Archive for January, 2011

A Summary Of Recent Appellate Decisions From Pennsylvania (September 2006)

Pennsylvania State Court Decisions

1. Civil Litigation

1.1. Automobile Insurance

1.1.1. “Cars for Hire”

Supreme Court

f Prudential Property & Casualty Ins. Co. v. Sartno, No. 163 MAP 2005 (August 21, 2006)

Holding: An insured’s use of his private vehicle to deliver pizza does not render the automobile a “car for hire” and does not trigger the exclusionary provision of the insurance policy.

1.1.2. Uninsured & Underinsured Motorist Arbitration

Superior Court

f The Hartford Ins. Co. v. O’Mara, 2006 PA Super 236 (August 29, 2006)

Holding: Under the Uniform Arbitration Act of 1980, when the application or construction of an insurance policy provision is at issue, the dispute is within the exclusive jurisdiction of the arbitrators. A court will take jurisdiction only when the claimant attacks a particular provision as: (1) contrary to a constitutional, legislative or administrative mandate; (2) against public policy; or, (3) unconscionable.

f Nationwide Insurance Co. v. Schneider, 2006 PA Super 219 (August 17, 2006)

Holding: Section 1733 of the MVFRL specifies the priority for recovery of underinsured motorist benefits, but neither mentions nor requires exhaustion of limits. When an insured settles a claim in contravention of a policy’s consent-to-settle clause, an insurer must show that its interests are prejudiced.

1.1.3. Subrogation

* Supreme Court

f Wirth v. Aetna U.S. Healthcare, No. 28 EAP 2005 (August 22, 2006)

Holding: Pursuant to the Pennsylvania Health Maintenance Organization Act, 40 P.S. § 1560(a), a health maintenance organization is exempt from complying with the anti-subrogation provision of the Pennsylvania Motor Financial Responsibility Law.

1.2. Medical Malpractice Claims

1.2.1. MCARE Act

* Superior Court

f McManamon v. Washko, 2006 PA Super 245 (August 31, 2006)

Holding: The Medical Care Availability and Reduction of Error Act does not apply to injuries not caused by medical negligence.

1.3. Sovereign Immunity

1.3.1. Real Property & Sidewalks Exceptions

* Commonwealth Court

f Reid v. City of Philadelphia, No. 1572 C.D. 2005 (August 3, 2006)

Holding: A street owned by a municipality that is designated a Commonwealth highway continues to be owned by the municipality. If a person is injured on a municipal sidewalk that adjoins a designated highway, the municipality remains the owner of the sidewalk and the sidewalk is, therefore, within the “right of way” of a street owned by the municipality for purposes of analyzing governmental immunity under the Political Subdivision Tort Claims Act.

f LoFurno v. Garnet Valley School District, No. 2082 C.D. 2005 (May 3, 2006)

Holding: A belt sander, designed to be bolted to the floor, that is not hardwired or permanently attached to the floor or to a dust collection system, is personalty, and not a fixture under the real property exception to governmental immunity under the Political Subdivision Tort Claims Act.

2. Civil Procedure

2.1. Appeal

2.1.1. Conflict Between Federal & Pennsylvania Law

* Superior Court

f Trombetta v. Raymond James Financial Services, Inc., 2006 PA Super 229 (August 22, 2006)

Holdings: 1.The standards of review of an arbitration award under the Pennsylvania Uniform Arbitration Act are not preempted by the Federal Arbitration Act (FAA).

2. The standards of review under the FAA cannot preempt the Pennsylvania standards for review of arbitration awards unless the Pennsylvania standards of review frustrate the underlying objectives of the FAA because standards of review are an inherently procedural mechanism used to facilitate judicial resolution of controversies after the underlying arbitration agreement has been enforced in accordance with the FAA.

3. Common law arbitration standards of review do not violate the core objective and principles underlying the FAA. Pennsylvania law governs the question of whether parties can impose de novo review on trial courts by virtue of contractual agreements.

4. De novo review clauses contained in arbitration agreements are unenforceable as a matter of law in Pennsylvania.

f Joseph v. Advest, Inc., 2006 PA Super 213 (August 8, 2006)

Holding: The provision of the Federal Arbitration Act permitting a party three months to challenge an arbitration award is procedural. Pennsylvania’s 30-day deadline (under either the Uniform Arbitration Act or common law arbitration) for contesting arbitration awards applies to such appeals, and appeals filed more than 30 days after the entry of the award are untimely.

2.2. Capacity to Sue

* Superior Court

f George Stash & Sons v. New Holland Credit Co., LLC, 2006 PA Super 206 (August 2, 2006)

Holding: The Fictitious Name Act provides that an entity that fails to register its fictitious name shall not be permitted to maintain any action in a Pennsylvania tribunal. Where, as here, a person or entity knows the identity of the persons with whom he or she is dealing, he cannot assert the lack of capacity to sue under the Fictitious Name Act.

2.3. Collateral Source Rule

* Superior Court

f Simmons v. Cobb, 2006 PA Super 222 (August 16, 2006)

Holding: The collateral source rule does not preclude a plaintiff from introducing evidence of the receipt of Social Security Disability benefits. Rather, the collateral source rule, which is intended to protect tort victims, provides that payment from a collateral source shall not diminish the damages otherwise recoverable from the wrongdoer. In this case, plaintiff sought to introduce evidence of receipt of SSD benefits.

2.4. Forum Non Conveniens

* Superior Court

f Wright v. Aventis Pasteur, Inc., 2006 PA Super 203 (August 2, 2006)

Holding: In determining whether to dismiss a case pursuant to 42 Pa.C.S.A. § 5322(e) based on forum non conveniens, the trial court must consider two important factors: (1) a plaintiff’s choice of the place of suit will not be disturbed except for weighty reasons, and (2) no action will be dismissed unless there is an alternative forum available to the plaintiff. As Superior Court acknowledges – this decision diverges from “the apparent trend in recent forum non conveniens decisions … toward dismissing cases brought in Pennsylvania where another forum is available.”

2.5. Interlocutory Appeals

2.5.1. Generally

* Supreme Court

f Pridgen v. Parker Hannifin Corp., Nos. 8 & 9 EAP 2005 (August 22, 2006)

Holding: In order for a trial court Order to be a “collateral order” under Pa.R.A.P. 313 – and appealable as a matter of right – the following three factors must be present:

1. The Order must be separable from and collateral to the main cause of action;

2. The right involved is too important to be denied review and must involve rights deeply rooted in public policy going beyond the particular litigation at hand; and,

3. The question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.

1.1.1. Trade Secrets

* Superior Court

f Crum v. Bridgestone, 2006 PA Super 230 (August 23, 2006)

Holding 1: This decision contains the same holding relating to collateral orders as Pridgen (above).

Holding 2: Pursuant to Section 757(b) of the Restatement (2d) of Torts and Pennsylvania law, in order to determine whether particular information is to be given trade secret status, a court should consider the following factors:

1. The extent to which the information is known outside of the business;

2. The extent to which the information is known by employees and others involved in the business; and,

3. The extent of measures taken to guard the secrecy of the information. Order must be separable from and collateral to the main cause of action.

For a court to determine whether a protective order is appropriate under Pa.R.Civ.P. 4019(a)(9), the discovery standard should embrace both (1) relevance and necessity, and (2) a balancing of need versus harm. Once a party establishes that the information sought is a trade secret, the burden shifts to the requesting party to demonstrate by competent evidence that there is a compelling need for that information and that the necessity outweighs the harm of the disclosure.

1.1. Judgment by Default

* Superior Court

f State Farm Insurance Co. v. Barton, 2006 PA Super 210 (August 7, 2006)

Holding: After a responsive pleading is filed, even if untimely, a judgment by default cannot be entered because the responding party is no longer in default.

1.2. Settlement

* Commonwealth Court

f Brannam v. Reedy, No. 2590 C.D. 2005 (August 14, 2006)

Holding: An evidentiary hearing is required when one party disputes the existence of a settlement agreement or its binding effect, and is the appropriate procedure even when there is a written agreement signed by counsel if it is alleged that counsel lacked the authority to bind his client. There must also be a hearing when a settlement is vacated by court order or enforced by court order. A hearing must be held even if the trial court has “intimate knowledge” of the facts as a result of a pre-hearing conference because a trial court’s recital of facts is not a substitute for a full record. A hearing must also be held, despite filing a petition and answer, even if no party requests one.

1.3. Transfer From Federal Court to State Court

f Falcone v. The Insurance Company of the State of Pennsylvania, 2006 PA Super 241 (August 30, 2006)

Holding: Pursuant to 42. Pa.C.S.A. § 5103, a party may transfer a case from federal court to the appropriate state court when the federal court lacks diversity jurisdiction. The date of the federal filing becomes the date of the state filing for purposes of the applicable statute of limitations. To comply, a party must promptly file a certified transcript of the final judgment of the federal court and related pleadings in a Pennsylvania court or magisterial district. A party does not comply with the statute by filing a new complaint in state court.

2. Unemployment Compensation

2.1. Necessitous and Compelling Reason to Quit

* Commonwealth Court

f Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review), No. 464 C.D. 2006 (August 23, 2006)

Holding: Elimination of health care benefits constitutes a substantial change in employment terms and serves as a necessitous and compelling reason for a claimant to resign from employment, thus entitling the claimant to unemployment compensation benefits.

3. Workers’ Compensation

3.1. Appellate Review

* Supreme Court

f Trimmer v. Workers’ Compensation Appeal Board (Monaghan Township), No. 58 MAL 2006 (August 3, 2006)

Holding: The Commonwealth Court (and presumably the Workers’ Compensation Appeal Board) may not substitute its determination of the facts and credibility of witnesses for the Workers’ Compensation Judge’s proper assessments. This per curiam Order summarily reverses the Commonwealth Court’s decision because determination of facts and credibility is solely within the province of the Workers’ Compensation Judge.

3.2. Hearing Loss/Employer Liability

* Commonwealth Court

f Hayduk v. Workers’ Compensation Appeal Board (Bemis Co., Inc.), No. 230 C.D. 2006 (August 11, 2006)

Holding 1: When an employer (Company A) purchases the assets, but not the liabilities, of another company (Company B), including the plant where the claimant worked, and the purchase specifically excludes any of Company B’s workers’ compensation liabilities that arose prior to the purchase of the assets, Company A is not liable for any work-related hearing loss that occurred prior to its purchase of Company B.

Holding 2: Under Section 306©(8)(iv) of the Workers’ Compensation Act,audiometric testing for a work-related hearing loss must conform to applicable OSHA standards. It is the employer’s burden, however, to establish that an occupational hearing loss is attributable to a previous employer. When, as here, the employer fails to meet this burden, it remains liable for all of a claimant’s compensable hearing loss.

3.3. Impairment Rating Examinations

* Supreme Court

f Dowhower v. Workers’ Compensation Appeal Board (Capco Contracting, Inc.), No. 542 MAL 2003 (August 11, 2006)

Holding: The Supreme Court has granted claimant’s Petition for Allowance of Appeal and will, presumably, address the issue of whether an employer may request an Impairment Rating Examination before the 104-week period in Section 306(a.2)(1) of the Workers’ Compensation Act.

3.4. Physical Examinations

* Commonwealth Court

f Knechtel v. Workers’ Compensation Appeal Board (Marriott Corp.), No. 140 C.D. 2006 (August 24, 2006)

Holding: Pursuant to Section 314(a) of the Workers’ Compensation Act, when an employee’s physician attends an employer-requested physical examination, the employee is entitled, at employee’s expense, to have a health care provider of his or her own selection participate in such examination. Participation is limited to attendance and observation.

Daniel Siegel
http://www.articlesbase.com/affiliate-programs-articles/a-summary-of-recent-appellate-decisions-from-pennsylvania-september-2006-54434.html

23 comments - What do you think?
Posted by mark - January 31, 2011 at 4:54 am

Categories: Constitutional Law   Tags: , , , , , , , , , , , , ,

Identify The Name By Which A Vehicle Is Registered Under

There are various databases and directories that are available online to search for people and information from. Go through some of the methods of ascertaining which car is registered under a particular name.

If you want to find out who a car is registered to you would have to do this using the license plate number of the car. This information is available from the DMV and a few other locations. These locations are forbidden through the Federal rule to make this data obtainable to anybody. If you want to find this information you can hire an agency to find out for you or hire someone.

There are some expertise services you can always find and are always prepared to go through all the difficulties involved in conducting this search. However there are laws that forbids the issuing out of this data and some of them protect the individual’s right to people’s privacy. On the mission of ascertaining whom a certain car is registered under you must be careful not to break some of these regulations.

Some of these agencies are expensive and only take little time to come up with this data.The alternative is to use some of the online resources. There are a couple of locations which may assist you in on this search as well as others that contain reach to DMV files.

You may be capable of locating whom a motor vehicle is listed to however at a cost if utilizing these websites. There are some sites that will charge you for the results once they get them and they are some that offer you are a once of fee for access to their services. I would suggest you pay only after each search that they have provided the outcomes for.

See some of the resources to get you going.

 

 

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Posted by Kayra - January 22, 2011 at 7:22 am

Categories: Conservative News   Tags:

Isn’t It Time You Fight Back Against Tough Economy By Saving On Gas?

There are two simple commodities that every family in America must possess income for or endure great adverse consequences. These two vital commodities are food to eat and gas for their automobiles. Unfortunately, as each area suffers from greater rates, it makes it harder to acquire both for your spouse and children.

This is why any way you can conserve money on the fuel you put into your auto or 18 wheeler must be investigated. As fuel charges go on to rise, what will you do when it becomes so excessive that not only will you start having problems with driving around, but additionally putting food on the table? If you need to put a lot more cash into your gas tank, that’s much less money available to feed your family with.

An effective way to assist to lower the volume of income you have to shell out on filling up your vehicle is to uncover a top quality fuel additive. An excellent gas additive can do wonders for your automobile and, ultimately, your checking account balance as you determine how to save on gas.

The first thing you’ll most likely notice is an improvement in your car’s miles per gallon performance. With many of the additives that are on the market, folks have described getting an additional twenty-five, fifty, even 80 kilometers per each fill-up at the gasoline station. When you get better gas mileage, you’ll be filling up far less frequently at that point.

If you locate a gas additive that is biodegradable, you’ll also be able to assist the atmosphere in your own way. On top of that, the best additives will assist to cut down on the poisonous pollutants put out into the environment by your vehicle. When quite a few of us are too busy to get involved in great causes, ponder how excellent you’ll really feel when you understand that you’re doing your part just by traveling around town on errands.

As you’re assisting the environment, a different benefit you’ll gain when employing a top gas additive is greater overall performance of your vehicle. It’s not unusual for folks to see much better “pick-up”, power and responsiveness after they’ve begun employing a gas additive. Some individuals even say that their car performs close to the way it did when they first purchased it.

There’s no debating that the expense of gasoline is only heading higher. Now is the time to consider long and hard about what you’re going to do to have a lot more control for the duration of this circumstance.

Are you going to grow to be a victim of increased rates and then complain when your family members struggle to get around or put food on the table? Or, are you going to fight for greater gasoline saving so that you put your loved ones into the greatest scenario possible?

27 comments - What do you think?
Posted by Kayra - January 15, 2011 at 2:31 pm

Categories: Conservative News   Tags:

The FTC Funeral Ruling On Caskets Opens Your Options

Caskets

Not many people are aware that the FTC has made a ruling that allows you to make choices when you are planning your or the funeral of a loved one. Because of the FTC Funeral Rule you have the right to choose your own funeral goods and services provider. You can request and itemized breakdown of all services and products to be used in the entire funeral process.

You have online options for caskets.

This is important so that you now have transparency in the funeral process. So if you think you are getting a very expensive casket you may actually be getting one of their Cheap Caskets . The best thing is now you can compare prices by going to expresscasket.com. They offer you a range of all types of caskets. You can get one of their Solid Wood Caskets or an eighteen gauge steel caskets. They offer 24 hour delivery which gives you the peace of mind to know that things will happen on time. The price includes delivery to any funeral home in the country. So if you are looking for at a selection of Wood Caskets or if your prefer a steel casket. Expresscasket.com is your choice.

This is a sponsored conversation. The opinions expressed are those of the author.

Caskets

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Posted by mark -  at 8:14 am

Categories: Resources   Tags: , , ,

Blogging

Blogowanie w Polsce

Duration : 4 min 47 sec

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Posted by mark - January 11, 2011 at 3:15 am

Categories: Conservative Blogs   Tags:

US Constitution Historic Preservation Vault Sealing

Trailer: This film shows first-hand how the constitution was sealed in its vault of preservation. A very complicated process, it requires several layers of glass and framework to be constructed before it can be sealed. Once sealed, deterioration is prevented by monitoring the amount of gases inside the vault. See the full length at: www.qualityinformation.com

Duration : 45 sec

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Posted by mark -  at 3:15 am

Categories: Constitutional Law   Tags:

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