation, Inc., spoke about how important it is for women to monitor their health. Because women often neglect themselves while focusing so much of their energy on taking care of others, Judi Little from Toppers Spa, and Brandon Gaber, an educator with the Dermal Institute in King of Prussia, reminded attendees of the importance of making themselves a priority in the face of the many other demands of their time. BBS thanks all who made the day such a success.

BB&S Welcomes Visitors
Bennett, Bricklin & Saltzburg, LLP, recently welcomed several young adults from the Boys and Girls Club of Camden County to the firm’s Philadelphia offices as part of a program developed and spearheaded by BBS associate Natalie Plummer. BBS instituted the program in order to contribute to the education and enrichment of area inner-city youth. The students met and discussed the legal profession with attorneys at the firm. They participated in a brown-bag lunch during which our attorneys spoke with them about issues involved in their current cases. Most exciting, the students observed a trial in progress and discussed the case with participating counsel.

 

Common Please Court Judge Grants Summary Judgement
in Favor of Decendent's Estate Based on Dead Man's Act

Plaintiffs, Veniamin and Sophia Lotosh, were involved in a motor vehicle collision with Martha McQuaid. Both husband and wife made claims for personal injury. Martha McQuaid died after the accident but before the commencement of suit, and Beverly Cummings was appointed her administratrix.

The decedent’s estate asserted that the plaintiffs’ claims were barred by the Dead Man’s Act, 42 Pa.C.S. §5930, which provides that one whose interests are adverse to the interests of a decedent is not a competent witness to any matter which occurred before the decedent’s death. In order for a witness to be disqualified from testifying under the Dead Man’s Act, the deceased must have had an actual right or interest in the matter at issue, the interest of the witness must be adverse, and the right of the deceased must have passed to a party of record who represents the deceased’s interests. An exception to the Dead Man’s Act exists if the decedent’s representative takes discovery.

The decedent’s estate did not engage in any discovery. An arbitration hearing was held on May 25, 2007. Realizing that neither plaintiff was competent to testify about how this accident occurred and possessing no other liability witness, plaintiff’s counsel attempted to avoid the rule by presenting no claim for damages for Veniamin and having him testify only about the circumstances of the accident. However, Veniamin did not formally withdraw his claim for damages. Counsel for the decedent’s estate objected to his testimony as being in violation of the Dead Man’s Act, but the arbitration panel overruled the objection. Sophia Lotosh testified as to her damages, only. Counsel for the decedent’s estate did not cross examine any parties at arbitration and did not offer any evidence or argument regarding negligence or damages. The arbitration panel awarded Veniamin Lotosh nothing, and Sophia Lotosh was awarded $15,000. The decedent’s estate filed an appeal.

During post-arbitration discovery, plaintiffs failed to offer the testimony of any disinterested witnesses regarding negligence. Veniamin Lotosh remained a party to the matter with a claim for alleged damages. Counsel for the decedent’s estate filed a motion for summary judgment citing the Dead Man’s Act. The defense argued that the plaintiffs could not meet their burden of proof regarding negligence because they had no testimony from a disinterested witness about the circumstances of the accident. After filing of the motion, plaintiff Veniamin Lotosh formally withdrew his claim for personal injury. Plaintiffs argued that since Veniamin was no longer a party, he could testify against the decedent’s estate on behalf of his wife.

Judge Jane Cutler Greenspan of the Philadelphia Court of Common Pleas entered an order granting the defendant’s motion and dismissing the complaint of the remaining plaintiff, Sophia Lotosh. Judge Greenspan held in her opinion that Veniamin’s testimony was barred by the Dead Man’s Act. She also opined that at the time of the arbitration hearing, Veniamin had an interest and claim adverse to the interests of the decedent. As such, it is highly likely that his testimony
was motivated by his adverse interest. An appeal was filed and is pending.

Veniamin and Sophia Lotosh v. Beverly Cummings, Administratrix for the Estate of Martha McQuaid. Phila CCP - Case No. 060901610; Judge Jane Cutler Greenspan.

For more information contact Charles Lanzalotti, Esq., at 215-665-3365 or lanzalotti@bbs-law.com.

 

Defense Verdict in Products Liability Trial

Plaintiff, Andrew Buchko, age 34, was injured on August 21, 2002, when he slipped while climbing down from a Heil dump truck body at the Tillcon Quarry in Millington, NJ. Plaintiff’s employer, Silagy Landscaping, bought the truck from our client, International Trucks of Central Jersey (ITCJ). Plaintiff said the truck had been improperly loaded and that a piece of stone obstructed the tarp mechanism and prevented the tarp from covering the load. He climbed up the side of the truck to remedy the problem and slipped while getting back down. Plaintiff testified that he had done this
many times and knew it presented a substantial risk.

Plaintiff sustained bilateral rotator cuff tears which required three operations on each shoulder. Plaintiff’s medical bills were more than $130,000 and wage loss more than $80,000. He presented expert testimony claiming loss of earning capacity over his work life would be between $369,549 and $623,058.

Plaintiff argued that the truck was defective because it lacked a ladder or other access system. He contended that it was foreseeable that drivers would need to climb into the dump body to perform maintenance and need a ladder to do so. His expert, Thomas Cocchiola, PE, who billed himself as a safety expert, said that ITCJ should have attached a ladder to the truck before selling it and that failure to do so rendered it defective. Mr. Cocchiola testified that as an alternative ITCJ should have ordered a Heil tarp rail kit, which includes a step which would have made access easier and therefore safer. Interestingly, plaintiff did not pursue the distributor that attached the dump body to the chassis or the manufacturer of the dump body, Heil. Making matters more difficult, Heil refused to provide the designer of the dump body for testimony in defense of its product.

Plaintiff said he had no option but to climb into the truck to clear the jam in the tarp mechanism. Merely dumping
the load would have been unsafe, as the truck could have tipped over. In addition, he felt that tarping racks at the quarry would not have provided access to the jammed stone in the middle of the body.

David Ruuhela, PE, a transportation consultant who worked on truck design for 25 years at Freightliner and Norris Hoover testified that the lack of a ladder did not make the vehicle unsafe. Mr. Ruuhela explained that a ladder might even have made the vehicle less safe because there were a number of design criteria for access systems set forth in various industry standards and government regulations that would had to have been considered. The Heil tarp rail kit with its step or the simple steel ladder advocated by Mr. Cocchiola lacked the features required by these design criteria.

The jury reached its verdict for the defendant after just one hour and 15 minutes of deliberations.

Plaintiff filed post-trial motions, which were denied, and an appeal is pending.

Andrew Buchko v. International Truck and Engine Corp. Case No. MER-L-0376-04; Judge Bill Mathesius

For more information contact Wayne Partenheimer, Esq., at 215-665-3342 or partenheimer@bbs-law.com.

 

Gist of the Action Doctrine Used to Defeat Tort Claims in Construction Defect Case

The gist-of-the-action and economic-loss doctrines have increasingly been used by defendants in an attempt to defeat
tort claims arising out of alleged construction defects. These principles bar or limit the use of tort theories of recovery
(negligence or strict liability) where the claim essentially is contractual in nature or the damages are purely economic, that is, they do not involve personal or physical injury. Recent rulings from the Chester County Court of Common Pleas suggest that these arguments may find increasing acceptance.

In Dockray v. Glen Mary Associates, et. al., plaintiff alleged numerous and diverse defects in the construction of a luxury home. (This was one of a number of suits brought by homeowners in this and related residential developments.) The developer/general contractor joined various subcontractors alleging negligence and breach of contract, and two window manufacturers alleging negligence and strict liability in connection with the manufacture of the windows. There was no contract between the general contractor and the window manufacturers.

On behalf of our client, a window manufacturer, we filed a motion for summary judgment, contending that the negligence and strict liability claims against it were barred under the gist-of- the-action and economic-loss doctrines. The Chester County Court of Common Pleas, per Judge William P. Mahon, granted the motion for summary judgment based on the gist-of-the-action doctrine. The court ruled that, as a whole, the gist of the action was a breach of contract in the construction of a home and that tort claims alleging product defects would not lie. The judge also dismissed tort claims asserted against subcontractors under the gist of the action doctrine, holding that the actions against them would be limited to breach of contract or breach of warranty claims. Therefore, the court did not have to address the arguments made under the economic-loss doctrine, although it is noteworthy that in a prior case the same judge applied the economic-loss doctrine to dismiss tort claims in a suit brought by a homeowner who alleged, among other things, defects in a synthetic stucco system.

Because claims against other defendants remain, Judge Mahon’s rulings are not yet appealable, although an appeal is expected. It also should be noted that the economic-loss and gist-of-the-action doctrines have not received uniform acceptance or consistent interpretation at the trial court level in Pennsylvania.

Douglas A. Dockray vs. Glen Mary Associates, et al. Chester CCP - Case No. 05-08907; Judge William P. Mahon

For information please contact Paul F. Lantieri, Esq., at (215) 665-3301 or lantieri@bbs-law.com.

 

Superior Court Affirms Transfer of Venue from Philadelphia to 
Montgomery County Based on Forum Non Conveniens

Plaintiff instituted suit in Philadelphia County after being injured at a Gold’s Gym in Montgomery County by another member of the gym, defendant Francis Quigley, M.D. Plaintiff claimed that a barbell being lifted by Dr. Quigley hit him in the neck, causing injuries that required surgery and rendering him disabled.

Dr. Quigley filed a motion to transfer venue based on forum non conveniens, which was granted by Judge Tereshko. The deciding factor was the very detailed affidavit of Dr. Quigley, Director of the Hospitalist Program at St. Joseph’s Hospital in Reading, PA. The affidavit satisfied the “oppressive and vexatious” standard for change of venue enunciated in Cheeseman v. Lethal Exterminator, Inc., 701 A.2d 156 (Pa. 1997). Under Cheeseman, the defendant may meet its
burden by establishing that plaintiff’s choice of forum was designed to harass the defendant, even at some inconvenience to the plaintiff. Cheeseman stressed that showing that the chosen forum is merely inconvenient is not enough.

Dr. Quigley’s affidavit detailed information regarding his medical practice and the substantial burden venue in Philadelphia would cause, and established that he would not be able to obtain coverage for his practice in order to attend discovery and trial. In granting the motion to transfer venue, Judge Tereshko relied on the following factors: the addresses of the principals; the site of the accident; the possible necessity for a jury view; and, the fact that Dr. Quigley is a physician with an active medical practice in Reading which includes on-call hospital responsibilities.

The matter was appealed to the Superior Court, which affirmed. In doing so, the court noted that the mere fact that the principals and the site of the accident were outside plaintiff’s chosen forum was not dispositive. Nor did the potential for a site visit justify a decision to transfer the case. Rather, the court focused its ruling on the specific facts surrounding Dr. Quigley’s circumstances and the potential effect upon Dr. Quigley relative to his practice. In affirming that venue in Philadelphia would be oppressive, the Superior Court relied heavily on specific factual information contained in the affidavit. St. Joseph’s, where Dr. Quigley practices, is approximately 64 miles away from the Philadelphia County Courthouse, in Center City, Philadelphia.

Michael J. Dankanich vs. Scone, Inc. d/b/a Gold’s Gym and Francis T. Quigley, III. Phila CCP - Case No. 060201807; Judge Allan L. Tereshko

For more information contact Victoria M. Komarnicki, Esq., (215) 665-3303, komarnicki@bbs-law.com, or Drew C. Long, Esq., at (215) 665-3370,long@bbs-law.com.

 

Minimal Impact Soft Tissue Case Produces Defense Verdict

The accident giving rise to this lawsuit involved a low-velocity, rear-end collision in which the defendant’s car struck the plaintiff’s car as both were accessing the Schuylkill Expressway. The passenger in the plaintiff’s car was the driver’s minor child. The driver and the child filed suit against our client, claiming neck and back injuries.

The plaintiffs did not seek medical treatment until five days after the accident at which time they began treating with Dr. Jimmie Sanders at “Back on Trac Physical Therapy Center.” Dr. Sanders administered soft tissue modalities to both plaintiffs’ neck, mid-back and lower back. Plaintiffs treated for about six months.

At the videotape trial deposition of Dr. Sanders, questions were asked about his relationship with the plaintiffs’ attorney’s law firm. The questions were designed to reveal potential bias, and the plaintiffs’ attorney instructed the doctor not to answer them. At trial, the judge agreed that such an instruction from an attorney to a witness who was not his client was improper. Dr. Sanders had been served with a subpoena to appear live for trial so that he could be cross examined on this issue. He failed to appear and, as a result, the trial judge allowed us to read into the record those portions of the doctor’s deposition transcript where plaintiffs’ attorney instructed the doctor not to answer questions about their relationship. In addition, the judge accepted from us a special point for charge instructing the jury that an adverse inference may be drawn where a lawyer inappropriately instructs a witness not to answer. The point for charge was an effective tactic, as it allowed us to argue to the jury that the plaintiffs’ attorney was clearly attempting to hide something and that Dr. Sanders’ testimony should be discredited.

On cross examination, the plaintiff testified that there was no damage to her car following the accident. She also acknowledged having been involved in numerous prior motor vehicle accidents where she had injured the same parts of her body as claimed in this accident.

On cross examination, the minor plaintiff acknowledged that he was able to play basketball and participate in gym class and that essentially he suffered no restrictions at all as a result of this accident. He also testified that he had received electrical stimulation therapy with Dr. Sanders. This was critical, as Dr. Sanders had testified that he did not treat him with electrical stimulation due to his young age.

Although negligence was admitted, the defendant testified about how the accident occurred. She explained to the jury that she came to a full stop about three feet behind the plaintiffs’ car. Her foot slipped off the brake, and her car rolled forward and tapped the plaintiffs’ car. Aside from some paint transfer, she observed no damage to either car.

In the end, the jury found that even though the defendant admitted to negligence, her negligence was not a factual cause of any injuries suffered by either plaintiff. A defense verdict was entered.

Leatynia Montgomery and Octaviann Montgomery vs. Maggie Leon and Marie Y. Leon. Phila CCP - Case No. 060102891; Judge Edward E. Russell

For more information, please contact James Blumenthal, Esq., at 215-665-3390 or blumenthal@bbs-law.com.