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Court Crier: Litigation

In LaForce v. Dyckman, the Appeals Court of Massachusetts addressed whether homeowners could be liable in negligence to a 6-year-old child who broke his arm after his father allowed him to try a zipline installed in their backyard. The child alleged that the homeowners’ failure to install a seat on the zipline was negligence; the homeowner maintained that the danger was open and obvious, and thus required no warning. The court agreed with the homeowner that the open and obvious danger required no warning to a child under an adult’s supervision. (September 9, 2019)

In Sunoco Pipeline L.P. v. Pennsylvania State Senator Andrew Dinniman, the Commonwealth Court of Pennsylvania addressed whether a state senator lacked personal and legislative standing to file a complaint with the Public Utility Commission where he alleged that construction caused several sinkholes and caused problems with some homeowners’ water service. The court held that the senator did not have personal standing because he disclaimed it and the Commission is not free to raise the issue of personal standing sua sponte. The court further held that the senator lacked legislative standing because he did not articulate or allege an injury to his ability to act as a legislator, or his right “to participate in the voting process,” but his alleged injuries were based solely on his desire to protect his constituents. (September 9, 2019)

In Calderon v. Royal Park, the Appeals Court of Massachusetts addressed whether a 13-year-old trespasser could make a claim under Massachusetts’ child trespasser statute for negligent infliction of emotional distress where the defendant’s improper maintenance of a fence at its apartment complex had allowed the child to access adjacent railroad tracks. While the child and a friend were crossing the railroad tracks, the child’s friend fell and was fatally struck by a train. The court held that the child could raise a claim of negligent infliction of emotional distress, reasoning that she was also within the zone of danger from the defendant’s negligence. Considering that she was within the zone of danger herself, the court did not resolve whether a “best friend” was a sufficiently close relationship to allow recovery on a bystander theory, had the child not been in danger herself. (September 10, 2019)

In Clarke v. Square Tower 2, LLC, the New York Supreme Court, Appellate Division, 2d Department, addressed whether a defendant can successfully oppose the plaintiff’s motion to amend his pleading when the defendant failed to demonstrate “surprise” or “prejudice.” Here, the plaintiff sought to amend his complaint after three years to include a cause of action for violating Labor Law 240. The court held that where defendants fail to establish that a plaintiff’s delay directly prejudiced or surprised them, the trial court should freely permit plaintiffs to amend their complaint. (September 11, 2019)

In Firearm Owners Against Crime v. City of Harrisburg, the Commonwealth Court of Pennsylvania determined that the plaintiff’s organization and individual plaintiffs residing in Harrisburg had standing to challenge various local firearm ordinances. The court determined the parties had standing as the ordinances’ impact on the plaintiffs’ ability to possess and use firearms within the city were direct and substantial. (September 12, 2019)

In Rowe v. Bell & Gossett Company, the Supreme Court of New Jersey held that excerpts from settling defendants’ interrogatory answers and corporate representative depositions were admissible as the excerpts fell within an exception to the hearsay rule: statements against interest. The court further ruled that with the admission of the settling defendants’ interrogatory answers and corporate representative depositions, sufficient evidence existed for the question to go to the jury for apportionment of damages. (September 11, 2019)

In Delta Health Technologies, LLC v. Companions and Homemakers, Inc., the Superior Court of Pennsylvania considered whether personal jurisdiction could be exercised over a Connecticut-based home care services company for a dispute over unpaid invoices due to a Pennsylvania based software company. The companies signed a contract to use the software company’s scheduling software with the home care services company which included certain enhancements to be made to the software company’s base scheduling software. The contract provided for no penalty cancellation by the home care services company within six months which it ultimately exercised. The software company then sought payment for unpaid invoices related to the enhancement work. In the course of negotiating the contract representatives from the home services company came to Pennsylvania, participated in extensive negotiations and were aware that their data would be loaded onto servers in Pennsylvania. The court held that the home services company purposefully availed itself of sufficient contacts with Pennsylvania to subject it to specific personal jurisdiction in the state. (August 30, 2019)

In Matheis v. CSL Plasma, Inc., the United States Court of Appeals for the Third Circuit addressed a plasma donation center rule barring anyone who has a psychiatric service animal from donating plasma. The donator was a former police officer who had a psychiatric service dog to help manage his PTSD. The plasma center’s rule was enacted after the donator had donated 90 times without incident. The court held that under 42 U.S.C. s 12101(a)(1) and the Americans with Disabilities Act that plasma centers are service establishments and thus subject to the ADA. The court also concluded that plasma centers must allow service animals unless a regulatory exception applies. Further, any “safety rule” must be based on actual risks and not mere “speculation, stereotypes, or generalizations.” (August 30, 2019)

In Pellegrino v. United States of America Transportation Security Administration et al., the United States Court of Appeals for the Third Circuit addressed whether an airline passenger who was subjected to a security screening by transportation safety officers (TSOs) which included being taken into a private room, having her bag roughly rummaged through, items damaged and generally being mistreated could sue the TSA and TSOs under 28 U.S.C. s 2680(h). Following the search the TSOs made allegations against the passenger which resulted in criminal charges being filed against her. The charges were ultimately dismissed and the passenger filed suit under 28 U.S.C. s 2680(h) of the Federal Tort Claims Act which waives sovereign immunity for intentional torts committed by “investigative or law enforcement.” The court held that TSOs were investigative officers under the Federal Tort Claims Act and the TSOs and TSA waived sovereign immunity and could be sued by the passenger. (August 30, 2019)

In Crookendale v. New York City Health and Hospitals Corporation, the New York Supreme Court, Appellate Division, 1st Department, addressed a gender discrimination claim under the New York City Human Rights Law (HRL). The First Department held that the plaintiff’s claim of gender discrimination should not have been dismissed while sustaining the claim of hostile work environment due to sexual harassment because the HRL does not differentiate between sexual harassment and other forms of gender discrimination. The City HRL requires that sexual harassment be viewed as “one species of sex-or gender-based discrimination.” The First Department held that the plaintiff sufficiently described being touched and complimented inappropriately to permit a jury to reasonably find that she was treated “less well” than her male colleagues because of her gender and that the conduct was neither petty nor trivial. (September 3, 2019)

In Hamann v. Carpenter, the United States Court of Appeals for the First Circuit addressed whether a car dealer properly alleged tortious interference with a contractual relationship and tortious interference with an advantageous business relationship after he was allegedly denied the fruits of a profitable exclusive-seller agreement for the sale of a 1953 Ferrari. The court ruled that the dealer’s allegation that another dealer pressured the seller to breach the agreement by threatening to harm the seller’s other business relationships went beyond “hard bargaining” and, therefore, held that the dealer had properly alleged an improper motive. However, the court ruled that the dealer had not properly alleged a claim for tortious interference with an advantageous business relationship because any relationship beyond the exclusive seller agreement was too speculative. (September 5, 2019)

In Rodriguez v. River Valley Care Center, Inc., the New York Supreme Court, Appellate Division, 1st Department, addressed whether a voluntary administrator has standing to bring an action on behalf of a deceased individual and whether the voluntary administrator could again file suit after dismissal, when the administrator later received the letters of administration. The court held that a voluntary administrator lacks legal capacity to sue on behalf of the estate of a deceased individual and that an action brought by a voluntary administrator should be dismissed. However, the court also held that the voluntary administrator could remedy the defect in the pleading by amending the pleading or by filing a new suit if she obtains the letters of administration within six months after dismissal. (August 27, 2019)

In Jester v. Hutt, the United States Court of Appeals for the Third Circuit addressed whether a jury’s punitive damages award was unconstitutionally excessive in a tort case where only nominal damages were awarded. The court held that when a jury awards only nominal damages, trial courts should compare the punitive award to punitive awards in similar cases, and assess whether a lower award would act as a meaningful deterrent. (August 28, 2019)

In Li v. Xiao, the New York Supreme Court, Appellate Division, 2d Department, addressed whether a case should be dismissed for lack of standing when a proposed guardian ad litem sues on behalf of an incapacitated individual. The court reasoned that because a party can move to appoint an individual as guardian ad litem of another person at any stage in the litigation, a plaintiff need not be appointed guardian prior to commencement of an action. As such, the defect in the pleading did not warrant dismissal. (August 28, 2019)

In Turco v. City of Englewood, the United States Court of Appeals for the Third Circuit considered whether an ordinance establishing fixed eight-foot buffer zones around the entrances of certain facilities and prohibiting First Amendment expression on sidewalks therein violated the First Amendment. The court held that under the summary judgment record, it did not. Applying intermediate scrutiny for content- and viewpoint- neutral restrictions on the time, place, and manner of First Amendment expression in a public forum, the court reversed summary judgment in favor of the petitioner on her facial and as-applied challenges to the ordinance. The court concluded that a reasonable jury could find the ordinance “narrowly tailored to serve a significant governmental interest”—the standard for intermediate scrutiny—because the petitioner’s testimony suggested no “inappropriate burden” on her First Amendment expression in practice after the ordinance and a reasonable jury could conclude from city officials’ testimony that financial constraints and the intimidating tactics of sidewalk protesters (not the petitioner) made less restrictive alternatives ineffective. The court emphasized the fact-intensive nature of resolving buffer-zone challenges. (August 19, 2019)

In Feleccia v. Lackawanna College, the Supreme Court of Pennsylvania addressed whether: (1) a college is required to have qualified medical personnel present at intercollegiate athletic events; and (2) whether an exculpatory clause releasing “any and all liability” signed in connection with participation in intercollegiate sports is enforceable as to ordinary negligence when the word “negligence” is not explicitly contained in the waiver and whether the waiver extends to allegations of gross negligence. On the first issue, the court declined to extend a per se duty to all intercollegiate athletic events, but held that affirmative conduct by the school could create an expectation on which students athletes might reasonably rely that they would receive treatment from a certified athletic trainer. On the second issue, the court found that while exculpatory clauses must clearly provide a person is being relieved of liability for his own acts of negligence, there is no prescribed language that must be used. The court held that recovery for ordinary negligence will be barred so long as the language used is sufficient to express the parties’ intention to bar ordinary negligence claims. The court, concluded, however, that the waiver did not preclude a claim of gross negligence. (August 20, 2019)

In Lividini v. Goldstein, the New York Supreme Court, Appellate Division, 1st Department, addressed the burden requirements on a motion to change venue. In a medical malpractice action, a doctor moved to transfer venue and submitted an affidavit indicating that his principal place of business was located in another county and that was where he spent the majority of his time. The court held that the doctor’s affidavit, which attested to residency in another county but which was devoid of supporting documentation of residency, was insufficient to prove that the original venue designation was improper. (August 20, 2019)

In PPL Electric Utilities Corporation v. City of Lancaster, the Supreme Court of Pennsylvania addressed the enforceability of a city ordinance seeking to impose an “annual occupancy fee” upon state-regulated utilities that utilize the city’s municipal rights-of-way. The court held that the local annual occupancy fee is preempted by the Commonwealth’s Public Utilities Code in favor of the Code’s authority to regulate public utilities and the interest in maintaining uniform regulatory framework that ensures fairness for all utilities and utility subscribers. (August 20, 2019)

In Guerra v. Consolidated Rail Corporation, the United States Court of Appeals for the Third Circuit addressed whether the Federal Railway Safety Act’s 180-day limitations period is “jurisdictional.” The court held that the limitations period is a non-jurisdictional claim-processing rule, the breach of which may defeat an employee’s claim but not a district court’s jurisdiction to hear the case. (August 21, 2019)

In Martin Greenfield Clothiers, Ltd. v. Brooks Brothers Group, Inc., the New York Supreme Court, Appellate Division, 2d Department, addressed the statute of frauds effect on an alleged oral agreement for the manufacture of custom suits. A manufacturer alleged that a retailer breached an oral agreement and sought to recover damages under a theory of promissory estoppel. The court held that the promissory estoppel cause of action was impermissibly predicated on allegations that the defendant violated a promise it made under an oral agreement. Further, to the extent that the promissory estoppel action may have been asserted to circumvent the statute of frauds, the manufacturer was required, but failed to, assert that it suffered unconscionable injury in reliance on the retailer’s alleged promise. (August 21, 2019)

In Golden v. New Jersey Institute of Technology, the United States Court of Appeals for the Third Circuit addressed whether attorneys’ fees were appropriate under New Jersey’s Open Public Records Act, which mandates a fee award for prevailing plaintiffs. Just because the FBI requested a New Jersey entity withhold documents does not afford a New Jersey entity a basis to abdicate its role as records custodian. The court held that fees were appropriate under the “catalyst theory,” that permits attorneys’ fees if there exists “a factual causal nexus between the litigation and the relief ultimately achieved” and if “the relief ultimately secured by plaintiffs had a basis in law.” (August 14, 2019)

In Carela v. New York City Transit Authority, the New York Supreme Court, Appellate Division, First Department, addressed whether the defendant was responsible for a dangerous stairwell condition causing the plaintiff to slip and fall. The court determined that the defendant failed to establish its entitlement to summary judgment because its employee could not recall whether he deviated from his usual work schedule on the date of the incident or when the staircase was last cleaned or inspected prior to the accident. (August 13, 2019)

In Biaca-Neto v. Boston Road II Housing Development Fund Corporation, the New York Supreme Court, Appellate Division, First Department, considered a defendant’s responsibilities under Labor Law 240(1) when a worker is injured upon exiting a scaffold by an impermissible means when a safe mode of exit is readily available. The court determined the defendant was not liable for the worker’s injuries because the worker conceded he was not supposed to climb through a window and that it would have been safer to use the scaffold stairs that were readily available to him. (August 13, 2019)

In Dinaples v. MRS BPO LLC, the United States Court of Appeals for the Third Circuit addressed whether a debt collector violated the Fair Debt Collections Practices Act, when the collection letter’s envelope displayed an unencrypted QR code that would reveal the debtor’s account number if scanned. The debtor filed a class action lawsuit against the collection agency claiming the company violated the Act by “[u]sing any language or symbol, other than the debt collector’s address on any envelope when communicating with a consumer by the use of the mails.” The court held that the QR code violated the Act because it indirectly exposed private and protected information of the debtor. (August 12, 2019)

In Lucas v. 1 on 1 Title Agency, Inc., the Superior Court of New Jersey, Appellate Division, addressed whether a trial court that adjudicated a successful legal malpractice action likewise had subject matter jurisdiction to adjudicate a resultant dispute for counsel fees between the plaintiff and her counsel. The court found that, unless a petition to adjudicate a fee dispute has been filed under the Attorney’s Lien Act, there is no subject matter jurisdiction, emphasizing that plaintiff’s counsel were not parties to the malpractice action from which the disputed fees arose. (August 9, 2019)

In County of Nassau v. Tech. Insurance Company, Inc., the Supreme Court of New York, Appellate Division, Second Department, considered whether the defendant was contractually required to maintain general liability insurance naming the plaintiffs. The court held that this issue could not be resolved on summary judgement because “when a term or clause is ambiguous and the determination of the parties’ intent depends upon the credibility of extrinsic evidence or a choice among inferences to be drawn from extrinsic evidence” it is an issue of fact and not a question of law. (July 31, 2019)

In Crystallex International Corporation v. Bolivarian Republic of Venezuela, the United States Court of Appeals for the Third Circuit addressed whether the District of Delaware had jurisdiction over a foreign sovereign in an attachment action where the creditor sought to attach a federal judgment to assets of an instrumentality of the sovereign. The court held the Delaware District Court had jurisdiction over the attachment action by virtue of the Sovereign Immunities Act’s arbitration exception, 28 U.S.C. § 1605(a)(6), which specifically allows a federal court to assert jurisdiction to enforce a federal judgment against a foreign sovereign. The court further held the Delaware District Court properly extended its jurisdiction to attach non-immune assets held by the sovereign’s instrumentality under federal common law (a/k/a the Bancec doctrine) because the sovereign had extensive control over its instrumentality. In so doing, the Third Circuit adopted the five “Bancec factors” set forth in the U.S. Supreme Court’s recent Rubin v. Islamic Republic of Iran (2018) opinion. In Rubin, the Supreme Court identified the following “Bancec factors” to aid courts in an “alter ego” jurisdiction analysis: (1) the level of economic control by the government; (2) whether the entity’s profits go to the government; (3) the degree to which government officials manage the entity or otherwise have a hand in its daily affairs; (4) whether the government is the real beneficiary of the entity’s conduct; and (5) whether adherence to separate identities would entitle the foreign state to benefits in United States courts while avoiding its obligations. (July 29, 2019)

In Wright v. Consolidated Rail Corporation and CSX Transportation, Inc., the Superior Court of Pennsylvania addressed whether a motion to dismiss based on the doctrine of forum non conveniens under Section 5322(e) of the Pennsylvania Judicial Code is subject to the standard of heightened deference afforded to plaintiffs for a motion to transfer under Pa.R.C.P. 1006(d)(1). The court concluded that the presumption in favor of a plaintiff’s choice of forum may be less stringently considered when the plaintiff has chosen a foreign forum in which to litigate. (July 19, 2019)

In Brown v. New York City Transit Authority, the New York Supreme Court, Appellate Division, 2d Department, addressed the standard for entry of summary judgment in favor of a common carrier alleged to have negligently operated a bus. The court stated that “[t]o prevail on a cause of action that a common carrier was negligent in stopping a bus, a plaintiff must prove that the stop was unusual and violent, rather than merely one of the sort of ‘jerks and jolts commonly experienced in city bus travel.’” However, when the common carrier seeks summary judgment in such a cause of action “‘common carriers have the burden of establishing, prima facie, that the stop was not unusual and violent.’” The court found that the common carrier failed to meet their burden of proving that the stop was not “unusual and violent” because the bus driver testified that he had to apply the brakes when another vehicle cut in front, and, thus, a triable issue of fact existed as to whether the stop was unusual and violent. (July 24, 2019)

In I.A. v. Mejia, the New York Supreme Court, Appellate Division, 1st Department, addressed the application of strict liability to a dog owner whose dog bit a child. To recover upon a theory of strict liability in a tort for a dog bite or attack, the injured person must prove that the dog had vicious propensities and that the dog owner, or person in control of the premises where the dog was, knew or should have known of such propensities. The court found that the injured child submitted evidence demonstrating that the dog was kept, at least in part, as a guard dog, and that the dog bit the child on the face unprovoked and would not let go until another boy intervened. The court found that this evidence was sufficient to raise a triable issue as to whether the dog owners knew or should have known that the dog had vicious propensities. (July 24, 2019)

In Burkholder v. Department of Agriculture, the Commonwealth Court of Pennsylvania addressed whether, under the Dog Law, a noncommercial Class IV kennel is automatically converted to a commercial kennel when the kennel owner has exceeded the limits in his license for dog transfers. The court held that while the breeder violated the Dog Law by exceeding the limits of dog transfers, this did not warrant an automatic conversion to a commercial kennel. The Dog Law requires a kennel to apply for a different license, which means there can be no automatic license conversion. (July 12, 2019)

In Conn v. Port Authority of New York and New Jersey, the New York Supreme Court, Appellate Division, 2d Department, addressed whether an estate administrator must first file a pre-suit Notice of Claim to a public entity before she seeks to amend a complaint filed by the decedent that alleged negligence and violations of the Labor Law. The purpose of a Notice of Claim is to allow public entities time to investigate and evaluate the merits of all claims made against them. The failure to file a notice of claim deprived the public entity the opportunity to investigate the administrator’s claim for loss of services on her own behalf and therefore the trial court should not have permitted her to amend the complaint. (July 17, 2019)

In Detra Holloway v. Madison Trinity Limited Partnership, the Appeals Court of Massachusetts addressed whether the owner and manager of a private housing development owed members of the public a duty to warn about potential dangers on a public road that runs through the private development. The court held that no such duty exists, as under Massachusetts law, a landowner is not held to any duty with respect to public highways adjacent to or crossing his land. Furthermore, the court held that the owner and manager’s efforts to make the area safer did not amount to voluntary assumption of a duty to protect members of the public from foreseeable acts committed by third parties. (July 18, 2019)

In Tilija v. Attorney General United States of America, the United States Court of Appeals for the Third Circuit addressed the standard for establishing a prima facie claim for asylum relief to the Board of Immigration Appeals. Establishing a prima facie case requires evidence that shows a reasonable likelihood that the movant is entitled to asylum relief. A reasonable likelihood is established when the movant merely shows a realistic chance that the movant can, at a later time, establish that asylum should be granted. Additionally, the Board must accept facts presented by the movant as true. (July 12, 2019)

In GN Netcom, Inc. v. Plantonics, Inc., the United States Court of Appeals for the Third Circuit considered whether a party’s expert should have been permitted to testify as to the extent of the opposing party’s spoliation of evidence, where the trial court had found evidence of spoliation and instructed the jury it could draw an adverse inference. The court held the expert’s testimony could have helped the jury determine the impact of the spoliated evidence and could have impacted the outcome of the case, therefore it should have been admitted. (July 10, 2019)

In F.K. v. Integrity House, Inc., the Superior Court of New Jersey, Appellate Division, addressed the standard for establishing entitlement to the affirmative defense of charitable immunity under the New Jersey’s Charitable Immunity Act. To determine whether an entity is organized exclusively for charitable purposes, courts conduct a “source of funds assessment” to discern some level of support from charitable donations. Because the record did not allow for a conclusive determination as to the source and use of the defendant’s funding, the defendant did not meet its burden of persuasion on the charitable immunity defense. (July 8, 2019)

In Hedberg v. Wakamatsu, the Supreme Judicial Court of Massachusetts addressed whether a declarant’s lack of memory should establish unavailability for the purpose of a civil hearsay exception under Massachusetts law. The court ruled that such an exception should apply and adopted Proposed Mass. R. Evid. 804(a)(3). (July 11, 2019)

In Bove v. Akpharma Inc., the Superior Court of New Jersey, Appellate Division, affirmed the grant of summary judgment after finding that the plaintiff could not overcome the Worker’s Compensation Bar. The plaintiff alleged that his use of a nasal spray developed by his supervisor caused him to develop cancer. Akphrama Inc. moved for summary judgment based in part of the Worker’s Compensation Bar, which the trial court granted. The court noted that the employer did not force the plaintiff to use the nasal spray, nor know of any dangers related to its use. Accordingly, the plaintiff could not prove that Akpharma Inc. knowingly exposed him to a substantial certainty of injury. (July 11, 2019)

In Bandler v. DeYonker, the New York Supreme Court, Appellate Division, First Department, addressed the statute of limitations for tortious interference with contract and with prospective business relations. In affirming the lower court’s decision to dismiss the complaint as untimely, the court concluded that the statute of limitations is three years from the date of the injury, which is triggered when a plaintiff first sustains damages. The court ruled that the statute of limitations had expired because the plaintiff was injured when he was terminated from his engagement with BPCM in February 2012, not when his federal action against BPCM was dismissed in September 2014. (July 11, 2019)

In Samuels v. Town Sports International, LLC, the New York Supreme Court, Appellate Division, First Department, addressed a sporting venue owner’s duty of care. The court ruled that accumulated dust on an indoor basketball court is not inherent in the sport of basketball, and therefore the owner was liable for the plaintiff’s injury. (July 9, 2019)

In BML Properties, Ltd. v. China Construction America, Inc., the New York Supreme Court, Appellate Division, 1st Department, addressed whether a property owner adequately stated a claim for fraud against a construction company it hired for a project. The court held that the property owner adequately stated a claim for fraud based on allegations of justifiable reliance upon assurances, which were alleged to have been false when made, regarding the project’s status, the workforce and resources available to meet the deadline for completion of the project. (July 2, 2019)

In Miami Capital, LLC v. Seymour Hurwitz, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a client’s complaint for legal malpractice against its lawyer was properly dismissed. The court held that the client’s alleged damages were purely speculative and not yet ripe. As damages in a legal malpractice case are designed to make the injured client whole, having failed to plead actual damages, the court concluded that the client’s complaint failed to state a claim. (July 2, 2019)

In Gagliardi v. Compass Group, USA, Inc., the New York Supreme Court, Appellate Division, First Department, addressed whether owners of a cafeteria had notice of an alleged hazardous condition in a slip-and-fall negligence action. The court held that the owners did not have either constructive or actual notice of a wet floor when they conducted a cleanup inspection every fifteen minutes, including an inspection two minutes prior to the patron’s alleged fall, and when the individual admitted that he did not observe anything prior to his fall and did not know how long the alleged wet substance had been there. (June 20, 2019)

In McDonough v. Smith, the United States Supreme Court addressed the statute of limitations applicable to a civil rights claim brought under 42 U.S.C. § 1983 for fabrication of evidence in obtaining a criminal indictment. The Court held that this claim was governed by a three-year statute of limitations, which began to run from the date of the acquittal of the plaintiff’s criminal charges. (June 20, 2019)

In PDR Network, LLC v. Carlton Harris Chiropractic, Inc., the United States Supreme Court addressed whether an interpretation offered by the Federal Communications Commission (FCC) of the phrase “unsolicited advertisement” under the Telephone Consumer Protection Act, 47 U.S.C. 227(b)(1)(C) was binding. The Court remanded this issue back to the district court to determine whether the FCC’s interpretation was a legislative rule having the force and effect of law or whether it was an interpretive rule which simply advises the public of the agency’s construction of the statute and rules it administers. (June 20, 2019)

In Kozik v. Sherland & Farrington, Inc., the New York Supreme Court, Appellate Division, Second Department, addressed whether an alleged “wavy condition” of a floor on which an individual tripped and fell in a negligence action should be dismissed under the trivial defect doctrine. Under the trivial defect doctrine the court weighs two factors: (1) whether the defect is “physically insignificant” and (2) whether “the characteristics of the defect or the surrounding circumstances do not increase the risks it poses.” In this case, the court held that the property owner failed to establish that the wavy condition of the floor was trivial as the individual testified that she tripped on the “wavy” portion of the floor. (June 19, 2019)

In Boston Globe Media Partners v. Department of Public Health, the Supreme Judicial Court of Massachusetts addressed whether indices of birth and marriage records were exempt from disclosure under the public records statute under a statutory exception for personnel and medical files, disclosure of which may constitute an unwarranted invasion of personal privacy. The court concluded that, in some circumstances, there is a greater privacy interest in a compilation of personal information than in the discrete information that a compilation summarizes. (June 17, 2019)

In von Schonau-Riedweg v. Rothschild Bank AG, the Appeals Court of Massachusetts addressed whether, in a dispute between an heiress and a Swiss bank regarding a recommended investment in two Massachusetts-based companies that proved worthless, Massachusetts courts had personal jurisdiction over the Swiss bank. The court held that the heiress made a sufficient showing that a director of the bank had had Massachusetts contacts, including travelling to Boston to meet with representatives of the Massachusetts-based companies, while acting as the bank’s agent, and thus sufficient contacts existed for personal jurisdiction. (June 17, 2019)

In Wise v. Huntingdon County Housing Development Corporation, the Commonwealth Court of Pennsylvania addressed, in a trip-and-fall action, whether a tree blocking light from a lamp post at night constituted a “dangerous condition of Commonwealth agency real estate” so as to subject the Commonwealth to suit under the real estate exception in the Sovereign Immunity Act. The court reasoned that it did not. The alleged dangerous condition, the court reasoned, was nighttime darkness, which as a natural condition does not derive from Commonwealth real estate and thus cannot subject the Commonwealth to suit. (June 12, 2019)

In Henry v. Cincinnati Insurance Company, the Supreme Court of Delaware addressed whether a state employee is barred under the Delaware Workers’ Compensation Act from pursuing an underinsured motorist claim against his or her self-insured employer for the same injuries for which he or she received workers’ compensation benefits. The court found that the Act’s exclusivity provision does not prevent an employee from receiving underinsured motorist benefits provided by an automobile liability policy that his or her employer has purchased from a third party insurance company because the insurance company is not an “employer” under the Act. (June 11, 2019)

In M.S. v. Pennsylvania State Police, the Commonwealth Court of Pennsylvania addressed whether the Pennsylvania State Police may designate a person as a sex offender under Pennsylvania’s Sex Offender Registration and Notification Act without providing him or her a hearing regarding the propriety of the designation. The court held that the Pennsylvania State Police are required to provide a hearing under Section 504 of the Administrative Agency Law(June 11, 2019)

In Kaplan v Conway & Conway, the New York Supreme Court, Appellate Division, First Department, was asked to consider whether an attorney’s failure to advocate for a “formal closure of a sham internal investigation” amounted to a failure to “exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession” and whether the breach caused the plaintiff’s damages. As a result of the alleged negligence, plaintiffs alleged that they suffered reputational harm and were subject to FINRA investigations. Applying the motion to dismiss standard, the Appellate Division found that the plaintiffs’ allegations were vague, speculative and failed to “fit into any cognizable legal theory.” (June 6, 2019)

In Glueck v Starbucks Corporation, the New York Supreme Court, Appellate Division, First Department, was asked to consider whether Starbucks acted negligently when the plaintiff, an elderly woman with a cane, tripped and fell outside its shop. The plaintiff was unable to identify where exactly she fell or how, and gave multiple versions of the accident. Neither of the witnesses nor an expert could identify where the woman fell, and in any event the expert report was unsworn and speculative. The court accordingly denied the plaintiff’s motion for summary judgment. (June 6, 2019)

In Narleski v. Gomes, the Superior Court of New Jersey addressed whether an underage adult host or his parents owe a legal duty to parties injured as a result of underage alcohol consumption. The court held that, absent proven knowledge or consent, parents of an underage adult host do not owe a legal duty to prevent their child from allowing other underage individuals from drinking alcohol in their home. Although the court further held that the underage adult host owed no duty under the current law, it prospectively held that an underage adult owes a common law duty to injured parties to desist from facilitation of alcohol consumption by other underage adults in his or her place of residence. (June 6, 2019)

In Paladino v. Auletto Enterprises, Inc., the Superior Court of New Jersey clarified the standard for evaluating a claim of the work-product privilege pertaining to materials prepared by an investigator hired by an insurer prior to litigation. The court held that there is no per se or presumptive rule that materials prepared or collected before litigation are not prepared in anticipation of litigation. Instead, there is a case-by-case, fact-specific analysis to be undertaken. If it is determined that the materials were prepared or collected in anticipation of litigation, the party seeking the materials must show a substantial need for the discovery and demonstrate that he or she is unable to obtain the substantial equivalent of the materials without undue hardship. (June 6, 2019)

In Home Depot U.S.A. Inc., v. Jackson, the United States Supreme Court addressed whether a third-party counterclaim defendant may remove a case filed in state court to federal court. The Court held that neither the general removal provisions nor the removal provisions set forth in the Class Action Fairness Act of 2005 allowed a third-party defendant named only in a counterclaim and not the complaint to remove the civil action to federal court. (May 28, 2019)

In Box v. Planned Parenthood, the United States Supreme Court addressed whether Indiana’s new law regarding the manner in which abortion providers may dispose of fetal remains affected a woman’s right under the existing law to determine the final disposition of the aborted fetus. The court held that the State has a legitimate interest in proper disposal of fetal remains, upholding the new law altering the manner of disposing fetal remains. (May 28, 2019)

In The Port Authority of New York and New Jersey v. The Port Authority of New York and New Jersey Benevolent Association, Inc., the Superior Court of New Jersey, Appellate Division, addressed whether the Port Authority, as a bi-state public corporate instrumentality, is subject to New Jersey arbitration law. The Court found that because New York and New Jersey’s arbitration rules are substantially similar, the Port Authority is subject to New Jersey’s arbitration law. (May 28, 2019)

In Mauthe v. Optum Inc., the United States Court of Appeals for the Third Circuit addressed whether an unsolicited fax seeking to update a company’s database is an advertisement in violation of Telephone Consumer Protections Act (TCPA) establishing third-party based liability. To establish third-party based liability under the TCPA, a plaintiff must show that the fax: (1) sought to promote or enhance the quality or quantity of a product or service being sold commercially; (2) was reasonably calculated to increase the profits of the sender; and (3) directly or indirectly encouraged the recipient to influence the purchasing decisions of a third-party. The court held that it is not enough to send a fax with profit motive; the sender must have an intention to influence a potential buyer’s decision in making a purchase. Therefore the sender’s fax does not survive the standard for third-party based liability or any other liability under the TCPA. (May 28, 2019)

In Deschamps v. Timberwolf Tree & Tile Service, the New York Supreme Court, Appellate Division, 2d Department, addressed the proximate cause requirement for a claim brought by a worker who was injured on a truck supplied by the non-employer defendant. The court held that even the worker testified that he never noticed any issues with the truck and even if the defendant was negligent in operating its business without a license, such negligent acts only furnished the occasion for the worker’s accident, but were not the proximate cause for the accident. Additionally, the court stated, “there is no duty to warn against an extraordinary circumstance, which would not suggest itself to a reasonably careful and prudent person as one which should be guarded against.” (May 29, 2019)

In Arias v. Recife Realty Company, N., the New York Supreme Court, Appellate Division, 1st Department, affirmed that the defendant/third-party plaintiff was not entitled to summary judgment on its indemnification claims against the defendant. The court found that the defendant failed to establish that it did not have actual or constructive notice of the alleged dangerous condition of the premises in time to take corrective measures, but, rather, found that evidence demonstrated that the defendant had superintendents on site who oversaw the subcontractors’ work and that the defendant had a duty to notify and warn the building owner and its occupants of hazardous work undertaken on the project site so as to safeguard the building's occupants against exposure to hazards. (May 30, 2019)

In Robbins v. Consolidated Rail Corporation, the Superior Court of Pennsylvania considered whether the family of a deceased railroad employee was permitted to bring a Federal Employers Liability Act case in Pennsylvania against the railroad company, even though the decedent only ever worked in Indiana. The court held that the decedent’s family could choose to sue in Pennsylvania because the policies and procedures related to the decedent’s illness and subsequent death were determined at the company’s headquarters in Philadelphia. (May 29, 2019)

In Elizee v. Village of Amityville, the New York Supreme Court, Appellate Division, 2d Department, dismissed the plaintiff’s slip and fall personal injury action against a property owner because there was no evidence that the property owner created the dangerous condition which caused the accident or had actual or constructive notice thereof. The court found that the property owner proved that the sidewalk was not slippery approximately 30 minutes prior to the accident and that the ice on which the plaintiff slipped was not visible when she fell. (May 15, 2019)

In Velez v. Mr. Demolition, Inc., the New York Supreme Court, Appellate Division, 2d Department, refused to enter a default judgment against a defendant for failing to answer a complaint. The court noted that the complaint was deficient because the plaintiffs failed to proffer either an affidavit of the facts or a complaint verified by a party with personal knowledge of the facts as required by CPLR 3215(f). (May 15, 2019)

In Salazar v. MKGC + Design, the Superior Court of New Jersey, Appellate Division, addressed whether the trial court properly granted the defendants’ pretrial motion for discovery sanctions, including their request to bar expert discovery, which resulted in the involuntary dismissal of their complaint. The defendants had filed their motion belatedly after discovery had ended without demonstrating good cause to do so, as required by the court rules. The court held that the trial court abused its discretion by effectively barring claims as a discovery sanction without explaining its reasons for overlooking the discovery rules, which only permitted the defendants to file the motion late if they had good cause. (April 8, 2019)

In Vaughn, F. v. Olympus America, Inc., the Superior Court of Pennsylvania addressed preliminary objections seeking dismissal for lack of personal jurisdiction. The court held that Olympus had contacts with Pennsylvania that were sufficiently related to the causes of action where the plaintiff’s estate is suing the defendant and is subject to Pennsylvania’s specific jurisdiction. Further, the court reversed the trial court’s order granting a joint motion to dismiss for forum non conveniens after finding the lower court abused its discretion in finding “weighty reasons” to disturb the plaintiff’s choice of forum. Even though a majority of the evidence was in North Carolina or Japan, and not Pennsylvania, the court found that the plaintiff can establish a close connection with a forum based upon relevant corporate actions that take place there. (April 10, 2019)

In XpresSpa Holdings, LLC v. Cordial Endeavor Concessions of Atlanta, LLC, the New York Supreme Court, Appellate Division, First Department, addressed the amount of contacts necessary to support a finding of personal jurisdiction in New York. A majority owner of an airport spa concession sought to hold a minority owner of the spa personally liable and sought to sue in New York. The court found that because the minority owner attended three meetings in New York, accepted regular payments and operational support from individuals in New York and maintained an ownership interest in an entity that was partnered in and had an interest in the New York spa, personal jurisdiction in New York was warranted. (April 11, 2019)

In Medford Township School District v. Schneider Electric, the Superior Court of New Jersey, Appellate Division, analyzed whether an arbitration clause in a contract was mandatory or permissive. The arbitration clause at issue stated that disputes between the parties “may be settled by binding arbitration.” The court determined that this arbitration clause when read in conjunction with prior agreements between the parties was permissive. (April 26, 2019)

In Brown v. Quest Diagnostics Clinical Laboratories, Inc., the Superior Court of Pennsylvania overturned the decision in Grimm, finding that Grimm does not provide an accurate reading of 20 Pa. C.S.A. § 3375, relating to the appointment and substitution of the personal representative of a deceased plaintiff. In overturning Grimm, the Superior Court noted that 20 Pa. C.S.A. § 3375 merely requires the appointment of a personal representative within one year of the filing of a suggestion of death and it does not require that a motion to substitute parties be filed within that same time period. (May 1, 2019)

In John v. Philadelphia Pizza Team, Inc., et al., the Superior Court of Pennsylvania held that racial epithets alone are not enough to establish liability under a theory of tort. While noting the behavior as “inappropriate,” the court held that the racial epithets and harassment do not rise to the level of outrageous conduct necessary to constitute intentional infliction of emotional distress. (May 1, 2019)

In Curto v. A Country Place Condominium Association, Inc., the United States Court of Appeals for the Third Circuit addressed whether a condominium association’s men-only and women-only swim times violated the Fair Housing Act. The court held that the sex-specific swim times violated the Fair Housing Act because the men were allotted more favorable swimming time than the women on weeknights and Friday afternoons. (April 22, 2019)

In Fulton v. City of Philadelphia, the United States Court of Appeals for the Third Circuit addressed whether Catholic Social Services (CSS) was entitled to preliminary relief on its claims against the City, under the First Amendment and Pennsylvania’s Religious Freedom Protection Act, challenging the City’s decision to stop referring children to CSS for placement into foster homes because of CSS’s refusal to place children with same-sex couples. The court held that preliminary relief was not warranted because CSS failed to make a persuasive showing that the City “targeted it for its religious beliefs . . . or is motivated by ill will against its religion.” (April 22, 2019)

In Francisco Romero v. Xcellent Car Wash & Express Lube, the New York Supreme Court, Appellate Division, 1st Department, reaffirmed that the summary judgment in favor of a plaintiff on a theory of res ipsa loquitur is appropriate only in exceptional cases. In finding that the injured plaintiff failed to meet his prima facie burden under a theory of res ipsa loquitur for injuries sustained on the defendant’s premises, the court observed that the injured plaintiff failed to establish that the accident was not due “to any voluntary action or contribution on the part of the plaintiff.” The court noted that that there were several “do not enter” signs placed on the premises and the property owner denied that it permitted the plaintiff to enter the restricted area where the injury occurred. (April 23, 2019)

In Salazar v. MKGC + Design, the Superior Court of New Jersey, Appellate Division addressed whether the trial court properly granted the defendants’ pretrial motion for discovery sanctions, including their request to bar expert discovery, which resulted in the involuntary dismissal of their complaint. The defendants had filed their motion belatedly after discovery had ended without demonstrating good cause to do so, as required by the court rules. The court held that the trial court abused its discretion by effectively barring claims as a discovery sanction without explaining its reasons for overlooking the discovery rules, which only permitted the defendants to file the motion late if they had good cause. (April 8, 2019)

In Vaughn, F. v. Olympus America, Inc., the Superior Court of Pennsylvania addressed preliminary objections seeking dismissal for lack of personal jurisdiction. The court held that Olympus had contacts with Pennsylvania that were sufficiently related to the causes of action where the plaintiff’s estate is suing the defendant and is subject to Pennsylvania’s specific jurisdiction. Further, the court reversed the trial court’s order granting a joint motion to dismiss for forum non conveniens after finding the lower court abused its discretion in finding “weighty reasons” to disturb the plaintiff’s choice of forum. Even though a majority of the evidence was in North Carolina or Japan, and not Pennsylvania, the court found that the plaintiff can establish a close connection with a forum based upon relevant corporate actions that take place there. (April 10, 2019)

In XpresSpa Holdings, LLC v. Cordial Endeavor Concessions of Atlanta, LLC, the New York Supreme Court, Appellate Division, First Department, addressed the amount of contacts necessary to support a finding of personal jurisdiction in New York. A majority owner of an airport spa concession sought to hold a minority owner of the spa personally liable and sought to sue in New York. The court found that because the minority owner attended three meetings in New York, accepted regular payments and operational support from individuals in New York, and maintained an ownership interest in an entity that was partnered in and had an interest in the New York spa, personal jurisdiction in New York was warranted. (April 11, 2019)

In Husovic v. Structure Tone, Inc., the New York Supreme Court, 1st Department, addressed sanctions for failure to comply with discovery orders. The trial court properly imposed discovery sanctions where the defendant failed to comply with three separate discovery orders to produce documents especially when the trial court set forth what documents needed to be provided and warned that failure to comply may result in sanctions. (April 18, 2019)

In U.S. Bank N.A. v. The Nassau County Public Administrator, the New York Supreme Court, 1st Department, vacated a default judgment where the defendant established that it never received notice of the summons, there was no indication that the defendant deliberately evaded service, and the defendant showed that it had a potentially meritorious defense. (April 18, 2019)

In Cornwall Warehousing, Inc. v. Lerner, the New York Supreme Court, 1st Department, vacated an order striking the plaintiff’s complaint where the plaintiff demonstrated a reasonable excuse for its default since the plaintiff proved that a former attorney in its office incorrectly calendared the motion. (April 16, 2019)

In Kaminski v. Sosmetal Products, Inc., the Commonwealth Court of Pennsylvania held that a pedestrian walking on a public sidewalk was properly considered to be a licensee of the property owner. The court held that the property owner owed the pedestrian a duty of care as a licensee with respect to the condition of the sidewalk. (April 4, 2019)

In Dumas v. Tenacity Construction Inc., the Appeals Court of Massachusetts held that when a defendant files a motion for relief from default judgment under Mass. R.Civ.P. 60(b)(4) alleging improper service of process of a complaint, the trial judge is bound to accept the defendant’s uncontroverted affidavits as true. (April 3, 2019)

In Seeley v. Caesars Entertainment Corporation, the Superior Court of Pennsylvania held that the trial court lacked personal jurisdiction to hear a New Jersey resident’s slip-and-fall action that occurred at a New Jersey casino. The court determined that the casino did not have continuous and systematic contacts with Pennsylvania even though its parent company owned a Philadelphia-based casino and racetrack. (March 22, 2019)

In Marshal v. Brown’s IA, LLC, the Superior Court of Pennsylvania addressed the issue of whether a defendant’s unilateral decision to delete portions of a surveillance video depicting where the plaintiff slipped and fell constituted spoliation of evidence allowing the trial court to give the jury an adverse inference instruction. The court concluded that the defendant’s unilateral and conscious decision not to retain the arguably relevant video evidence constituted spoliation. (March 27, 2019)

In Buchan v. The Milton Hershey School, the Superior Court of Pennsylvania addressed the issue of whether the statute of limitations on a state law cause of action is tolled when a litigant timely commences an action in federal district court, but then voluntarily dismisses the action and refiles in state court after the statute has run. The court held that both Pennsylvania and federal law only toll the statute of limitations when the district court itself dismisses some or all of a plaintiff’s claims. Therefore, the plaintiff’s federal action that she later dismissed did not serve to toll the statute of limitations on her current claims, and the action that she filed in state court was facially untimely. (March 27, 2019)

In Sturgeon v. Frost, the United States Supreme Court addressed whether the Nation River qualifies as public land for purposes of the Alaska National Interest Lands Conservation Act (ANILCA), subjecting it to the National Park Service’s regulatory authority. The Court held that Alaska’s Nation River is not public land and is exempt under the ANILCA from the Service’s ordinary regulatory authority(March 26, 2019)

In Sudan v. Harrison, the United States Supreme Court addressed the requirements applicable to a particular method of serving civil process on a foreign state under the Foreign Sovereign Immunities Act of 1976 (FSIA). The Court held that when civil process is served on a foreign state under the FSIA, it requires a mailing to be sent directly to the foreign minister’s office in the minister’s home country, the foreign state. (March 26, 2019)

In In Re: Petition for Agenda Initiative to Place on the Agenda of a Regular Meeting of County Council for Consideration and Vote a Proposed Ordinance Amending Part 12, the Commonwealth Court of Pennsylvania addressed whether the ordinance proposed by the Agenda Initiative Petition to establish a Voting Process Review Commission to conduct periodic review of the county’s voting machine systems was legally and constitutionally proper. The court held that the ordinance was an invalid usurpation of the General Assembly’s responsibilities(March 26, 2019)

In Reuther v. Delaware County Bureau of Elections, the Supreme Court of Pennsylvania addressed whether a candidate who obtains access to the ballot by write-in vote must have her name stricken from the ballot if she fails to file a Statement of Financial Interests (SOFI). The court held that because the Public Official and Employee Ethics Act imposes this consequence only upon candidates who petition to appear on the ballot, it is inapplicable to write-in candidates. (March 26, 2019)

In Sharpe v. McQuiller, the Superior Court of Pennsylvania addressed the issue of whether the judgment was void due to lack of personal jurisdiction over the defendant due to defective service of process. The court found that defendant waived any defects in service by addressing the merits of the litigation, by filing a praecipe to change her address with the court, by responding to discovery requests and by signing her name on those documents. (March 28, 2019)

In Bayview Loan Servicing, LLC v. Wicker, the Supreme Court of Pennsylvania addressed Pennsylvania’s business records exception to the rule against hearsay. The court held that the records custodian could testify to lay a foundation for documents incorporated into the files of the custodian’s employer when the information in the documents was recorded by a third party, pursuant to the so-called adopted business records doctrine(March 28, 2019)

In Taquana Jones v. The City of New York, the New York Supreme Court, Appellate Division, First Department addressed whether the hazardous condition on the roadway which allegedly caused the plaintiff to trip and fall was caused by the negligence of a subcontractor performing work in the area. Despite photographs, work order and testimony demonstrating that there were no deficiencies in the subcontractor’s work, the court determined that issues of fact existedsufficient to deny summary judgment “upon drawing all reasonable inferences.” (March 21, 2019)

In Morse v. Fisher Asset Management, LLC, the Superior Court of Pennsylvania addressed whether an order dismissing a complaintpursuant to Pa.R.C.P. 1028(a)(6) tolled the statute of limitations. The court held that if a trial court sustains preliminary objections seeking enforcement of an agreement for alternate dispute resolution pursuant to Pa.R.C.P. 1028(a)(6), thereby dismissing the complaint, then the dismissal does not toll the statute of limitations. (March 15, 2019)

In Anadarko Petroleum Corporation, et al. v. Commonwealth of Pennsylvania, the Commonwealth Court of Pennsylvania addressed two issues of first impression pertaining to Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (UTPCPL): (1) whether the Attorney General can bring a cause of action against lessees due to allegedly wrongful conduct perpetrated by the lessees in the context of leasing subsurface mineral rights from private landowners; and (2) whether the Attorney General can bring a cause of action against those lessees for alleged violations of antitrust law. The court held that the Attorney General had standing and a viable cause of action for allegedly wrongful conduct because the leases at issue did qualify as “‘trade’ or ‘commerce’” under UTPCPL. The court further held that the Attorney General was permitted to file a UTPCPL-based antitrust lawsuit, but can only pursue such claims where the so-called “antitrust” conduct qualifies as “unfair methods of competition” or “unfair or deceptive acts or practices,” as those terms have been either statutorily defined in the UTPCPL or by the Attorney General through the administrative rulemaking process. (March 15, 2019)

In Raynor v. D’Annunzio, the Superior Court of Pennsylvania addressed whether the term “civil proceedings” as contemplated by the Dragonetti Act, the Act concerning the wrongful use of civil proceedings, includes the initiation of contempt proceedings and accompanying requests for sanctions. The court held that a contempt proceeding seeking an adjudication of contempt and requesting sanctions constitutes a “procurement, initiation, or continuation of civil proceedings” as contemplated by the Dragonetti Act. (March 8, 2019)

In Mastrantonakis v. Metropolitan Transportation Authority, the Supreme Court of New York, Appellate Division, Second Department, addressed the requirements for a prima facie showing of negligence against a common carrier for injuries sustained by a passenger from the movement of the vehicle. To establish a prima facie case of negligence against a common carrier for injuries resulting from the movement of the vehicle, the plaintiff must show that the movement: (1) was unusual or violent; and (2) was of a different class than the jerks and jolts commonly experienced in city bus travel. The court held that evidence that the plaintiff fell within one foot of where she was seated was insufficient to establish a prima facie showing of negligence. (March 13, 2019)

In Rodriguez v. Wal-Mart Stores, Inc., the Superior Court of New Jersey, Appellate Division, addressed whether defense experts should have been precluded from using terms such as “somatization” and “symptom magnification” at trial to refute the plaintiff’s claim of chronic pain. The court held that the terms, which implicate credibility, are not per se improper. The court cautioned that use of such terms must be determined by courts on a case by case basis consistent with the New Jersey Rules of Evidence. (March 5, 2019)

In Mitchell v. U.S. Bank National Association, Trustee, the Supreme Judicial Court of Massachusetts rejected the argument by the plaintiffs, former mortgagors of foreclosed property, that only certificate holders of a securitized trust had the “beneficial interest” of the promissory note and the right to foreclose. The court found that the defendant-bank properly exercised its authority to foreclose as the trustee of the securitized trust, the assignee of the mortgage and the entity in physical possession of the note. The court held that the foreclosure was valid because the terms of the note defined the “holder” as anyone “who is entitled to receive payments under th[e] Note” and the bank, not the certificate holders of the securitized trust, was the entity entitled to receive payments under the note. (March 4, 2019)

In Rotkiske v. Klemm, the United States Supreme Court agreed to decide the question presented is whether the “discovery rule” applies to toll the one-year statute of limitations under the Fair Debt Collection Practices Act. (February 25, 2019)

In Barbato v. Greystone Alliance, LLC, the United States Court of Appeals for the Third Circuit addressed whether an entity that acquires debt for the purpose of collection but outsources the actual collection activity qualifies as a “debt collector” under the Fair Debt Collection Practices Act. The Act defines a debt collector as one whose “principal purpose” is the collection of debts. Because that definition is not limited to entities that actively collect from consumers, the court found that an entity whose primary business aim is the collection of debts – either directly or indirectly – qualifies as a debt collector. (February 22, 2019)

In Gowen v. Helly Nahmad Gallery, Inc., the New York Supreme Court, Appellate Division, 1st Department, reaffirmed the heavy burden under New York law for establishing that an action should be dismissed on forum non conveniens grounds. In declining to dismiss an action seeking return of a painting allegedly looted by the Nazi-occupied French government, the court observed that the action would be time-barred in France, the purportedly more appropriate forum. The court also observed that retaining the action would not be particularly burdensome because New York has previously entertained actions concerning Nazi looting of art during World War II, and the key documents have already been translated for the court. (February 26, 2019)

In Kelly Systems, Inc. v. Leonard S. Fiore, Inc., the Superior Court of Pennsylvania addressed when a defendant must file a Certificate of Merit in support of the claims made in its joinder complaint against an architectural firm. The court held that the defendant was not required to file a Certificate of Merit because the defendant sought joinder based on negligent acts related to the negligent acts originally pleaded by the plaintiff. (February 26, 2019)

In Dutton, as Administratrix Ad Prosequendum of the Estate of Patrick E. Dutton v. Rando, the Superior Court of New Jersey, Appellate Division, addressed whether expert testimony was required to support a monetary claims for loss of advice, guidance and companionship under the Wrongful Death Act. The court recognized that the assessment of pecuniary loss might require some speculation, but that assessment is not so beyond the common knowledge and experience of a juror to warrant the need for expert testimony. (February 26, 2019)

In People of the State of New York v. Orbital Publishing Group, Inc., the Supreme Court of the State of New York, Appellate Division, 1st Department, addressed whether newspaper and magazine subscriptions were materially misleading within the meaning of New York’s General Business Law (GBL). The publishing group’s solicitations implied that they were sent directly from publishers or their authorized agents, and offered the lowest available rates. In fact, the publishing group had at best indirect relationships with the publishers, and offered rates above the standard subscription prices. Therefore, the court found that the solicitations violated the GBL. (February 21, 2019)

In Esposito v. Rail Bar & Grill Corporation, the Supreme Court of the State of New York, Appellate Division, 2d Department, addressed the applicability of the Dram Shop Act. A patron of the bar alleged a violation of the Dram Shop Act after he was assaulted by two other patrons. The evidence showed that the patron who was assaulted had ordered and paid for the drink of the individual who later assaulted him. The court held that the patron’s procurement of the allegedly unlawful drink precluded him from recovering under the Dram Shop Act. (February 20, 2019)

In Timbs v. Indiana, the Supreme Court of the United States addressed whether the Excessive Fines Clause applies only to federal actions or may be imputed to the states. The Court held that the Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the States under the Fourteenth Amendment’s Due Process Clause. (February 20, 2019)

In City of Philadelphia v. Attorney General of the United States of America, the United States Court of Appeals for the Third Circuit addressed the authority of the Attorney General to condition receipt of grants Congress authorized and fixed by formula. The court held that because neither statute nor the Constitution conferred the Executive Branch with authority to condition the grant of funding under the relevant statute, immigration-related conditions on law-enforcement grants to the City of Philadelphia were invalid. A statutory condition for the grants that applicants must certify compliance with “all other applicable Federal laws” did not include a federal law prohibiting government entities or officials from “in any way restrict[ing]” the sending or receiving of information to or from the Immigration and Naturalization Service regarding the immigration status of any individual. (February 15, 2019)

In Halstrom v. Dube, the Supreme Judicial Court of Massachusetts considered a law firm’s contract claim for attorneys’ fees from a former client, whose fee agreement had provided that the client’s medical malpractice case would be paid as a contingency fee, and converted to an hourly fee if the client changed counsel before the end of the case.  The client changed counsel July 1, 2010; the medical malpractice action was settled in 2012; and the firm brought a suit for fees on July 7, 2016.  The court held that the six year statute of limitations began to run when the client changed counsel and the contract’s hourly fee provision could have taken effect, making the action time-barred. (February 15, 2019)

In Janczewski v. Janczewski, the New York Supreme Court, Appellate Division, 2d Department, granted a pro se plaintiff’s motion to disqualify the defendant’s law firm where her prior attorney from the same matter was subsequently hired because she established: (1) the existence of a prior attorney-client relationship; (2) that the matters involved in both representations were substantially related; and (3) that her interests and the interests of the defendant were materially adverse. (February 13, 2019)

In Patterson v. Pennsylvania Liquor Control Board, the United States Court of Appeals for the Third Circuit held that, based on the three-factor test established in Fitchik v. N.J. Transit Rail Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989) (en banc), the Pennsylvania Liquor Control Board is an “arm of the state” such that it is entitled to sovereign immunity under the Eleventh Amendment to the United States Constitution and cannot be sued for civil rights violations pursuant to 42 U.S.C. § 1983. (February 12, 2019) 

In Sprott v. IKEA New York, LLC, the New York Supreme Court, Appellate Division, 2d Department, dismissed a slip and fall claim against a store owner because the store owner demonstrated that the rug where the plaintiff fell was not an inherently dangerous condition and was readily observable by the reasonable use of the plaintiff’s senses. (February 13, 2019)

In Porter v. Chevron Appalachia, LLC, the Superior Court of Pennsylvania addressed whether a mineral rights lease holder had the right to do initial surveying and environmental impact studies while the landowner contested the mineral rights holder’s ability to build additional wells and a concrete well pad. The court held that the lease holder had the right to access and do initial due diligence work on the site while the full scope of the lease issue was being litigated. (February 10, 2019)

In Kalaj v. 21 Fountain Place, LLC, the Supreme Court of New York, Appellate Division, 2d Department, addressed the adequacy of documentary evidence as the basis for a motion to dismiss. In the underlying action, a licensed real estate broker attempted to recover a commission under the terms of an oral brokerage agreement, alleging that he had procured a buyer for the clients’ property upon terms agreeable to the clients. The clients moved to dismiss the complaint, arguing, among other things, that they had a defense based on documentary evidence. The Second Department held that contrary to the clients’ contention, various emails and text messages between the plaintiff and the defendant, as well as an affirmed statement of the prospective buyer, were not documentary evidence. (February 6, 2019)

In Wong v. Broughton, the Supreme Court of Delaware addressed whether an expert witness improperly based his opinions on a res ipsa loquitor theory. That is, the expert testified that the physician breached the standard of care solely because the patient sustained a permanent injury. The court held that the opinion was admissible because multiple, reliable medical sources support the expert’s opinion. In so holding, the court noted that the expert appropriately qualified why he disagreed with the results of a study cited by the defense, and further stated that his opinions were based upon the medical records, eyewitness accounts and other information an expert would ordinarily rely upon in his field. The court also held that statistical data used to demonstrate the rarity of the injury suffered was not improper evidence that invited an inference of an inevitable result, and therefore, was admissible. (February 4, 2019)

In Blue Sage Capital, L.P. v. Alfa Leval U.S. Holding, Inc., the Supreme Court of New York, Appellate Division, First Department, addressed the issue of whether the lower court correctly denied attorneys’ fees to the defendant. The court found that the lower court’s holding was correct because neither party had substantially prevailed on the central claims advanced and that therefore neither was entitled to attorneys’ fees. (January 31, 2019)

In Noble v. Kingsbrook Jewish Medical Center, the Supreme Court of New York, Appellate Division, Second Department, considered whether the denial of the defendant’s motion for summary judgment dismissing the complaint insofar as asserted against him was proper. The court disagreed with the lower court’s denial of the defendant’s motion because it found that the defendant established his prima facie entitlement to judgment as a matter of law. “To prevail on a motion for summary judgment in a medical malpractice action, a defendant must establish, prima facie, ‘either that there was no departure from accepted community standards of practice or that any departure was not a proximate cause of the plaintiff’s injuries.’” Here, the defendant made a prima facie showing that he did not depart from the accepted standard of care in his treatment of the plaintiff. (January 30, 2019)

In Tracey Mitchell v. Quincy Amusements, Inc.the Supreme Court of New York, Appellate Division, 2d Department, addressed the basis on which a jury trial verdict ought to be set aside. In the underlying case, the plaintiff slipped in a movie theater and sustained injuries, and the case went to trial. After the trial concluded, the jury rendered a verdict finding that the defendant was negligent, but that such negligence “was not a substantial factor in causing the plaintiff’s injuries.” The plaintiff immediately moved pursuant to CPLR 4404(a) to set aside the jury verdict as contrary to the weight of evidence at trial. The Second Department held that where, as here, the issues of negligence and proximate cause are “inextricably interwoven,” the finding that the defendant was negligent, but that the negligence did not cause the accident, “was not supported by a fair interpretation of the evidence.” Moreover, the defendant failed to submit evidence to refute any of the plaintiff’s evidence. The court ruled for the plaintiff and reversed the lower court’s decision on the CPLR 4404(a) motion. (January 23, 2019)

In All the Way Towing, LLC v. Bucks County International, Inc., the Supreme Court of New Jersey determined whether a commercial purchase of a defective custom-made tow truck and rig is covered under the New Jersey Consumer Financial Act (CFA) as a sale of merchandise. The court determined that such a purchase was covered as a sale of merchandise under the CFA. The key factor is that a member of the public could have made the same custom purchase. The CFA was meant to be liberally construed in order to serve its original remedial purpose and is applicable to certain commercial transactions, including custom-made goods. (January 24, 2019)

In Empire Loan of Stoughton, Inc. v. Stanley Convergent Security Solutions, Inc., the Appeals Court of Massachusetts addressed the enforceability of a forum selection clause requiring any suit to be brought in Hartford, Connecticut in a contract between two businesses in Massachusetts, neither of which had any Connecticut connection. The proponent of the forum selection clause met its burden of showing that the clause was reasonably communicated and accepted and that the opponent bore a substantial burden of showing that the enforcement of the forum selection clause would be unfair and unreasonable. Here, where the witnesses could be deposed in Massachusetts and the Connecticut forum could apply claims based in Massachusetts law, the business that opposed the forum selection clause did not meet its burden. (January 29, 2019)

In Kernahan v. Home Warranty Administrator of Florida, the Supreme Court of New Jersey addressed whether an arbitration provision in a consumer warranty contract was enforceable. The consumer asserted that the arbitration provision was ambiguous and it was not conspicuously written. Because the provision failed to adequately convey what she was agreeing to, she claimed that there was no basis for mutual assent to arbitrate disputes. For its part, the warranty company maintained that the provision satisfied this court’s prior case law because the provision’s language is “clear on its face.” The court examined the use of the word “arbitration” in the context of the contract to determine if its meaning was apparent, and whether it could supply the mutual assent required for the provision to constitute a meeting of the minds. Ultimately, the court determined that the provision was unenforceable because it failed to meet the “simple plain wording standards demanded by the public policy of this state for consumer contracts.” (January 10, 2019)

In Culbertson v. Berryhill, the United States Supreme Court addressed whether the Social Security Act imposes an aggregate cap of 25 percent on attorneys’ fees for successfully representing a disability claim before both the Social Security Administration and the court. The Court determined the language of the statute mandates the 25 percent cap apply only to fees for representation before the court, not the agency. Section 406(a) deals with agency stage fees where §406(b) deals with court stage fees, and the different subsections use different methods for calculating those fees. Therefore, the Court held that applying the 25 percent cap to the aggregate fees awarded under the two subsections would make little sense. (January 8, 2019)

In Schein, Inc. v. Archer & White Sales, Inc., the United States Supreme Court addressed whether an agreement among the parties delegating arbitrability issues to an arbitrator prohibits a court from resolving the issue itself when it concludes the arbitrability claim is “wholly groundless.” The Court held that trial courts must enforce agreements to delegate arbitrability issues to an arbitrator even if the court concludes that a claim of arbitrability is “wholly groundless” because the Federal Arbitration Act does not contain a “wholly groundless” exception. (January 8, 2019)

For more information, see the summary drafted by White and Williams attorney Justin Fortescue. 

In City of Escondido v. Emmons, the United States Supreme Court held that when considering whether a police officer is entitled to qualified immunity for a §1983 claim alleging use of excessive force, a court must determine whether, in using the force alleged, the police officer violated clearly established statutory or constitutional rights that a reasonable person should have known. In finding that qualified immunity does not apply, a trial court must specifically identify the statutory or constitutional violation at issue and cannot refer generally to a right of a citizen to be free from the use of excessive force. (January 7, 2019)

In Roch v. Mollica, the Supreme Judicial Court of Massachusettsaddressed whether Massachusetts courts can exert personal jurisdiction over an out-of-state individual solely on the basis that the individual was served with process in Massachusetts. The individual was a New Hampshire resident and the lawsuit involved an incident that occurred in Florida, but was served in-hand while attending a sporting event in Massachusetts. Massachusetts recognizes common law transient jurisdiction, which allows personal jurisdiction to exist over an individual when that individual is served with process while intentionally, knowingly, and voluntarily being present in Massachusetts. The court noted that its holding is limited to individuals, not businesses, and its ruling does not preclude a case being dismissed for forum non conveniens. (January 4, 2019)

In Concotilli d/b/a Black Arrow Press v. Scot Brown, the New York Supreme Court, Appellate Division, 1st Department, considered whether the court had personal jurisdiction over an Arizona business owner in a defamation action arising from the company’s website. The Arizona-based defendant did not live, own property, or conduct business in New York other than as managing member of an Arizona LLC that sold products online. The court found that the plaintiff failed to prove that the defendant purposefully transacted business in New York, as required by statute, or that there was a connection between the defendant’s transactions and the alleged defamatory statement. (January 3, 2019)

In Simpson v. Attorney General United States of America, the United States Court of Appeals for the Third Circuit addressed the standard of a “willful violation” under the Gun Control Act, 18 U.S.C. § 921 et seq (GCA) in order to revoke a license. The court held that the willfulness standard requires knowledge of a legal obligation and purposeful disregard or plain indifference to it. (January 3, 2019)

In Soloway v. Kane Kessler, PC, the New York Supreme Court, Appellate Division, 1st Department, considered whether a New Jersey Plaintiff was subject to the limitations periods of both his home state and New York. The court found that, under New York’s ‘borrowing statute’ (CPLR 202), a claim must be timely under both the New York limitations period and that of the jurisdiction where the claim is alleged to have arisen. (January 3, 2019)

In Brewington v. Philadelphia School District, the Supreme Court of Pennsylvania addressed whether, under the Political Subdivision Tort Claims Act, 42 Pa.C.S. §§ 8541 et seq, the real property exception to governmental immunity applies where a student in gym class ran into a gym wall that did not have protective padding. The court held that the lack of padding on a gym wall may constitute negligence in the care, custody, and control of real property, and, thus, falls within the Act’s real property exception. (December 28, 2018)

In Savlas v. City of New York, the New York Supreme Court, 1st Department granted summary judgment and dismissed a construction worker’s Labor Law 241(6) claim. The worker tripped and fell over one of several steel plates covering openings into a lower level of a project building. The court dismissed the claim premised on a violation of Industrial Code 23-1.7(3)(2) because the plates were not scattered materials or debris but were an integral part of the construction. (December 27, 2018)

In Tzamarot v. JP Morgan Chase & Company, the New York Supreme Court, 1st Department found that the plaintiff’s actions were the sole proximate cause of the accident and dismissed the complaint. The plaintiff attempted to walk on top of a curbside mound of snow as a shortcut to his parked car rather than using a nearby path that had been cleared of snow and ice. (December 27, 2018)

In Covelli v. Silver First, Ltd., the New York Supreme Court, Appellate Division, 2d Department, considered whether a bar owed a duty of care to a patron injured by another patron after leaving the premises. The court found that landowners are only liable for injury occurring on their property or in areas under their control. (December 26, 2018)

In Leite v. Bergeron, the United States Court of Appeals for the First Circuit addressed whether an inmate established a claim against a corrections officer for violating his Eighth Amendment rights. Holding that the inmate had not produced sufficient evidence to establish deliberate indifference to inmate health or safety, the court explained that the inmate needed to produce evidence that the officer knew of a risk specific of harm to the inmate. (December 19, 2018)

In Eclipse Liquidity v. Geden Holdings, the Superior Court of Pennsylvania held that a foreign judgment can be registered in Pennsylvania without commencing a civil action to determine whether the judgment should be recognized. The Uniform Enforcement of Foreign Judgments Act makes clear that the legislature intended to streamline the enforcement of foreign judgments and requires only that the party seeking enforcement file a copy of the judgment and docket entries with the clerk of any Court of Common Pleas. (December 7, 2018)

In Baron v. Suissa, the Supreme Court of New York, Appellate Division, 2d Department, addressed the application of the statute of frauds to several oral agreements between a cohabitating man and woman. While the statute of frauds prohibits the conveyance of real property without a written contract, as was allegedly agreed to here, a court may compel specific performance of an oral contract in cases of partial performance. As to the alleged oral agreements concerning the provision of domestic and legal services in exchange for support and sharing of business profits, the court found that agreements between cohabiting people are not per se required to be in writing. (December 12, 2018)

In Person v. New York City Housing Authority, the New York Supreme Court, Appellate Division, 1st Department, addressed whether the record sufficiently established that the premises-owner had constructive notice of the condition that caused a trip and fall accident. The court determined that the burden could not be met because the custodian provided inconsistent testimony about whether she cleaned the building in accordance with the applicable janitorial schedule(December 6, 2018)

In Association of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General New Jersey, the United States Court of Appeals for the Third Circuit addressed the constitutionality of a New Jersey law limiting the amount of ammunition that may be held in a single firearm magazine to no more than ten rounds. The court held that restricting magazine capacity to ten rounds was a proper balance between a state’s interest in public safety and an individual’s Second Amendment right to self-defense in the home. The court also found that the regulation was neither a taking under the Fifth Amendment nor an equal protection violation under the Fourteenth Amendment. (December 5, 2018)

In In re Fortieth Statewide Investigating Grand Jury, the Supreme Court of Pennsylvania held that the names of Catholic priests identified as sexual predators in a state grand jury report must be permanently redacted because no criminal proceedings could be brought against them and the procedures of the Investigating Grand Jury Act, 42 Pa.C.S. § 4541, et seq., were insufficient to provide required due process protections. (December 3, 2018)

In Ogando v. National Freight, Inc., the Supreme Court of New York, Appellate Division, 1st Department, addressed whether two car accident victims’ injuries met the threshold of serious injury under Insurance Law § 5102(d). The court determined that this threshold was not met for both victims. In making this determination, the court noted that their experts failed to connect a victim’s symptoms to the accident, inconsistent explanations were offered for the cessation of treatment after only three months, and the victim demonstrated a normal range of motion. (November 29, 2018)

In Route 202 Restaurant LLC v. Old Crompond Road, LLC, the Supreme Court of New York, Appellate Division, 2d Department, addressed a tenant’s allegations that a landlord breached a lease by failing to provide heat, ventilation and air conditioning. The court did not dismiss the tenant’s complaint pursuant to CPLR 3211(a)(1), which provides that an action may be barred by documentary evidence. In making this determination, the court noted that an action may be dismissed under CPLR 3211(a)(1) “only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law.” Because the tenant’s lease was ambiguous as to whether the landlord was required to provide an HVAC unit, it did not entirely refute the factual allegations of the complaint and establish a defense as a matter of law. (November 28, 2018)

In Ogando v. National Freight, Inc., the Supreme Court of New York, Appellate Division, 1st Department, addressed whether two car accident victims’ injuries met the threshold of serious injury under Insurance Law § 5102(d). The court determined that this threshold was not met for both victims. In making this determination, the court noted that their experts failed to connect a victim’s symptoms to the accident, inconsistent explanations were offered for the cessation of treatment after only three months, and the victim demonstrated a normal range of motion. (November 29, 2018)

In Route 202 Restaurant LLC v. Old Crompond Road, LLC, the Supreme Court of New York, Appellate Division, 2d Department, addressed a tenant’s allegations that a landlord breached a lease by failing to provide heat, ventilation and air conditioning. The court did not dismiss the tenant’s complaint pursuant to CPLR 3211(a)(1), which provides that an action may be barred by documentary evidence. In making this determination, the court noted that an action may be dismissed under CPLR 3211(a)(1) “only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law.” Because the tenant’s lease was ambiguous as to whether the landlord was required to provide an HVAC unit, it did not entirely refute the factual allegations of the complaint and establish a defense as a matter of law. (November 28, 2018)

In Flanzman v. Jenny Craig, Inc., the Superior Court of New Jersey addressed whether an arbitration agreement was valid where it did not address the arbitration forum or any process for conducting the arbitration. The court found that the absence of such critical information meant that the parties had not reached a meeting of the minds as to the rights replacing one’s typical right to a jury trial. Consequently, there was no mutual assent, rendering the arbitration agreement unenforceable and invalid as a matter of law. (November 13, 2018)

In Ballantine v. Pine Plains Hose Company, Inc., the Supreme Court of New York, Appellate Division, 2d Department, addressed what type of evidence rebuts the requirement that a plaintiff serve a notice of claim on any public corporation “within 90 days after the claim arises.” In the underlying action, the plaintiff was injured and delivered to a hospital via an ambulance, where she allegedly received deficient care. The plaintiff filed suit against the hospital, but did not file a notice of claim even though the hospital was a public corporation. The lower court granted the plaintiff leave to serve a late notice of claim, and the hospital appealed. The Second Department found that where a plaintiff seeks leave to file a late notice of claim, the court should consider whether the public corporation acquired timely actual knowledge of the facts constituting the claim. The Second Department held that since the hospital was in possession of an ambulance call report and “malpractice is apparent from an independent review of the medical records, such records constitute actual knowledge of the facts" constituting the claim. (November 14, 2018)

In Radiation Data, Inc. v. New Jersey Department of Environmental Protection, the Superior Court of New Jersey, Appellate Division, addressed whether the Department of Environmental Protection (DEP) and three DEP officials violated “clearly established” equal protection and due process rights by pursing a regulatory enforcement action against a radon-measurement business and insisting that all communications be channeled through their respective attorneys. The court held that the business did not plead a clearly established right; therefore, DEP and its officials were entitled to Qualified Immunity and immediate dismissal of the business’s claims of violations of equal protection and due process. (November 2, 2018)

In Bulkan v. Stepp’s Towing Services, Inc., the Supreme Court of the State of New York, Appellate Division, Second Department, addressed whether a company waived the defense of lack of personal jurisdiction due to improper service. Although the company’s answer to the complaint raised an affirmative defense based on lack of personal service, it did not move to dismiss on that defense until nearly four months later. New York law generally requires a defendant to move for dismissal due to lack of personal jurisdiction based upon improper service within 60 days after service of the answer. Since the company’s motion to dismiss was untimely, the company waived the affirmative defense of personal jurisdiction based on improper service. (November 7, 2018)

In Piech v. Layendecker, the Superior Court of New Jersey, Appellate Division, addressed the proper jury instructions in a lawsuit against a property owner for injuries caused by an activity conducted on the land and not the condition of the land. A metal pole used to strike a piñata broke and struck a guest. The trial court instructed the jury on both the general duty owed to a social guest by a social host (i.e., the duty to remedy or warn against known dangerous conditions) and exception (2) of the Model Charge that states “[i]n cases where the host is conducting some ‘activity’ on the premises at the time of [the] guest’s presence, [the host] is under an obligation to exercise reasonable care for the protection of [the] guest.” The court found that the trial court erred in providing both the general instruction and exception as the general duty of a social host is inapplicable to cases arising solely from activities conducted upon land and could lead to jury confusion. (October 19, 2018)

In Watkins v. Pennsylvania Department of Corrections, the Commonwealth Court of Pennsylvania addressed whether the trial court should have permitted an inmate proceeding pro se to amend his complaint for civil rights violations after the trial court dismissed it for failure to state a claim. The court agreed that any amendment would be futile because the Department of Corrections as a state agency is not subject to suit under federal civil rights law and that his proposed amendments concern conduct by prison guards unrelated to the basis for his complaint, the knowing delay of his change in status. (October 18, 2018)

In McCormick v. City of New York, the New York Supreme Court, Appellate Division, 1st Department, addressed what entity was responsible for maintaining the part of the sidewalk within a designated bus-stop location. The court determined that the city continues to be responsible for maintaining the sidewalk in this area but, in the absence of any statute or evidence defining the parameters of a bus stop, it was impossible to establish on a motion for summary judgment whether the city was responsible for the maintenance. (October 25, 2018)

In Howell v. The City of New York, the New York Supreme Court, Appellate Division, 1st Department, addressed, in part, whether the trial court exceeded its authority in sua sponte vacating its prior decision and order reinstating a prior judgment. The court determined that a trial court has no revisory or appellate jurisdiction to sua sponte vacate its own order or judgment in the absence of any request from a litigant. (October 25, 2018)

In Highley v. Commonwealth of Pennsylvania Department of Transportation, the Commonwealth Court of Pennsylvania addressed whether employees of a prospective contracting bidder have standing under the traditional standing requirements to challenge a construction project. In order for a party to demonstrate it has standing, the party must show that it has a substantial, direct, and immediate interest in the outcome of the litigation. The court found that, where the only relation the employees have to the bidding process is that their employer may have submitted a bid if there were no project labor agreement requirement, they do not meet the requirements for traditional standing. (October 15, 2018)

In Watkins v. Pennsylvania Department of Corrections, the Commonwealth Court of Pennsylvania addressed the personal-involvement requirement for individual-capacity Section 1983 suits. The court held that a pro se prisoner’s claims against prison officials in their personal capacities failed to allege the requisite personal involvement of the named defendants in the alleged constitutional violations, improperly relying solely upon a respondent superior theory of liability. The court also held that a claim against the Department of Corrections is legally insufficient as the Department is not a “person” within the ambit of Section 1983 and that claims for money damages against state officials in their official capacities are barred by immunity. (October 18, 2018)

In Nguyen v. Commonwealth of Pennsylvania, the United States Court of Appeals for the Third Circuit addressed when the statute of limitations begins to run on a claim under 42 U.S.C. § 1983 (civil action for deprivation of rights) based on an unconstitutional search and seizure. The court found that such a claim begins to accrue when the search occurs, not when a court determines that the search was unconstitutional. (October 10, 2018)

In Conlogue v. Hamilton, the United States Court of Appeals for the First Circuit found that a police officer who shot an armed man in a standoff was entitled to qualified immunity from civil liability because he did not act incompetently or in disregard of established legal principles. The court reasoned that an objectively reasonable officer standing in the officer’s shoes would have thought it appropriate to deploy deadly force against the armed man who, after a nearly three-and-one-half hour standoff in which he was repeatedly warned to drop his weapon, persisted in pointing a loaded semi-automatic firearm narrowly above the heads of three officers and within easy firing range. (October 11, 2018)

In Port Authority of New York and New Jersey v. Guardian Service Industries, Inc., the New York Supreme Court, Appellate Division, 2d Department, addressed whether an attorney’s health issues were sufficient grounds to vacate a default. To vacate a default, the moving party must demonstrate a reasonable excuse for their default and a meritorious cause of action. The court found that the plaintiff’s claim was supported by the applicable contract and witness testimony. It therefore agreed that the trial court should vacate the default because the attorney’s health issues should not prejudice the client. (October 9, 2018)

In Gallo v. A.W. Arciere, Inc., the New York Supreme Court, Appellate Division, 1st Department, held that an injured plaintiff failed to raise an issue of fact demonstrating that the defendant had actual or constructive notice of an icy patch. Moreover, the plaintiff failed to present any evidence demonstrating how long the hazardous condition was present on the sidewalk prior to the incident. The defendants’ employee testified that she observed the sidewalk about 15 minutes before the incident and even salted the area that day as a precaution. (October 11, 2018)

In Rosenblatt v. Franklin Hospital Medical Center, the New York Supreme Court, Appellate Division, 2d Department, addressed a defendant’s motion to dismiss for the plaintiff’s failure to obey a court order directing her to appear for a deposition. The court may dismiss an action where a party refuses to obey an order for disclosure or willfully fails to disclose information. Dismissal is only warranted where it can be proven that the failure to comply was willful and contumacious. The court found that the plaintiff’s failure to appear for the deposition over an extended period of time and without an adequate excuse was sufficient to dismiss the complaint. (October 10, 2018)

In Sauers v. Borough of Nesquehoning, the United States Court of Appeals for the Third Circuit determined that a police officer had qualified immunity where, at the time of the underlying car accident, it was not clearly established that the police officer’s conduct could give rise to constitutional liability. In doing so, the court determined that there is a specific constitutional right “to not be injured or killed as a result of a police officer’s reckless pursuit of an individual suspected of a summary traffic offense when there is no pending emergency and when the suspect is not actively fleeing the police.” The court stated that police officers now have fair warning that their conduct when engaged in a high-speed pursuit will be subject to the full body of state-created danger case law. (October 2, 2018)

In Gohrig v. County of Lycoming and City of Williamsport, the Commonwealth Court of Pennsylvania addressed whether a municipality was entitled to summary judgment on the basis of sovereign immunity on a negligence claim. The court held that an injured bicyclist could not show the Real Property Exception to immunity under the Tort Claims Act applied because the bicyclist offered no evidence showing the location of his accident was improperly constructed, beyond his own speculative testimony. (September 21, 2018)

In Murray v. American Lafrance, LLC, the Superior Court of Pennsylvania held that a business was subject to personal jurisdiction in Pennsylvania because it registered as a “foreign corporation to do business in Pennsylvania,” and it thereby consented to jurisdiction under Pennsylvania’s business-registration rules. (September 25, 2018)

In Pennsylvania Department of Health v. McKelvey, the Commonwealth Court of Pennsylvania addressed Pennsylvania’s Right-to-Know Law in relation to PennLive’s petition to open records related to “[t]he names, job titles and departments of the panel that is reviewing and scoring applications for grower/processor and dispensary permits under the medical marijuana program[].” The court held that the Department must provide all responsive records to the Requestor because no privilege or confidentiality applied. In so holding, the Court found that 28 Pa. Code § 1141.35(c) does not provide for the confidentiality of the application review panel’s identities when the request is made by a non-applicant. (September 27, 2018)

In Victor v. Borough of Red Bank, the Superior Court of New Jersey, Appellate Division, addressed whether a moveable bleacher placed in an area where spectators were known to walk constituted a dangerous condition under the Tort Claims Act, N.J.S.A. 59:1-1. The court held that, to survive summary judgment, a plaintiff must prove that the borough’s placement of the bleacher or failure to move it was palpably unreasonable such that no prudent person would approve of its course of action or inaction. (September 27, 2018)

In Martinez v. Swomiak, the Superior Court of New Jersey, Appellate Division, addressed whether a retail store has a legal duty to protect its customers against theft once the item has been transferred to the custody/control of the purchaser. The court held that in order to sustain a claim for aiding and abetting against the store, the plaintiff must prove that the store had knowledge that the items returned for refund were stolen or that the store knowingly and substantially assisted in stealing the items purchased. Without any such knowledge and/or assistance in the tortious activity, the store had no duty to protect the plaintiff once the items left its control. (September 27, 2018)

In Jurtowski v. Township of Riverdale, the United States Court of Appeals for the Third Circuit addressed the scope of the requirement that a plaintiff establish the “personal involvement” of individual police officers in a civil rights lawsuit for excessive force under 42 U.S.C. § 1983. The court held that, to establish an excessive force claim, an injured plaintiff must be able to specifically identify the responsible police officers. However, the court held that, if the injured plaintiff is unable to identify the responsible police officers due to an after-the-fact conspiracy to conceal their identities, the injured plaintiff can state a § 1983 claim for violation of his due process right to access the courts. (September 14, 2018)

In Butcher v. University of Massachusetts, the Supreme Judicial Court of Massachusetts found that the fair reporting privilege did not shield a student newspaper from defamation claims arising from a publication which stated that a suspicious white male was taking pictures of women on campus without their permission. The court reasoned that the privilege did not extend to the publication because the report was based only on witness allegations to police officers, and not any official government action. (September 17, 2018)

In Walker v. Senior Deputy Brian T. Coffey, the United State Court of Appeals for the Third Circuit addressed whether a prosecutor and special agent employed by the Pennsylvania Office of the Attorney General were entitled to qualified immunity in a 42 U.S.C. Section 1983 claim where the plaintiff alleged that the investigators violated her Fourth Amendment right to be free from an unreasonable search when they used an invalid subpoena to induce her employer, Pennsylvania State University, to produce her work emails. The court concluded that the investigators were entitled to qualified immunity because the plaintiff did not have a clearly established right to privacy in the content of her work emails. (September 20, 2018)

In Jutrowski v. Township of Riverdale, the United States Court of Appeals for the Third Circuit held that the “personal involvement” requirement for a § 1983 excessive force claim mandated dismissal of an injured plaintiff’s claim when the plaintiff could not identify which of four police officers allegedly assaulted him. However, a plaintiff may be able to state a separate § 1983 claim for deprivation of access to the courts if sufficient evidence of an after-the-fact conspiracy to cover up the actor’s misconduct is uncovered. (September 12, 2018)

In Vorchheimer v. The Philadelphian Owners Association, the United States Court of Appeals for the Third Circuit addressed whether a disabled tenant has a right to a reasonable housing accommodation for the use and enjoyment of her home. The court held that a disabled tenant has a right to reasonable housing accommodations, but if the landlord offers the tenant an alternative that satisfies the need, the tenant has no right to demand a particular desired accommodation. (September 5, 2018)

In Moreland v. Parks, the Superior Court of New Jersey, Appellate Division, addressed the “intimate familial relationship” necessary to set forth a claim of bystander negligent infliction of emotional distress. The court held that bystander claims are not, as a matter of law, restricted to relationships involving marriage or blood ties. The court found that whether an “intimate familial relationship” exists between the witnessing party and the victim is a question of fact for the jury to decide. (August 17, 2018)

In Balentine v. Chester Water Authority, the Supreme Court of Pennsylvania held that the statutory language of the vehicle liability exception to governmental immunity under the Political Subdivision Tort Claims Act, 42 Pa.C.S. 8542(b)(1), does not require movement of a vehicle, voluntary or involuntary, in order for the exception to apply. (August 21, 2018)

In R. L. Currie Corporation v. East Coast Sand and Gravel, the Appeals Court of Massachusetts addressed whether it was reasonably foreseeable that a front loader, left running idle with the keys in the ignition in a shared parking lot that had seen prior break-ins, would be used without permission by a third party resulting in damage to a neighbor’s vehicles. The court noted that a line of cases – which found that harm was not foreseeable where keys were left in the ignition of a car – was not applicable to scenarios with heavy-duty equipment capable of causing damage in the hands of inexperienced drivers. (August 21, 2018)

In First Choice Plumbing Corporation v. Miller Law Offices, PLLC, the New York Supreme Court, Appellate Division, 2d Department, addressed the type of documents sufficient to dismiss a complaint on the ground that an action is barred by documentary evidence. The court held that emails and letters are not “documentary evidence” within the meaning of the CPLR 3211(a)(1). (August 22, 2018)

In Broach-Butts v. Therapeutics Alternatives, Inc., the Superior Court of New Jersey, Appellate Division, considered whether a private social services agency that placed troubled youths into foster homes had a duty to warn prospective foster parents of a child’s history of dangerous behavior. The court held that the agency owed a duty to the foster parents to reasonably disclose a child's background to enable foster parents to make an informed decision about whether to accept him. (August 13, 2018)

In Berardelli v. Allied Services Institute of Rehabilitation Medicine, the United States Court of Appeals for the Third Circuit addressed whether regulations interpreting the Americans with Disabilities Act (ADA) mandate of “reasonable modifications” that generally requires that individuals with disabilities be permitted to be accompanied by their service animals should be applied to interpreting the Rehabilitation Act (RA) and its mandate of “reasonable accommodations” where the RA has no similar regulations. The court held that because the substantive standards for liability under the RA and the ADA are the same, the service animal regulations interpreting “reasonable modifications” under the ADA apply equally to “reasonable accommodations” under the RA. Therefore, actors covered by the RA must modify their policies to allow for the use of service animals by individuals with disabilities to the same extent as actors covered by the ADA. (August 14, 2018)

In State of New Jersey v. Quaker Valley Farms, the Supreme Court of New Jersey determined whether a farm’s excavation activities violated its deed of easement and the Agriculture Retention and Development Act (ARDA), N.J.S.A. 4:1C-11 to -48. After suffering a million-dollar-plus crop loss, to protect against future losses, the farm planned to construct heated hoop houses to provide cover for its crops. New Jersey has an easement on the farm’s property that prohibits any activity on the property that is detrimental to soil conservation, but permits the construction of new building for agricultural purposes. A hoop house has no concrete footing so they are commonly only constructed on level ground. The area where the farm constructed the hoop houses was not level ground, so the farm altered the elevation of the land, excavated the earth on the field and leveled the ground. New Jersey brought suit against the farm alleging that the farm violated the easement and the ARDA. The farm argued that the material terms of the easement were vague and unenforceable as the easement’s soil conservation mandate was at odds with its allowance to construct agricultural buildings. The court held that the farm had the right to erect the hoop houses but did not have the right to permanently damage a wide swath of premier quality soil in doing so, therefore the farm violated the easement and the ARDA. (August 14, 2018)

In Cobham v. 330 W. 34th SPE, LLC, the New York Supreme Court, Appellate Division, 2d Department, addressed the factors to be considered in determining whether a defect on the sidewalk is trivial as a matter of law and, thus, not actionable. The court determined that the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury are factors to be considered in determining whether a defect is trivial. The court further found that expert affidavits, photographs and deposition testimony are sufficient proof to establish that the sidewalk defect was not an actionable trap or nuisance. (August 15, 2018)

In S.T. v. 1515 Broad Street, LLC, the Superior Court of New Jersey, Appellate Division, held that a court-appointed guardian ad litem may be given powers to make decisions in a lawsuit, including whether to take a lawsuit to trial or settle, if the guardian finds clear and convincing evidence demonstrating that the party is mentally incapable of making such decisions. (August 6, 2018)

In AA&D Masonry, LLC v. South Street Business Park, LLC, the Appeals Court of Massachusetts addressed whether the discovery rule tolled the statute of limitations in a breach of contract action. Holding that the discovery rule did not toll the statute of limitations, the court explained that a reasonably prudent person in the plaintiff-contractor’s position would have been put on notice of the defendant’s default when it had not been paid over $400,000 after six months of performing work. (August 8, 2018)

In Brugaletta v. Garcia, D.O., the Supreme Court of New Jersey addressed a discovery dispute under the Patient Safety Act in which the plaintiff sought discovery of incident reports related to their care at the defendant hospital. The court held while a trial court may properly conduct in camera review of facts underlying what a hospital concluded was not a reportable Serious Preventable Adverse Event (SPAE), a trial court cannot declare a SPAE had occurred and cannot order the production of related incident reports based on that finding. (July 25, 2018)

In Sconiers v. United States of America, the United States Court of Appeals for the Third Circuit addressed the statute of limitations provision of the Federal Tort Claims Act. A statutory construction issue arose as to whether the court should read an “or” as disjunctive or conjunctive. The court determined that reading the “or” as disjunctive would result in the statute losing all meaning. Thus, the court held that the plaintiff must bring a claim with an administrative agency within two years and, if the claim is denied by the administrative agency, file an action in court within six months of the denial. (July 24, 2018)

In Wear v. Selective Insurance Company, et al, the Superior Court of New Jersey, Appellate Division addressed whether exclusionary language relating to fungi and bacteria claims in a policy issued to the insured by Selective Insurance Company precluded coverage for an environmental personal injury claim. The court held that it was premature to order Selective to assume responsibility for the defense when it was unclear based upon the anti-concurrent and anti-sequential language in the exclusion whether any claims would be covered. The court held that the duty to defend should be converted into a duty to reimburse pending resolution of the coverage action. (July 20, 2018)

In Sconiers v. United States of America, the United States Court of Appeals for the Third Circuit addressed the statute of limitations provision of the Federal Tort Claims Act. A statutory construction issue arose as to whether the court should read an “or” as disjunctive or conjunctive. The court determined that reading the “or” as disjunctive would result in the statute losing all meaning. Thus, the court held that the plaintiff must bring a claim with an administrative agency within two years and, if the claim is denied by the administrative agency, file an action in court within six months of the denial. (July 24, 2018In McDaid v. Aztec West Condominium Association, the Supreme Court of New Jersey addressed whether malfunctioning elevator doorscreated an inference of negligence under the res ipsa loquitur doctrine. The court held that malfunctioning elevator doors bespeak negligence and thus, res ipsa applies. (July 17, 2018)

In Frederick v. City of New York, the Supreme Court of New York, Appellate Division, 2d Department, reaffirmed the 90-day “notice of claim” rule when commencing a tort action against the City of New York. In the underlying case, the homeowner commenced an action against a contractor that performed work on a city-owned structure for damages allegedly caused to the homeowner’s house. The homeowner contended that she was exempt from the 90-day rule because the damage was caused by a “continuing wrong.” The court held that because the homeowner failed to present sufficient evidence showing that any “continuing wrong” occurred, dismissal of her claim was appropriate. (July 18, 2018)

In Joers v. City of Philadelphia, the Commonwealth Court of Pennsylvania considered whether the City of Philadelphia was bound by its admissions resulting from its failure to respond to the plaintiff’s requests for admissions until several months after the discovery deadline. The city’s extreme delay prejudiced the plaintiffs because it induced the plaintiffs to forgo discovery on the topics deemed to be admitted. This prejudice, coupled with the city’s lack of a reasonable explanation for its delay, led the court to conclude that the city should be bound by its admissions. (July 19, 2018)

In Sampedro v. Ellwood Realty, LLC,  the New York Supreme Court, Appellate Division, 1st Department, addressed whether a landlord could be held liable to a tenant for the results of work by an independent contractor, where the landlord’s superintendent recommended the contractor to the tenant and assisted in performing the work. As the superintendent was not acting within the scope of his employment, and because the contractor was retained by the tenant and not the landlord, the court held that that the landlord could not be held liable. (July 10, 2018)

In Palladino v. Monadnock, the New York Supreme Court, Appellate Division, 2d Department, addressed whether safety regulations pertaining to public streets and sidewalks are applicable when those streets and sidewalks are closed to the public due to construction. The court held that the contractor demonstrated that the cited regulations pertaining to public streets and sidewalks did not apply because the area was closed at the time of the plaintiff’s injuries. (July 11, 2018)

In Maas v. UPMC, the Superior Court of Pennsylvania held that claims against the University of Pittsburgh Medical Center may proceed to trial to determine if the hospital and its employees breached their duty to warn identifiable third-parties of threats of specific and immediate harm. There, a patient repeatedly expressed such a plan with respect to his neighbor, who was then the victim of a homicide committed by the patient. (June 29, 2018)

In Laurent v. Town of Oyster Bay, the New York Supreme Court, Appellate Division, 2d Department, addressed whether an ice skater was barred from recovering damages for injury based on assumption of risk. In this action, an ice skater suffered personal injury after allegedly being pushed to the ice by an unruly skater at a public ice rink. The court noted that while relieving an owner of a sporting venue from liability for the inherent risks of engaging in a sport is justified, participants will not be deemed to have assumed unreasonably increased risks or those incurred where reckless behavior is above the usual inherent dangers. Considering that the ice rink owner was unable to demonstrate that the skater’s risk was unreasonably increased by the owner’s failure to properly supervise patrons, the court found that the action was not barred by the doctrine of primary assumption of risk. (July 5, 2018)

In McAlwee v. Westchester Health Associates, PLLC, the New York Supreme Court, Appellate Division, 2d Department, addressed whether a hospital could be compelled to produce its employment contract with a physician in a medical malpractice suit. The court noted that while there should be full disclosure of all matter material necessary in the prosecution or defense of an action, a party is not entitled to uncontrolled and unfettered disclosure and the trial court has the power to regulate this discovery and prevent abuse. Considering that the physician at issue did not treat the patient and was not required to supervise the treating physician, the court found that the employment contract was not material and necessary to a viable claim. As a result, the hospital was not compelled to produce this contract in discovery. (July 5, 2018)

In G.A.-H v. K.G.G., the Superior Court of New Jersey, Appellate Division, considered whether tort liability may be imposed when one remains silent and fails to warn a victim or alert authorities despite knowledge or a reason to suspect that a co-worker has engaged in the sexual abuse of a minor. The court concluded that New Jersey common law does not necessarily preclude the imposition of such a duty, but remanded the case to the Trial Division for further factual development. (June 22, 2018)

In Sherman v. State of Delaware Department of Public Safety, the Supreme Court of Delaware reversed its own prior opinion in the same case and held that, as a matter of law, the State can be held vicariously liable for a police officer’s sexual misconduct while in the course of making a valid arrest and that the jury need not make a factual determination that the alleged tortious conduct was motivated, in part, to serve the officer’s employer in order to impose liability. (June 26, 2018)

In In re Escheatment of Matured, Unredeemed and Unclaimed United States Savings Bonds, the Commonwealth Court of Pennsylvaniaconsidered whether the Pennsylvania State Treasurer met the statutory requirements for notice by publication in order to obtain legal title to matured, unredeemed and unclaimed United States savings bonds purchased by Pennsylvania residents pursuant to the escheatment proceeding established by Pennsylvania’s Disposition of Abandoned and Unclaimed Property Act. The court held that although the treasurer sufficiently publicized the notice, it had not properly effected service on the unknown bond holders because the provided notice erroneously suggested that the purpose of the proposed litigation is to deposit the unclaimed bonds in the Commonwealth treasury, as opposed to its true purpose which is to reunite the unclaimed bonds with their owners or heirs. (June 26, 2018)

In Trump v. Hawaii, the United States Supreme Court held that, under the Immigration and Nationality Act, Congress provided the President of the United States with the authority to suspend the entry of aliens from specific, predominantly Muslim-majority countries into the United States. The Court held that President Trump’s repeated characterization of the challenged order as a “Muslim ban” and other statements arguably evincing that it was motivated by religious or racial animus had no bearing on the legality of the order because the terms of the order were rational and free from religious or ethnic bias on its face. (June 26, 2018)

In Chambers v. Prug¸ the New York Supreme Court, Appellate Division, 2d Department, addressed a plaintiff’s motion to amend the caption to accurately identify the defendant. “Such amendments are permitted where the correct party defendant has been served with process, but under a misnomer, and where the misnomer could not possibly have misled the defendant concerning who it was that the plaintiff was in fact seeking to sue.” The court granted the plaintiff’s motion because there was no proof that the defendants would be prejudiced by allowing the caption to be amended to correct the misnomers. (June 27, 2018)

In Gargan v. Palatella Saros Builders Group, Inc., the New York Supreme Court, Appellate Division, 2d Department, evaluated a Labor Law § 200 cause of action. Labor Law § 200 imposes a common-law duty to exercise due care in providing a safe place to work. “Where a claim is based on an alleged dangerous condition on the premises, an owner or contractor is liable where it created the dangerous condition or had actual or constructive notice of its existence.” The court determined that the construction worker was not entitled to judgment because his injury resulted solely from the manner in which the construction worker chose to proceed with his work, rather than from an actual defect at the construction site. (June 27, 2018)

In Webb-Benjamin, LLC v. International Rug Group, LLC, the Superior Court of Pennsylvania addressed whether personal jurisdiction is proper over a foreign corporation that is registered to do business in Pennsylvania for acts that occurred prior to the registration. The court found jurisdiction was appropriate because the foreign corporation consented to jurisdiction by registering in Pennsylvania and that general jurisdiction under 42 Pa.C.S.A. § 5301(a)(3) does not preclude claims arising out of events that occurred prior to registration. (June 28, 2018)

In Brunt v. Board of Trustees, Police & Firemen's Retirement System in the Division of Pensions & Benefits, the Superior Court of New Jersey, Appellate Division, declined to award attorney's fees to the prevailing party in an action to enforce an agency decision. The court held that no legal basis existed to award attorney's fees, rejected the party’s equitable argument for attorney's fees, and adhered to the American Rule, requiring litigants to bear their own costs. (June 18, 2018)

In Lozman v. City of Riviera Beach, Florida, the United States Supreme Court held that a party asserting a retaliatory arrest claim under 42 U.S.C. § 1983 was not required to prove the lack of probable cause when he also alleged that there was an official policy motivated by retaliation against his First Amendment protected speech. The Court held that the allegation of the official policy motivating the retaliation separated his claim from a typical retaliatory arrest claim, for which a finding of probable cause is dispositive. (June 18, 2018)

In Carroll v. E One Inc., the United States Court of Appeals for the Third Circuit addressed whether an award of attorney’s fees and costs is proper where an action is voluntarily dismissed under Federal Rule of Civil Procedure Rule 41(a)(2). The court explained that, while attorney’s fees and costs are not typically awarded when a matter is voluntarily dismissed with prejudice, such an award may be granted when exceptional circumstances exist. The court held that exceptional circumstances include a litigant’s failure to perform a meaningful pre-suit investigation, as well as a repeated practice of bringing meritless claims and then dismissing them with prejudice after substantial costs have been incurred. (June 20, 2018)

In Lucia v. Securities Exchange Commission, the United States Supreme Court addressed whether administrative law judges of the Securities and Exchange Commission qualify as “Officers of the United States,” so that they have to be appointed under the Constitution’s appointment clause. The Court noted that the term “Officers of the United States” encompassed all federal civil officials who perform an ongoing, statutory duty — no matter how insignificant that duty. Since administrative law judges exercise many of the Commission’s statutory duties, they clearly qualify as “Officers of the United States.” (June 21, 2018)

In Caltagirone v. Cephalon, Inc., the Superior Court of Pennsylvania addressed whether the decedent’s father’s wrongful death and survival claims, premised on asserted violations of the federal Food, Drug, and Cosmetic Act (FDCA), were pre-empted by the federal system of regulation and enforcement by the United States Food and Drug Administration. The court held that the general rule is that no private right to enforce the law and regulations of the FDCA exists. (June 8, 2018)

In Anthony v. Parx Casino, the Superior Court of Pennsylvania held that a corporation is not subject to venue in a county based solely upon the business activities of a sister corporation in that county. The court held that a license awarded to a corporation, but not issued, did not create the quality or quantity of acts necessary to sustain venue in a county. (June 12, 2018)

In Pisack v. B & C Towing, Inc., the Superior Court of New Jersey, Appellate Division, addressed whether under the Towing Act, towing companies that engage in non-consensual towing at the direction of the police are immune from liability under the Tort Claims Act (TCA) for claims related to the fees they charge. The TCA applies to private entities in limited circumstances where those private entities act under the control and supervision of a public entity to perform a governmental service. If the driver complained about the authority to tow which was derived from the police’s authority, immunity would apply. Because the driver complained about the imposition of fees which were not supervised by the police, the towing company is therefore not entitled to immunity. (June 14, 2018)

In Cular v. MT Imports, Inc. d/b/a Galaxy Toyota, the Superior Court of New Jersey, Appellate Division, in an age discrimination case, addressed the admissibility of evidence related to (1) other employees’ age; (2) the plaintiff’s extramarital affair; and (3) explanatory summaries of sales performance reports. The court held that the age of other employees, whether similarly situated or otherwise, was relevant to the defendant’s defense that age was not a determinative factor in terminating the plaintiff. Further, the plaintiff’s extramarital affair was relevant to refute the plaintiff’s damages regarding his subsequent divorce and financial status. Finally, the court held that the failure to admit the sales report summaries into evidence was not erroneous because the summaries could reasonably produce an unjust result by over emphasizing the particular claim that the plaintiff wanted to make. (June 5, 2018)

In Quail v. ShopRite, the Superior Court of New Jersey, Appellate Division, addressed whether a death certificate was admissible as proof of causation and as a substitute for expert testimony in a wrongful death case. The court held that the death certificate contained inadmissible hearsay, despite the hearsay exception for vital statistics. The court further held that expert testimony was required on cause of death and declined to grant an extension to provide the same. (June 4, 2018)

In Rice v. Miller, the Superior Court of New Jersey, Appellate Division, addressed whether the trial judge could take judicial notice of the asserted legality of a pedestrian crossing the road outside of a crosswalk. The court held that this inquiry was a fact-dependent jury issue, turning on the actual proximity of the crosswalk, the lighting conditions and whether it was too dangerous to reach from the plaintiff's location. Additionally, the court held that an investigating police officer who was not been identified as an expert could not testify as to the speed of the vehicle under the guise of lay opinion testimony. (June 5, 2018)

In McIlmail v. Archdiocese of Philadelphia, the Superior Court of Pennsylvania addressed whether the notes and memoranda of witness interviews conducted by a private investigator acting at the express direction of counsel are protected by the work-product doctrine, as defined in Pennsylvania Rule of Civil Procedure No. 4003.3, to the same extent as if the interviews were conducted by counsel. The Archdiocese argued that because its defense counsel hired the investigator to conduct the interviews, it should be entitled to the broader protection of the doctrine applicable to attorneys under Rule 4003.3. The court disagreed, reasoning that Rule 4003.3 contains a clear distinction between work-product of an attorney, with that of a non-attorney representative and the interpretation of the Rule 4003.3 proposed by the Archdiocese impermissibly blurs that distinction. Accordingly, the court refused to extend the broader protections afforded to attorneys' work product to notes memorializing the statements of witnesses taken by an investigator acting as a mere agent of the client or of the attorney. (June 7, 2018)

In Broderick v. Edgewater Park Owners Cooperative, the New York Supreme Court, Appellate Division, 1st Department, assessed a plaintiff’s motion to compel depositions of additional witnesses after a previously-deposed witness allegedly had insufficient knowledge. The court concluded that the plaintiff’s vague assertions as to the relevant information the named witnesses might provide was insufficient. (May 31, 2018)

In Tanner v. Bethpage Union Free School District, the New York Supreme Court, Appellate Division, 2d Department, assessed whether sanctions were appropriate for an alleged spoliation of evidence. The court denied the request for sanctions because the plaintiff failed to establish that the defendant intentionally or negligently failed to preserve the evidence after being placed on notice that the evidence might be needed for future litigation(May 30, 2018)

In Lee v. 13th Street Entertainment LLC, the New York Supreme Court, Appellate Division, 1st Department, addressed the plaintiff’s motion to strike the defendant’s answer as a sanction for discovery violations. Although the defendant failed to produce deposition witnesses in violation of two court orders, the court denied the motion to strike because the defendant’s business was defunct and its former employees and officers were no longer within their control. The court noted that the plaintiff could have subpoenaed the employees as nonparty witnesses. (May 24, 2018)

In Stahr v. Lincoln Sudbury Regional School District, the Supreme Judicial Court of Massachusetts ruled that the doctrine of sovereign immunity and the Massachusetts Tort Claims Act barred a high school student’s negligence claim against her school district for personal injuries suffered while practicing field hockey. The Court found that the Act would allow claims for injuries originally caused by the district’s affirmative acts, but barred the student’s claim because the district merely failed to act to prevent her injuries. (May 18, 2018)

In E&H Steel Corporation v. PSEG Fossil, LLC, the Superior Court of New Jersey, Appellate Division, considered whether a witness who was involved in the negotiation of a contract for the fabrication of structural steel components was properly prohibited from testifying because he had not been designated as an expert witness. Although his testimony was “technical, arcane, and involved specialized knowledge,” the nature of his testimony did not transform the witness into an expert witness. Because the witness’s testimony was factual and based on his own involvement in the project, he did not need to be designated as an expert. (May 21, 2018)

In Ellis v. Hilton United Methodist Church, the Superior Court of New Jersey, Appellate Division, considered whether the owner of a vacant church was liable for a slip and fall that occurred on its sidewalk. The Court found no evidence that demonstrated the church was ever operated for commercial purposes, a requirement for liability to attach. Even though the vacant church had commercial liability insurance, the church was not liable for the slip and fall because it never served a commercial purpose. (May 22, 2018)

In Javier v. New York City Housing Authority, the Supreme Court of New York, Appellate Division, 1st Department, addressed whether the New York City Housing Authority had notice of an allegedly dangerous condition. In this action, an individual fell on a crack while descending a stairwell in an apartment building. The court found that the Housing Authority could not demonstrate that it did not have actual notice of the condition because a previous building report indicated that the property’s steps were in need of repair. Similarly, the court stated that the Housing Authority was unable to show that it did not have constructive noticebecause it submitted evidence only about the building’s general cleaning routine and did not show when the stairs had last been inspected before the accident. (May 24, 2018)

In Lee v. 13th Street Entertainment, the Supreme Court of New York, Appellate Division, 1st Department, addressed whether an answer could be stricken based on a party’s failure to produce deposition witnesses in violation of two court orders. The court stated that it may strike an answer only when there is a clear showing that the failure to comply is willful, contumacious, or in bad faith. The court noted that while the party failed to produce a witness, its business was defunct and the former employees were no longer within the party’s control. Moreover, since the party provided opposing counsel with the contact information for former employees, these individuals could have been subpoenaed as nonparty witnesses. Accordingly, the court did not strike the answer. (May 24, 2018)

In Murphy v. National Collegiate Athletic Association, the United States Supreme Court struck down the Professional and Amateur Sports Protection Act (PAPSA), which prohibited states from authorizing sports gambling schemes. The Court held that the PAPSA violated the anti-commandeering rule under the Tenth Amendment because the PAPSA's anti-authorization provisions dictated what the state legislature may and may not do. Additionally, the Court held that PAPSA was not a valid preemption provision because it did not regulate private actors. Therefore, the Court held that while Congress could regulate sports gambling directly, it cannot indirectly regulate sports gambling by regulating state government's regulations of their citizens. (May 14, 2018)

In Scheeler v. Atlantic County Municipal Joint Insurance Fund, the Superior Court of New Jersey, Appellate Division, addressed whether someone who is not a resident or domiciliary of New Jersey has standing to file a request for public records under the Open Public Records Act (OPRA). The court found that the legislature’s general intent was to make New Jersey government records open to the public at large, rather than limiting access to New Jersey citizens only. (May 16, 2018)

In Vinson v. LA Fitness International, LLC, the Superior Court of Pennsylvania addressed whether a fitness club’s exculpatory provision in its membership agreement violated public policy as it barred a gym member’s personal injury claim. The court held that the provision did not violate public policy as the gym member was voluntarily engaged in recreational activity at the gym and was subject to the membership agreement, an agreement between private parties. (May 4, 2018)

In In Re Adoption of N.J.A.C. 17:1-6.4, 17:1-7.5 and 17:1-7.10, the Superior Court of New Jersey, Appellate Division, addressed the re-adoption of N.J.A.C. 17:1 governing the disability application process for various state public retirement systems. While the court upheld a majority of the provisions, it invalidated portions which required applicants to pay for subsequent Independent Medical Examinations (IMEs) and to pay for addenda to IMEs. (May 7, 2018)

In Goldman v. Critter Control of New Jersey, the Superior Court of New Jersey, Appellate Division, determined that a private individual lacked standing to bring a qui tam action against two different public defendants under the Prevention of Cruelty to Animals Act (PCAA). After reviewing the Act's legislative history and amendments, the court dismissed the plaintiff's assertion that the statute authorized "any person in the name" of the SPCA to bring an action and held that the PCAA did not authorize a qui tam action. (May 7, 2018)

In Petro-Lubricant Testing Laboratories v. Adelman, the Supreme Court of New Jersey addressed the viability of a defamation claim arising from an online article that detailed a gender-discrimination, workplace harassment and retaliation lawsuit. The court held that the dismissal was proper because, as a full, fair and accurate recitation of a court-filed complaint, the online article was entitled to the protection of the common law doctrine of fair report privilege. (May 7, 2018)

In Encarnacion v. New York City Housing Authority, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a building owner established a snow-in-progress defense after a pedestrian slipped and fell on snow and ice on the walkway in front of the owner’s building. The court determined that the pedestrians’ general allegations of “dirty” snow or conclusory claims that the snow removal was inadequate were insufficient to defeat the owner’s snow-in progress defense. (May 10, 2018)

In Hutcherson v. Hill, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a nuisance claim had been established by a resident in a cooperative apartment building against his neighbor. The court determined that two periods of intermittent noise were insufficient to establish a nuisance claim. The court further determined that the neighbor, an elderly and sickly man, could not have created enough disturbance to constitute a nuisance. (May 10, 2018)

In City of Harrisburg v. Prince, the Commonwealth Court of Pennsylvania interpreted the donation exemption of the Right to Know Law. Section 708(b)(13) exempts from access “records that would disclose the identity of an individual who lawfully makes a donation to an agency including donor profile information or personal identifying information relating to a donor.” However, Section 708(c) indicates that the exemption does not apply to financial records. The court found that the mere collation of data with respect to the donors of private funds is not considered financial data. Conversely, the court held that records relating to the actual receipt and disbursement of privately donated nongovernmental funds by a city are financial records. (May 10, 2018)

In Brennan v. Lonegan, the Superior Court of New Jersey, Appellate Division, addressed whether a qui tam action is permitted under the New Jersey False Claims Act when the plaintiff has no direct and independent knowledge of the alleged violation. The court held that the plaintiff lacked standing under the statute because: (1) the alleged violation was publicly known, investigated, and decided before his action was filed, and (2) he was not the “original source” of the information forming the basis of the claim. (May 2, 2018)

In Straw v. Kirk A. Fair & Golon Masonry Restoration, the Superior Court of Pennsylvania reaffirmed that Sections 323 and 324A of the Second Restatement of Torts correctly state the law of this Commonwealth with respect to the negligent performance of undertakings. In applying these sections on a motion for summary judgment, the court found that a genuine issue of material fact existed with respect to whether an auto repair shop, an automotive oil change shop and an auto parts store were negligent in undertaking the repair a vehicle’s hood latch which subsequently failed causing death and serious injuries to the vehicle’s passengers. Additionally, the court concluded that the plain language of the Fair Share Act and the Uniform Contribution Among Tortfeasors Act permits apportionment and contribution between reckless and negligent co-defendants. (April 30, 2018)

In Day v. Wilcox Landscaping, Inc., the Supreme Court of Delaware addressed the applicability of the continuing storm doctrine, which permits landowners to wait until a storm ends and a reasonable time thereafter to remove ice and snow from their property, to independent contractors. The court rejected the plaintiff’s contention that this defense was limited to landowners only and did not extend to the activities of independent contractors. In its decision, the court explained the public policy underlying the continuing storm doctrine and noted the inconsistencies that would result if only landowners were allowed to claim the benefit of this defense. (May 2, 2018)

In Buchanan v. TD Bank, N.A., the Supreme Court of Delaware again affirmed the validity of the continuing storm doctrine as a defense to claims that a landowner was negligent in removing snow and ice from his property during a storm. In this case, the plaintiff argued that the continuing storm doctrine did not apply to pre-storm, precautionary measures that the landowner should have taken to prevent the accumulation of snow during the storm. The court rejected this argument, finding it to be a meaningless distinction and an attempt undercut the protections of the continuing storm doctrine. (May 2, 2018)

In Commonwealth of Pennsylvania v. President of the United States of America, the United States Court of Appeals for the Third Circuitconsidered whether a third party (a local chapter of the “Little Sisters of the Poor”) could intervene in litigation challenging regulations promulgated under the Patient Protection and Affordable Care Act (ACA). The court permitted the interveners to intervene as of right under Federal Rule of Civil Procedure (24a) because they had a sufficient interest in the litigation, they could be disadvantaged by the outcome of the litigation, and their interest was not adequately represented by the federal government. (April 24, 2018)

In Teitelbaum v. North Shore-Long Island Jewish Health System, Inc., the New York Supreme Court, Appellate Division, 2d Department, addressed what level of evidence was sufficient to rebut a process server’s affidavit declaring that the defendant was properly served. The court held that the defendant’s rebuttal affidavit attesting to a lack of service was sufficient to confirm that the plaintiff failed to properly serve the defendant. (April 25, 2018)

In D&S Restoration, Inc., v. Wenger Construction Company, Inc., the New York Supreme Court, Appellate Division, 2d Department,addressed whether an agreement modifying the Statute of Limitations for breach of contract is enforceable if certain conditions precedent to the underlying contract are not within the parties’ control. The court held that the agreement to modify the Statute of Limitations was unenforceable because a certain condition precedent to payment (e.g., payment by a third party) was out of the plaintiff’s control. (April 25, 2018)

In Krzykalski v. Tindall, the Supreme Court of New Jersey addressed whether fault may be allocated to a known, but unidentified (John Doe) defendant under under the Comparative Negligence Act and the Joint Tortfeasors Contribution Law in a multi-vehicle accident case. The court permitted the jury’s allocation of fault to the John Doe defendant because the plaintiff, along with the plaintiff’s uninsured motorist carrier, received fair and timely notice of the co-defendant’s intent to shift blame to the John Doe defendant. (April 17, 2018)

In United States v. Microsoft, the United States Supreme Court held that its review was rendered moot as to whether a warrant pursuant to the Stored Communications Act required a US email service provider to disclose to the government electronic communications under its control but stored abroad. During the appeal, Congress enacted the Clarifying Lawful Overseas Use of Data Act (CLOUD Act), which amended the Stored Communications Act and added a provision requiring compliance regardless of whether the information is located within or outside the United States. (April 17, 2018)

In Ember v. Denizard, the Supreme Court of the State of New York, Appellate Division, 1st Department, addressed the extent to which a settlement agreement may be given preclusive effect as to future claims. The court found that the settlement agreement, which released claims “limited to those claims asserted and/or that could have been asserted,” raised the inference that the release was not intended to encompass claims not actually asserted in prior actions. (April 19, 2018)

In Age Group, Ltd. v. Martha Stewart Living Omnimedia, Inc., the New York Supreme Court, Appellate Division, 1st Department, addressed whether a manufacturer could recover lost profits in connection with its breach of contract claim against a merchandising company. The court held that the manufacturer could recover lost profits because the manufacturer submitted evidence supporting its claim that its damages were caused by the merchandising company’s alleged breach of the parties’ contract, are capable of proof with reasonable certainty, and were fairly within the contemplation of the parties at the time the contract was made. The court also held that issues of fact existed as to whether the merchandising company breached the agreement by saying that it would not approve any new designs. The court noted that while the merchandising company was permitted to refuse any design on subjective grounds such as personal taste and sensibilities, it was nevertheless obligated to exercise its refusal in good faith, based on dissatisfaction genuinely and honestly arrived at. (April 12, 2018)

In  Hiam v. Homeaway.com, Inc., the United States Court of Appeals for the First Circuit held that a website that hosted vacation rentals offered by third-parties (VRBO.com) was not liable under the Massachusetts Consumer Protection Act to a would-be renter who had been scammed by a purported third-party vacation property offeror. The Court rejected the renter’s argument that the word “guarantee” in the website’s “Basic Rental Guarantee” should be construed as a representation or warranty by the website to its users that it had engaged in pre-screening or verification of the listings on the website. The court also held that the renter’s claims were barred by the Communications Decency Act, which immunizes websites from liability for content posted by third-parties, because he was unable to show that his claims were based on the website’s own actions and representations as opposed to just the actions of the scammer who posted the fake rental. (April 12, 2018)

In Anderson v. K. Hovnanian at Port Imperial Urban Renewal II, LLC, the Superior Court of New Jersey addressed (1) whether plaintiff should have been permitted to amend her complaint for the third time at the eve of the discovery end date; (2) whether plaintiff should have been permitted to introduce three late expert reports which were produced over a month after the court ordered deadline; and (3) whether summary judgment was proper where plaintiff could not prove any of her allegations without expert testimony. First, the court held that defendants would be prejudiced if another amendment were permitted at this late stage in the proceedings because the amendment would require additional discovery, depositions and expert review. Second, the court found that plaintiff’s late expert reports were properly excluded from trial because plaintiff failed to show any exceptional circumstances excusing the late submission of the expert reports. Finally, summary judgment was proper because plaintiff failed to produce the requisite expert testimony to prove the existence of a defect in the HVAC system, and damages, in support of her claims. (April 11, 2018)

In Morris v. T.D. Bank, the Superior Court of New Jersey, Appellate Division, considered whether a bank was liable for emotional distress a bank customer experienced as a result of being misidentified as the perpetrator of a bank robbery. The court held that, under the circumstances, the bank did not owe the customer a duty with respect to the criminal conduct of a third party nor could it be held liable for allegedly breaching its own policy against calling the police until after the actual perpetrator left the premises because a defendant’s internal policies, standing alone, cannot demonstrate an applicable standard of care. The fact that the customer believed he was wrongly identified as the perpetrator was insufficient to impose liability – there is no tort of “negligent misidentification” under New Jersey law(April 10, 2018)

In Kisela v. Hughes, the United States Supreme Court addressed whether a police officer was entitled to qualified immunity after he shot a woman four times in her driveway while she held a large kitchen knife. The Court held that the police officer was entitled to qualified immunity as his conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. (April 2, 2018)

In Friedman v. Martinez, the Superior Court of New Jersey, Appellate Division, addressed whether female tenants, who claimed that their privacy was invaded when the custodian placed hidden surveillance equipment in a women’s restroom in an office building, could allege an invasion of privacy only if they demonstrated that their images were actually captured. The court held that a victim of such an intrusion need not provide evidence of her captured image to prove that an intrusion occurred and that it was enough that the victim provide evidence supportive of a finding that a recording device was present when she was in a secluded area where a reasonable expectation of privacy may be assumed. (March 23, 2018)

In Burlingame v. Dagostin, the Superior Court of Pennsylvania interpreted the statute of repose contained in the Right to Farm Act pertaining to a nuisance action. As a matter of first impression, the court determined that the term “agricultural operation” in the statute refers to the farm itself, not the farming process. Accordingly, the court held that, where the farm is in operation more than one year prior to the filing of a nuisance complaint and where an expanded operation is compliant with a nutrient management plan, a nuisance claim will be barred. (March 29, 2018)

In J.H. v. R&M Tagliareni, LLC, the Superior Court of New Jersey addressed whether a landlord and property manager owed a duty to protect a minor from an uncovered radiator in an apartment. The court determined that because the radiator was part of the building’s heating system, over which the defendants had complete control, they owed the tenant a common law duty of care. The court further found defendants owed a duty of care under a regulation requiring heating systems to be covered because the radiator was part of said “heating system.” (March 29, 2018)

In Bermingham v. Atlantic Concrete Cutting, the Supreme Court of New York, Appellate Division, 1st Department, addressed the propriety of a motion to set aside a verdict, based on the misconduct of the plaintiff’s counsel, made after the jury rendered its verdict. In denying the request, the court noted that this was not the rare case in which the misconduct of counsel for the prevailing party was so wrongful and pervasive as to constitute a fundamental error and gross injustice warranting the court’s discretionary action to set aside the verdict in spite of the failure of the aggrieved party to make a timely motion. (March 29, 2018)

In Estate of Frank P. Lagano v. Bergen County Prosecutor’s Office, the Superior Court of New Jersey, Appellate Division, held that evidence from wiretap orders issued by a court pursuant to the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -37, can be disclosed for use in civil litigation “upon a showing of good cause” under N.J.S.A. 2A:156A-17(c). The trial court may order disclosure only if the need for disclosure outweighs the harms disclosure is likely to cause, subject to review for abuse of discretion. If a disclosure would reveal a person was a confidential informant for a particular agency, in a particular investigation, during a particular period, or in a particular way, the court must consider whether such information is now publicly known. (March 20, 2018)

In Aranda v. Philip Morris, the Supreme Court of Delaware held that a trial court should consider the existence of an available alternative forum as a factor before dismissing a case for forum non conveniens. However, the existence of an alternative forum is not a threshold requirement that must be satisfied in every case. (March 22, 2018)

In Giardini v. Settanni, the Supreme Court of New York, Appellate Division, 2d Department, considered whether the denial of plaintiffs’ motion for summary judgment on their cause of action to recover damages for conversion, to recover on an account stated, and for injury to property should be affirmed. The plaintiffs’ allegedly repaired, at the defendants’ request, a vehicle owned by the defendants at plaintiffs’ vehicle repair shop. Defendants removed their vehicle from the plaintiffs’ premises without authorization and without paying for the repairs. The court affirmed the lower court’s denial of plaintiffs’ motion of summary judgment because plaintiffs failed to establish, prima facie, that they had an immediate right of possession to the defendants’ vehicle and failed to establish that the defendants exercised unauthorized domain over the vehicle. (March 21, 2018)

In Aristizabal v. Kostakopoulos, the Supreme Court of New York, Appellate Division, 2d Department, considered whether the lower court properly granted the defendant’s motion for summary judgment dismissing the plaintiff’s personal injury complaint. The court held that the lower court properly granted defendant’s motion for summary judgement because the plaintiff could not identify what caused her to fall. (March 21, 2018)

In State Farm Guaranty Insurance Company v. Hereford Insurance Company, the Superior Court of New Jersey, Appellate Division, addressed whether the New Jersey Uniform Arbitration Act requires an “in-person arbitration hearing.” The court held that no such requirement exists, as the language of the Act did not specify that an arbitration must be held “in-person.” It noted that, when specialized provisions of the Act were inapplicable, the general provisions did not mandate a hearing. When an arbitrator determined a hearing was necessary, the only requirements were that the parties had a right to notice, to be heard, to present evidence and to cross-examine witnesses. (March 14, 2018)

In Hickey v. City of New York, the New York Supreme Court, Appellate Division, 1st Department, determined that the court properly vacated the note of issue to the extent of directing the plaintiff to appear for an independent medical examination. The defendants would have been prejudiced by an inability to gain discovery into the effects of a prior accident on the plaintiff’s preexisting injuries. Moreover, the defendants did not engage in willful and dilatory tactics that would warrant denial of the motion. (March 15, 2018)

In In re Intrepid Investments, LLC v. Selling Source, LLC, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a corporation may vacate an arbitration award. The court found that the corporation failed to satisfy the heavy burden of “establishing by clear and convincing evidence a ground for vacating the arbitration award.” The corporation was required to demonstrate that “the arbitrator’s decision was irrational or exceeded a specifically enumerated limitation on his powers.” (March 15, 2018)

In Baez v. Paulo, M.D., the Superior Court of New Jersey, Appellate Division, addressed the statute of limitations bar to substituting unnamed defendants under the fictitious pleading rule. The court held that the fictitious pleading rule did not toll the statute of limitations where the plaintiff could have reasonably ascertained the identity of the physicians pre-suit through a “due diligence” effort. The court further held that where the plaintiff could not reasonably determine a physician’s name prior to discovery or post-suit affidavit identifying an unidentified physician, the plaintiff may, after the statute has run, substitute the now-known physician in place of the “John Doe” defendant. (March 2, 2018)

In Romano v. Waffenschmidt, the Superior Court of Pennsylvania addressed whether the trial court properly granted the defendant’s motion for compulsory non suit in a premise liability action. The court held that the trial court properly based its conclusions on an examination of the record, rather than the credibility of the witnesses presented at trial. The court further held that the trial court properly considered evidence elicited by the defendant where such evidence arose on cross-examination of witnesses. Finally, the court held that the appellant failed to state a claim for negligence because she offered no proof that the defendant had any reason to believe that normal use of a step involved an unreasonable risk to invitees. (March 2, 2018)

In Javier Garcia Gonzalez v. 1225 Ogden Deli Grocery Corporation, the New York Supreme Court, Appellate Division, 1st Department, addressed whether unsworn hearsay from witnesses previously undisclosed in discovery was sufficient to defeat partial summary judgment as to liability on an injured worker’s claim. The court held that the defendant failed to raise an issue of fact sufficient to defeat summary judgment, noting that the defendant “never attempted to obtain affidavits from these witnesses or attempted to depose them” and “proffer[ed] their statements only after [the] plaintiff had moved for summary judgment.” The court also emphasized that while hearsay statements may be offered in opposition to a motion for summary judgment, hearsay statements cannot defeat summary judgment “where it is the only evidence upon which the opposition to summary judgment is predicated.” (February 27, 2018)

In Macdonald v. Cashcall  Inc., the United States Court of Appeals for the Third Circuit considered whether a borrower could be compelled to arbitrate a loan agreement over a dispute with the lender. The loan agreement included a provision requiring all disputes be resolved through arbitration by a representative of the Cheyenne River Sioux Tribe and a clause that delegated questions about the arbitration provision’s enforceability to the arbitrator. The Cheyenne River Sioux Tribe does not involve itself in the hiring of arbitrators, does not have consumer dispute rules and does not authorize arbitration. Therefore, the court held that because the parties’ agreement directs arbitration to an illusory forum, and the forum selection clause is not severable, the entire agreement to arbitrate, including the delegation clause, is unenforceable. (February 27, 2018)

In Institution for Savings v. Matthew Langis, the Supreme Judicial Court of Massachusetts ruled that when an investment marketing company moved to set aside its default for failure to answer interrogatories, it had to satisfy the more lenient good cause standard under Mass. R. Civ. P. 55(c), rather than show excusable neglect under Mass. R. Civ. P. 60(b)(1) because the court’s entry of default was not a final judgment. (February 27, 2018)

In Estate of David Eric Yearby v. Middlesex County, the Superior Court of New Jersey, Appellate Division, considered whether the estate of a deceased mentally ill individual who was strapped to a restraint chair within twenty-four hours of being arrested for assault and resisting arrest, established grounds to warrant relief from the time restrictions established by the Affidavit of Merit statute. The estate of the mentally ill individual was originally represented by counsel who failed to take any measures to comply with the Affidavit of Merit statute and as a result the complaint was dismissed. Subsequent counsel to the estate of the mentally ill individual argued that extraordinary circumstances existed by prior counsel failing to comply with the Affidavit of Merit statute and as such the complaint should not be dismissed. The court upheld the dismissal of the complaint in holding that the doctrine of substantial compliance is not applicable when the record shows a complete failure to take any measures to comply with the Affidavit of Merit statute. (February 27, 2018)

In In re K.J.H., the Superior Court of Pennsylvania addressed whether an individual has standing to view sealed wiretap records pertaining to criminal cases in which that individual has averred no personal or legal interest. The court found that, in the absence of any legal authority as to why the records should be unsealed, there is no good cause for disclosure of the records. (February 20, 2018)

In The Delaware Riverkeeper Network v. Sunoco Pipeline L.P., the Commonwealth Court Pennsylvania addressed whether a township’s power to regulate the location of a pipeline is preempted by the authority of the Pennsylvania Public Utility Commission (PUC). The court held that, because the owner of the pipeline is a public utility, it is regulated by the PUC. The court also held that, because the pipeline is considered intrastate, it was also regulated by the PUC. (February 20, 2018)

In Danganan v. Guardian Protection Services, the Supreme Court of Pennsylvania addressed whether the Unfair Trade Practices and Consumer Protection Law (UTPCPL) applies to a transaction involving a Pennsylvania company with an out-of-state consumer and wholly out-of-state transaction. The court held that the UTPCPL’s remedial nature and lack of limiting language in the statute allowed it to apply to such a transaction. (February 21, 2018)

In Lee v. Brown, the Supreme Court of New Jersey addressed whether an electrical inspector enjoyed absolute or qualified immunity against a claim for a fire allegedly caused by his failure to terminate electrical service to a building. The court held that, because the alleged negligence constituted a failure to enforce the law, he was entitled to absolute immunity. (February 21, 2018)

In Driscoll v. Arena, the Superior Court of Pennsylvania held that a paragraph in a promissory note stating that the parties intend the note to be a sealed instrument does not alone create an instrument under seal. Therefore, the extended statute of limitations for instruments in writing under seal did not apply. The court also held that a void confession of judgment can be stricken at any time, even years beyond the thirty-day period to file a petition to strike or open. (February 12, 2018)

In Wells Fargo Bank, N.A. v. Joseph, the Superior Court of Pennsylvania addressed whether a bank could receive summary judgment in a foreclosure accident by relying on a testimonial affidavit of a bank officer in violation of Nanty-Glo v. American Surety Company, 163 A. 523 (Pa. 1932) (prohibiting summary judgment based solely on the moving party’s oral testimony). The court held that Nanty-Glo was inapplicable as (i) the bank did not seek summary judgment based upon the affidavit alone; it also submitted a loan report demonstrating homeowner’s default; and (ii) the bank supported its motion for summary judgment with admissions from homeowner. (February 13, 2018

In Garza v. Citigroup Inc., the United States Court of Appeals for the Third Circuit addressed whether a district court may award attorneys’ fees as “costs” under Federal Rule of Civil Procedure 41(d). Rule 41(d) authorizes a district court to order a plaintiff who voluntarily dismisses an action and files a second action against the same defendant based upon a claim in the first action to pay the costs incurred by the defendant in the first action. The court held that attorneys’ fees may only be awarded as “costs” under Rule 41(d) when the substantive statute under which the lawsuit was filed defines costs to include attorneys’ fees. (February 2, 2018)

In Gervasi v. Blagojevic, the New York Supreme Court, Appellate Division, 2d Department, addressed whether submitting evidence from a climatology expert showing that slippery conditions were present from previous storms is sufficient to rebut the “storm in progress” rule. Under the storm in progress rule, a property owner will not be held liable in negligence for accidents occurring as a result of a slippery snow or ice condition occurring during an ongoing storm or for a reasonable time thereafter. The court found that it was appropriate to consider the climatologist’s opinion that the conditions that caused the fall predated the storm. (February 7, 2018)

In League of Women Voters of Pennsylvania v. The Commonwealth of Pennsylvania, the Supreme Court of Pennsylvania held that the Pennsylvania Congressional Redistricting Act of 2011 was a violation of the Free and Equal Elections Clause of the Pennsylvania Constitution, because it provided an unfair partisan advantage over traditional redistricting criteria, thereby undermining voters’ ability to exercise their right to vote in “free” and “equal” elections. (February 7, 2018)

In Collins v. Philadelphia Suburban Development Corporation, the Superior Court of Pennsylvania addressed whether the hills and ridges doctrine precluded a finding of liability against the landowner. The court held that there was no factual dispute as to whether the injured party slipped and fell on snow and/or ice during an active blizzard; that is, at a time when “generally slippery conditionsprevailed in the community(January 31, 2018)

In Harris v. Pennsylvania Department of Corrections, the Commonwealth Court of Pennsylvania addressed whether the trial court lacked original jurisdiction to decide an inmate’s alleged violations of Section 202 of the Americans with Disabilities Act (ADA). The court held that, as the inmate was seeking inter alia, money damages, the trial court possessed original jurisdiction because the inmate’s ADA claim constituted an action in tort pursuant to 42 Pa.C.S. § 761(a)(January 31, 2018)

In Adelman v. BSI Financial Services, Inc., the Superior Court of New Jersey addressed whether a homeowner in a foreclosure case may choose not to pursue a germane defense in that action and then pursue a civil case against the lender alleging fraud by foreclosure. The court held that the homeowner should have pursued her appeal of the denial of this germane claim in the foreclosure litigation rather than raising the same issue in other litigation(January 31, 2018)

In Bousamra v. Excela Health, the Supreme Court of Pennsylvania granted allowance of appeal to consider whether (1) a client waives the work-product protection of its counsel’s pre-litigation email by forwarding the email to its public relations consultant and (2) a third party must provide legal advice and have a lawyer or client control its work in order to qualify as a privileged person for purposes of the attorney-client privilege(January 30, 2018)

In Bradley v. West Chester University, the United States Court of Appeals for the Third Circuit examined whether a public university administrative employee stated causes of action for retaliation under 42 U.S.C. § 1983 and the First Amendment following her termination after expressing criticism over the university budget. The court found that the Eleventh Amendment immunized the university from the employee’s claims. The court also held that the employee’s speech was not constitutionally protected because it was made in her official employee capacity rather than as a private citizen. (January 28, 2018)

In Rosenfeld Consulting, LLC v. OmniVere, LLC, the New York Supreme Court, Appellate Division, 1st Department, addressed the pleading of fraud in the context of an oral contract while lacking the intent to perform. The court held that mere general allegations that a party entered into an oral contract failed to establish a clear and unambiguous promise to demonstrate fraud. (January 25, 2018)

In Re:Source New Jersey, Inc., the New York Supreme Court, Appellate Division, 1st Department, considered denial of a petition to permanently stay arbitration based on allegations that there were inherent inconsistencies in the printed riders/exhibits accompanying the parties’ subcontract, rendering the binding arbitration clause moot. The court upheld the lower court’s decision, finding that the subcontract unambiguously established parties’ intent to enter binding dispute resolution and this would take precedence over any purported inconsistencies in the printed riders/exhibits. (January 25, 2018)

In Saint Annes Development Company v. Russ, the New York Supreme Court, Appellate Division, 2d Department, considered the defendant’s motion to compel the production of attorney-client privileged communications on the grounds that presence of a third-party waived the privilege. The court upheld the trial court’s denial of the defendant’s motion, finding that common-interest privilege was an exception to the general rule governing waiver when, as here, the privileged communication was for the purpose of furthering a legal, as opposed to a commercial, interest common to the client and the third-party. (January 24, 2018)

In Grove v. Port Authority of Allegheny County, the Commonwealth Court of Pennsylvania held that a trial court’s refusal to give a jury instruction regarding negligence per se under the Pennsylvania Motor Vehicle Code constituted reversible error requiring a new trial. A bus injured a pedestrian when it struck her as she was crossing the road and at trial there was a factual dispute regarding whether the pedestrian was in the crosswalk at the time. The bus company asked that the jury be instructed on negligence per se based on the Motor Vehicle Code relating to a pedestrian’s duty of care. The jury sent a question to the trial court asking about right-of-way law but the court informed them it was not an issue in this case. However, because the jury sought and was denied instruction regarding the pedestrian’s duty of care and this instruction could have had a significant impact on the jury’s verdict and apportionment of comparative negligence, the court held that a new trial was warranted. (January 12, 2018)

In Hayes v. Delamotte, the New Jersey Supreme Court considered whether the trial court’s decision to prevent a personal injury plaintiff from replaying and commenting on a portion of the defense medical expert’s videotaped trial testimony during the plaintiff’s closing statement resulted in a miscarriage of justice. In concluding that it did, the court instructed that videotaped trial testimony may be utilized during closing argument so long as: (1) the video is not so lengthy that it overly emphasizes one litigant’s side of the case and (2) the edited portion of the video does not misstate testimony by omitting relevant context. (January 10, 2018)

In All The Way Towing v. Bucks County International, the Superior Court of New Jersey, Appellate Division, considered whether a towing company stated a viable claim for breach of contract and violation of the Consumer Fraud Act against a truck manufacturer who agreed to build a custom-made tow truck. The court reasoned that, viewing the alleged facts in a light most favorable to the towing company, the truck manufacturer did not deliver the custom tow truck to the towing company’s specifications and, therefore, the towing company’s complaint should not be dismissed(January 9, 2018)

In Stange v. Janssen Pharmaceuticals, Inc., the Superior Court of Pennsylvania addressed the “learned intermediary doctrine” under which the manufacturer of a drug can only be held liable when it fails to exercise reasonable care in informing the physician about the potential risks associated with a drug. Although, in this case, the physician could not recall whether he read the relevant warnings, the court held that, because sufficient evidence was adduced at trial demonstrating that the drug manufacturer downplayed the relevant risks, the learned intermediary doctrine did not insulate the drug manufacturer from liability. (January 8, 2018)

In Laine v. Speedway LLC, the Supreme Court of Delaware held that the continuing storm doctrine – which permits a premises owner to wait until a reasonable time after a winter storm before cleaning snow and ice (and therefore insulates the premises owner from related liability) – applies to a business which remains open during a winter storm(January 8, 2018)

In Green v. Monmouth University, the Superior Court of New Jersey, Appellate Division, held that a non-profit university was immune from suit by an attendee of a concert on campus who slipped, fell, and injured herself, because the university enjoyed immunity conferred by the New Jersey Charitable Immunity Act. The court held that the concert furthered the university’s charitable goal of promoting general cultural education and, therefore, the Act applied to the concert held on the university’s campus. (January 8, 2018)

In Rutyna v. Schweers, the Superior Court of Pennsylvania determined that the trial court abused its discretion in denying the plaintiffs' continuance request in a legal malpractice claim. Plaintiffs requested a continuance of the underlying medical malpractice case after they discovered that their expert witness signed a consent judgment in another case and agreed to not testify against the medical care provider at issue. The court held that the continuance should have been granted under the totality of the circumstances since plaintiffs were not at fault for their witness's preclusion from testifying, the case was complex, an additional seven months would have been negligible to this already protracted case, and the denial caused irreversible prejudice to plaintiffs. (January 4, 2018)

In Lechler v. 303 Sunset Avenue Condominium Association, the Superior Court of New Jersey, Appellate Division, held that a condominium association had a statutory duty to identify and correct dangerous conditions in its common areas. This included the duty to construct and maintain a center handrail in a wide stairway. The court further noted that the condominium association has a statutory right to adopt a by-law precluding residents from suing the association for negligence, but failed to adopt such a by-law. (December 29, 2017)

In Bruno v. Port Authority of New York & New Jersey, the Supreme Court of New York, Appellate Division, 1st Department, addressed whether a transit line breached its duty as a common law carrier to provide a passenger with safe passage. In determining whether the transit line breached its duty, the court found that the fact that 15-20 people safely descended from the bus before the passenger stepped in a hole while exiting did not entitle the transit line to summary judgment as issues of fact remained regarding whether the carrier breached its duty to notify the Port Authority of any needed repairs. (January 4, 2018)

In Pezhman v. Chanel, the Supreme Court of New York, Appellate Division, 1st Department, addressed whether allegedly defamatory statements made by a law firm in another matter were protected by absolute privilege attaching to statements made in the course of judicial proceedings. The court found that such statements were privileged. In making this determination the court looked to the fact that such statements were pertinent to the proceeding in which they made and that the underlying lawsuit was not a “sham” action brought solely to defame. (January 2, 2018)

In Whalla v. Pennsylvania Liquor Control Board, the Commonwealth Court of Pennsylvania addressed the timeliness of the renewal of a liquor license. Since the applicant did not give any explanation for delay or the requisite late-filing fee that would permit a retroactive review of a late-filed application under the Liquor Code, the Court affirmed the Board’s decision to not validate or renew his liquor license. (January 4, 2018)

In Santiago v. Rich Products Corporation, the Appeals Court of Massachusetts addressed whether an adverse inference instruction was warranted against a defendant for alleged spoliation of documentary evidence. The court held that no spoliation instruction was warranted because the plaintiff offered no evidence to establish that the documents were lost or destroyed at a time when the defendant knew or should have known of their potential significance. (December 28, 2017)

In Skrabec v. Town of North Attleboro, the United States Court of Appeals for the First Circuit held that a student and his parents’ claims against their town and local law enforcement arising from the students’ alleged wrongful arrest should be dismissed because they failed to timely oppose summary judgment. The court further held that ongoing settlement negotiations did not relieve them of the obligation to respond to the outstanding motion, and their failure to do so was not excusable neglect. (December 18, 2017)

In Golab v. Knuth, the Superior Court of Pennsylvania examined whether Erie County, which did not implement a local rule regarding termination of actions as required under the Pennsylvania Rules of Civil Procedure, and issued a termination notice involving a one-time publication in the Erie Legal Journal, provided inadequate notice that it was terminating a personal injury action. The court held that Erie County complied with the minimum standards set forth in the Pennsylvania Rule, and that there is no requirement to conduct an evidentiary hearing concerning the cause for the delay and any prejudice after seven years of docket inactivity. (December 12, 2017)

In Jacobus v. Trump, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a tweet by presidential candidate Donald Trump about a political commentator, which stated that she “begged us for a job. We said no and she went hostile,” and “[b]egged my people for a job. Turned her down twice and she went hostile. Major loser, zero credibility[,]” constitutes a defamatory statement. In upholding the trial court’s dismissal of the commentator’s complaint, the Appellate Division held that the “alleged defamatory statements are too vague, subjective, and lacking in precise meaning (i.e., unable to be proven true or false) to be actionable.” The court held that the “immediate context in which the statements were made would signal to the reasonable reader or listener that they were opinion and not fact.” (December 12, 2017)

In Bouchon v. Citizen Care, Inc., the Superior Court of Pennsylvania addressed the viability of an amended complaint which failed to set forth material averments in a concise and summary fashion. The court sifted through the paragraphs of the amended complaint and found sufficient factual averments to allege negligence and gross negligence. (December 6, 2017)

In Bridgeville Rife & Pistol Club v. Small, the Supreme Court of Delaware addressed whether unelected officials from the State’s parks and forests departments have the authority to ban the possession of guns in state parks and forests. The court held that the ban eviscerates a core right to keep and bear arms for defense of self and family outside the home under the Delaware constitution. (December 7, 2017)

In Jacobs v. Jersey Central Power & Light Company, the Superior Court of New Jersey addressed whether a property owner was required to present expert testimony on industry standards to establish liability against the utility for leaving a hole on his property. The court held that expert testimony is not always required to assess whether a defendant acted negligently, and particularly not necessary when the jury can understand the concepts in a case “utilizing common judgment and experience.” (December 7, 2017)

In Reese v. Pennsylvanians for Union Reform, the Supreme Court of Pennsylvania addressed whether access to public information available pursuant to Section 614 of the Administrative Code is governed by the Right-to-Know Law (RTKL). The court held that the RTKL governs the method of access to Section 614 information; however, the exceptions to disclosure under the RTKL do not apply to permit redactions from otherwise available information. Additionally, before disclosing any Section 614 information, the State Treasurer must perform a balancing test to ensure that disclosures of personal information do not violate any individual’s rights of informational privacy under Article 1, Section 1 of the Pennsylvania Constitution. (November 22, 2017)

In Stacy Parks Miller v. County of Centre, the Supreme Court of Pennsylvania addressed whether the office of the District Attorney is properly classified as a “judicial agency” for purposes of application of Pennsylvania’s Right-to-Know-Law (RTKL), which provides that only the financial records of a judicial agency are subject to disclosure. The court determined that the inclusion of district attorneys within the definition of “system and related personnel” in the Judicial Code and Rules of Judicial Administration did not transform district attorneys into members of the unified judicial system, and the office was therefore not a judicial agency under the RTKL. (November 22, 2017)

In Thabo v. Z Transportation, the Superior Court of New Jersey, Appellate Division, addressed whether a motion judge’s dismissal of a plaintiff’s complaint with prejudice complied with the requirements of Rule 4:23-5, which provides for sanctions for failure to answer interrogatories or provide other discovery. The court determined that both the party who filed the motion for dismissal with prejudice and the motion judge who imposed the sanction failed to follow the procedural safeguards codified in the Rule. (November 17, 2017)

In Stegemann v. Rensselear County Sheriff’s Office, the New York Supreme Court, Appellate Division, 3d Department, addressed the inmate plaintiff’s motion for an extension of time to file his complaint after failing to properly serve the defendants within the prescribed time period. The court rejected the inmate’s assertion that his pro se and incarcerated status constituted good cause to extend his time to effectuate service because he did not demonstrate how his imprisonment prevented his compliance with statutory service requirements. (November 30, 2017)

In Chester Housing Authority. v. Polaha, the Commonwealth Court of Pennsylvania addressed whether it was constitutionally permissible under the Right-to-Know Law for the Chester Housing Authority to protect from disclosure the addresses where Housing Choice Voucher Program (HCVP) participants reside in the Township. As the court determined that the request represents an intrusion on HCVP tenants’ constitutional rights to privacy in their home addresses that they did not waive, the court held that the public interest favoring disclosure did not outweigh the tenants’ rights to privacy in their home addresses. (November 21, 2017)

In Peterson v. Islamic Republic of Iran, the United States Court of Appeals for the Second Circuit addressed whether families of soldiers killed in the 1982 bombing of Marine barracks in Lebanon could recover bond proceeds allegedly owned by Iran’s central bank and held by another foreign bank to partially satisfy $3.8 billion of judgments the families had won against Iran. The court held that the Foreign Sovereign Immunities Act permitted state courts with personal jurisdiction over a non-sovereign third party to exercise jurisdiction to recall extraterritorial assets owned by a foreign sovereign. (November 21, 2017)

In Justice v. Pennsylvania State Police Trooper Lombardo, the Commonwealth Court of Pennsylvania considered whether a state trooper was immune from suit for injuries sustained during a traffic stop. The court held that the trooper was entitled to immunity because he was acting within the course and scope of his employment as a state trooper at the time of the incident and the Pennsylvania Constitution provides immunity to Commonwealth employees for intentional torts. (November 14, 2017)  

In Li v. Cannon Company, Inc., the Supreme Court of New York, Appellate Division, 2d Department, considered whether a default judgment against a corporate party could be vacated. In making its determination, the court stated that a defendant seeking to vacate a default must show both reasonable excuse and a potentially meritorious defense. The court further noted that while a corporate defendant’s failure to update its address for service with the Secretary of State usually does not constitute a reasonable excuse, the court is not precluded from finding a reasonable excuse if warranted by the circumstances. The court vacated the default, finding that the corporate defendant had established a reasonable excuse through its demonstration that it was unaware that its attempts to update its address with the secretary of state had failed and that plaintiff knew the company’s actual address but failed to send notice of the action. (November 15, 2017)

In Buttaccio v. American Premier Underwriters, Inc., the Superior Court of Pennsylvania addressed whether an ergonomics expert’s methodology was admissible where the expert never assessed the plaintiff’s jobsite. The court held that it is unnecessary for an expert to visit a plaintiff’s jobsite before rendering his opinion because it is possible for an expert to base their opinion on personal knowledge and experience instead of on-site visits. (November 16, 2017)

In Amoah v. McKinney, the United States Court of Appeals for the First Circuit held that an injured driver’s failure to disclose expert reports until four months after the expert discovery deadline justified striking those reports from the record and precluding those experts’ testimony at trial. The court further held that without expert testimony, and because the injured driver admitted he did not see how the accident occurred, and could not controvert the tractor-trailer driver’s contention that it was the injured driver who lost control of his car, bounced off the median, and hit the tractor-trailer, summary judgment was properly awarded in favor of the tractor-trailer driver and owner. (November 13, 2017)

In SCVNGR, Inc. v. Punchh, Inc., the Supreme Judicial Court of Massachusetts addressed whether a court may dismiss a party for lack of personal jurisdiction under the due process clause of the United States Constitution without first addressing the Massachusetts long-arm statute, Mass. Gen. Laws c. 223A, §3. The court held that the long-arm statute may not be circumvented by restricting the jurisdictional inquiry to due process. The court reasoned that determining first whether the long-arm statute’s requirements are satisfied is in accord with the principle of avoiding unnecessary constitutional issues(November 8, 2017)

In Gramercy Emerging Fund v. Allied Irish Banks, P.L.C., the Supreme Court of Delaware addressed whether the overwhelming hardshipstandard or discretionary standard applies under the traditional forum non conveniens analysis when a first-filed lawsuit is dismissed on procedural grounds. The court held that neither standard applies and established an intermediate standard where dismissal is warranted if “a straightforward assessment” of the traditional factors “weigh in favor” of dismissal. (October 27, 2017)

In Collins v. Mary Kay, Inc., the United States Court of Appeals for the Third Circuit addressed what law governs the interpretation of a forum selection clause in a written agreement when that agreement also contains a choice-of-law clause. The court held that the law of the forum state applies to construction of the contract. In this case, the court held that the law of the forum state enforces the contractual choice and, therefore, the law of the state selected in the choice-of-law clause in the written agreement applied. (October 19, 2017)

In Saunders v. Department of Corrections, the Commonwealth Court of Pennsylvania considered whether an affidavit of no records by a custodian was sufficient to meet the Department of Corrections (DOC)obligation under the Right-to-Know Law. An inmate requested a copy of his sentencing order from the Common Pleas Court of Philadelphia County. The DOC records office denied the request and informed the inmate that the requested records did not exist in their possession. The inmate argued that Pennsylvania law created a presumption that the sentencing order existed in the possession of the DOC. The court held that the affidavit of no records sufficiently established that the DOC did not have the requested documents. (October 11, 2017)

In McGann v. Cinemark USA, Inc., the United States Court of Appeals for the Third Circuit addressed whether an American Sign Language tactile interpreter is an “auxiliary aid or service” as defined under the Americans with Disabilities Act. The court determined that because a tactile interpreter is a “qualified interpreter” that would “make aurally [and visually] delivered material” available to a theater attendee, the interpreter fell within the definition of “auxiliary aids and services.” (October 6, 2017)

In Manhattan By Sail, Inc. v. Charis Tagle, the United States Court of Appeals for the Second Circuit addressed whether the doctrine of res ipsa loquitur should be applied to accidents that could occur only because of negligence. In the underlying case, the plaintiff was struck in the head by a portion of a sail on a sailboat when the deck hand that was operating it lost control, allowing it to swing and strike her in the head. The court held that because there was nothing in the record to suggest that the deck hand’s error was caused by some extra-ordinary force or turbulence, the defendants failed to rebut the plaintiff’s showing of evidence in support of res ipsa loquitor. Moreover, the deck hand’s actions amounted to normal negligence under New York law. (October 5, 2017)

In Zacharius v. Kensington Publishing Corporation, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a plaintiff’s deletion of emails warranted sanctions for spoliation. In finding that spoliation sanctions were appropriate, the court noted that the plaintiff was in control of her own account and was aware of her obligations as an attorney to preserve evidence at the time it was destroyed, with or without service of the defendant’s litigation hold notice upon her. The court also recognized the plaintiff’s culpable state of mind as she admitted that she intentionally deleted the emails during the pendency of the action. (October 5, 2017)

In C.T. Holdings, Ltd. v. Schreiber Family Charitable Foundation, Inc., the New York Supreme Court, Appellate Division, 1st Department, addressed whether a creditor may assert a claim to renew a ten-year-old judgment. The creditor made a prima facie showing of its entitlement to a renewal judgment by demonstrating that the debtor had not satisfied any part of the judgment. The court held that the mere delay in enforcement of a judgment, without actual prejudice from the delay, does not constitute laches. The court specifically held that accumulation of postjudgment interest does not support a claim for laches. (October 3, 2017)

In Hawkins v. Brant Quick and Florida Coach, Inc., the Superior Court of New Jersey, Appellate Division, affirmed in part and reversed in part the decision of a trial court to grant a defendant’s motion to dismiss plaintiff’s complaint in lieu of an answer. Plaintiff, a resident of New Jersey, had been a passenger on a bus driven by defendant Brant Quick and owned by Florida Coach, Inc. Plaintiff had been injured following a bus crash into a bridge underpass. The court disagreed with plaintiff’s argument that the judge should have permitted jurisdictional discovery before dismissing the complaint, but agreed that it was error to dismiss the complaint with prejudice. (September 22, 2017)

In Banks v. Cooper, the Superior Court of Pennsylvania addressed the standard for evaluating an excuse proffered by a party who fails to appear at trial and seeks to open a resultant judgment of non pros. In such instances, a trial court should consider various factors, including whether the failure to appear was inadvertent or part of a pattern of misbehavior, whether the court attempted to contact the party’s counsel prior to dismissal, and whether lesser sanctions might be appropriate. Because the trial court in this matter failed to consider those factors, it abused its discretion. (September 26, 2017)

In Ewing v. Potkul, the Commonwealth Court of Pennsylvania addressed the scope of recovery available in the wrongful death action of decedent’s mother and children against a Commonwealth agency for the death of a vehicle’s passenger in a collision that was allegedly caused by an icy roadway. While the Sovereign Immunity Act permits recovery for a “loss of earnings and earning capacity,” the court held that services and financial support are more accurately a “loss of support” which was not authorized by the Act. Additionally, the court held that loss of services and financial support were not recoverable as “property losses” under the Act merely because they could be assigned an economic value. The court held that the Sovereign Immunity Act bars a parent or child of decedent from recovering damages for the loss of decedent’s future services and financial support in a wrongful death action. (September 27, 2017)

In BBB Value Services, Inc. v. Treasurer, State of New Jersey, the Superior Court of New Jersey, Appellate Division, held that unclaimed store credit certificates issued by the plaintiff, a nationwide chain of retail stores, prior to 2010 were not “property” as defined by New Jersey’s Uniform Unclaimed Property Act (UUPA) and were, in fact, similar to gift certificates under the UUPA, entitling the plaintiff to a refund. Moreover, certificates issued by the plaintiff after 2010 were considered “stored value cards” under the UUPA. (September 21, 2017)

In Park v. Hyun-Ah Cho, the Supreme Court of New York, Appellate Division, 2d Department, addressed whether a New York trial court could dismiss a complaint on the ground of forum non conveniens when the action giving rise to the complaint occurred in an airplane at a local airport. The court noted that in order to dismiss the complaint on the grounds of forum non conveniens, it must weigh various factors including the residency of the parties, the potential hardship to proposed witnesses, the availability of an alternative forum, the site of actionable events, and the burden that will be imposed on New York. In considering relevant factors, the court dismissed the complaint, noting that all parties and potential witnesses resided in Korea, criminal charges were brought in Korea, and medical treatment for the resultant injury was provided in Korea. (September 20, 2017)

In Lifschitz v. Sharabi, the Supreme Court of New York, Appellate Division, 2d Department, addressed whether the court had subject matter jurisdiction over a controversy that involved consideration of religious doctrine. In this action to recover for breach of contract and fraud, an individual alleged that a Rabbi made false statements to induce payments for the purchase of religious books and for the Rabbi to find her a husband pursuant to Jewish custom. The court noted that while the First Amendment prohibits civil courts from interfering in or determining religious disputes, civil disputes involving religious parties may be decided as long as neutral principles of law serve the basis for resolution. The court found that the Rabbi failed to demonstrate that the causes of action could not be determined solely on neutral principles of law and did not dismiss the case for lack of subject matter jurisdiction. (September 20, 2017)

In Greenberg v. Spitzer, the New York Supreme Court, Appellate Division, 2d Department, addressed whether former New York Attorney General (NYAG) defamed the former chairman and chief executive officer (CEO) of American International Group, Inc. when the former NYAG made public statements that the former CEO was guilty of fraudulent accounting practices. The court held that the public statements were actionable because they were made with actual malice to discredit the former CEO and damage his reputation and career while bolstering the former NYAG’s own reputation and career. In addition, the court held that because the former NYAG’s office brought the lawsuit against the former CEO, a listener of the statements made by the former NYAG would have been more likely to take the statements as fact rather than expressions of opinion. (September 13, 2017)

In Port Authority of Allegheny County v. Towne, the Commonwealth Court of Pennsylvania addressed whether the Port of Authority of Allegheny County was exempt under the Right-to-Know Law (RTKL) from producing video recordings from cameras aboard an identified bus on a specific date. The court held that such recordings were exempt from production under Section 708(b)(17) of the RTKL (the noncriminal investigation exception to public disclosure of records) because records that are created before an investigation and only when an incident, claim or accident is reported, can constitute an investigative record, especially when their only purpose is for use in investigations. (September 12, 2017)

In J.P. v. Department of Human Services, the Commonwealth Court of Pennsylvania addressed the issue of whether an appeal of an indicated report of student abuse to the Childline and Abuse Registry was properly dismissed as untimely. The court held that the petitioner’s appeal was improperly dismissed because he had been deprived of his constitutional due process rights when the Department of Human Services failed to afford him any form of hearing with respect to the placement of his name on the Childline and Abuse Registry. As such, the petitioner was entitled to a hearing on the merits of his appeal. (September 12, 2017)

In Matter of Peter Krauss v. Suffolk County Board of Elections, the Supreme Court of New York, Appellate Division, 2d Department, addressed whether a County Board of Elections violated the Open Meetings Law when it invalidated a candidate’s petition for lack of required signatures. The court held that even if the Board’s meeting to review objections to the petition’s validity could be deemed subject to the Open Meetings Law, the petitioner failed to show good cause why the Suffolk County Supreme Court should have exercised its discretion to invalidate the Board’s determination. On this basis, the court directed the Suffolk County Supreme Court to enter an order declaring that the Board’s determination invalidating the petition was not void for failure to comply with the Open Meetings Law. (September 6, 2017)

In Zajick v. The Cutler Group, Inc., the Superior Court of Pennsylvania addressed whether Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (UTPCPL) applies in the absence of evidence of justifiable reliance. The court dismissed the homeowner’s UTPCPL claim because claims under the UTPCPL require evidence of justifiable reliance on the defendant’s “wrongful conduct or representation.”  The homeowner claimed to have relied only on the contractor’s “reputation,” which the court held was not a representation made by the contractor to the homeowner which could establish “justifiable reliance” as required to sustain a claim under the UTPCPL(August 31, 2017)

In Kote v. The Bank of New York Mellon, the Superior Court of Pennsylvania addressed whether a delivery person was a “business visitor” for purposes of premises liability when he was shot in the chest after being lured onto vacant and repossessed property to deliver take-out food. The court held that the delivery person was not a business invitee because he had been lured onto the property by an unknown individual and, therefore, could not claim that he had been invited for a purpose connected with the business dealings of the property owner, its realtor, or the security company that had been hired to secure and inspect the property. (August 25, 2017)

In Vanderklok v. United States of America, the United States Court of Appeals for the Third Circuit addressed whether a First Amendment claim against a Transportation Security Administration (TSA) employee for retaliatory prosecution exists in the context of airport security screenings. The court held that no First Amendment claim exists in this situation because national security policies are the prerogative of Congress and the President and imposing damages liability could interfere with that prerogative by causing officials to second-guess decisions concerning those policies. (August 22, 2017)

In Green Party of Pennsylvania v. Department of State Bureau of Commissions, Elections and Legislation, the Supreme Court of Pennsylvania addressed whether an order directing the Commonwealth to accept an untimely nomination certificate filing is appropriate. To be entitled to a writ of mandamus, a petitioner must demonstrate a clear right to the relief sought, a corresponding non-discretionary duty of the public official, and the lack of an adequate and appropriate remedy at law. The court held that when a nominee fails to comply with the nomination certificate filing deadline, the nominee cannot demonstrate a clear right to relief, and is not entitled to a writ of mandamus. (August 22, 2017)

In California University of Pennsylvania v. Schackner, the Commonwealth Court of Pennsylvania addressed whether documents in the possession of a University fell into the noncriminal investigation exception of the Right to Know Law. The University presented a privilege log and showed that it gathered information in the course of a noncriminal investigation. The court has historically found that an agency needs to show not only that it conducted an investigation, but also how the steps that it took following the incident amounted to a noncriminal investigation. It also explained that a noncriminal investigation is one conducted as part of an agency’s official duties. The court held that because there was no showing by the University that it had an official duty to investigate the subject incident, and that there was no showing of an actual investigation outside of the mere performance of routine duties, the University failed to prove it was conducting a noncriminal investigation pursuant to the Right to Know Law. (August 22, 2017)

In Flowers v. Office of the Governor, the Superior Court of Delaware clarified the Legislative EMail Exemption to Delaware’s Freedom of Information Act. The court found that the Exemption is unambiguous and states that emails sent or received by members of the General Assembly or their staff are not public records. It also found that the Act does not require a public body to provide the requestor with a privilege log. (August 22, 2017)

In Melmark, Inc. v. Schutt, the Superior Court of Pennsylvania addressed whether the filial support law of Pennsylvania or New Jersey controlled where a Pennsylvania residential care facility sought payment from a New Jersey couple for the unpaid balance for specialized services rendered to their severely autistic son. New Jersey’s filial support law would shield the couple from financial responsibility for their son’s care because they are over age 55 and their son is no longer a minor, while Pennsylvania’s filial support law would provide no age-based exception to parental responsibility to pay for care rendered to an indigent adult child. Conducting a conflict-of-laws analysis, the court held that New Jersey’s interest in the application of its filial support law was paramount, and determined that Pennsylvania’s interest as one involving not the provision of care for the indigent but, instead, the collection of a private debt for services rendered after New Jersey withdrew funding from a Pennsylvania institution. New Jersey, on the other hand, had an interest in protecting elderly New Jersey parents from caring for their adult child, also a New Jersey resident, consistent with New Jersey law. (August 21, 2017)

In Baird v. Smiley, the Superior Court of Pennsylvania held that it was proper to grant a construction company’s motion for non-suit at the close of plaintiff’s case but before a second defendant had an opportunity to present its case. Compulsory non-suit was proper under Pa.R.C.P. 203.1 because (1) the plaintiff had not satisfied his burden of proof to sustain a cause of action against the construction company, and (2) a second defendant did not object to the construction company’s motion for non-suit. (August 18, 2017)

In General Motors, LLC v. Bureau of Professional and Occupational Affairs, the Commonwealth Court of Pennsylvania considered whether the Board of Vehicles Act places limits on the ability of automobile manufacturers and dealers to contract. The court held that the Act merely provides a safeguard for dealers that are dissatisfied with the warranty reimbursement available to them under their contracts with manufacturers by providing a minimum statutory level of reimbursement. It does not preclude manufacturers and dealers from contractually agreeing to any particular arrangement for warranty reimbursement. (August 16, 2017)

In Boris Feldshteyn v. Brighton Beach 2012, LLC, the New York Supreme Court, Appellate Division, 2d Department, addressed the types of documents qualifying as “documentary evidence” sufficient to support a defendant’s motion to dismiss pursuant to CPLR § 3211(a)(1). Finding that such a motion may only be granted where the “documentary evidence utterly refutes the plaintiff’s factual allegations” and that, accordingly, “documentary evidence . . . must be unambiguous, authentic, and undeniable,” the court held that judicial records, mortgages, deeds, and contracts were sufficiently undeniable, but that letters, affidavits, and deposition testimony were not. (August 16, 2017)

In Gerson Berman-Rey v. Sigifredo Gomez, the New York Supreme Court, Appellate Division, 2d Department, addressed whether a defendant property owner had met his burden on summary judgment in which he sought to dismiss an injured construction worker’s claim pursuant to Labor Law § 200. Explaining that a property owner’s liability under Labor Law § 200 “rests upon whether the property owner created the condition, or had actual or constructive notice of it and a reasonable amount of time within which to correct the condition,” the court denied the property owner’s motion on the grounds that evidentiary submissions had failed to eliminate triable issues of fact regarding whether the property owner created or otherwise had notice of the condition. (August 16, 2017)

In Sehgal v. www.nyairportsbus.com, Inc., the New York Supreme Court, Appellate Division, 2d Department, addressed the issue of whether, in a personal injury action, the plaintiff may be impeached on cross-examination concerning his employment by the law firm representing him and his referral to certain doctors by the law firm. The Appellate Division upheld the trial court’s determination precluding the defendants from questioning the injured plaintiff concerning his employment with his law firm and referral to doctors by the law firm, “in an effort to establish their unsubstantiated and prejudicial claim that he was ‘working the system.’” (August 2, 2017)

In Jones v. Morey’s Pier, Inc., the Supreme Court of New Jersey addressed whether the New Jersey Torts Claim Act barred defendants from asserting contribution and common-law indemnification claims where the defendants failed to serve a notice of claim within 90 days of the date on which the cause of action accrued. The court held that the statute barred any and all third-party claims if the claimant failed to serve a timely notice. The court reasoned that any other interpretation would undermine the Legislature’s intent to establish “uniformity to the law…with respect to sovereign immunity to tort claims.” (July 26, 2017)

In Shaulis v. Nordstrom, the United States Court of Appeals for the First Circuit addressed the viability of a claim by a shopper against an outlet store over a $49.97 sweater purchase alleging that the “Compare at $218” language on the price tag was deceptive, in violation of Massachusetts statutory and common law, because the sweater had never been sold by any retailer for that amount and thus mislead consumers about the quality of the item. The court concluded that the shopper’s claims should be dismissed because the shopper’s subjective belief that she did not receive good value was insufficient to allege a legally cognizable injury under the Massachusetts Consumer Protection Statute (Chapter 93A). (July 26, 2017)

In Rosenthal v. MDX Medical, Inc., the Supreme Court of New York, Appellate Division, 2d Department, addressed whether a plaintiff could recover damages after the defendant’s physician-search website repeatedly misidentified the plaintiff as deceased. The complaint asserted claims of defamation, negligence, and prima facie tort. The court found that the defendant’s misinformation did not fall within the definition of libel and dismissed the cause of action alleging defamation. The court also dismissed the cause of action as to negligence, finding that the plaintiff had not alleged a special relationship between the parties giving rise to a duty to speak with care. Lastly, the court dismissed the prima facie tort cause of action due to the plaintiff’s failure to allege special damages. (July 26, 2017)

In Silverwood Partners, LLC v. Wellness Partners, LLC, the Appeals Court of Massachusetts addressed whether equitable estoppel bars a corporation that agrees to arbitrate a claim against a competitor corporation’s principals from bringing nearly identical claims against the competitor corporation. Because both the broker-dealer and its former employees (the competing corporation’s principals) were members of the Financial Industry Regulatory Authority, Inc. (FINRA), the court held that allowing the broker-dealer to maintain a lawsuit against the competing corporation after the claims against its principals had gone to arbitration would substantially undermine the FINRA arbitration proceedings and, thus, equitable estoppel prevented the lawsuit against the competing corporation. (July 25, 2017)

In Abrahams v. City of Mount Vernon, the Supreme Court of New York, Appellate Division, 2d Department, addressed whether a plaintiff could recover damages following attack and injury by a dog in a city-owned animal shelter. The court determined that the city’s provision of the shelter constituted a governmental function and, therefore, the city could not be held liable absent the existence of a special relationship with the injured plaintiff giving rise to a special duty of care. The court found that no special relationship existed between the city and the injured plaintiff. (July 19, 2017)

In Bradshaw v. PEL 300 Associates, the Supreme Court of New York, Appellate Division, 2d Department, addressed what level of evidence was sufficient to establish the so-called “storm in progress rule.” Under the rule, a property owner will not be held responsible for accidents occurring as a result of snow accumulation until an adequate time has passed, allowing the owner to ameliorate the hazards caused by the storm. The court held that deposition testimony from the property owners, corroborated by certified weather reports demonstrating that there was a storm in progress at the time of plaintiff’s accident, was sufficient to establish a prima facie entitlement to judgment as a matter of law on the issue. (July 19, 2017)

In Landmark Ventures, Inc., v. H5 Technologies, Inc.the Supreme Court of New York, Appellate Division, 2d Department, addressed whether and to what extent a court should use outside technical terms to interpret a provision for sales fees within a consulting contract. The court held that the outside definition of terms such as “generally accepted accounting principles” and “revenues realized” were properly relied upon to determine the parties’ intent within the contract. Furthermore, the court held that it should not seek an interpretation of any contract which would render any term of the contract meaningless or superfluous. (July 19, 2017)

In Rubin v. CBS Broadcasting Inc., the Superior Court of Pennsylvania held that a school police officer’s claims against CBS 3 Philadelphia (Eyewitness News) for defamation and false light invasion of privacy survived CBS’s motion for judgment on the pleadings. In doing so, the court examined the elements of falsity and fault in a defamation claim. (July 17, 2017)

In Knick v. Township of Scott, the United States Court of Appeals for the Third Circuit considered a property owner’s constitutional challenge to a township ordinance compelling property owners to hold their private cemeteries open to the public during daylight hours. The court held that the property owner’s challenges under the Fourth and Fifth Amendments to the U.S. Constitution were not ripe and non-justiciable because: (1) as to her Fourth Amendment claim, the property owner could not demonstrate that she was, or imminently would be, subject to unlawful search and seizure; and (2) as to her Fifth Amendment claim, the property owner had not yet sought just compensation from the state. (July 6, 2017)

In Dutch Run-Mays Draft, LLC v. Wolf Block, LLP, the Superior Court of New Jersey, Appellate Division, addressed the minimum due process requirements to establish general jurisdiction over a foreign entity. The court held that the mere registration to do business and acceptance of service of process in the state, absent more, did not bestow New Jersey courts with general jurisdiction over the defendant, a now-dissolved Pennsylvania law firm. (July 5, 2017)

In In the Matter of Transport Workers Union of Greater New York, Local 100 v. New York City Transit Authority, the New York Supreme Court, Appellate Division, 2nd Department, addressed the circumstances under which an arbitration award could be vacated. The court found that the arbitrator’s award was definite and final because (1) it had not left any matter submitted by the parties open for future contention, (2) had left the parties able to determine their rights and obligations, and (3) had executed the award such that the subject matter submitted was properly addressed.  (June 28, 2017)

In Pollock v. National Football League, the Superior Court of Pennsylvania considered whether the plaintiff could file a second amended complaint after the expiration of the statute of limitations to re-assert a breach of contract claim that was included in the original complaint but omitted from the amended complaint. The court held that the plaintiff’s breach of contract claim was time-barred because it was abandoned in the first amended complaint. (June 21, 2017)

In Paff v. Galloway Township, the Supreme Court of New Jersey addressed the scope of a municipality’s obligation to disclose electronically stored information (ESI) in accordance with the New Jersey Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. The court found that emails sent by the Township Chief of Police and Clerk are government records subject to the OPRA because the OPRA recognizes that government records include not only paper documents, but also ESI. (June 20, 2017)

In Partlow, Administratrix of the Estate of Wilson, Jr. v. Gray, the Superior Court of Pennsylvania considered whether a trial court abused its discretion in admitting and excluding certain evidence at the trial of this survival and wrongful death action in which the appellant-driver hit and killed the decedent-motorcyclist. The court determined that evidence of the appellant-driver’s intoxication and unfitness to drive was properly admitted because the totality of the corroborating evidence showed more than the mere hint of the appellant-driver’s intoxication. Additionally, the court held that it was appropriate to exclude portions of the video recordings of the decedent-motorcyclist allegedly driving aggressively and carelessly prior to the accident because these portions of the video were cumulative. The court also determined that the portion of the video not shown at trial occurred long before the accident, and was therefore irrelevant to the determination of whether the decedent-motorcyclist was comparatively negligent at the moment that he collided with the appellant-driver. (June 15, 2017)

In Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Legion Post 304 Home Association, the Commonwealth Court of Pennsylvania considered whether licensee’s “Bonanza Bingo” was a lawful form of bingo under the Bingo Law, 10 P.S. §§301-308.1. The court held that Bonanza Bingo met the statutory definition of “bingo” because patrons are notified of the combinations of spaces needed to win prior to purchasing a bingo card, and the licensee’s use of a deck of cards to select numbers was permissible under the statute. (June 15, 2017)

In Wax v. 716 Realty, LLC, the Supreme Court of New York, Appellate Division, 2d Department, addressed whether the doctrine of res judicata prevents a later assertion of a counterclaim. In this action, an individual asserted claims for personal injuries, but had failed to assert these claims as counterclaims in two prior related Civil Court proceedings. The court noted that because New York does not have a compulsory counterclaim rule, a defendant who fails to assert a counterclaim is not barred by the doctrine of res judicata from subsequently commencing a new action on that claim unless the claim would impair the rights or interests established in the first action. (June 14, 2017)

In AIDS Support Group of Cape Cod, Inc. v. Town of Barnstable, the Supreme Judicial Court of Massachusetts addressed the validity of a cease and desist order the town issued to a needle exchange program. The town argued that the only legal methods of distributing hypodermic needles are sale by pharmacists or distribution by a program locally approved by the Department of Public Health. The court, observing that the Legislature had decriminalized needle possession and separately authorized local programs approved by the Department of Health, concluded that no law barred private needle exchange programs and that such programs were therefore legal. (June 14, 2017)

In People for the Ethical Treatment of Animals (PETA) v. Department of Agricultural Resources, the Supreme Judicial Court of Massachusetts addressed how a court should analyze whether information on animal health certificates, such as names, addresses, and telephone numbers, is exempt from disclosure under privacy exemptions to the public records law. Here, PETA requested interstate health certificates for nonhuman primates, which contain information about the primates consignors, consignees and veterinarians. The court concluded that, in reviewing a claim of privacy exemption, a judge should analyze (1) whether the redacted information pertains to home or business addresses of public or private entities; (2) whether, and to what extent, that information is available from other sources; and (3) whether, and to what extent, the department can identify specific information demonstrating that a significant risk to an individual's personal safety is posed by the disclosure of a home address or telephone number that may be among the redacted information. (June 14, 2017)

In Miller v. Zara USA, Inc., the New York Supreme Court, Appellate Division, 1st Department, addressed whether an employer could access an employee’s personal documents on a company-owned laptop. The court held that the employee lacked any reasonable expectation of privacy in his personal use of the laptop supplied by his employer. The court emphasized that the employer’s employee handbook restricted use of company-owned electronic resources, including computers, to “business purposes,” and specified that any data created on its electronic resources was exclusive property of the employer and may be accessed by the employer at any time. (June 6, 2017)

In US Spaces, Inc. v. Berkshire Hathaway Homeservices, Fox & Roach, the Superior Court of Pennsylvania addressed whether a trial court may refuse to issue a rule to show cause where a local rule provides for issuance of a show-cause order “as of course.” The court held that a rule to show cause “as of course” may only be denied when the allegations in the petition, taken as true, do not provide for a legal remedy. (June 5, 2017)

In Town of Chester, New York v. Laroe Estates, Inc., the United States Supreme Court addressed whether an intervenor who seeks relief different than that of the plaintiff must establish standing. The Court held that an intervenor must demonstrate standing when it seeks additional relief beyond that requested by the plaintiff, which includes a money judgment in its own name. (June 5, 2017)

In Rockland Trust Company v. Langone, the Supreme Judicial Court of Massachusetts addressed whether a Massachusetts District Court or Boston Municipal Court may grant a motion to dismiss a counterclaim where the counterclaim is reasonably likely to exceed $25,000Mass. Gen. Laws c. 218, §19 provides that “actions may proceed in the [District Court or Boston Municipal Court] only if there is a reasonable likelihood that recovery by the plaintiff will exceed $25,000.”  The Court held that the court may not dismiss the counterclaim because §19 applies only to the potential recovery of a plaintiff, not a plaintiff-in-counterclaim. (June 1, 2017)

In Dudley v. Massachusetts State Police, the Appeals Court of Massachusetts addressed whether an individual’s claims against the state police were barred by the sovereign immunity and the discretionary function exemption in the Massachusetts Tort Claims Act, Mass. Gen. Laws c. 258, §10B. The individual had been injured as a result of a bite from a trained police dog when a state trooper released the dog to chase a suspect. The court concluded that the state trooper’s release of the dog did not concern the use of planning or policy making discretion such that the discretionary function exemption applied. Rather, the trooper’s actions concerned the carrying out of policies and plans and thus his actions were governed by established standards of tort liability applicable to private citizens. (June 1, 2017)

In Lechowicz v. Moser, the Superior Court of Pennsylvania held that the defendant creditor’s petition to open a confession of judgment filed outside of the 30-day timeframe was timely because the plaintiff failed to serve the defendant with a notice of execution. However, the petition was denied because the court rejected the defendant’s argument that the legal services provided by plaintiff in connection with a divorce proceeding were tantamount to an “extension of credit” thereby rendering the judgment illegal because it arose out of a consumer credit transaction. (May 31, 2017)

In Reilly v. City of Harrisburg, the United States Court of Appeal for the Third Circuit examined the movant’s burden of proof on a preliminary injunction request. The court held that a movant for preliminary equitable relief must demonstrate that it can win on the merits and that it is more likely than not to suffer irreparable harm in the absence of preliminary relief. If these gateway factors are met, the court held that it then will consider the possibility of harm to other interested persons and the public interest in determining whether to grant the request. (May 25, 2017)

In Stuski v. Philadelphia Authority for Industrial Development, the Commonwealth Court of Pennsylvania addressed whether the City of Philadelphia could be found legally responsible for snow and ice removal of a parking lot pursuant to a lease agreement. The court held that liability is premised primarily on possession and control, and not merely on ownership. (May 25, 2017)

In Hyannis Anglers Club, Inc. v. Harris Warren Commercial Kitchens, LLC, the Appeals Court of Massachusetts addressed the extent to which a restaurant owner was entitled to damages and attorneys’ fees against a technician who negligently serviced a fryer, resulting in a fire that damaged the restaurant. The court held that the owner was entitled to an assessment of multiple damages under G.L. c. 93A, §11, and a new calculation of attorneys’ fees using the lodestar method, instead of the contingency fee method. (May 23, 2017)

In Water Splash, Inc. v. Menon, the United States Supreme Court addressed whether service by mail on a resident of a foreign country is proper under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (Hague Service Convention). The court held that the Hague Service Convention does not prohibit service of process by mail. (May 22, 2017)

In Frank M. Flower & Sons, Inc. v. North Oyster Bay Baymen’s Association, Inc., the New York Supreme Court, Appellate Division, 2d Department, addressed the court’s power to dismiss an action based on collateral estoppel. The Court found that parties must have notice that the Court plans to dismiss an action on the ground of collateral estoppel, and dismissal without such notice and an opportunity to respond violated fundamental issues of fairness and due process. (May 17, 2017)

In Borgwarner, Inc. v. First State Insurance Company, the Supreme Court of Delaware addressed whether confidential information generated by arbitration should be protected from a subpoena. The court held that confidentiality was waived when the subpoenaed party used the same materials in later unrelated litigation. (May 17, 2017)

In Wisniewski v. Fisher, the United States Court of Appeals for the Third Circuit addressed whether an inmate’s First Amendment retaliation claim stated a claim upon which relief could be granted. Because assisting another inmate in preparing a grievance was considered a legitimate penological interest, and because termination of an inmate’s prison employment constitutes adverse action, the court held that a legally sufficient claim had been stated. The court further held that the claim, among other Fourth, Eighth, and Fourteenth Amendment claims, was not time-barred because pursuit of administrative remedies may have tolled the applicable statute of limitations. (May 16, 2017)

In Kindred Nursing Centers v. Clark, the United States Supreme Court held that a clear-statement rule made by the Kentucky Supreme Court violated the Federal Arbitration Act by singling out arbitration agreements for disfavored treatment. By requiring an explicit statement before an agent can relinquish her principal’s right to go to court and receive a jury trial, Kentucky’s clear-statement rule hinged on the primary characteristic of an arbitration agreement; thereby, violating the Federal Arbitration Act. (May 15, 2017)

In Dukes Bridge LLC v. Beinhocker, the United States Court of Appeals for the First Circuit addressed an apparent conflict between a non-recourse provision of a loan agreement and a liability provision in a non-contravention agreement which were each elements of a single loan transaction with a life insurance policy at its center. The court held that the non-recourse provision had left the non-contravention agreement a nullity the moment it was signed, and reading the multiple contracts in context of the single transaction of which they were a part, concluded that the terms of the non-contravention agreement should be applied without nullification by the non-recourse provision. (May 8, 2017)

In Steele v. Cicchi, the United States Court of Appeals for the Third Circuit considered whether officials at a correction center violated the due process rights of a detainee when they transferred him to administrative segregation in the facility and restricted his phone privileges, which interfered with his ability to find a co-signer for his bail. The detainee asserted several claims under 42 U.S.C. § 1983, including violations of his First, Eighth, and Fourteenth Amendment rights. The court determined that neither the substantive nor procedural due process rights of the detainee were violated. (May 3, 2017)

In McDonough v. City of Portland, the United States Court of Appeals for the First Circuit found that a private citizen did not have standing to challenge the system by which the city distributes permits for taxis to pick up passengers at the airport because he admitted he was not willing and able to apply for such a permit if he was in fact allowed to do so. (May 1, 2017)

In Hearts with Haiti Inc. v. Kendrick, the United States Court of Appeals for the First Circuit addressed whether a stateless American could satisfy the requirements for diversity jurisdiction in a defamation suit brought in federal court against defendants residing in Maine. The stateless American was Iowa-born but now considers himself a permanent resident of Haiti with little connection to Iowa. Because the stateless American was not domiciled in Iowa, he could not satisfy the requirements of diversity jurisdiction. (April 28, 2017)

In Rodriguez v. Wal-Mart Stores, Inc., the Superior Court of New Jersey, Appellate Division, considered the admissibility of an expert witness’s testimony that a customer magnified her symptoms and alleged injuries that resulted from an accident while shopping. The court concluded that the expert’s opinions on symptom magnification were improperly admitted, and the customer was sufficiently prejudiced by the trial court’s ruling that she was entitled to a new jury trial on all issues. The court held that while a qualified expert may not testify that a plaintiff is malingering or magnifying her symptoms, an expert may testify that a plaintiff’s subjective complaints appear to be inconsistent with objective medical test results. (April 27, 2017)

In Holmes v. Jersey City Police Department, the Superior Court of New Jersey, Appellate Division, addressed an arrestee’s claim that statements made by arresting officers about his transgender status amounted to hostile treatment in violation of the Law Against Discrimination (LAD). The Appellate Division found that a jury could find that the conduct of the officers was sufficiently severe that a reasonable transgender person in the arrestee’s position would find the environment to be hostile, threatening and demeaning. The court found it persuasive that the incarcerated arrestee are uniquely vulnerable and the hostile comments were made by police officers who wield tremendous power over the arrestee, and the comments included a physical threat. (April 27, 2017)

In Lewis v. Clarke, the United States Supreme Court addressed whether sovereign immunity applies to a tribal employee in a personal injury suit. The Court held that where the employee was sued in his individual capacity, the tribe's sovereign immunity did not apply, even in the presence of an indemnification provision. (April 25, 2017)

In Scotti v. Barrett, the New York Supreme Court, Appellate Division, 2d Department, addressed whether the son of a decedent abused his power of attorney for the decedent by transferring to himself certain funds belonging to the decedent before her death. The court made clear that absent a specific provision in the power of attorney document authorizing gifts, an attorney-in-fact may not make a gift to himself of the money or property which is the subject of the agency relationship. (April 19, 2017)

In Oberdick v. Trizechahn Gateway, LLC, the Superior Court of Pennsylvania addressed whether bankruptcy proceedings preempted state law claims of wrongful use of civil proceedings brought under the Dragonetti Act, 42 Pa.C.S. §8351. The court held that the Dragonetti claims were preempted because the subject matter of the claims was “grounded in bankruptcy court proceedings.” (April 19, 2017)

In Wyszynski v. Greenwood Gaming & Entertainment, Inc., the Superior Court of Pennsylvania addressed whether venue for a slip and fall action was properly transferred to Bucks County from Philadelphia County despite the fact that the casino where the fall occurred heavily advertises in Philadelphia County. The court held that advertising in a county does not amount to conducting business in that county and, thus, the transfer from Philadelphia County to Bucks County was proper. (April 17, 2017)

In Chung v. StudentCity.com, Inc., the United States Court of Appeals for the First Circuit addressed whether a district court could enter summary judgment on grounds not raised by the parties. The court held that the district court exceeded its authority in entering summary judgment on a completely different issue which was not briefed, and on which discovery had not been allowed. (April 14, 2017)

In Okeke-Henry v. Southwest Airlines, Company, the Superior Court of Pennsylvania addressed whether plaintiff’s common law negligence claims for injuries she sustained while boarding a Southwest flight were preempted under the Federal Aviation Act (FAA). The court found no evidence in the record to conclude that the incident occurred in the course of the operation of the aircraft so as to come under the FAA’s preemption umbrella and, consequently, that the trial court erred in determining that plaintiff’s claims were federally preempted. (April 13, 2017)

In Coulter v. Lindsay, the Superior Court of Pennsylvania examined the constitutionality of Pennsylvania Rule of Civil Procedure 233.1, which permits a defendant to file a motion to dismiss an action filed by a pro se plaintiff that alleges the same or related claims raised in a prior action against the same or related defendants. The court held that the Pennsylvania Supreme Court had authority to promulgate Rule 233.1, which is procedural and not substantive. Additionally, the court held that Rule 233.1 is not vague so as to result in arbitrary and discriminatory enforcement. (April 7, 2017)

In Wu v. Arniotes, the New York Supreme Court, Appellate Division, 2d Department, addressed the issue of whether a property owner will be held liable for injuries sustained in a slip-and-fall accident involving snow and ice. “To meet its prima facie burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the pedestrian fell.” The property owner may not merely refer to general cleaning practices to establish a lack of constructive notice. Here, the property owner failed to establish when the area of the sidewalk where the accident occurred was last inspected in relation to when the accident occurred. (April 5, 2017)

In Mirabella v. Villard, the United States Court of Appeals for the Third Circuit addressed the applicability of qualified immunity when a government official, via email, barred township residents from communicating directly with any members of the local government after the residents threatened to sue the local government. The court held that the email violated a constitutional right, which is the first prong of the two part test of the exception to qualified immunity. However, the residents failed to establish that the right was “clearly established” at the time of the governmental official’s conduct; the second prong. Therefore the government official was entitled to qualified immunity. (April 4, 2017)

In Sprecher v. Thibodeau, the New York Supreme Court, Appellate Division, 1st Department, addressed the issue of tortious interference with a business relations claim. Here, the defendant’s attorney made comments that were quoted in various news articles. Notably, the court stated that “comments made to the media by a party’s attorney regarding an ongoing lawsuit constitute nonactionable opinions.” The court, therefore, held that the defendant’s attorney’s comments were not wrongful in the manner required to support a tortious interference claim. (March 30, 2017) 

In Gellman v. Cooke, New York Supreme Court, Appellate Division, 2d Department, considered whether the City of New York had timely notice of a defect in its sidewalk so as to permit a pedestrian to sue for her injuries after tripping on that portion of the sidewalk. The court held that a notice of claim from another pedestrian 19 years earlier was insufficient to raise a triable issue of fact since it was too remote in time to constitute prior written notice within the meaning of the Administrative Code of the City of New York Sec. 7-210(c). (March 29, 2017)

In James v. Global Tellink Corporation, the United States Court of Appeals for the Third Circuit considered whether users of prison telecommunications services agreed to be bound by the terms of use contained on the prison telecommunications service’s website, even though the users never visited the website. The court held that the recording on the telephone line, advising users that staying on the line would subject them to the terms of use was not sufficient to demonstrate that users assented to the terms of use, and more specifically that the users did not assent to arbitration included in the terms of use. (March 29, 2017)

In Bayona v. The Hertz Corporation, the New York Supreme Court, Appellate Division, 1st Department, assessed whether a maintenance worker was considered a special employee. The record established that the maintenance worker was an employee of a non-party, and was assigned to work at two of Hertz’s locations. “Although Hertz management generally directed the manner, details, and result of plaintiff’s work, there is no evidence that Hertz had ‘complete and exclusive control’ over such work or that [the non-party employer] surrendered its right to control and direct plaintiff’s work.” The evidence demonstrated that the non-party employer retained control over the maintenance worker, including paying his wages, having the right to hire or discharge him, having the right to reassign him, and assigning tasks outside his normal daily activities. In addition, the maintenance worker wore a uniform identifying him as an employee of the non-party employer. (March 28, 2017)

In Faria v. Harleysville Worcester Insurance, the United States Court of Appeals for the First Circuit determined whether the inclusion of a juror with a prior felony conviction noted on his juror qualification form requires a new trial. Applying a “binary test,” the court held that Faria must prove by a preponderance of the evidence two elements to succeed on a motion for a new trial: (1) the “juror failed to answer honestly a material question on voir dire”, and (2) that “a correct response would have provided a valid basis for a challenge for cause.” The court found that Faria was not entitled to a new trial because he could not demonstrate that the juror had any actual prejudice or bias. (March 24, 2017)

In Rippon v. Smigel, the Superior Court of New Jersey, Appellate Division, addressed whether an action asserting tortious interference, interference with prospective contractual relations, defamation, and Consumer Fraud Act violations against a law firm was barred by the doctrine of res judicata due to the plaintiff’s prior voluntary dismissal with prejudice of a breach of fiduciary duty suit against the same law firm. The court held that res judicata did not apply because the voluntary dismissal was not a final decision on the merits of the claim by a court and because the later claims did not arise out of the same occurrence. (March 22, 2017)

In L.E.K. Consulting LLC v. Menlo Capital Group, LLC, the Supreme Court of New York, Appellate Division, 1st Department, addressed whether the court could properly consider a second motion for summary judgment. The court held that it was free to reconsider its own interlocutory orders during the pendency of the action, regardless of statutory time limits concerning motions to reargue. The court therefore properly considered the second motion for summary judgment as the plaintiff’s claims could be disposed of quickly, without further wasting court resources. (March 16, 2017)

In Bousamra v. Excela Health, the Superior Court of Pennsylvania held that both the work product and attorney client privileges were waived when communications between an attorney and her client were disseminated to a third-party media consulting firm that was not involved in the tender of legal advice and which was a separate organization from the client with no common ownership interest. (March 13, 2017)

In Geismann v. ZocDoc, Inc., the United States Court of Appeals for the Second Circuit addressed whether ZocDoc’s rejected settlement offer that would have granted Geismann complete relief for its claims of violations of the Telephone Communications Act rendered the action moot for lack of subject matter jurisdiction. The court found that it did not render it moot and confirmed that an unaccepted Rule 68 offer of judgment is a legal nullity, regardless of its terms. (March 9, 2017)

In Tahisha Roach v. BM Motoring, LLC, the Supreme Court of New Jersey considered whether a party’s failure to advance required arbitration fees for arbitration before the American Arbitration Association constituted a material breach of the parties’ dispute resolution agreement (DRA), precluding them from later compelling arbitration. The court held that because a failure to advance the required fee may result in dismissal of the arbitration claim, depriving the opposing party of the benefit of the arbitration agreement, this failure goes to the essence of the DRA and amounts to a material breach. (March 9, 2017)

In K.W. v. S.L. & M.L. v. G.G., the Superior Court of Pennsylvania addressed whether an order granting adoptive parents in loco parentis standing and denying the birth father’s preliminary objections is appealable pursuant to the collateral order doctrine. The birth father argued that the order was appealable pursuant to the doctrine because its disposition could not be delayed until a final order was issued without being lost. The court agreed and found that in a case where the birth father was deprived of a child by a private adoption agency without the benefit of a hearing or other due process protections, that claim would be irreparably lost and the collateral order doctrine applies. (March 6, 2017)

In State Employee’s Retirement System v. Campbell, the Commonwealth Court of Pennsylvania addressed the standard to be applied by the Office of Open Records (OOR) when a Right to Know Law request is filed requesting home addresses. The court held that the OOR may not order the disclosure of home addresses unless it determines the presence of a public benefit or interest outweighs the privacy interests of those whose addresses would be revealed. (March 3, 2016)

In BourgeoisWhite, LLP v. Sterling Lion, LLC, the Appeals Court of Massachusetts addressed whether a law firm was entitled to payments for services rendered in an employment dispute. The court held that the client owed fees to the firm, as the client was unable to identify any factual disputes as to the reasonableness of the fees. However, the firm was not entitled to recover a portion of the fees, as it had written these off as “professional courtesy credits.” (March 3, 2017)

In Feleccia v. Lackawanna College, the Superior Court of Pennsylvania considered whether junior college students could recover against a junior college and its agents for injuries suffered during a football practice. The court held, for the first time in Pennsylvania, that Pennsylvania colleges have a duty to provide qualified medical personnel capable of rendering medical treatment during all intercollegiate sports activities. In this circumstance, that meant a certified athletic trainer and a doctor available by telephone. The court also addressed the validity of a waiver signed by the students that released the college and its agents from “any and all liability.” Although the court found that the waiver was generally valid, it concluded that the waiver failed to specifically reference the defendants’ own conduct and did not extend to allegations of gross negligence and recklessness. (February 24, 2017)

In Washington v. Preferred Communication Systems, Inc., the Supreme Court of Delaware addressed whether noteholders, who had invested in promissory notes issued by a company, were entitled to attorney’s fees because they had to seek the assistance of counsel to collect warrants after default. The court held that, because the warrants are a form of indebtedness which the noteholders had to collect through an action in the Chancery Court, the noteholders were entitled to attorney’s fees. (February 27, 2017)

In Davis v. Wright, the Superior Court of Pennsylvania addressed whether the Dead Man’s Statute was waived when the defendant failed to raise it as an affirmative defense in the answer as new matter pursuant to Pennsylvania Rule of Civil Procedure 1030. The court held that the invocation of the protection based on the Dead Man’s Statute is not an affirmative defense that needed to be raised in the answer because it is not a defense where the defendant assumes the allegations in the complaint are true. (February 27, 2017)

In Freundlich & Littman v. Feierstein, the Superior Court of Pennsylvania addressed whether judicial privilege and/or judicial immunity shields an attorney from any civil liability in an abuse of process, misuse of process and wrongful use of process action. The court held that judicial privilege/immunity does not bar litigation of claims specifically arising under the Dragonetti Act, which allows a plaintiff to seek recovery against another for the wrongful use of civil proceedings. (February 23, 2017)

In Coren-Hall v. Massachusetts Bay Transportation Authority (MBTA), the Appeals Court of Massachusetts addressed whether the plaintiff satisfied the presentment to an executive officer requirement of the Massachusetts Tort Claims Act, G.L. c. 258 § 4, when she sent notice of the claim to the “MBTA Claims Department” with instruction to “turn this notice letter over to the proper authority for handling.” The court held that the plaintiff did not satisfy the presentment requirement because “notice to the executive officer will not be inferred or imputed from the fact that others with responsibility for investigation and settlement of the dispute received the plaintiff’s presentment letter.” (February 23, 2017)

In Commonwealth v. Tradition (North America) Inc., the Appeals Court of Massachusetts addressed the requirements under the Uniform Contribution Among Tortfeasors Act, G.L. c. 231B §§ 1-4 to secure a release and discharge of common liability before seeking contribution against joint tortfeasors. The court held that the defendant was barred from pursuing contribution claims because it failed to satisfy the requirement where it only negotiated and secured an individual release and discharge. (February 21, 2017)

In Serico v. Rothberg, the Superior Court of New Jersey, Appellate Division, held that attorneys’ fees could not be recovered pursuant to an Offer of Judgment when the parties entered into a high-low agreement during trial which did not reference attorneys’ fees. Absent language preserving a right to seek fees, the court held that a plaintiff cannot recover more than the amount agreed to as the “high” limit of a high-low agreement. (February 16, 2017)

In Pezzano v. Towamencin Township, the Commonwealth Court of Pennsylvania held that a township could be held vicariously liable for its agents’ breach of a separation agreement even though the agents are immune from personal liability for those same actions. (February 16, 2017)

In Cardno Chemrisk, LLC v. Foytlin, the Supreme Judicial Court of Massachusetts reviewed whether environmental activists who posted a blog critical of an environmental consulting firm’s involvement in the Deepwater Horizon oil spill were entitled to invoke the protections of the Anti-SLAPP statute to defend against the environmental consulting firm’s defamation action. The court held that the environmental activists’ activities fell within the protected right to petition under the Anti-SLAPP statute, even though their petitioning was not on behalf of their own interests. (February 14, 2017)

In Gillingham v. County of Delaware, the Commonwealth Court of Pennsylvania addressed whether computer cables on the floor of a courthouse office, over which a visitor tripped and fell, are consider real property under the Political Subdivision Tort Claims Act. The court held that the computer cables were not affixed to the floor and, therefore, the real property exception to sovereign immunity did not apply. (February 14, 2017)

In Greely v. West Penn Power Company, the Superior Court of Pennsylvania considered whether an electric supplier owed a duty of care to a cable installer injured while working on one of the electric supplier’s utility poles. The court held that the standard of care imposed on an electrical supplier is “among the highest recognized in the law of negligence” and extends to those lawfully in proximity of the electrical lines. (February 13, 2017)

In Romeo v. Pennsylvania Public Utility Commission, the Commonwealth Court of Pennsylvania addressed an apparent conflict between Act 129 of 2008 which requires electric distribution companies to install smart meter devices and the federal Energy Policy Act which amended the Public Utility Policies Act of 1978 (PURPA) and provides that smart meter installation should be offered, as opposed to required. The court found that Congress has not enacted a provision that preempts Act 129, but rather, has expressly provided for state agencies such as the Pennsylvania Public Utility Commission to adopt standards or rules affecting electric utilities that are different from the standards set forth in PURPA or the Energy Policy Act. (February 8, 2017)

In Prime Healthcare Services v. United Nurses and Allied Professionals, Local 5067, the United States Court of Appeals for the First Circuit considered whether a dispute between a Union and its members’ successor employer regarding the prior employer’s funding of the pension must be resolved in arbitration or the courts. The court found that the issue of arbitration preemption under the Employee Retirement Income Security Act (ERISA) was not an issue of arbitrability. The question is not whether the Union can bring its claim, but who decides, court or arbitrator, whether the Union can bring its claim and the latter question an arbitrator can decide. (February 3, 2017)

In Andrew McCarrell v. Hoffmann-La Roche, Inc., the Supreme Court of New Jersey addressed New Jersey’s choice-of-law rules for the applicable statute of limitations in a tort action. The court held that Section 142 of the Second Restatement of Conflicts of Law is the operative choice-of-law rule in New Jersey for resolving statute-of-limitations conflicts. (January 24, 2017)

In Newell v. Montana West, Inc., the Superior Court of Pennsylvania addressed whether a landowner owes a duty to invitees who are injured while walking on an adjoining roadway. The court held that no such duty exists, and that any duty of care to the pedestrian is owed by those who maintain the road and the motorists on it. The court further held that no duty exists for a landowner to provide sufficient parking on its own premises in an effort to keep invitees from walking on adjoining roadways. (January 19, 2017)

In Welsh v. National Railroad Passenger Corporation a/k/a Amtrak, the Superior Court of Pennsylvania considered the use of signed, unsworn statements to support a former police officer’s suit under the Federal Employers’ Liability Act. The court held that the trial court should not consider these statements as they did not meet the definition of an affidavit that must be sworn, include a notary’s jurat, and be subject to the penalties of 18 Pa.C.S. § 4904. (January 17, 2017)

In Royster v. New Jersey State Police, the Supreme Court of New Jersey considered whether the New Jersey State Police waived its sovereign immunity by not asserting it during a trial based on a violation of the Americans with Disabilities Act (ADA). The court found that the police did not waive immunity through its litigation conduct because it did not seek to remove from state court to federal court, or do anything other than appear and defend against the ADA claim. (January 17, 2017)

In Jones v. City of Boston, the United States Court of Appeals for the First Circuit held that a police department’s hair drug test, while job related, could be found to be racially discriminatory because there was a reasonable available alternative that would have met the department’s needs with less of a disparate impact. The court found that the hair drug test had a disparate impact based on evidence that the hair of African American officers, especially if damaged by cosmetic treatments, is more likely to absorb and retain contaminants to which the hair is exposed, and the hair drug test does not distinguish between exposure and ingestion. The court concluded that a fact question existed as to whether the department refused to adopt an available alternative. (December 28, 2016)

In Rohe v. Vinson, the Superior Court of Pennsylvania addressed whether, in a civil negligence case, the trial court erred in admitting evidence of a motorcyclist’s alcohol consumption prior to his crash. The court held that it was reversible error to admit evidence of the motorcyclist’s alcohol consumption because the evidence failed to establish a degree of intoxication reasonably demonstrating the motorcyclist’s unfitness to drive. (December 28, 2016)

In Maliandi v. Montclair State University, the United States Court of Appeals for the Third Circuit addressed whether Montclair State University should be afforded immunity under the Eleventh Amendment. The court held that the university functions as an “arm of the State” and should have access to the refuge of the Eleventh Amendment, which immunizes states from suits brought in federal court by their own citizens and citizens of other states. (December 27, 2016)

In Belsito Communications, Inc. v. Decker, the United States Court of Appeals for the First Circuit held that a state trooper did not violate a freelance photographer’s Fourth Amendment rights when he seized the photographer’s camera at the scene of a vehicle accident because the photographer failed to show that clearly-established law precluded a reasonable trooper from believing the exigent-circumstances exception applied in this situation. (December 23, 2016)

In Rash v. Moczulski, the Supreme Court of Delaware addressed the issue of additur in a personal injury case in which the jury found there was negligence but awarded zero damages. The court held that it is error for the court to grant additur without first determining that a new trial should be granted. (December 15, 2016)

In Service Employees International Union, Local 509 v. Auditor of the Commonwealth, the Supreme Judicial Court of Massachusetts addressed whether a proposal to privatize certain state-run mental health services met the requirements of the Pacheco Law, G. L. c. 7, §§ 52-55. The court held that the privatization plan met the requirements of the Pacheco Law because the privatization was properly procured, would not result in a net cost to the Commonwealth, and would not cause a decline in the quality of mental health services. (December 9, 2016)

In Warren v. Muenzen, the Superior Court of New Jersey, Appellate Division, considered whether a 2009 amendment to the Survivor Act replaced all pre-existing statutes of limitations for claims filed under the Survivor Act with a new statute of limitations that begins on the day of death and expires two years later. The court determined that it did not, and held that the amendment had no effect on the statutes of limitations for claims filed under the Survivor Act except when the death was the result of murder, manslaughter, or aggravated assault. In cases of murder, manslaughter, or aggravated assault, the 2009 amendment serves to eliminate completely the statute of limitations for any claims filed on behalf of the decedent against the individual who caused the decedent’s death. (December 7, 2016)

In State Farm Fire & Casualty Company v. US, the United States Supreme Court considered whether a violation of seal provision of the False Claims Act (31 U.S.C. §3730(b)(2)), which requires that a complaint “shall” be kept under seal, should result in an automatic dismissal of the complaint. The court concluded that the statute is silent as to the remedy for violating the rule, and, absent congressional guidance regarding a remedy, the sanction for breach of a mandatory duty is not loss of all later powers to act. Accordingly, the Court held that seal violation does not mandate dismissal of a relator’s complaint. (December 6, 2016)

In Krzykalski v. Tindall, the Superior Court of New Jersey, Appellate Division, considered whether a trial court erred in placing a phantom defendant on the jury verdict sheet. The court asserted that the consideration of an alleged tortfeasor’s negligence and degree of responsibility is not governed by whether the alleged phantom tortfeasor is a “party,” but rather whether the other tortfeasor will be affected by the verdict. Thus, the court found that the trial court did not err in allowing the jury to apportion a phantom defendant’s negligence. (December 5, 2016)

In Bochetto v. Dimeling, Schreiber & Park, the Superior Court of Pennsylvania considered whether a trial court properly dismissed a complaint on the basis of forum non conveniens. In recognition that the majority of the evidence and party witnesses were located in Portugal, had consented to Portuguese jurisdiction, and the minimal connection between Pennsylvania and the dispute, the court found that the public and private interests weighed in favor of litigating the matter in Portugal. Thus, the court affirmed the trial court’s dismissal for forum non conveniens. (December 5, 2016)

In Shop Architects PC v. 25th Street Art Partners LLC, the New York Supreme Court, Appellate Division, 1st Department, held that “[d]iscovery of electronically stored information may be court ordered where the party seeking such discovery makes a showing that includes that the files sought can actually be obtained by the methods suggested.” Here, because the party’s request did not seek any particular document, but instead sought to examine entire hard drives to determine whether additional invoices existed, and there was no basis to believe that the drives contained the information sought, the court denied the request for electronic discovery. (December 1, 2016)

In Ioven v. Nestel, the Commonwealth Court of Pennsylvania addressed the protection afforded under the Sovereign Immunity Act to a Commonwealth agency employee acting within the scope of his employment. The court held that Commonwealth employees do not lose their sovereign immunity protection for claims of intentional torts, provided they are acting within the scope of their employment.  Rather, the court explained that waiver of immunity only applies to actions of local agency employees, not Commonwealth employees, that constitute crime, actual fraud, actual malice, or willful misconduct. (November 30, 2016)

In Emenike v. Ginsburg Development Companies, the New York State Supreme Court, Appellate Division, 1st Department, held that where a woman’s husband was crushed by a tree outside of her home and she raced out of her house to discover her husband, she had a cognizable claim for negligent infliction of emotional distress because she was within the “zone of danger.” (October 20, 2016)

In BBCN Bank v. 12th Avenue Restaurant Group, the New York Supreme Court, Appellate Division, 1st Department, addressed when a lawyer’s mistake is sufficient to vacate a default judgment. The Court noted a party seeking to vacate a default judgment mustestablish a “reasonable excuse for the default and a meritorious defense.” The Court held that the evidence proffered was insufficient to establish a reasonable excuse where counsel passed away more than two years into the case, and no evidence was presented as to when counsel became ill or how that illness affected his ability to answer the pleadings. (November 15, 2016) 

In Wittorf v. City of New York, the New York Supreme Court, Appellate Division, 1st Department, considered whether a finding of comparative negligence against a cyclist was against the weight of the evidence. In evaluating the claim, the Court considered the cyclist’s experience, the speed she was traveling, and the visibility at the time of the alleged accident. The Court ultimately found that the evidence supported a reasonable inference that the cyclist’s speed contributed to the accident. (November 15, 2016)

In Komolov v. Segal, the New York Supreme Court, 1st Department addressed conversion in connection with the alleged theft of two paintings. The two key elements of conversion are “(1) plaintiff’s possessory right or interest in the property and (2) defendant’s dominion over the property or interference with it, in derogation of plaintiff’s rights.” The Court held that there was insufficient evidence to raise a triable issue of fact with respect to the plaintiffs’ dominion over or interference with one painting, and with respect to the plaintiffs’ possessory right or interest in a second painting. (November 15, 2016)

In Durst v. Durst, the United States Court of Appeals for the Third Circuit addressed the application of collateral estoppel against a co-trustee of a revocable, inter vivos trust who participated in prior litigation regarding the forced sale of a trust asset but was never named a formal party to that litigation. Although the co-trustee was never formally joined as an intervenor, the trial court essentially treated him as such. The co-trustee participated in the case management conference, conducted discovery, submitted briefs, and participated in oral arguments. Because the court “took pains” to include the co-trustee as an intervenor, the court held that the co-trustee was properly precluded from re-litigating those issues in the subsequent and related malpractice litigation against the trust’s attorneys. 

White and Williams' attorneys Christopher Leise and Marc Penchansky secured this favorable result for our client. (October 19, 2016)          

In Petro-Lubricant Testing Laboratories, Inc., v. Adelman, the Superior Court of New Jersey, Appellate Division, addressed whether a second posting of an article on a website with minor changes from the original posting was sufficient to categorize the second posting as a separate publication for calculating the statute of limitations in a defamation case. The court held that the minor changes were immaterial and, therefore, not sufficient to render the second posting a separate publication. (October 19, 2016)

In Keystone Sanitary Landfill v. Monroe County Municipal Waste Management Authority, the Commonwealth Court of Pennsylvania addressed whether lawsuits against political subdivisions can be venued outside of the political subdivision’s home county contrary to Pennsylvania Rule of Civil Procedure 2103(b). The plaintiff argued that Section 5607(d)(2) of the Municipal Authorities Act (MAA) expanded venue so that a municipal authority may “be sued … in all courts.” The court disagreed, holding that: (1) Section 5607(d)(2) of the MAA refers to courts rather than venues; and (2) a municipal authority or political subdivision can only be sued in a county where it is located. (October 14, 2016)

In Sunrise Energy v. FirstEnergy, the Commonwealth Court of Pennsylvania examined whether a lawsuit between utility companies filed in the Court of Common Pleas should be transferred to the Pennsylvania Public Utility Commission (PUC) because the dispute required interpretation of the Alternative Energy Portfolio Standards Act (AEA). The court noted that the PUC has initial jurisdiction over matters involving the reasonableness, adequacy or sufficiency of a public utility’s service, facilities or rates. However, the court found that the legislature did not authorize the PUC to adjudicate disputes arising from the AEA. (October 14, 2016)

In Dailey v. Pennsylvania Labor Relations Board, the Commonwealth Court of Pennsylvania addressed a union member’s claim that a union’s dues collection process violated the Public Employee Relations Act (PERA) by coercing members to assist in political activities. The court held that the union’s decision with regard to dues assessment was an internal union matter not subject to judicial interference. (October 14, 2016)

In Bernier v. Smitty’s Sports Pub, Inc., the Supreme Judicial Court of Massachusetts considered whether a patron who mistakenly entered a pub’s rear entrance through a door marked “employees only” and subsequently fell down a set of steps and died from his injuries was owed a duty of care. The Court found that the decedent was not a trespasser as a matter of law because he was legally present at the bar and his lawful presence extended to the hallway where he mistakenly opened the door to the basement stairway. Consequently, the pub owed him a duty of care. (October 11, 2016)

In Davidson v. City of Cranston, the United States Court of Appeals for the First Circuit addressed whether the inclusion of 3,433 inmates within a city district’s population dilutes the votes of residents within the city’s other districts, in violation of the Equal Protection Clause of the Fourteenth Amendment. The court held that the prisoners could be included in the district’s population apportionment, and therefore no discrimination and no constitutional violation existed. (September 21, 2016)

In Johnson v. City of Philadelphia, the United States Court of Appeals for the Third Circuit addressed when police could be liable for unconstitutional excessive force under federal civil rights statutes. The court found that the decedent attacked the police officer, slammed him into multiple cars and attempted to remove the officer’s handgun before the police officer shot him. The court held that the violent attack on the police officer was a superseding cause that severed any causal link between the police officer’s initial actions and his justified use of lethal force. (September 20, 2016)

In Tagayun v. Americhoice of New Jersey, Inc., the Superior Court of New Jersey, Appellate Division, addressed whether the trial court improperly ordered two pro se plaintiffs to pay defendant’s counsel fees because their complaints were frivolous. The court held that even though the original complaint lacked merit, it was not frivolous. The amended complaint, however, was frivolous. As such, the court vacated the attorneys’ fee award relating to the original complaint and affirmed the attorneys’ fee award as to the amended complaint. (September 20, 2016)

In Trychon v. Massachusetts Bay Transportation Authority, the Appeals Court of Massachusetts addressed the legal sufficiency of a complaint charging violations of the Massachusetts Public Employee Whistleblower Statute, Mass. Gen. Laws c. 149, § 185.  Interpreting the phrase, “a risk to public health, safety or the environment” found within § 185, the court concluded that pleading facts related to disclosures of workplace activities, policies, or practices that have a significant impact upon the cost of public employment, including healthcare costs, is sufficient to withstand a motion to dismiss.(September 15, 2016)

In B.G. Balmer & Company, Inc. v. Frank Crystal & Company, Inc., the Superior Court of Pennsylvania examined an insurance brokerage company’s claims that its former executives conspired to steal clients and join a competing business in violation of non-solicitation provisions in their employment agreements. The court held that the gist of the action doctrine did not bar the firm’s tort claims because they arose out of legal obligations separate and distinct from the employment contracts. The court reasoned that the tort claims were based on each individual executive’s conduct while employed, whereas the provisions of the non-solicitation clauses only went into effect after the executives left the firm’s employment. (September 9, 2016)

In McGunigle v. City of Quincy, the United States Court of Appeals for the First Circuit addressed whether the City of Quincy retaliated against a former Quincy police officer for his protected speech in violation of his First Amendment rights. The court held that there was insufficient evidence to find a “causal connection between [the officer’s] speech and the adverse employment actions” because of the large temporal gap between the officer’s speech and the City’s first adverse action and because the City’s actions were reasonable. (August 31, 2016)

In Kranz v. Schuss, the Superior Court of New Jersey, Appellate Division, considered whether the defendants were entitled to a pro tanto credit for the amount the plaintiffs obtained by way of an out-of-state settlement with tortfeasors who were never defendants in the litigation and could not have been sued in the State because New Jersey lacked personal jurisdiction over them. The Court determined that equity was not achieved by providing the defendants with a pro tanto credit for the amount of the out-of-state settlement. Instead, the Court reasoned that the equitable result would be to permit the defendants to have any judgment that the plaintiffs may secure against them reduced by the amount of fault a jury attributes to the out-of-state tortfeasors. (August 31, 2016)

In North Jersey Media Group, Inc. v. Bergen County Prosecutor’s Office, the Superior Court of New Jersey, Appellate Division,examined a news organization’s request for records from a prosecutor’s office pursuant to the Open Public Records Act (OPRA) and the common law right of access. The Court determined that an agency may refuse to confirm or deny the existence of records in response to an OPRA request when the agency (1) relies upon an exemption authorized by OPRA that would itself preclude the agency from acknowledging the existence of such documents and (2) presents a sufficient basis for the court to determine that the claimed exemption applies. (August 31, 2016)

In Gray v. Allen Huntzinger and Central Parking Systems, Inc., the Superior Court of Pennsylvania held that in order to prevail on a claim for intentional infliction of emotional distress in Pennsylvania, a plaintiff’s severe emotional distress must be supported by competent medical evidence. To the extent the tort of intentional infliction of emotional distress is recognized in Pennsylvania, recovery is limited to those cases in which the plaintiff presents competent medical evidence of emotional distress. As such, a jury award in favor of a plaintiff must be vacated where the plaintiff did not present any medical testimony at trial. (August 30, 2016)

In Midland Funding LLC Current Assignee v. Thiel, the Superior Court of New Jersey considered the applicable statute of limitations for an action filed to collect debts arising from a retail customer’s use of a retail store’s credit card, where use of the card was limited to a specific retail store. The court held that for such claims the four-year statute of limitations set forth in N.J.S.A. 12A:2-725 applies. The court also determined that for actions filed after the expiration of the four-year statute of limitations, the Fair Debt Collection Practices Act (FDCPA) requires that statutory damages and costs be awarded, absent a showing that the action was filed due to a “bona fide error” under the act. (August 29, 2016)

In Adams v. Hellings Builders, Inc., the Superior Court of Pennsylvania addressed whether second purchasers of a home could raise a claim against the home builders under the Unfair Trade Practices and Consumer Protection Law since second purchasers had no direct business dealings with the builder. The buyers’ claim was based on the fact that, three years after buying the home, a test for moisture infiltration indicated possible presence of mold due to the improper application of stucco. The court considered whether the second purchasers’ reliance on alleged misrepresentations was especially foreseeable, and held that the builder’s preliminary objections should have been overruled because the second purchasers justifiably relied upon the builders’ misrepresentations in purchasing the home. (August 29, 2016)

In Parkell v. Danberg, the United States Court of Appeals for the Third Circuit addressed whether a Delaware state prisoner’s allegation of thrice-daily visual body-cavity searches are unreasonable and in violation of the Fourth Amendment. The court held that even though the Fourth Amendment prescription against unreasonable searches does not apply within the confines of a prison cell, it does apply to unreasonable search of an inmate’s body. Thus, a requirement that three times every day inmates remove their clothing and submit to intrusive body-cavity searches, whether or not they have had any contact with others, violates the Fourth Amendment; however, it does not entitle the inmate to recover money damages from state defendants who did not conduct the searches but are alleged, without sufficient evidence, to have had supervisory involvement. (August 17, 2016)

In Raab v. City of Ocean City, New Jersey, the United States Court of Appeals for the Third Circuit held that even though there was a mutual settlement reached, because the terms of the settlement agreement retained federal jurisdiction over the matter, the plaintiff was considered a prevailing plaintiff and was entitled to attorney’s fees under the federal civil rights statute. (August 15, 2016)

In Barnes v. Alcoa Inc., the Superior Court of Pennsylvania analyzed whether workers were employees of the parent company of a company who contracted with the company that supplied the workers for the project. The court stated that having a parent company’s name on a pay check was not sufficient to make the worker an “employee” when the parent company had no “power and authority to direct and control” the worker’s actions. (August 12, 2016)

In Three Registered Voters v. Board of Selectmen of Lynnfield, the Appeals Court of Massachusetts addressed whether the board of selectmen violated the open meeting law in the selection process for appointing several municipal officials. The court held that the board did not violate the open meeting law because notice of the meeting was proper and in accordance with the law, the voters’ complaint was properly handled, and the individual interviews that took place were not deliberations that had to occur in an open meeting. (August 12, 2016)

In Granata v. Broderick, the Superior Court of New Jersey, Appellate Division, addressed whether an attorney’s pledge of anticipated counsel fees can be considered a receivable under Article 9 of the Uniform Commercial Code. The court held that, under certain circumstances, an attorney's pledge of anticipated counsel fees can be considered an account receivable and secured under Article 9. (August 9, 2016)

In National Collegiate Athletic Association v. Governor of New Jersey, the United States Court of Appeals for the Third Circuit addressed whether theNew Jersey statute, SB 2460, which authorizes sports gambling in New Jersey, violates the federal Professional and Amateur Sports Protection Act (the Act). The court held that the New Jersey statute violates the Act because the Act expressly prohibits states from authorizing sports gambling. (August 9, 2016)

In Funk v. Wolf, the Commonwealth Court of Pennsylvania addressed the validity of a mandamus action against various Executive Branch Departments and Secretaries of the Commonwealth of Pennsylvania. Petitioners, relying upon Article I, Section 27 of the Pennsylvania Constitution (the Environmental Rights Amendment or ERA) sought to force the Executive Branch to develop a comprehensive plan to combat climate change. The court denied the request for a writ of mandamus because the Petitioners had no clear right to the relief requested. The court held that the decision to conduct studies, promulgate regulations, or issue executive orders on climate change constitute discretionary acts of government officials or a task for the General Assembly. (July 26, 2016)

In Williams v. American Auto Logistics, the Supreme Court of New Jersey determined that a litigant may not lose his constitutionally protected right to a jury trial as a sanction for failure to comply with procedural rules. Rule 4:25-7(b) provides for sanctions if a party fails to exchange and submit certain pretrial information. The Court determined that loss of a constitutional right to a jury trial should not be wielded as a penalty. Furthermore, Rule 4:25-7 does not apply in the New Jersey Superior Court, Law Division, Special Civil Part. (July 28, 2016)

In Great Woods, Inc. v. Clemmey, the Appeals Court of Massachusetts considered whether a consent judgment on a permanent injunction could be enforced by a successor-in-interest to the proponent of the injunction. The court concluded that an injunction designed to protect an identified class of people could be enforced by a successor-in-interest, thus extending the rule that a successor-in-interest to land is entitled to enforce the prospective provisions of an injunction to protect land. (July 26, 2016)

In Bowers v. P. Wile’s, Inc., the Supreme Judicial Court of Massachusetts considered whether the “mode of operation” approach to premises liability is applicable to a negligence action against a store arising out of a trip and fall. The Court explained that the mode of operation approach removes a plaintiff’s usual burden of showing that the owner had knowledge or constructive knowledge of the hazard, focusing instead on whether the owner’s manner of operation creates foreseeable hazards that might arise through the conduct of third parties. Concluding that such analysis is applicable, the Court ruled that issues of material fact remained as to whether the store’s particular “mode of operation” of a gravel covered self-service area adjacent to the main walkway into the store represented a recurrent risk of a trip and fall that it could be held liable for. (July 28, 2016)

In Jerdonek v. 41 West 72 LLC, the New York State Supreme Court, Appellate Division, 1st Department, addressed the proper party to be sued under Labor Law 240(1) and 241(6). The plaintiff, who was injured while working in the boiler room of a condominium building, named the owner of the condominium building as a defendant. The boiler room was defined as a common element of the condominium in the building’s declaration filed pursuant to Real Property Law § 339-f, and the board of managers exercised exclusive control over the common elements. The court therefore held that the board of managers was the proper party to be sued as owner of the building’s common elements, and dismissed the case against the owner of the building. (July 28, 2016)

In Oboku v. New York City Transit Authority, the New York State Supreme Court, Appellate Division, 2d Department, addressed the issue of consolidation of multiple actions that were commenced in different venues. The court noted that, in the absence of special circumstances, where the actions have been commenced in different counties, venue should be the place in the county having jurisdiction over the action commenced first. As all of the actions involved common questions of law and fact, the court ordered that a joint trial occur in the county in which the first action was commenced. (July 28, 2016)

In Bank of America, N.A. v. Prestige Imports, Inc., the Appeals Court of Massachusetts addressed whether an attorney who withdrew from a case was nevertheless entitled to the reasonable value of his services rendered. The court held that the attorney was entitled to the reasonable value of his services because the attorney’s withdrawal was due to the client’s behavior. (July 20, 2016)

In Enhanced Acquisitions II, LLC v. McSam Tribeca, LLC, the New York Supreme Court, Appellate Division, 2d Department,addressed which party has the burden to establish that a plaintiff lacks standing for purposes of a motion to dismiss under CPLR 3211(a). The court held that on a motion to dismiss under that provision, the burden was on the moving party to establish, prima facie, a lack of standing and that sufficient evidence must be offered in support of that proposition. In this case,because the defendant had not provided any evidence demonstrating a lack of standing, the motion to dismiss was properly denied. (July 6, 2016)

In Capital Health v. Horizon Healthcare Services, Inc. and St. Peter's v. Horizon Healthcare Services, Inc. (consolidated for purposes of the opinion), the Superior Court of New Jersey, Appellate Division, addressed a discovery dispute related to the disclosure of confidential and proprietary business information in the ongoing litigation related to Horizon’s introduction of a tiered healthcare plan. The court found that because the main issue in the case was a dispute related to agreements between the hospitals and Horizon, there was little relevancy of the far-ranging document requests by the hospitals. The court also found that the hospitals’ asserted need for discovery of certain documents was outweighed by Horizon’s greater interest in preserving the confidentiality of its proprietary business information. (June 23, 2016)

In Barnes v. Sam Burt Houses, Inc., the New York Supreme Court, Appellate Division, 2d Department, found that a resident of a building could not recover from the residential building when he sustained injuries after he fell from a ladder while helping the building porter observe an air conditioning vent. The court held that a residential building does not owe a duty of care to a resident of the building when that resident volunteers to help a building porter with a building task. (June 22, 2016)

In Worthy v. Kennedy Health System, the Superior Court of New Jersey, Appellate Division, considered whether a medical malpractice plaintiff met the requirements of the “Fictitious Name Rule” to save her claims against one physician who was dismissed as out of time. Plaintiff was not able to name one of the individual physicians by name within the statute of limitations due to the defendant-hospital failing to provide the physician’s identity in time. The court determined that the plaintiff complied with the fictitious name rule which allows a sufficient description of a defendant where the identity of said defendant is unknown (with a subsequent amendment of the complaint permitted). The plaintiff acted with due diligence here by identifying the physician’s title, reciting the factual basis of liability with separate counts, and also was thwarted by the hospital in obtaining the identity of the physician. (June 22, 2016)

In DiPaolo v. Times Publishing Company d/b/a Erie Times News, the Superior Court of Pennsylvania addressed whether a court may compel production of a reporter’s notes in a defamation case. The court held that the notes could be compelled because the plaintiff did not seek disclosure of a confidential source or materials that could lead to the identity of a confidential source. (June 15, 2016)

In Millcreek Township School District v. Wegmans Food Markets, the Commonwealth Court of Pennsylvania held that prior appraisal reports from an expert who did not testify before the trial court could not be admitted as rebuttal evidence under the hearsay exception for Opposing Party’s Statements, Pa. R.E. 803(25), because the expert’s status as an expert witness did not render it an agent of the party authorized to make admissions on behalf of the party. (June 13, 2016)

In Williams v. Pennsylvania, the United States Supreme Court addressed whether former Pennsylvania Supreme Court Chief Justice, Ronald Castille, should have recused himself from a case involving an appeal of a death row inmate because, as the District Attorney 30 years earlier, Chief Justice Castille made the decision to seek the death penalty against the defendant. A divided Supreme Court ruled that judges must recuse themselves from cases in which they had a “significant, personal” role in prosecuting the party before them. The Court held that, because Chief Justice Castille’s authorization to seek the death penalty amounted to a significant, personal in­volvement in a critical trial decision, his failure to recuse himself from the defendant’s subsequent appeal presented an unconstitutional risk of bias. (June 9, 2016)

In Kleine v. Emeritus at Emerson, the Superior Court of New Jersey, Appellate Division, addressed whether a binding arbitration clause contained in a nursing home admission agreement was enforceable in a resident’s subsequent personal injury action against the nursing facility. The court held that the one-sided nature of the agreement and the circumstances surrounding its execution required an evidentiary hearing to consider unconscionability factors. Ultimately, the court deemed the clause unenforceable because the exclusive method of arbitrating disputes outlined in the agreement – through the American Arbitration Association – was not a viable option for these types of disputes. (June 9, 2016)

In Lil Shining Stars, Inc. v. Department of Human Services, the Commonwealth Court of Pennsylvania addressed whether unannounced inspections of a childcare center, as permitted under the Public Welfare Code, were constitutional under the Fourth Amendment. The court held that the statutory provisions of the Code did not infringe on the owner’s right to be free from an unreasonable search, but rather balanced the government’s need to protect the children. (June 8, 2016)

In Balentine v. Chester Water Authority, the Commonwealth Court of Pennsylvania addressed whether the involuntary movement of a vehicle constitutes operationof a vehicle for the vehicle liability exception to the Tort Claims Act. The court held that an involuntary movement does not constitute operation and, therefore, the local agency’s vehicle, which was parked and running, did not fall under the exception to the Tort Claims Act when it was hit by another vehicle and involuntarily moved, causing injury to the plaintiff. (June 6, 2016)

In Baskin-Robbins Franchising LLC v. Alpenrose Dairy, Inc., the United States Court of Appeals for the First Circuit addressed whether Massachusetts was the proper venue for a suit relating to a franchisor-franchisee relationship, when the franchisee was located in Washington, and the franchisor unilaterally moved headquarters to Massachusetts. The court held that Massachusetts was a proper venue, as the franchisor performed services for the franchisee in Massachusetts, and that it would be fair and reasonable to hail the franchisee into court in Massachusetts. (June 6, 2016)

In In re: Asbestos Products Liability Litigation (No. VI), the United States Court of Appeals for the Third Circuit addressed whether it was procedural error to dismiss a complaint based on facts that were neither in the complaint nor undisputed. The court held that the lower court’s reliance on evidence extrinsic to the complaint constituted a procedural error under Federal Rule of Civil Procedure 12(b)(6). (May 16, 2016)

In Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, the United States Supreme Court addressed whether §27 of the Securities Exchange Act of 1934 provides federal jurisdiction over state law claims seeking to establish liability based on violations of the Federal Exchange Act or its regulations. The Court held that the jurisdictional test established by §27 is the same as the general federal question statute, 28 U.S.C. §1331, which confers federal jurisdiction over all civil actions “arising under” federal law. The court held that the federal court lacked jurisdiction because all claims sought relief under state laws and none necessarily raised a federal issue. (May 16, 2016)

In Villoldo v. Castro Ruz, the United States Court of Appeals for the First Circuit addressed whether assets two brothers sought to attach to satisfy a judgment against Cuba are property of the Cuban government, and therefore subject to attachment. The court held that it will not give extraterritorial effect to a foreign state’s confiscatory law, and therefore the assets were not property of Cuba and not subject to attachment. (May 12, 2016)

In AngioDynamics, Inc. v. Biolitec AG, the United States Court of Appeals for the First Circuit addressed whether an underlying preliminary injunction expired by its own terms, so that the district court could no longer enforce compliance with it. The court held that because the company did not raise the argument at any previous time, the order was still in effect and valid. (May 6, 2016)

In Baterna v. Maimonides Medical Center, the New York Supreme Court, Appellate Division, 2d Department, held that the injured party failed to establish a prima facie case of negligence because although she provided an expert who cited building code violations, the expert “failed to raise a triable issue of fact as to whether the cited building code provisions applied to the subject stairs and handrails, as the expert failed to establish that the cited building code provisions were in effect when the subject stairs and handrails were constructed.” (May 4, 2016)

In Federal Home Loan Bank of Boston v. Moody’s Corporation, the United States Court of Appeals for the First Circuit addressed whether a federal district court has statutory power to transfer an action to another federal court in which personal jurisdiction over the defending parties may be met. The court concluded that the plain text of the transfer statute permits a transfer where there is a “want of jurisdiction” and applies both to a want of subject matter jurisdiction and a want of personal jurisdiction. Therefore, the district court does have the power to effectuate such a transfer. (May 2, 2016)

In City of Philadelphia v. Auguste, the Commonwealth Court of Pennsylvania addressed whether it was an error for a sheriff’s sale to be set aside based on due process issues raised sua sponte by the trial court. The court reversed the trial court’s order setting aside the sheriff’s sale, holding it was an error for the trial court to set aside the sheriff’s sale based on issues raised sua sponte. Further, all due process requirements concerning notice of the sheriff’s sale under the Municipal Claims and Tax Liens Act were satisfied. The particular facts of this case – indicating there were other addresses that could have been used to provide notice – did not merit a heightened standard for notice above the bare minimum requirements of the statute. (April 29, 2016)

In Robert and Ardis James Foundation v. Meyers, the Supreme Judicial Court of Massachusetts addressed whether an investor had breached the implied covenant of good faith and fair dealing in a transaction with a charitable foundation, in which the foundation would advance money to the investor to purchase shares of stock, in exchange for a portion of the proceeds of the eventual sale of those shares. The court held that the investor had breached the implied duty of good faith and fair dealing because he did not effectuate the sales of stocks as the agreements contemplated. (April 21, 2016)

In Capital City Cab Service v. Pennsylvania Public Utility Commission, the Commonwealth Court of Pennsylvania held that the Pennsylvania Public Utility Commission (PUC) was within its authority to issue a Certificate of Public Convenience to Rasier-PA LLC, a subsidiary of Uber, to operate in Pennsylvania as an experimental common carrier. The court held that, while Rasier did not fit easily within existing categories of service, Rasier would qualify as an “experimental service” subject to PUC jurisdiction. The decision does not apply to Philadelphia County. (April 19, 2016)

In Paff v. Galloway Township, the Superior Court of New Jersey held that the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, does not require public agencies to create records that do not already exist. The court held that a public agency would have to produce specific emails if requested, but not create itemized lists requested under the OPRA showing the sender, recipient, date, and subject of all emails sent during a designated period of time. (April 19, 2016)

In Burbank Apartments Tenant Association v. Kargman, the Supreme Judicial Court of Massachusetts addressed whether the owners of an apartment building, who declined to renew the building’s project-based Section 8 housing assistance payments contract (HAP) with the United States Department of Housing and Urban Development (HUD) when the contract expired, could be subject to a discrimination claim by the tenants based on disparate impact, where the tenants claimed that the decision not to renew the HAP had a disproportionately negative effect on people of color, the disabled and elderly, and female-headed households. The court concluded that a disparate impact claim based on non-renewal of the HAP is legally cognizable, subject to rigorous pleading requirements, even when the property owner has acted in accord with statute, regulation, and contract. The court concluded that, to state a claim, tenants must meet a robust causality requirement, showing that the challenged practice caused or predictably will cause a discriminatory effect, which the tenants here did not do. (April 13, 2016)

In Young v. Estate of Young, the Commonwealth Court of Pennsylvania considered whether a nephew had a viable claim for loss of consortium/support against the estate of his deceased aunt and uncle on the basis that he was prohibited from seeing his aunt and uncle in their final days of life. The court held that the claim for loss of consortium/support sounded in tort rather than contract or equity. The court further found that the nephew failed to state a claim because he cannot pursue loss of consortium regarding his relationship with his aunt and uncle. (April 12, 2016)

In Van Liew v. Stansfield, the Supreme Judicial Court of Massachusetts addressed whether an appeal from a District Court order allowing or denying a special motion to dismiss may be filed directly in the Appeals Court. The court also addressed whether speech concerning issues of local public concern would qualify as “fighting words” or “true threats,” and therefore be subject to a civil harassment prevention order. The court concluded that a party seeking to appeal the District Court order may file the appeal directly in the Appeals Court, and also held that the political speech at issue did not qualify as “fighting words” or “true threats,” and therefore a civil harassment prevention order should not have been issued. (March 30, 2016)

In Asbestos Workers Philadelphia Pension Fund v. Bell, the New York Supreme Court, Appellate Division, 1st Department, addressed whether the shareholder derivative suit requirement that a demand be made on the board could be waived based on a showing that it would be futile to effectively ask a board member to sue himself. Applying Delaware law, the court found that the demand requirement could not be waived on this basis, and that a mere allegation of bad faith decision-making did not suffice absent factual support. In so holding, the court noted that the weight of authorities addressing the subprime mortgage improprieties at issue had found this allegation insufficient absent additional factual support. (March 31, 2016)

In Americold Realty Trust v. Conagra Foods, Inc., the United States Supreme Court addressed the citizenship of a real estate investment trust organized under Maryland law and whether its “members” included shareholders for the purposes of diversity jurisdiction. The real estate investment trust argued that it possessed the citizenship of its trustees alone. Under Maryland law, the trust’s members are those who own beneficial interests, including its shareholders. Thus, the court held that the trust’s citizenship should be determined by the citizenship of all its members, including its shareholders, for the purposes of diversity jurisdiction. (March 7, 2016)

In Mercado v. Commonwealth of Puerto Rico, the United States Court of Appeals for the First Circuit addressed whether a woman, bringing claims of discrimination against various government entities, brought her lawsuit too late under the Americans with Disabilities Act (ADA).The court held that the four year catch-all time limit provided under 28 U.S.C. §1658 operates, because the claims were made possible by 2008 amendments to the ADA, and thus the lawsuit was timely filed. (March 3, 2016)

In Muboyayi v. Quintero, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a complaint should be stricken for discovery misconduct. As per court order, the plaintiff was to submit to a deposition by a certain deadline, but refused to schedule the deposition until the day before the deadline. The court found that the plaintiff’s conduct warranted striking the complaint. (February 11, 2016)

In Fasano v. Euclid Hall Associates, L.P., the New York Supreme Court, Appellate Division, 1st Department, addressed whether the question of prior notice of a misleveled elevator could be put to a jury where a third-party service provider had agreed to take full responsibility for the elevator. The court found that it could not, noting that the property owner had made a prima facie showing that it had no prior notice of the misleveling. The court further noted that res ipsa loquitor did not apply to the owner because it had ceded all responsibility to a third party for the daily operation, repair, and maintenance of the elevator. (February 9, 2016)

In Perez v. Gasho of Japan, Inc., the New York Supreme Court, Appellate Division, 1st Department, looked at whether a restaurant patron provided sufficient evidence of a defective or dangerous condition so as to establish premises liability. The court found where the patron described the carpet runner as being “bunched up . . . a little,” with a “little lump,” the defect was “trivial and not actionable.” (February 4, 2016)

In Case v. Taylor, the Supreme Court of Delaware held that the plaintiff’s expert may not testify that the defendant was driving in an unsafe manner due to defendant’s failure to follow the “three second” and “four second” rules contained in the Delaware Driver’s Manual. The Manual was not admissible to show the standard of care because it was not part of Delaware’s Motor Vehicle Code and merely contained suggestions for safe driving practices. (February 3, 2016)

In Price v. Simakas Company, Inc., the Superior Court of Pennsylvania addressed whether federal regulations prohibited university employees from testifying about an Occupational Safety and Health Administration (OSHA) inspection. The court held that the federal regulations did not prohibit testimony from the university employees regarding the OSHA inspection because the university employees were not acting as federal employees, but rather state employees, during the time of the OSHA inspection, therefore not triggering the privilege. (February 2, 2016)

In Goddard v. Goucher, the Appeals Court of Massachusetts addressed whether a stipulation regarding two parties’ contractual negotiations and their legal consequences operated as proof that an enforceable purchase and sale agreement for a piece of property was in place. The court held that the stipulation contained not only undisputed facts, but also substantial gaps and legal conclusions, and therefore agreed with the previous finding that there was no valid and enforceable agreement for the property. (February 2, 2016)

In Colon-Marrero v. Garcia Velez, the United States Court of Appeals for the First Circuit addressed whether federal law forbids Puerto Rico from removing people from its voter registry for the office of Resident Commissioner, based only on their failure to vote in one general election. The court held the National Voter Registration Act does not apply, but that the Help America Vote Act (HAVA) addresses federal election administration in Puerto Rico, thereby invalidating the deactivation procedures. Potential voters may therefore bring a private cause of action seeking relief under HAVA pursuant to 42 U.S.C. § 1983. (February 1, 2016)

In Kennedy v. Robert Morris University, the Superior Court of Pennsylvania addressed whether a college owes a duty to prevent injury to a student athlete who was injured participating in a mandatory training camp run by an outside association. The court held that the university that selected the camp owed no duty to the athletes where the outside association operated the camp and directed and supervised instruction. (January 29, 2016)

In The Printed Image of York, Inc. v. Mifflin Press, LTD., the Superior Court of Pennsylvania addressed whether the trial court erred in refusing to rule on a post-trial motion on a nonsuit because it mistakenly believed that it lacked jurisdiction over the issue. The court found that the trial court retained jurisdiction because no party filed a praecipe for judgment on the nonsuit. The court further held that where the trial court’s opinion made clear that it would have denied the motion on its merits, remanding the case served no purpose and thus the issue was moot. (January 29, 2016)

In Pennsylvania Department of Education v. Bagwell, the Commonwealth Court of Pennsylvania considered whether the Right-to-Know Law requires an agency invoking an extension to demand prepayment for records within five days where fees are expected to exceed $100. The court construed the law to favor public interest in efficient disclosure of public records and held that requiring a prepayment demand for estimated fees does not need to be included in the Extension Notice. (January 29, 2016)

In Hinkal v. Gavin Pardoe & Gold’s Gym, Inc., the Superior Court of Pennsylvania addressed whether the waiver of liability on the back page of a gym membership agreement was valid and enforceable against an injured gym patron. The gym patron argued that the waiver was invalid because the language appeared on the back of her agreement, and that she never read or was told to read the back of the agreement. The court held that the contract contained an unambiguous directive not to sign the agreement before reading both sides, and that the patron’s failure to read the agreement did not render the waiver either invalid or unenforceable. (January 22, 2016)

In DiFebo v. Board of Adjustment of New Castle County, the Supreme Court of Delaware held that under Superior Court Civil Rule 15(c)(3), an amendment to a petition to add an indispensable party will relate back to the original petition if all of the Rule’s requirements are satisfied “within the period provided by statute” or the Rules for service of the summons and complaint. Thus, although the applicable statute, 9 Del. C. 1314(a), imposed a thirty-day statute of limitations for commencing a petition challenging a Board of Adjustment’s decision, it did not set forth a period of time for serving the respondent, and therefore the time set forth for process of service under Rule 15(c)(3) applied. (January 25, 2016)

In Burkett v. St. Francis Country House, the Superior Court of Pennsylvania addressed the issue of whether a wrongful death claim fell within the scope of an arbitration agreement between a nursing facility and a deceased resident of the facility. The agreement was signed by the deceased resident and her representative. The court held that the agreement was not binding upon non-signatory wrongful death beneficiaries because the representative only signed the agreement in his representative capacity, and therefore he did not modify or disrupt his own right, or the rights of other family members and/or beneficiaries, to bring a wrongful death claim before the trial court. (January 25, 2016)

In Naderi v. North Shore-Long Island Jewish Health System, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a doctor stated a defamation claim against a health system and medical center. The court dismissed the doctor’s defamation claims because the doctor “allege[d] nothing more than nonspecific defamatory rumors, which do not amount to actionable defamation.” The doctor’s allegation that an employee of the medical center stated that she doubted that the doctor “would be able to maintain his academic appointment at Hofstra Medical School” is also not actionable defamation. (January 26, 2016)

In Willette v. University of Massachusetts, the United States Court of Appeals for the First Circuit, in a case of first impression, considered whether a university is a state agency under the False Claims Act (FCA), and applied the same test for determining whether an entity is entitled to Eleventh Amendment protections. The court examined whether the state indicated an intention that the university share the state’s sovereign immunity by analyzing the university’s relationship with the state, and held that the university was an “arm of the state” not subject to suit under the FCA. (January 27, 2016)

In A Corporation v. All American Plumbing, Inc., the United States Court of Appeals for the First Circuit considered whether a company’s website, its only contact with the forum, made it subject to personal jurisdiction. The court held that the availability of a passive website, which offers no interactive features functions more like a “digital billboard.” A digital billboard did not satisfy the “purposeful availment” requirement, and cannot subject an entity to personal jurisdiction in the forum state. (January 27, 2016)

In Creditone, LLC v. Schofield, the Superior Court of Pennsylvania considered whether unauthenticated business records were admissible pursuant to Pa.R.C.P. 1311.1 when the entity that produced the records was beyond the jurisdiction of the Pennsylvania courts. The court held that the entity’s chief financial officer, who verified the complaint and signed the business records, was within the court’s subpoena power. Therefore, the court held that the party challenging the records should have subpoenaed the chief financial officer to dispute their contents. (January 20, 2016)

In Campbell-Ewald Co. v. Gomez, the United States Supreme Court addressed whether federal contractors enjoy absolute immunity for alleged violations of the Telephone Consumer Protection Act (TCPA). The Court also addressed whether an unaccepted settlement offer mooted a party’s individual claim. The Court held that a federal contractor does not enjoy absolute immunity and was not immune because it violated federal law and government instructions. The Court further held that, once an offer was rejected, it had no continuing efficacy, and therefore the parties remained adverse with a stake in the litigation. (January 20, 2016)

In Berkowitz v. Soper, the Superior Court of New Jersey, Appellate Division, addressed whether a trial court committed reversible error in an automobile accident case in failing to adjourn the trial when the defendant was hospitalized and could not testify. The court further considered whether the $2 million verdict was excessive and against the weight of the evidence when the plaintiff lacked sufficient expert testimony on damages and improperly referred to the adequacy of a potential monetary award in his testimony. The court held that the cumulative effect of the errors had the capacity to inflame the jury’s passion and deprived the defendant of her right to a fair trial. (January 20, 2016)

In Ketler v. PFPA, LLC, the Supreme Court of Delaware addressed whether a release of liability barred an injured person’s claim against an exercise facility. The court held that the release was enforceable, even for the exercise facility’s own negligence, because it was unambiguous, not unconscionable, and not against public policy. (January 15, 2016)

In Beacon Towers Condominium Trust v. George Alex, the Supreme Judicial Court of Massachusetts addressed whether an arbitration panel, applying the arbitration rules of the American Arbitration Association, can authorize an award of attorneys’ fees based on a finding that the defenses were frivolous, even if the arbitration agreement did not authorize such an award. The court held that the panel could not award attorneys’ fees, unless the parties had previously agreed that the arbitrator may award such fees in these circumstances. (January 7, 2016)

In Merrimack College v. KPMG LLP, the Appeals Court of Massachusetts addressed whether a mandatory dispute resolution contained in an engagement letter was intended to apply retroactively to disputes arising under the parties’ previous agreements. The court held that the engagement letter did not apply retroactively, and therefore the college did not sign away its right to sue an accounting firm for malpractice. (January 6, 2016)

In Mantilla v. Riverdale Equities, Ltd., the New York Supreme Court, Appellate Division, 1st Department, addressed the issue of whether the dismissal of a slip-and-fall negligence claim against third-party defendant and general contractor precluded the latter’s contractual indemnification of landowner-defendant. The Court found that it did not, noting that the general contractor’s indemnification obligations existed separate and distinct from the issue of its direct liability to plaintiff. The court noted that the general contractor subcontracted the snow removal work to another company that never performed the work, and that summary judgment for general contractor on the issue of contractual indemnification was properly denied. (December 22, 2015)

In Doctor’s Choice Physical Medicine and Rehabilitation Center, P.C. v. Travelers Personal Insurance Company, the Supreme Court of Pennsylvania addressed the propriety of an award of attorneys’ fees against insurance companies that invoke the peer-review provisions of the Motor Vehicle Financial Responsibility Law (Law). The court held that the Law did not permit an award of attorneys’ fees against insurers who have invoked the peer review provision. The court held that without express statutory authority, clear agreement of the parties, or some other established exception, attorney’s fees cannot be a remedy. (December 21, 2015)

In Star Meth Corporation v. Steiner, the New York Supreme Court, Appellate Division, 1st Department, addressed the issue of when a claim premised on a fraudulent payroll scheme accrued. The court applied the “open repudiation” rule and found that the six-year statute of limitations began to run at the time of a disclosure of the scheme by defendant to a relative of plaintiff’s owners. The court noted that because the jury resolved credibility issues in the defendant’s favor it was not improper for the court to premise its decision as to the statute of limitations on the jury’s findings relating to the 1993 disclosure. (December 17, 2015)

In Waring v. Sunrise Yonkers SL, LLC, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a property owner was liable to an employee of a non-party property manager for injuries the employee suffered during the course of his employment. The court held that the owner “failed to establish that it was an out-of-possession landowner with limited liability to third persons injured on the property” because the owner had access to the property and the property manager’s books and records, was responsible for funding operating shortfalls, exercised control over the manner in which the property manager maintained bank accounts, and was required to indemnify the property manager for claims relating to the property manager’s “own negligence in the performance of its duties.” (December 10, 2015)

In P.R.B.A. Corporation v. HMS Host Toll Roads, Inc., the Unites States Court of Appeals for the Third Circuit addressed whether a private company that operates service plazas on New Jersey highways acted “under color of any statute, ordinance, regulation, custom, or usage, of any State,” when it removed brochures advertising a gentleman’s club from the common area of its service plazas. The court held that the service plaza operator could not be sued for a civil rights violation because the record showed no direct involvement by the state authorities either in the decision to remove the brochures or in the general day-to-day operation of the service plaza. (December 10, 2015)

In Moon v. Dauphin County, the Commonwealth Court of Pennsylvania addressed the scope of the res ipsa loquitur doctrine in negligence claims. Despite that Pennsylvania courts have referred to res ipsa loquitur as the means by which negligence may be inferred, it aids a plaintiff in satisfying only the breach of duty element of a negligence claim, not the establishment of a duty or the other required elements. (December 10, 2015)

In Trapp v. Roden, the Supreme Judicial Court of Massachusetts addressed whether the closure of a Native American lodge at a correctional center violated the Religious Land Use and Institutionalized Persons Act of 2000, Article 2 of the Massachusetts Declaration of Rights, and a settlement agreement reached in a prior lawsuit. The court held that the closure of the lodge violated the Religious Land Use and Institutionalized Persons Act of 2000 because the closure of the lodge substantially burdened an inmate’s ability to freely practice his religion. The court also held that the settlement agreement was breached because the Department of Corrections failed to establish any health concerns at the lodge (which would have permitted closure), and because the Department of Corrections failed to consult with the Commission on Indian Affairs before attempting to alter any protocols. (November 23, 2015)

In Moriarty v. Colvin, the United States Court of Appeals for the First Circuit addressed whether the Commissioner of the Social Security Administration, pursuant to the Social Security Act, can exclude state-administered supplementary payments owed to attorneys who successfully recover “past-due benefits” to clients. The court held that because Massachusetts administers its own benefits, rather than relying on federal administration of supplementary payments, the Commissioner can exclude state supplementary payments from the total amount, thereby reducing fees paid to attorneys representing Massachusetts Social Security Income claims. (November 20, 2015)

In Joseph v. The Scranton Times, L.P., the Supreme Court of Pennsylvania addressed the plaintiff’s burden of proof for the recovery of damages under Pennsylvania’s statutory cause of action for defamation. The court held “proof of actual injury to a private plaintiff’s reputation is a prerequisite to the recovery of damages for other injuries, including mental and emotional injuries.” Additionally, the court held private plaintiffs are permitted in libel cases involving media defendants to recover presumed and punitive damages upon their satisfaction of the actual malice standard. (November 20, 2015)

In Pennsylvania Office of Attorney General v. The Philadelphia Inquirer, the Commonwealth Court of Pennsylvania held that the receipt and transmission of pornographic emails were personal emails, rather than public records within the meaning of the Pennsylvania Right-to-Know Law (65 P.S. §§67.101-67.3104), and that an agency would not be compelled to produce them under a Right-to-Know Law request. (November 19, 2015)

In Sernovitz v. Dershaw, M.D., the Supreme Court of Pennsylvania considered the constitutionality of a Pennsylvania statutory provision precluding a professional negligence action based on a claim of “wrongful birth” or “wrongful life.” The court held that although the bill containing this provision appeared to violate the “single subject rule” of Article III of the Pennsylvania Constitution, the parents raising this constitutional challenge for purposes of asserting a professional negligence action for “wrongful life” against a doctor who allegedly misinformed them about the results of prenatal genetic testing, were nevertheless precluded from challenging the constitutionality of the statute on procedural grounds due to the fact that 22 years had passed since its enactment. (November 18, 2015)

In Atkins v. Beth Abraham Health Services, the New York Supreme Court, Appellate Division, 1st Department, addressed whether an expert of an estate may opine on a new theory of the cause of death not raised in the complaint. The court held that the expert’s opinion that the nursing home resident’s death was due to the failure of the nursing home to perform frequent tests on resident’s blood sugar could not defeat the nursing home’s motion for summary judgment, because that theory was never properly pleaded by the resident’s estate. (November 17, 2015)

In Roman v. McGuire Memorial, the Superior Court of Pennsylvania addressed whether it had subject matter jurisdiction in the context of a claim arising under 43 Pa C.S. §§ 932.1- 932.6 (Prohibition of Excessive Overtime in Health Care Act also known as Act 102). The court noted that Act 102, does not provide any administrative or statutory remedies for employees who are fired in retaliation for refusing to work forced overtime and contains nothing that advises such an employee as to the administrative procedure to follow in order to recover for such harms. The court concluded that the wronged employee’s claim, which was filed in 2011 after Act 102 became effective (2009), but before regulations were implemented (2014), was properly before the trial court. (November 9, 2015)

In Hidden Creek, L.P. v. Lower Salford Township Authority, the Commonwealth Court of Pennsylvania addressed whether a township is entitled to sovereign immunity under the Political Subdivision Tort Claims Act (PSTCA) to defend against a property developer’s claim that the township had overcharged tapping fees – municipal government charges for access to the sewer system – in violation of the Municipality Authorities Act (MAA).  The court determined that the PTSCA does not apply because Section 5607(d) of the MAA specifically allows municipal authorities to be sued for imposing excessive tapping fees. (November 6, 2015)

In Nertavich v. PPL Electric Utilities, the Supreme Court of Pennsylvania affirmed the decision of the Superior Court of Pennsylvania. The court examined whether a utility company could be liable for injuries sustained by a painting subcontractor’s employee while working on the utility’s electric transmission pole. The court found that the alleged evidence of control by the utility company was insufficient as a matter of law to constitute control over the subcontractor’s work, upheld the decision to vacate the jury’s $2.5 million verdict, and entered judgment in favor of the utility. (October 27, 2015)

In Perelman, and JEP Management, Inc., v. Perelman, the Superior Court of Pennsylvania considered whether the claims in plaintiff’s complaint should be precluded based on principles of res judicata and/or collateral estoppel. In a federal action based on the same alleged litigation misconduct as this state claim for wrongful prosecution under the Dragonetti Act, the plaintiff had filed a motion for sanctions under Federal Rule of Civil Procedure 11, which was denied. The court held that the federal court’s Rule 11 order did not preclude plaintiff’s claims in state court. (October 27, 2015)

In Castellani and Corcoran v. The Scranton Times, L.P., the Supreme Court of Pennsylvania considered two issues regarding a defamation action against a newspaper: (1) whether two judicial opinions published in the local newspaper, evaluating whether there had been a violation of grand jury secrecy, should be excluded as inadmissible hearsay at trial; and (2) whether the two judicial opinions should be excluded under Pa.R.E. 403 on prejudice grounds. The court held that both judicial opinions should have been permitted to be introduced at trial as evidence of the newspaper’s state of mind. (October 27, 2015)

In State Farm Mutual Automobile Insurance Company v. Kelty, the Supreme Court of Delaware held that, under Delaware’s Personal Injury Protection (PIP) statute, a motor vehicle owner is only required to purchase the statutory minimum insurance coverage. The court held that an owner may choose to buy optional coverage for himself and his family members in excess of the statutory minimums, but is not required to purchase that excess coverage for others. (October 20, 2015)

In Metropolitan Edison Company v. City of Reading, the Commonwealth Court of Pennsylvania addressed the issue of whether the City of Reading was immune from liability under the Political Subdivision Tort Claims Act (Act) for property damage it caused to an electrical duct bank while performing excavation work. The court held that the utility service facilities exception to immunity, Section 8542(b)(5) of the Act, did not apply because the dangerous condition derived from the City employees’ negligent conduct during the excavation, not the unstable condition of the soil located underneath the duct bank, and therefore the City was immune from liability. (October 15, 2015)

In Leyse v. Bank of America NA, the United States Court of Appeals for the Third Circuit determined that an individual receiving a prerecorded telemarketing call had statutory standing to sue under the Telephone Consumer Protection Act (“TCPA”) despite the call being intended for the individual’s roommate. The individual fell within the class of plaintiffs Congress had authorized to sue under the TCPA because he regularly used the phone line and was an occupant of the residence that was called. Furthermore, Bank of America’s second motion to dismiss on this issue was procedurally barred under Fed. R. Civ. P. 12(g)(2) as a successive motion which did not qualify under the exceptions found in Rules 12(h)(2) or (3). However, the trial court’s error in allowing the successive motion was harmless and a decision could be reached on the merits. (October 14, 2015)

In NCAA v. Governor of New Jersey, the United States Court of Appeals for the Third Circuit granted a petition for rehearing en banc. An earlier 2-1 panel decision struck down a New Jersey law allowing sports betting at racetracks and casinos in New Jersey. (October 14, 2015)

In Truax v. Roulhac, the Superior Court of Pennsylvania considered whether compliance with applicable zoning laws established, as a matter of law, that the owner of a parking lot had exercised due care to safeguard a business invitee from being struck by a vehicle in the parking lot. The court held that compliance with law or administrative regulations does not establish that due care was exercised and that the injured plaintiff had presented sufficient evidence at trial to enable the jury to conclude that a reasonable person would have taken additional precautions to safeguard business invitees in the parking lot. (October 7, 2015)

In Correnti v. Chincilla, the New York Supreme Court, Appellate Division, 2d Department, addressed whether property owner was entitled to summary judgment when a visitor slipped on a sloped grassy area on her property. The court held that the property owner established her prima facie entitlement to judgment as a matter of law by demonstrating that the subject condition was open and obvious and not inherently dangerous. (September 23, 2015)

In Gonzalez v. City of New York, the New York Supreme Court, Appellate Division, 1st Department, addressed the issue of whether the City could be held liable for negligent hiring where an off duty police officer with violent propensities committed a fatal shooting. The court found that a jury could reasonably find that the misuse of a weapon was proximately caused by the government’s negligence in supervising or retaining a police officer with known violent propensities where the type of harm and the person who was injured were reasonably foreseeable, even though the officer was off-duty. (September 22, 2015)

In Easton Condominium Association v. Nash, the Commonwealth Court of Pennsylvania addressed whether a litigant must provide a reason for inactivity or delay in order to reopen a default judgment. The court found that because a petition to open a default judgment was filed within ten days of an entry of default judgment and the petitioner asserted a meritorious defense, it was improper pursuant to P.A. R.C.P. No 273(b) to deny the petition to reopen default on the basis that petitioner failed to assert any reasonable excuse for inactivity or delay because the Rule does not explicitly require such assertions. (September 18, 2015)

In National Collegiate Athletic Association v. Governor of New Jersey, the United States Court of Appeals for the Third Circuit addressed whether New Jersey’s partial repeal of certain prohibitions on sports gambling violated federal law. The court held that the federal Professional and Amateur Sports Protection Act, by its terms, prohibits states from authorizing by law sports gambling. Since the partial repeal did just that, it was struck down. (August 25, 2015)

In Czimmer v. Janssen Pharmaceuticals, Inc., the Superior Court of Pennsylvania affirmed judgment in favor of parents of a child who suffered birth defects caused by the manufacturer’s failure to warn of risks associated with its migraine headache drug, Topamax, under Virginia law. The court also held that, under Pennsylvania law, a minor is not time-barred from recovering his pre-majority medical expenses. (August 20, 2015)

In Schanne v. Addis, the Supreme Court of Pennsylvania addressed whether allegations of sexual misconduct against a teacher by a former student, made prior to and without any intent to lead to a quasi-judicial proceeding, qualified for absolute judicial privilege in a subsequent defamation action. The court held that a speaker must demonstrate intent to initiate proceedings or otherwise obtain relief to receive judicial privilege protections. (August 17, 2015)

In Neducsin v. Caplan, the Superior Court of Pennsylvania addressed whether a promissory note was precise enough to be enforced via confession of judgment, or if an evidentiary hearing was necessary. The guarantor of a business loan filed for a confession of judgment after the business owner improperly withdrew money for personal use from a business line of credit. The court ruled that the business owner did not provide sufficient evidence to require submission of the case to a jury, which is required before a confession of judgment is reopened. (July 23, 2015)

In Sirva Relocation, LLC v. Charlotte Golar Richie, in her Official Capacity as Commissioner of the Massachusetts Commission Against Discrimination, the United States Court of Appeals for the First Circuit outlined a three-step approach for determining abstention based on the United States Supreme Court opinion in Sprint Communications Inc. v. Jacobs, which narrowed the scope of the Younger doctrine. First, a federal court must ascertain whether a particular state proceeding falls within the Younger taxonomy. If so, the court must then consider whether certain factors support abstention. If these two steps support abstention, the court must take the third step to determine whether any exceptions to the Younger doctrine apply. Here, the court held that abstention was appropriate because of the ongoing Massachusetts Commission Against Discrimination proceeding. (July 20, 2015)

In Rodriguez v. City of Somerville, the Supreme Judicial Court of Massachusetts held that a claim related to defective presentment is immediately appealable under the doctrine of present execution because the issue is collateral to the basic underlying controversy, and the doctrine is meant to protect government officials from facing unnecessary and potentially harassing litigation. Here, the presentment requirements were not met because, although directed to the appropriate government official, the letter failed to give fair notice of a claim, and of its nature and circumstances. (July 20, 2015)

In Wong v. Luu, the Supreme Judicial Court of Massachusetts addressed the scope of a trial judge’s power to sanction an attorney for conduct that resulted in the failure of a potential settlement. In this case, one attorney’s letter solicitation of other potential creditors as clients scuttled a settlement in a complex multi-party dispute over the sale of three supermarkets, for which the trial judge had ordered that attorney to pay almost $240,000 in attorneys’ fees relating to the settlement that had fallen through. The court concluded that parties have no right to settlement, and a judge has no authority to sanction an attorney merely because a potential settlement is disrupted. (July 15, 2015)

In Morillo v. Monmouth County Sheriff’s Officers, the Supreme Court of New Jersey held that police officers who improperly charged and incarcerated the plaintiff with wrongful possession of a weapon that was lawfully registered to him were entitled to qualified immunity from claims that the officers violated the plaintiff’s civil rights because ambiguities in the statutory exemption for prosecution for unlawful possession of a handgun allowed for a reasonably competent officer to believe the charges were appropriate. (July 13, 2015)

In PG Publishing Company, Inc. v. Governor's Office of Administration, the Commonwealth Court of Pennsylvania considered whether a media organization had standing to sue for a writ of mandamus to compel the Governor’s Office of Administration (GOA) and the Pennsylvania Department of Education (PDE) to challenge the email retention laws under the Right to Know Law (RTKL). The court held that the media organization had standing to sue, but the court held that neither Section 507 nor 705 of the RTKL requires agencies to maintain records if they are destroyed as part of a records-retention policy. (July 9, 2015)

In Obergefell v. Hodges, the United States Supreme Court addressed whether the Fourteenth Amendment requires states to issue a marriage license or recognize an out of state marriage between same-sex couples. The Court held that same-sex couples were entitled to the fundamental right to marry under the Due Process Clause. As states confer various benefits on married couples, state laws prohibiting same-sex marriage also violated the Equal Protection Clause. (June 26, 2015)

In Fernandez-Salicrup v. Figueroa-Sancha, the United States Court of Appeals for the First Circuit addressed whether a minor child who had been pushed face-first into a wall at school by a police officer and handcuffed could claim a Fourth Amendment violation for either unconstitutional arrest or excessive force. The court concluded that the child had a possible unconstitutional arrest claim because there was no evidence that the officer contemporaneously had probable cause to believe the child committed a crime. The child had no excessive force claim, however, where the level of force was not objectively unreasonable under the circumstances. (June 25, 2015)

In Sarkisian v. Concept Restaurants, Inc., the Supreme Judicial Court of Massachusetts addressed the potential expansion of the “mode of operation” approach to slip-and-fall liability. The “mode of operation” approach previously adopted by the court (in a case involving self-service of food) held that a plaintiff can satisfy the “notice” requirement by showing that the injury was attributable to a reasonably foreseeable unsafe condition related to the owner's chosen mode of operation, in contrast to the traditional approach to premises liability under which the owner was liable only if it had actual or constructive knowledge of the dangerous condition. Here, the court concluded that the nightclub could be liable under a mode of operation approach, because it should have reasonably anticipated that its chosen method of operation will regularly invite third-party interference resulting in the creation of unsafe conditions. (June 23, 2015)

In Tuomi v. Extendicare, Inc., the Superior Court of Pennsylvania considered whether the court must enforce an arbitration clause executed upon decedent becoming a resident of a medical facility when the lawsuit includes both a survival action and a wrongful death action. The court could not compel arbitration for the wrongful death claims since some of the claimants were not signatories to the arbitration clause. Since Pennsylvania law requires the consolidation of wrongful death and survival actions, the trial court correctly refused to compel arbitration when not all claims can be arbitrated. (June 19, 2015)

In P.M. v. N.P., the Superior Court of New Jersey, Appellate Division, addressed whether recusal is merited when the judge’s law clerk, who may be related to the judge, is engaged in employment discussions with and ultimately accepted an offer of employment from defense counsel. The court ordered the trial judge to make specific findings (1) describing the judge’s familial relationship with his law clerk; (2) determining the timeframe of the clerk’s employment discussions with counsel; and (3) stating the specific time of the job offer. After making those findings, the trial court must determine the extent to which the law clerk’s employment prospects created an appearance of impropriety requiring his recusal. (June 18, 2015)

In Crawford v. City of New York, the New York Supreme Court, Appellate Division, 1st Department, held that the plaintiff was not allowed to amend the complaint to add additional defendants after the statute of limitations expired because he did not satisfy the relation-back doctrine. The court found that because the plaintiff was aware of the identity, no “mistake” was made by plaintiff as to the proper identity of the parties and those defendants “had every reason to believe that plaintiff had no intent to sue them and that the matter had been laid to rest.” (June 18, 2015)

In Reed v. Town of Gilbert, the United States Supreme Court held that a town zoning code regulating the size and use of signs was a content-based regulation of speech that did not survive strict scrutiny and violated the First Amendment. The Sign Code is facially content based because it defines the categories of temporary, political, and ideological signs on the basis of their messages and then subjects each category to different restrictions. Because content-based laws target speech based on its communicative content, they are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. (June 18, 2015)

In Walker v. Sons of Confederate Veterans, Inc., the United States Supreme Court held that Texas specialty license plate designs constitute government speech and that Texas was entitled to refuse to issue license plates featuring a confederate flag in a design proposed by the private organization. The Court reasoned that the governmental nature of license plates is obvious since the plates contain the state name, plates are required for vehicle registration and identification, and final approval of the specialty plate design rests with the Texas Department of Motor Vehicles Board. This restriction on speech does not violate the First Amendment because the plates are not a forum for private speech, and Texas could not be compelled to express the organization’s views any more than the organization could be compelled to express the government’s views. (June 18, 2015)

In Tuomi v. Extendicare, Inc., the Superior Court of Pennsylvania addressed whether arbitration could be compelled in a survival action where there was a valid arbitration agreement, but where there was also a wrongful death action based on the same circumstances that would not proceed in arbitration. The court opined that the arbitration clause was not enforceable because splitting the claims would subvert the policies favoring arbitration. The court held that the refusal of the lower court to compel arbitration did not violate the Federal Arbitration Act (FAA), and the FAA did not preempt state law requiring the consolidation of survival and wrongful death actions under Pa. R.C.P. 213(e). (June 18, 2015)

In Blue Hen Mechanical, Inc. v. Christian Brothers Risk Pooling Trust, the Supreme Court of Delaware declined to extend the tort of malicious prosecution to include situations where a plaintiff continues litigation once it is discovered there is a lack of probable cause for the claim. The court declined to do so and reaffirmed that the tort applies only to those cases in which the plaintiff lacks probable cause from the outset. (June 15, 2015)

In Moranko v. Downs Racing LP, the Superior Court of Pennsylvania held that a valet service owes no duty under Pennsylvania law to withhold the return of an automobile to an allegedly visibly intoxicated person. The court held that a bailor-bailee relationship is created when the valet service accepts the car and the service, as bailee, is obligated to surrender control of the vehicle notwithstanding the alleged intoxication of the driver, or be exposed to potential liability for conversion. (June 10, 2015)

In City of Philadelphia v. Raymond Perfetti, the Commonwealth Court of Pennsylvania addressed whether the city’s imposition of liens without prior notice or hearing violated a landowner’s constitutional due process rights as the debt arose from his former tenants’ non-payment of gas bills. The court held that the landowner’s due process rights were not violated as the statutory process provided for a post-lien procedure, which was found to be compliant with constitutional due process, and that as a property owner, the landowner has the responsibility to make arrangements with his tenants to ensure payment of the gas bills or require proof of payment. (June 8, 2015)

In Yocabet v. UPMC Presbyterian, the Superior Court of Pennsylvania addressed whether hospital board meeting minutes are protected from disclosure under either the attorney-client privilege or the peer review privilege when the meeting concerned review of an adverse incident. The court held that the attorney-client privilege can apply to a meeting of the governing board of an organization if its lawyers are present and the Board is seeking legal advice. The court also held that a board of directors of a professional health care provider can conduct peer review that is protected from disclosure. (June 5, 2015)

In Petriello v. Indresano, the Appeals Court of Massachusetts addressed whether a person has standing to apply for a harassment prevention order on behalf of another individual who was the recipient of abusive conduct by acting under a power of attorney executed by the recipient of the abusive conduct. The court concluded that a power of attorney can convey authority to seek a harassment prevention order and that the holder of the power of attorney has standing to seek such an order. (June 3, 2015)

In Bagwell v. Pennsylvania Office of Attorney General, the Commonwealth Court of Pennsylvania addressed the application of exemptions to the disclosure of documents under the Pennsylvania Right-to-Know Law (RTKL). The court held that the requested records contained the mental impressions of counsel hired to conduct a criminal investigation; and therefore, the records were exempt because they were privileged pursuant to the attorney-work-product doctrine and the attorney-client privilege. The court also held that materials do not need to be prepared in anticipation of litigation for the privilege to attach. (May 27, 2015)

In Cardigan Mount School v. New Hampshire Insurance Company, the United States Court of Appeals for the First Circuit addressed whether an action for declaratory judgment complied with pleading requirements when neither party could produce the insurance policy at issue. Although the alleged facts of the complaint, supported by secondary records and witness recollections, were clearly circumstantial, the court held a plausible basis existed for believing a policy had been issued, and permitted the case to continue. (May 27, 2015)

In Justinian Capital SPC v. WestLB AG, the New York Supreme Court, Appellate Division, 1st Department, addressed the issue of whether assignment of notes from German nonparty Deutsche Pfandbriefbank (DPAG) to plaintiff was champertous. The court found the transaction was champertous in violation of Judiciary Law § 489 as the transfer was intended to allow plaintiff to pursue litigation on behalf of DPAG, who could not do so on its own for political reasons. The court noted that no reasonable finder of fact could find the transfer bona fide given that the transfer did not allow plaintiff to enforce all of the rights under the notes.  Rather, the transfer could only be understood as unlawful subcontracting of DPAG’s litigation to plaintiff for political reasons. (May 21, 2015)

In Borden v. Progressive Direct Insurance Company, the Appeals Court of Massachusetts was asked to address whether the “automobile business” exclusion in a personal automobile insurance policy applied to exclude coverage for a loss suffered during the course of an insured’s employment as a tow-truck driver. In accordance with the “reasonable expectations doctrine,” the court determined that the risk of using a non-owned vehicle for employment purposes falls outside the range of ordinary risks contemplated by insurers of personal automobiles, and therefore, the exclusion applied. (May 21, 2015)

In City and County of San Francisco, California v. Sheehan, the United States Supreme Court addressed the issue of whether local police officers were entitled to qualified immunity under 42 U.S.C. § 1983 for the plaintiff’s claims that the officers violated her Fourth Amendment rights by forcibly entering her home instead of accommodating her disability of mental illness. The officers had forcibly entered the plaintiff’s home because she was armed, mentally ill, and had been acting irrationally and threatening towards anyone who entered her home. The Court held that the officers were entitled to qualified immunity because, even if the plaintiff had a Fourth Amendment right to an accommodation for her disability, such right was not clearly established. Furthermore, the officers’ alleged failure to follow their training does not itself negate qualified immunity where it is otherwise warranted. (May 18, 2015)

In Maryland Casualty Company v. NSTAR Electric Company, the Supreme Judicial Court of Massachusetts addressed whether a tariff filed with and approved by the Department of Public Utilities could limit a public utility’s liability to non-residential customers for certain categories of damages (special, indirect, or consequential damages), that resulted from the utility’s gross negligence. The SJC held that a properly approved tariff may so limit a public utility’s liability in Massachusetts. There, insurers of lessees in a commercial building brought a subrogation action against an electric and gas utility company after paying the lessees’ claims for smoke and fire damage caused by the utility company’s gross negligence. The SJC recognized that under established Massachusetts law, a public utility’s liability for damages could be limited by a properly filed and approved tariff, so long as it was reasonable. The SJC rejected the insurer’s argument that a limitation of liability for gross negligence was unreasonable, and it rejected the insurers’ argument that the contract rule against enforcing releases for gross negligence should apply to tariffs. (May 14, 2015)

In Goduti v. City of Worcester, the Appeals Court of Massachusetts was asked to address the propriety of the city’s assessment of taxes to a mortgagor (and resident of the property) after the mortgagee had purportedly become record owner of the property following a foreclosure by entry. Although the court determined that the mortgagee’s ultimate payment of the taxes and the city’s discharge of the tax lien had rendered the issue moot, the court held that a municipality need only use reasonable diligence in determining the owner of real estate and may, by statute, assess taxes to the owner in fact rather than the owner of record. (May 13, 2015)

In Occhifinto v. Olivo Construction Company, the Supreme Court of New Jersey considered whether a party who prevailed against its carrier in a declaratory judgment action seeking coverage and defense of the underlying liability action against it, but did not prevail in the liability action, is a “prevailing party” entitled to recover counsel fees under State rule. The court held that the claimant was entitled to counsel fees since, in the declaratory judgment action, the complaint filed in the liability action alleged claims that would, if proven, fall under the claimant’s liability insurance policy with the carrier, thereby enforcing the carrier’s duty to defend. (May 7, 2015)

In Hammond v. Septa, the Commonwealth Court of Pennsylvania addressed whether an arbitrator or a trial judge should determine whether an injured worker properly opted out of an arbitration agreement with his employer. The court found there was an arbitration agreement and the personal injury dispute came within the ambit of this agreement. The court held that the arbitrator, not the trial court, had to decide whether the injured worker properly invoked the revocation clause in the arbitration agreement. (May 1, 2015)

In Washington v. Alpha-K Family Medical Practice, P.C., the New York Appellate Division, 2d Department, addressed waiver of privilege concerning a nonparty, minor’s medical records. The court held that the mother of the patient and nonparty sibling, whose records were sought, did not waive any privilege when she generally testified at a deposition about the “mere facts and incidents” of the nonparty sibling's medical history. (May 6, 2015)

In Glencannon Homes Association, Inc. v. North Strabane Township, the Commonwealth Court of Pennsylvania addressed whether: (1) Section 8553 of the Political Subdivision Tort Claims Act (PSTCA) caps damages at $500,000.00 total or $500,000.00 per defendant and (2) the statutory cap under Section 8553 applies to claims under the Storm Water Management Act (SWMA). The court held that Section 8553 caps damages at $500,000.00 per incident or series of incidents, rather than per defendant or per legal action. The court also determined that the $500,000.00 statutory damages cap under the PSTCA, which the legislature enacted after the SWMA, contains no special exception for any pre-existing statutory cause of action. (April 22, 2015)

In United States v. Kwai Fun Wong and United States v. Marlene June, the Supreme Court of the United States addressed whether Section 2401(b) of the Federal Tort Claims Act, which bars all tort claims against the United States that fail to meet two separate deadlines, is subject to equitable tolling. Section 2401(b) bars all tort claims against the U.S. (1) that are not presented to the appropriate Federal agency within two years after the claim accrues, and (2) that are then not brought to federal court within six months after the appropriate Federal agency acts on the claim. The court held that both the two-year and six-month bars under Section 2401(b) are subject to equitable tolling. (April 22, 2015)

In Kennedy v. Consol Energy Inc., the Superior Court of Pennsylvania addressed the extent of a landowner’s rights to coalbed methane gas derived from a coal seam beneath the landowner’s property. Pursuant to a severance deed, the landowner sold the coal seam to a coal company, but retained ownership of the land as well as “all of the oil and gas in place.” Drawing a distinction between “natural gas” and coalbed methane gas, the court held that, generally, the owner of a coal seam owns the rights to subterranean gas derived from that coal seam. In order for the landowner to retain rights to coalbed methane gas when selling the coalbed,the court held that the severance deed must specifically reserve coalbed methane for the landowner. (April 22, 2015)

In Koller Concrete, Inc. v. Tube City IMS, LLC, the Superior Court of Pennsylvania held that, in a products liability case, the product seller’s failure to raise an issue regarding the application of attorney-client privilege as a basis for relief in its post-trial motion precluded the argument on appeal. The court also found that the product purchaser had sufficiently demonstrated the elements of fraud and negligent misrepresentations and, therefore, the product seller was not entitled to the “extreme remedy” of judgment notwithstanding the verdict. (April 21, 2015)

In Juszczyszyn v. Taiwo, d/b/a Lid’s Lounge, the Superior Court of Pennsylvania addressed whether a police officer injured in the line of duty is an invitee or licensee. The court held that a police officer responding to a call was a licensee, and the business owner had a duty to warn the officer only of dangerous hidden conditions. Because the officer encountered an intoxicated and physically confrontational individual, the risk was obvious and known. Therefore, the officer could not establish a breach of duty by the business owner. (April 10, 2015)

In Green Acres Rehabilitation and Nursing Center v. Sullivan, the Superior Court of Pennsylvania affirmed the trial court’s denial of an agent’s petition to strike a default judgment in favor of a nursing center facility. In making its determination, the court addressed whether judgment was properly entered against the agent in her individual capacity rather than representative capacity, given that she acted under a power-of-attorney (POA) for a resident of the nursing center. The court reasoned that an agent acting under a POA can be held personally liable for her acts or omissions under the POA. The court also considered whether the trial division or the Orphan’s Court Division had subject matter jurisdiction over the case, and reasoned that the trial division had jurisdiction because the case involved allegations of breach of contract for the agent’s failure to pay debts owed to the nursing center. Finally, the court addressed whether the nursing center had complied with notice requirements prior to seeking entry of default judgment, and determined that the nursing center had “substantially complied” with the applicable notice requirements. (April 13, 2015)

In EMC Mortgage, LLC v. Biddle, the Superior Court of Pennsylvania addressed whether the trial court properly amended a previously entered default judgment to reflect additional costs and interest incurred since entry of the judgment without a hearing pursuant to Pa. R. Civ. P. 1037. The court held that the trial court had the power to amend the judgment because it has inherent power to amend a judgment before the judgment is discharged or satisfied, but that the trial court’s calculation of additional damages was improper. (April 15, 2015)

In Kennedy v. Yousaf, the New York Supreme Court, Appellate Division, 1st Department, discussed the issue of personal jurisdiction.  The Court held that plaintiffs’ own New York activities relating to their agreement with defendants cannot be attributed to defendants. The fact that defendants negotiated the agreement and communicated with plaintiff via email and telephone in New York did not “constitute the transaction of business in New York,” where plaintiffs failed to show that defendants intended to take advantage of New York’s unique resources or that defendants’ two appearances in New York had a substantial relationship to plaintiffs’ claims. (April 14, 2015)

In CNB Realty v. Stone Cast, Inc., the New York Supreme Court, Appellate Division, 3d Department, held that in so much as lack of standing does not implicate subject matter jurisdiction, it would not be sufficient to vacate a judgment for lack of jurisdiction under CPLR 5015(a)(4). Further, the court held that by failing to raise the lack of standing as an affirmative defense, defendants waived their standing challenge. (April 16, 2015)

In Pennsylvania Department of Education v. Bagwell, the Commonwealth Court of Pennsylvania addressed whether: 1) the Office of Open Records improperly directed the Department of Education to disclose emails between the former Secretary of Education and counsel at the Office of General Counsel, and 2) the requester had a full opportunity to develop the record relating to release of these emails before the Office of Open Records. The Department of Education had denied disclosure of these emails under the attorney client privilege, work product privilege and pre-decisional deliberative exception and the Office of Open Records denied the requester a hearing to address these claims. The court held its disposition on attorney client and work product privilege in abeyance to afford the requester an opportunity to obtain a complete record before the Office of Open Records and that the Department of Education failed to prove material facts exists warranting application of the pre-decisional deliberative exception. (April 16, 2015)

In American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority, the United States Court of Appeals for the First Circuit addressed whether the First Amendment permits the MBTA to refuse to display private advertisements on MBTA trains, buses and stations, describing Palestinians as “savages.” The court determined that the MBTA’s advertising policy, including its restriction on display of advertisements that demean or disparage individuals or groups, does not violate the First Amendment on its face or as applied to the advertisements at issue. (March 30, 2015)

In Krepps v. Snyder, the Superior Court of Pennsylvania addressed the circumstances under which a trial court may preclude from evidence statements deemed admitted under Pennsylvania Rule of Civil Procedure 4014. The court held that, where a party does not advocate for the admission of such statements until after contradictory testimony is offered, and where the proffering party was not prejudiced by the late responses, a trial court may properly use its discretion to preclude such evidence. (March 24, 2015)

In American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority, the United States Court of Appeals for the First Circuit addressed whether the First Amendment permits the MBTA to refuse to display private advertisements on MBTA trains, buses and stations, describing Palestinians as “savages.” The court determined that the MBTA’s advertising policy, including its restriction on display of advertisements that demean or disparage individuals or groups, does not violate the First Amendment on its face or as applied to the advertisements at issue. (March 30, 2015)

In James v. Ruiz, the Superior Court of New Jersey, Appellate Division, addressed whether a civil trial attorney may pose questions about the consistency or inconsistency of testifying expert’s opinions with a non-testifying expert’s views. The court held that such questioning was inappropriate when the manifest purpose of those questions was to have the jury consider for their truth the absent expert's hearsay opinions about complex and disputed matters. A trial court should also ordinarily disallow this line of questioning to impeach the credibility of an adversary’s testifying expert. (March 25, 2015)

In Alabama Legislative Black Caucus v. Alabama, the United States Supreme Court addressed a dispute over the redrawing of Alabama’s legislative districts after the 2010 census. Black and Democratic legislators, voters and groups brought a number of challenges to Alabama’s redistricting plan, including a vote dilution challenge under Section 2 of the Voting Rights Act and racial and partisan gerrymandering claims. The Court held that Alabama’s legislative redistricting plan as a whole was an unconstitutional racial gerrymander. (March 25, 2015)

In Ladenburg Thalmann & Co., Inc. v. Signature Bank, the New York Supreme Court, Appellate Division, 1st Department, addressed the issue of whether a letter of credit requiring originals of all documents to trigger payment is satisfied by a true copy of one original amendment to the letter of credit. The court found that the defendant bank’s refusal to honor the letter of credit based on a missing amendment was arbitrary, noting that the amendment was no longer material in light of later amendments. While the language of the letter of credit gave the defendant bank a basis to demand strict compliance with the requirements for submitting documents in order to trigger the letter of credit, the court noted there was no possible way that a true copy of the amendment could have misled defendant bank. (March 19, 2015)

In Maida v. Kuskin, the Supreme Court of New Jersey addressed the circumstances in which a criminal defendant in municipal court can request a civil reservation, which prevents a guilty plea from being used in a related civil proceeding.  The court held that the request for a civil reservation must be made in open court at the time of the guilty plea, and that a civil reservation may not be entered if the prosecutor or victim demonstrates good cause. (March 19, 2015)

In Townsend v. Pierre, the Supreme Court of New Jersey addressed whether a court may grant summary judgment based in part upon the “net opinion rule,” which forbids the admission into evidence of an expert’s conclusions that are not supported by factual evidence or other data.  The court held that the net opinion rule may provide the basis for a court’s determination that no reasonable judge or jury could find that the plaintiff had satisfied the necessary elements of a cause of action. (March 12, 2015)

In Ebersole v. Southeastern Pennsylvania Transportation Authority, the Commonwealth Court of Pennsylvania held that the Sovereign Immunity Act bars a parent from recovering non-pecuniary damages for loss of consortium resulting from a child’s wrongful death.  The court reasoned that suits against the Commonwealth are permissible only where the legislature has waived immunity and, even where waived, only a spouse may recover damages for loss of consortium. (March 12, 2013)

In Cooper v Sleepy's, LLC, the New York Supreme Court, Appellate Division, 2nd Department, addressed the issue of whether a plaintiff may amend its complaint to add a cause of action that arose from an event that took place after the complaint was filed.  The court held that while the “relation-back doctrine” allows plaintiffs to amend their pleadings to add a cause of action where the allegations in the complaint gave notice of the occurrences related to that cause of action, the doctrine was not applicable when a cause of action sought to be added was based on events that occurred after the filing of the complaint. (March 4, 2015)

In McBride v. International Longshoremen’s Assoc., the United States Court of Appeals for the Third Circuit addressed whether denial of a motion for relief was proper under Rule 60(b)(5), and whether attorney’s fees, costs, and post-judgment interest were properly awarded to the prevailing party, in a case with a long and extensive history, involving claims under the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 411. The court held that costs and fees were properly awarded to the prevailing party in the action. (February 19, 2015)

In Global Tel*Link Corporation v. Department of Corrections, the Commonwealth Court of Pennsylvania addressed the merits of a bid protest in the context of a contract selection by defendant Department under the Commonwealth Procurement Code.  Because defendant Department properly considered the poor technical demonstration of plaintiff bidder, and because the winning bidder was properly permitted to participate in plaintiff bidder’s objection, the court dismissed the bid protest.  (February 6, 2015)

In Robert and Ardis James Foundation v. Daniel Maxwell Meyers, the Appeals Court of Massachusetts considered whether there was a breach of an implied covenant of good faith and fair dealing when a party to a contract refused the other party’s unilateral request to terminate the agreement by selling the stock in question.  The agreement contained no provisions governing when the stock was to be sold, only that the stock was to be sold.  The court held the trial judge erred in considering only the expectations of the party requesting the termination and not the expectations of the party who wished the contract to continue when judgment was entered against the party holding the stock.  However, because the terms of the original agreement contemplated the contract would terminate with the sale of the stock, the matter was remanded so judgment could be amended with a declaration clarifying the parties’ obligations as they arise from the implied covenant of good faith and fair dealing. (February 12, 2015)

In Baylson v. Genetics & IVF Institute, the Superior Court of Pennsylvania held that in a Dragonetti Act complaint, venue was proper in more than one jurisdiction. The action under the Dragonetti Act for wrongful use of civil proceedings was brought in Philadelphia County while the underlying lawsuit was decided in Montgomery county. Philadelphia County was a proper venue despite the venue of the underlying lawsuit because the defendant corporation operated an office in Philadelphia County. (May 9, 2015)

In C. Mahendra (NY), LLC v. National Gold & Diamond Center, Inc., the New York Supreme Court, Appellate Division, 1st Department, discussed whether two business transactions made over the telephone is sufficient to establish long-arm personal jurisdiction under CPLR 302(a)(1).  The court held that CPLR 302(a)(1) is a “single act statute.”  Accordingly, physical presence is not required and one New York transaction is sufficient as long as the transaction is “purposeful and substantially related to the claim.” (February 10, 2015)

In American Express Bank FSB v. Najieb, the New York Supreme Court, Appellate Division, 1st Department, discussed the standard of discretion for a motion court to strike an answer for failure to comply with court-ordered discovery.  The court held that in order to grant such a motion, a showing must be made that the “noncompliance was willful, contumacious or in bad faith.” (February 10, 2015)

In Deeds v. University of Pennsylvania,  the Superior Court of Pennsylvania addressed in a medical negligence action whether the issues of the collateral source rule and “tag team representation” warranted a new trial.  The court held that the patient was entitled to a new trial because the trial court violated the collateral source rule when it informed the jury that the patient’s medical needs were being attended to at little or no cost to patient’s guardian. The court also held that the trial court erred by permitting counsel for the Hospital and counsel for Trustees to “tag team” at trial while representing the same interest. (January 30, 2015)

In Moses v. Drake, the Supreme Court of Delaware addressed whether an expert’s use of the word “feasible” in his medical report was sufficient to constitute a “reasonable medical probability” or “reasonable medical certainty.”  The court held that while the expert did not have to state “reasonable medical probability” in his report, the expert must provide evidence to show that his report was based on a reasonable medical probability.  The court found that the plaintiff provided no affidavit, deposition or other evidence to assist the court in determining whether the expert’s use of the word “feasible” constituted a reasonable medical probability or certainty. (January 27, 2015)

In In Re: Lemington Home for the Aged, the United States Court of Appeals for the Third Circuit addressed whether punitive damages awarded by the jury were supported by evidence of “malice, vindictiveness and wholly wanton disregard of the rights of others.”  The court determined that the award of punitive damages was appropriate because the evidence demonstrated a breach of the duty of care and duty of loyalty by each party.  However, the court determined that the evidence presented to the jury did not contain the minimum quantum of proof of outrageous conduct necessary to support an award of punitive damages against the Board of Directors. (January 26, 2015)

In Kern v. Lehigh Valley Hospital, Inc., the Superior Court of Pennsylvania addressed class certification in a lawsuit concerning an alleged violation under the Unfair Trade Practices and Consumer Protection Law (UTPCPL) related to debt collection.  The court held that since each member of the class must show justifiable reliance, a class action would not be a fair and efficient method of adjudication because individual reliance would be the predominant factor over the common issues.  (January 28, 2015)

In Millinghausen v. Drake, the Supreme Court of Pennsylvania granted a Petition for Allowance of Appeal on the following issues:

  1. Did the Superior Court err when it failed to review the trial court’s denial of a motion to compel arbitration for an abuse of discretion or error of law and to determine whether the trial court’s findings were supported by substantial evidence, and applied its own judgment to reverse the decision?
  2. Did the Superior Court err when it recast petitioner’s complaint for defamation as a claim for breach of contract contrary to the Court’s holdings in the 2009 case Steiner v. Markel and the 2014 case Bricklayers of W. Pa. Combined Funds, Inc. v. Scott’s Development Co.? (January 27, 2015)

In the Matter of Raymond A. Reddin, Judge of the Superior Court  and the Matter of Gerald Keegan, Judge of the Municipal Court, the Supreme Court of New Jersey considered what the appropriate standard should be to measure whether a judge’s personal behavior presents an appearance of impropriety, following a hearing by the Advisory Committee on Judicial Conduct on the behavior of two judges who had a weekly dinner with a longstanding friend facing criminal charges.  The court revised the standard on the appearance of impropriety to add an element of objective reasonableness that did not previously exist.  The newly adopted standard asks, “Would an individual who observes the judge’s personal conduct have a reasonable basis to doubt the judge’s integrity and impartiality?”. (January 21, 2015)

In Varner-Mort v. Kapfhammer, the Superior Court of Pennsylvania addressed the tolling of the statute of limitations in a case where a plaintiff with limited tort was injured in an automobile accident, and brought a cause of action more than two years after the date of the accident. The court held that, although the general rule in Pennsylvania is that the statute of limitations begins to run on the date of the accident, the discovery rule allows for tolling until the injury was diagnosed as serious. (January 21, 2015)

In Reinoso v. Heritage Warminster SPE, LLC, the Superior Court of Pennsylvania addressed whether the determination of a premises defect as “trivial” was appropriate for summary judgment.  The court held that the determination about the trivial or nontrivial nature of a premises defect, when the surrounding circumstances presented numerous liability questions, was a genuine issue of material fact making it inappropriate for summary judgment. (January 14, 2014)

In Flora v. County of Luzerne, the United States Court of Appeals for the Third Circuit addressed whether the speech of a Chief Public Defender, was protected by the First Amendment.  In determining the breadth of First Amendment protection for public employees, the governing standard is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.  Here, the Public Defender’s speech was not part of his ordinary responsibilities and not part of the work he was paid to perform on an ordinary basis, and therefore, the court determined that his First Amendment claims should not be dismissed. (January 15, 2015)

In Ricketti v. Barry, the United States Court of Appeals for the Third Circuit addressed the applicability of New Jersey’s entire controversy doctrine.  The court held that outright dismissal of a civil action for failure to comply with New Jersey Court Rule 4:5-1(b)(2) is appropriate only when:  (1) the suit is a “successive action”; (2) the plaintiff’s failure to disclose the existence of other potentially liable parties in the earlier litigation was “inexcusable”; and (3) the undisclosed parties’ right to defend the successive action was “substantially prejudiced” by their omission in the prior action. (January 7, 2015)

In Sellers v. Township of Abington,the Supreme Court of Pennsylvania addressed whether a local law enforcement agency owes a common law or statutory duty of care to a passenger of a fleeing vehicle, whose existence or relationship to the fleeing driver is unknown to the pursuing police officer.  The court held that the municipality was entitled to governmental immunity from the administrator’s wrongful death claim.  An exception to governmental immunity was not implicated because the Pennsylvania Vehicle Code did not create a statutory duty of care to unknown passengers of a vehicle, but rather to the public at large.  Further, public safety considerations weighed against imposing a duty of care on police officers to passengers in fleeing vehicle whose existence is unknown to the pursuing officers. (December 29, 2014)

In Varga v. North Realty Company, the New York Supreme Court, Appellate Division, 1st Department, held that an out-of-possession landlord was not liable to an individual who claimed to be injured on the landlord’s premises.  The court found that the alleged dangerous condition was not a significant structural or design defect that violated a specific statutory safety provision under the New York City administrative code. (December 30, 2014)

In The Huntington National Bank v. K-Cor, Inc.,  the Superior Court of Pennsylvania addressed the standard for reopening a confession of judgment.  The court held that the defendant could not re-open judgment on two defaulted loans on the grounds that it had not voluntarily or knowingly given up its right to notice and a hearing prior to entry of judgment.  Since the defendant did not raise this as a defense on the original Petition or Answer prior to the judgment being entered, the defense was waived. (December 31, 2014) 

In McDermott v. Marcus, Errico, Emmer & Brooks, P.C., the United States Court of Appeals for the First Circuit addressed a condominium resident’s claim pursuant to the Massachusetts consumer protection statute (Chapter 93A) and the federal Fair Debt Collection Practices Act (FDCPA) against a collection agency hired to collect a $25 late fee assessed by the condominium trustees.  At issue was whether the FDCPA violation was itself a per se violation of Chapter 93A, or whether a separate finding that the unfair act impacted trade or commerce was required.  The court held the FDCPA violation to be a per se violation of Chapter 93A, though  multiple damages under Chapter 93A were unavailable without a separate showing of bad faith. (December 29, 2014) 

In Tobin v. Federal Express Corp., the United States Court of Appeals for the First Circuit addressed whether the tort claims of an individual who received a misdirected package of marijuana against FedEx were preempted by the Airline Deregulation Act (ADA).  The package recipient sued FedEx for invasion of privacy, infliction of emotional distress, and negligence after the intended recipient of the marijuana came to her home looking for the package.  Because the package recipient’s claims all arose from FedEx’s package handling, address verification, and delivery procedures – necessary appurtenances of the contract of carriage – the package recipients’ claims were preempted by the ADA, notwithstanding that the package recipient was herself a stranger to the contract of carriage. (December 30, 2014)

In Peters v. Nat’l Interstate Ins. Co., the Superior Court of Pennsylvania addressed the applicability of Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL) to an accident involving a vehicle garaged in Ohio.  The court found that there was no legally enforceable claim against the employer’s commercial vehicle insurer for underinsured motorists benefits under the MVFRL, as the MVFRL only applies to vehicles principally garaged in Pennsylvania. (December 16, 2014)

In Warger v. Shauers, the United States Supreme Court held that Federal Rule of Evidence 606(b), which bars evidence about any statement made during a jury’s deliberations, applies to an affidavit intended to be introduced during a proceeding in which a party sought a new trial, where the affidavit at issue was prepared by a juror and demonstrated that the juror lied during the voir dire process of the underlying trial. (December 9, 2014)

In Hierro v New York City Housing Authority, the New York Supreme Court, Appellate Division, First Department,addressed whether a landlord was liable to a tenant for a criminal attack by a third-party in the building.  The court found that no triable issue of fact existed regarding whether the third-party was an intruder on the property, as opposed to a tenant or invitees, and, therefore, the court found the landlord’s alleged lack of adequate security in the building could not be a proximate cause of the injury. (December 11, 2014)

In Harris v. Philadelphia Facilities Management Corporation, the Commonwealth Court of Pennsylvania, addressed the application of the hearsay rule to police accident reports.  At trial, the police officer who completed the accident report was unavailable to testify.  The court held that the accident report was inadmissible hearsay and could not be used to cross-examine another officer, when that officer’s testimony was based solely on his independent recollection.  Further, the trial court did not abuse its discretion by prohibiting an expert from referencing the accident report.  (December 2, 2014)

In Zauflik v. Pennsbury School District, the Supreme Court of Pennsylvania addressed a constitutional challenge to the $500,000 statutory limit available in tort against a local agency.  The Court held that the damages cap does not violate: 1) the Equal Protection Clause of either the Pennsylvania or U.S. Constitutions; 2) the Pennsylvania Constitution’s guarantee against liability limitations; 3) the “open courts” provision of the Pennsylvania Constitution; 4) the powers of the judiciary established by the Pennsylvania Constitution; or 5) Plaintiff’s right to a jury trial under the Pennsylvania Constitution.  As such, despite the fact that the Tort Claims Act reduced Plaintiff’s recovery by over 96%, the provision limiting liability of local agencies to $500,000 per occurrence remains constitutional. (November 19, 2014)

In Downey v. Chutehall Construction Company, the Appeals Court of Massachusetts addressed whether a roof installer could bring a claim for defamation against a contractor who told homeowners that their roof had been installed over fiberboard roof insulation that was soaking wet, resulting in later leakage, or whether such a statement was protected either as a statement of opinion or by a conditional privilege. The court concluded that the statement, made to homeowners without being prefaced by any indication that it was intended only as opinion, could be construed as statement of fact. Nonetheless, no defamation action was possible because the statement was conditionally privileged where the contractor making the statement and the homeowner receiving it shared a common interest in the subject and the statement was reasonably calculated to further that interest. (November 13, 2014)

In Balashanskaya v. Polymed Community Care Center, P.C., the New York Supreme Court, Appellate Division, Second Department addressed the issue of whether an injured individual could successfully allege an unpleaded cause of action in opposition to a store’s motion for summary judgment in the context of a slip-and-fall action. The court found that modern practice permits a party to successfully introduce an unpleaded cause of action in opposition to a summary judgment motion.  However, the court found that the individual engaged in “protracted delay in presenting the new theory of liability.”  Hence, the individual could not successfully oppose the store’s motion for summary judgment. (November 5, 2014)

In Krauss v. Trane US Inc., the Superior Court of Pennsylvania held that an affidavit from a layperson that provides information upon “knowledge and belief” that certain boilers, turbines and pumps were insulated with asbestos without providing specific evidence upon which he based this determination is insufficient to create a question of material fact sufficient to survive a motion for summary judgment.  Specifically, the evidence failed to demonstrate the frequency, regularity, and proximity of exposure of plaintiff’s decedent to asbestos in products manufactured by the defendants. (October 22, 2014)

In Lee v. Bower Lewis Thrower, the Superior Court of Pennsylvania affirmed a transfer of venue from Philadelphia County to Centre County based upon the doctrine of forum non conveniens.  The lawsuit involved an accident on the University Park campus of the Pennsylvania State University in Centre County and defendants provided affidavits from several of their high level employees detailing how participating in a lawsuit 200 miles from their home county would negatively affect their business and personal responsibilities.  The Court found these affidavits sufficient to show that litigation in Philadelphia County would be oppressive to defendants.  The Court set aside plaintiff’s argument that defendants could testify remotely by videotape, finding that this option would also result in oppression to defendants.  Finally, the Court rejected plaintiff’s argument that it would be oppressive for defendants’ Philadelphia-based counsel to attend trial in Centre County and recognized that a defendant will typically retain local counsel once venue is transferred.

White and Williams’ attorneys, Michelle D. Coburn and Geoffrey F. Sasso, secured this favorable result for our client. (October 22, 2014)

In Schmidt v. Skolas, the United States Court of Appeals for the Third Circuit addressed the tolling of the statute of limitations under Pennsylvania’s discovery rule in an alleged breach of fiduciary duty.  The court held that the claims cannot be time-barred when considering only the materials that may be considered at the motion to dismiss stage.  The court noted that a fiduciary relationship has a presumptive level of trust, and it may take a “smoking gun” for plaintiff to be on notice of a fiduciary’s wrongdoing. (October 17, 2014)

In United States ex rel. Schumann v. Astrazeneca Pharmaceuticals L.P., the United States Court of Appeals for the Third Circuit addressed the original source exception of the qui tam provision of the False Claims Act (FCA).  The Vice-President of a pharmacy benefit manager (PBM) alleged that pharmaceutical companies overcharged the government by providing inaccurate “best prices” for certain drugs in the mail-order pharmacies and health plans managed by the PBM. The court held that the trial court lacked subject matter jurisdiction over the claims because the Vice-President’s knowledge was not direct and independent, as required by the original source exception, because it came from reviewing documents and discussing them with colleagues. (October 20, 2014)

In Datwani v. Datwani, the New York Supreme Court,Appellate Division, 1st Department, dismissed the complaint on the ground of forum non conveniens because several parallel actions were pending in an alternate forum—India.  The court, further, reasoned that issues of fact existed and “substantially all [of] the witnesses and evidence” were in India. (October 7, 2014)

In Crush Boone v Elizabeth Taxi, Inc., the New York Supreme Court, Appellate Division, First Department, addressed the issue of whether an injured bike rider is limited to seeking damages for alleged injuries enumerated in his Bill of Particulars.  The bike rider was injured riding a bicycle when struck by a taxi employed by the taxi company.  In opposing the taxi company’s motion for summary judgment, the bike rider raised a new serious claim under Insurance Law § 5102(d).  The court held that the bike rider could not raise this new claim as it was not in his Bill of Particulars responses to the taxi company. (September 30, 2014)

In Freidrich v. Davis, the United States Court of Appeals for the Third Circuit addressed whether American citizens domiciled outside of the country can be sued pursuant to 28 U.S.C. § 1332(a) for purposes of diversity jurisdiction. The court concluded that American citizens residing abroad do not satisfy any of the enumerated categories required for a federal court’s exercise of diversity jurisdiction. While expressing concerns about the viability of this rule, the court held that citizens domiciled outside of the United States are “stateless” for the purposes of jurisdiction and cannot sue, or be sued, in diversity. (September 22, 2014)

In Department of Environmental Protection v. Cumberland Coal, the Supreme Court of Pennsylvania addressed the scope of authority of the Department of Environmental Protection (DEP) to issue administrative orders under the Bituminous Coal Mine Safety Act. The court held that the DEP acted within its authority when it issued administrative orders for failure to report accidents, but outside of its authority when it required that scoops be equipped with a private fire extinguisher. (September 24, 2014)

In McLaughlin v. Hagel, the United States Court of Appeals for the First Circuit addressed, in an issue of first impression in any Court of Appeals, whether a group of active duty military members and their same sex spouses who had successfully challenged the Defense of Marriage Act under the Equal Access to Justice Act (EAJA) were entitled to attorneys’ fees and costs under EAJA.  The plaintiffs argued that the federal government’s decision not to defend the constitutionality of DOMA indicated that its position was not substantially justified, entitling them to fees.  The court rejected this argument, noting that the federal government took its unusual position of continuing to enforce DOMA, but not defending its constitutionality in court, because the government reasonably believed its actions were constitutionally appropriate under the circumstances. (September 23, 2014)

In Carlson v. Ciavarelli, the Commonwealth Court of Pennsylvania addressed whether a property owner was entitled to immunity under the Environmental Immunity Act (Act) in a suit by other homeowners seeking counsel fees incurred in related litigation between the parties.  The court held that the Act did not give him immunity because his lawsuit seeking exceptions from the zoning code and other ordinances did not involve the enforcement or implementation of an environmental law or regulation. (September 17, 2014)

In Young v. Prizm Asset Management Company, the Superior Court of Pennsylvania addressed the scope of a land owner/possessor’s liability for criminal conduct occurring on commercial premises.  The court held that evidence of prior criminal conduct, regardless of where it occurred on the premises, is sufficient notice to the owner/possessor to create a genuine issue of fact as to the owner/possessor’s liability for criminal conduct that causes injury to an invitee on the premises. (September 9, 2014)

In Washington v. Perez, the Supreme Court of New Jersey  addressed the standard for determining whether to issue an adverse inference jury charge when a party fails to call a witness.  The court held that given the significant distinctions between fact and expert witnesses, and the array of reasons why a party may choose not to call a previously designated expert witness to testify, an adverse inference charge should rarely be invoked to address the absence of an expert. (September 10, 2014)

In Harden v. Rosie, the Commonwealth Court of Pennsylvania considered whether a student demonstrated sufficient evidence at trial to support a Title IX sexual harassment claim after the student had a consensual sexual relationship with a teacher.  The court determined that the evidence adduced at trial was not sufficient to demonstrate that the school district defendant had actual notice that its teacher was sexually harassing—or posed a substantial danger—to students. Nor was there sufficient evidence that the school district was deliberately indifferent to known acts of discrimination because the school superintendant encouraged the students to file complaints and promptly investigated and confronted the teacher. (September 11, 2014)

In Charlie v. Erie Insurance Exchange, the Superior Court of Pennsylvania addressed the duty owed by customers to a laundromat with regard to cleaning dirty rags.  After weighing the risk, foreseeability, and likelihood of injury against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury and the consequences of placing that burden on the actor, the Court held that a laundromat customer does not owe a duty to the laundromat to prevent its rags from spontaneously combusting in the dryer. (August 29, 2014)

In Beta Holdings, Inc. v. Goldsmith, the New York Supreme Court, Appellate Division, 1st Department, addressed the pleading standard for alleging fraud in a counterclaim.  The court found the allegations insufficient because counterclaim-plaintiffs did not allege a duty separate from the terms of the agreement that were breached by the counterclaim defendants so as to support a claim of fraud or that the damages sought to be recovered are based on lost opportunities arising from counterclaim plaintiffs having been induced to sell their company. (September 4, 2014)

In Delaney v. Bank of America Corp., the United States Court of Appeals for the Second Circuit addressed whether an employee alleging age discrimination may support his opposition to a motion for summary judgment with a draft Equal Employment Opportunity Commission discrimination charge filed by another employee in order to show that plaintiff’s employer regularly acts in a discriminatory way.  The court held that the charge should not be considered because it was inadmissible hearsay and did not call into doubt the nondiscriminatory reason the employer proffered from employee’s termination, i.e., poor performance. (September 5, 2014)

In Rose v. Highway Equipment Company, the Appeals Court of Massachusetts addressed whether jury instructions on the defense of unreasonable use, which applied the principles of contributory negligence, were erroneous.  While instructing the jury, the trial judge misspoke and transposed the terms “contributory negligence” and“comparative negligence.”  Because the jury was unlikely to apply the comparative negligence factors after having only received instructions on contributory negligence, the court held that the instructions did not create reversible error. (August 27, 2014)

In Bratic v. Rubendall, the Supreme Court of Pennsylvania addressed the standard for a motion to transfer venue based on the doctrine of forum non conveniens.  The Supreme Court held that mere inconvenience is insufficient to grant a forum non conveniens motion, but there is no need to show “near-draconian” consequences in order to prevail. (August 18, 2014)

In The Ridge at Back Brook, LLC v. Klenert, the Superior Court of New Jersey, Appellate Division, held that a pro se litigant is entitled to the same protections as an innocent litigant whose case is dismissed due to negligent representation by counsel.  Therefore, the court held that, following an adverse decision resulting from his own neglect, a pro se plaintiff should be given the opportunity to argue why his neglect should be excused and the case reinstated. (August 12, 2014)

In Dwyer v. Cappell, the United States Court of Appeals for the Third Circuit addressed whether the adoption of attorney-conduct guidelines for purposes of banning advertisements using quotations from judicial opinions without publishing the opinion in full on a law firm’s website was an infringement on speech. The court held that this type of ban was an unconstitutional infringement on the First Amendment. (August 12, 2014)

In Griswold v. Coventry First LLC, the United States Court of Appeals for the Third Circuit addressed whether appellate jurisdiction existed in order for the court to review the denial of a motion to dismiss for lack of standing, and whether the lower court erred in denying a motion to compel arbitration.  The court held that it lacked appellate jurisdiction to address the denial of the motion to dismiss, but did have jurisdiction to address the denial of the motion to compel arbitration and affirmed the lower court on this issue. (August 12, 2014)

In Ohntrup v. Makina Ve Kimya Endustrisi Kur,  the United States Court of Appeals for the Third Circuit clarified guidelines for evaluating attorney withdrawal motions.  The court held there is no multi-factor test that must be applied to decide a motion for attorney withdrawal.  Rather, the court held that the discretion to grant a motion to withdraw begins with whether the law firm serves no meaningful purpose, then it “is entitled to withdraw.” (July 25, 2014)

In Kain v. Gloucester City, the Superior Court of New Jersey, Appellate Division, addressed the provision of the Tort Claims Act that applies to injuries caused by “the plan or design of public property.” The court held that the provision exempts municipal defendants from liability for an allegedly dangerous condition that existed on a pier that had been designed by the Coast Guard. (July 21, 2014)

In Daniel Cassidy v Larry Korik and Bella Home Improvements of Staten Island, Inc., the New York Supreme Court, Appellate Division, Second Department, addressed the issue of whether a homeowner is liable in a negligence cause of action to a responding firefighter that suffered injury when the homeowner’s chimney collapsed during the incident.  The court found that firefighter was correct in his contention that General Obligations Law § 11-106 generally abolished the “firefighter’s rule” by allowing firefighters to assert causes of action sounding in negligence for injuries suffered in the line of duty against entities other than municipal employers and fellow workers.  However, the homeowner established his prima facie entitlement to judgment as a matter of law dismissing the negligence action as the homeowner neither created nor had notice of the dangerous condition of his chimney.  Thus, the court ruled that the homeowner was entitled to dismissal of the action. (July 23, 2014)

In Stewart N. Altman v Eric D. Donnenfeld, the New York Supreme Court, Appellate Division, Second Department, addressed the issue of whether an individual’s medical malpractice action should be dismissed pursuant to CPLR 3216 for want of prosecution because the individual failed to meet the deadline for filing the note of issue.  CPLR is “extremely forgiving” in the sense that it “never requires, but merely authorizes, the Supreme court to dismiss a plaintiff’s action based on the plaintiff’s unreasonable neglect to proceed.”  Here, both parties demonstrated an intent to proceed with discovery.  Thus, the court ruled that the individual’s action should not be dismissed for failure to file the note of issue. (July 23, 2014)

In Cherilus v. Federal Express,  the Superior Court of New Jersey, Appellate Division, found that the manufacturer of a cargo lift, which was considered a specially-manufactured product that became an improvement to real estate, could invoke the ten-year statute of repose in a design defect case, even though the manufacturer did not install its specially-manufactured product.  The court also found that a maintenance company’s voluntary payment of settlement funds to the injured worker did not qualify as a “money judgment” that would give rise to a contribution claim against the manufacturer. (April 3, 2014)

In MacPherson v. The Magee Memorial Hospital For Convalescence, the Superior Court of Pennsylvania addressed the validity of an arbitration agreement. The court held an arbitration agreement will not fail because of the unavailability of a chosen arbitration forum unless the parties’ choice of forum is an “integral part” of the agreement to arbitrate.  In other words, the court held that, where the arbitration clause selects merely the rules of a specific arbitral forum, as opposed to the forum itself, the unavailability of the intended forum will not require the court to invalidate the arbitration clause or agreement. (July 10, 2014)

In Gormley v. Wood-El, the Supreme Court of New Jersey addressed whether injuries suffered by an attorney while interviewing a client at a state psychiatric hospital resulted from a state-created danger that violated her substantive due process rights under the Fourteenth Amendment of the United States Constitution and whether qualified immunity applies to the defendants.  The court held that a lawyer assigned to represent a client civilly committed to a state psychiatric hospital had a substantive due process right to be free from state-created dangers.  Because that right was clearly established at the time the lawyer was attacked, the state-official defendants are not entitled to qualified immunity. (June 30, 2014)

In Moranko v. Downs Racing LP, the Superior Court of Pennsylvania addressed whether a valet service owes a duty of care to prevent the return of an automobile to an allegedly intoxicated patron. The court held that Pennsylvania law does not impose a duty of care on a valet service to withhold keys of a vehicle if an owner appears intoxicated. (June 24, 2014)

In Wells v. Continuum Health Partners, Inc., the New York Supreme Court, Appellate Division, First Judicial Department, addressed whether service was proper where the person accepting service on defendant’s behalf could not recall having received the papers. Construing CPLR 311, the court found that both the process server and the person receiving service were highly inexperienced, but the resulting “mutual confusion” was not a basis for dismissing the complaint. (June 26, 2014)

In Barnes v. Hodge, the New York Supreme Court, Appellate Division, First Judicial Department, addressed the requisite level of specificity for punitive damages claims to survive a motion to dismiss in a personal injury action. The court found that the assertion of mere legal conclusions of willful, wanton, or reckless negligence are insufficient for such a claim to survive a motion to dismiss; the plaintiff must allege facts demonstrating a high level of moral culpability. (June 26, 2014)

In Baldwin v. Windcrest Riverhead, LLC, the New York Supreme Court, Appellate Division, Second Judicial Department, addressed whether speculative evidence regarding an alleged dangerous condition caused by contractor’s negligence could defeat summary judgment on a common law indemnification claim. The court found that such evidence could not sustain the cause of action against the contractor as there was no basis for indemnification absent concrete lay or expert testimony supporting the contractor's negligence. (June 25, 2014)

In Commonwealth v. Safka, the Superior Court of Pennsylvania considered (in the context of a criminal case) whether data from a vehicle’s Event Data Recorder is admissible under the Fryestandardto establish the vehicle’s speed.  The court held that, because the technology has existed for more than 40 years, is used by major auto manufacturers, and is recognized as an acceptable tool by accident reconstruction experts, such evidence meets the Frye test and is admissible. (June 25, 2014)

In McCullen v. Coakley, the United States Supreme Court held that a Massachusetts statute making it a crime to knowingly stand within 35 feet of an entrance to an abortion clinic violated the First Amendment.  The Court reasoned that, while the statute was content neutral, it was not narrowly tailored as its restriction of access to public sidewalks, areas traditionally open for speech activities, was overbroad. (June 26, 2014)

In McLaughlin v. Phelan Hallinan & Schmieg, the United States Court of Appeals for the Third Circuit addressed whether the Fair Debt Collection Practices Act requires a debtor to request validation of an alleged debt prior to bringing suit.  The plaintiff claimed the debt collection letter sent to him falsely alleged that attorney’s fees and costs were incurred in collection efforts.  The court held that a request for validation was not a prerequisite to suit and such a requirement could have the effect of immunizing false statements made by the debt collector. (June 26, 2014)

In Knott v. LVNV Funding, LLC, the Supreme Court of Delaware addressed whether 10 Del. C. 5072 operates as a five-year statute of limitations to execute and collect on default judgments in Delaware. The court held that under section 5072 or 5073, there is no statute of limitations on the collection of a judgment, and that a party may refresh a judgment which has yet to be collected. (June 24, 2014)

In Thompson v. Ginkel, the Superior Court of Pennsylvania addressed the application of the assumption of the risk doctrine at the summary judgment stage.  The court acknowledged that the vitality of the doctrine remains in doubt since the adoption of Comparative Negligence Act.  Under the current formulation of the doctrine, the question of whether a plaintiff voluntarily “encountered a known or obvious danger” is typically is for the jury to decide unless the evidence reveals a scenario “so clear as to void all questions of material fact concerning the plaintiff's own conduct” can the court enter summary judgment.  The court held that there was no clear evidence that plaintiff assumed the risk of injury and, as such, this was a question for the jury to decide. (June 17, 2014)

In Zimmerman v. Customers Bank, the Supreme Court of Delaware addressed the state’s judgment by confession statute, 10 Del. C. § 2306.  The debtors argued that, because the plaintiff failed to file an affidavit required by Section 2306(c) and Superior Court Civil Rule 58.1(a)(3), the Superior Court’s entry of judgment by confession against them was barred.  The Supreme Court of Delaware noted that the affidavit requirement only applies to judgments by confession entered by the Prothonotary, not the Superior Court.  Section 2306(h) specifically permits the Superior Court to adopt its own rules governing the entry of judgment by confession by the Superior Court itself.  The specific rule, Superior Court Rule 58.2, does not require the affidavit specified in § 2306(c), and thus the entry of judgment by confession was affirmed. (June 10, 2014)

In City of Philadelphia v. Borough of Westville, New Jersey, the Commonwealth Court of Pennsylvania addressed whether an out-of-state insurance company conducted systematic and continuous business in Pennsylvania so as to confer general personal jurisdiction.  The Court held that the mere fact that the insurer’s claim administrator has offices in Pennsylvania is insufficient to establish general jurisdiction, where the insurer does not conduct business, own property, or maintain an office in Pennsylvania. (June 5, 2014)

In Wood v. Moss, the United States Supreme Court addressed whether the President’s Secret Service agents are entitled to qualified immunity protection against claims by protesters alleging viewpoint discrimination in violation of the First Amendment.  The Court held that the agents were entitled to qualified immunity when they moved the protesters, but not the President’s supporters, away from the President because there was a legitimate security rationale for removal of the protesters, and it was not clear to a reasonable agent that the agents’ conduct was unlawful because there was no prior decision by the Court on the issue. (May 27, 2014)

In Barrick v. Holy Spirit Hospital, the Pennsylvania Supreme Court addressed whether communications between attorneys and their expert witnesses should be broadly protected by the attorney work product doctrine, or whether the privilege should be limited to communications containing mental impressions, conclusions, opinions, notes, summaries, legal research, or legal theories.  The court was evenly divided.  As a result, the law in Pennsylvania remains unchanged and continues to support broad protections as to attorney-expert communications and any discovery remains limited to the contents of an expert report or expert interrogatories, absent good cause. (April 29, 2014)

In Holland v. Jachmann, the Massachusetts Appeals Court addressed whether a court may award attorney’s fees for in-house counsel’s work performed in relation to an underlying M. G. L. c. 93A violation.  When a party shows that a defendant violated 93A (Massachusetts’ unfair and deceptive trade practices act), the statute allows for an award of attorney’s fees “incurred” in relation  to that legal action.  Here, the court reasoned that, because in-house counsel was a consistently active participant in the litigation and because time spent on the underlying claim was time spent away from ordinary legal matters affecting the company, in-house counsel’s fees were “incurred” for the purposes of 93A. (May 14, 2014)

In American International Insurance Company v. Robert Seuffer GMBH & Co. KG, the Massachusetts Supreme Judicial Court addressed whether a defendant that raised the affirmative defense of lack of personal jurisdiction in its initial answer subsequently waived that defense by its conduct.  Because the defendant failed to bring a motion to dismiss for lack of personal jurisdiction, participated in discovery for a period of 20months, and waited until summary judgment to follow-up on its defense of lack of personal jurisdiction, the court held that the defendant waived that defense. (May 14, 2014)

In Estate of John RH Thouron v. USA, the United States Court of Appeals for the Third Circuit addressed whether reliance on the advice of expert tax counsel could constitute reasonable cause to excuse late payment of its tax liability.  The court held that a taxpayer’s reliance on the advice of a tax expert may be reasonable cause for failure to pay by the deadline if the taxpayer can also show either an inability to pay or undue hardship from paying at the deadline. (May 13, 2014)

In ACLU of New Jersey vs. New Jersey Division of Criminal Justice, the Superior Court of New Jersey, Appellate Division addressed whether, in response for government records brought under the Open Public Records Act (OPRA), and a common law right of access, a government agency has the authority to redact an admittedly responsive document to withhold information the agency deems to be outside the scope of the request.  The court held that the government agency did not have the authority to redact in such fashion because it was not grounded on any of the statutorily recognized exemptions to disclosure in OPRA, or on a claim of confidentiality under the common law. (May 13, 2014)

In Mt. Ivy Press, L.P., v. Defonseca, the Massachusetts Appeals Court addressed whether a judgment against a publisher for damages under M. G. L. c. 93A and copyright law, which was affirmed by the appellate court more than eight years ago, could be vacated by a Rule 60(b)(6) motion based on substantial new evidence of fraud.  The new evidence indicated that Defonseca’s dramatic story of survival and heroism in fighting off Nazis during the Holocaust alongside a pack of wolves, which the publisher brought to print as a memoir, was false.  The court held that, because the information, if introduced into evidence in the underlying trial, could have made a significant difference in jury deliberations, the underlying judgment must be vacated. (April 29, 2014)

In Rehrer v. Youst and Loving Care Agency, the Superior Court of Pennsylvania held that the trial court abused its discretion in appointing a guardian ad litem to represent the interests of a minor child in a pending civil matter when the natural mother was already acting as the authorized representation of the minor.  Although the trial court has authority to appoint a guardian ad litemto represents the legal interests of a minor, the Court must not make that decision unreasonably or arbitrarily. (April 29, 2014)

In Scarlett v. Mason, the Superior Court of Pennsylvania addressed the proper venue for a breach of contract action alleging failure to make payment.  The court held that in the absence of an agreement to the contrary, payment is due at the plaintiff’s residence or place of business, and venue is proper in that county in a breach of contract action alleging failure to make payment.  Therefore, it was of no moment that the cause of action arose in another state and all transactions and occurrences out of which the cause of action arose occurred out of state. (April 14, 2014)

In Innes v. Marzano-Lesnevich, the Superior Court of New Jersey, Appellate Division, addressed the availability of attorneys fees in a case involving attorney misconduct and legal malpractice.  New Jersey law recognizes an exception to the American Rule, which requires parties to pay their own attorneys fees, for the prosecution of an action for legal malpractice or attorney misconduct, as those are damages proximately caused by the attorney’s negligence or misconduct.  The court extended the exception to a non-client of the attorney, whose damages were a direct and proximate result of the attorney’s intentional breach of fiduciary duty. (April 7, 2014)

In Harrington v. Costello, the Massachusetts Supreme Judicial Court addressed whether a defamation cause of action was barred by the statute of limitations where the plaintiff knew of the publisher’s lack of a qualified or conditional privilege to publish the defamatory material within the three-year limitations period, but did not know of the publisher’s identity, the harm, and the cause of harm.  The court held that, although the discovery rule does apply to a defamation claim, the cause of action began to accrue when knowledge of the publisher’s identity, the harm, and the cause of harm were known. (April 9, 2014)

In Stabley v. The Great Atlantic & Pacific Tea Co., the Superior Court of Pennsylvania addressed whether the defendant’s default judgment should be opened because its delay in responding to the plaintiff’s complaint could be reasonably explained or excused.  The defendant provided two main excuses for its delay:  (1) the defendant’s counsel’s administrative staff neglected to diary the deadline for filing the responsive pleading; and (2) the plaintiff’s counsel knew, based on prior discussions, that the defendant had intended to vigorously defend the matter.  The court found the defendant’s proffered excuses inadequate because the defendant had failed to respond to the complaint on four different occasions, despite the plaintiff’s repeated reminders of its delinquency. (April 10, 2014)

In Mashreqbank PSC v. Ahmed Hamad A1 Gosaibi & Brothers Company, the New York Court of Appeals held that dismissal of a first-party action and third-party action on forum non conveniens grounds was appropriate, despite the fact that the forum non conveniens motion only addressed the third-party complaint.  The court found that, although CPLR 327(a) and precedent prohibits a court from dismissing an action sua sponte on the basis of forum non conveniens, there was no risk of unfairness in dismissing the main action. (April 8, 2014)

In Christine Semenza, v. Lilly’s Nails the New York Supreme Court, Appellate Division, First Department, addressed whether a nail salon patron was entitled to a tolling of the statute of limitations pursuant to CPLR 214(c)(2) as the patron alleges that she did not learn that a sliver of a razor was left in her foot by the salon until over three years after the pedicure.  The court held that the razor does not constitute a “substance” within the meaning on CPLR 214(c)(2). (April 1, 2014)

In Orange Stones Co. v. City of Reading and Fred Lachat, the Commonwealth Court of Pennsylvania addressed a lower court order sustaining preliminary objections and dismissed  with prejudice claims asserting wrongful use of civil proceedings, abuse of process, and intentional interference with contractual relations against government actors.  The court determined that the defense of government immunity was properly raised by a preliminary objection because the immunity was applicable and no exception applied. Further, a city cannot be held liable for intentional torts under the Torts Claims Act, 42 Pa. C.S.A. §8542(b).  Finally, the claims against a government employee did not rise to the level of willful  misconduct that would allow them to fit under an exception in Section 8550 of the Tort Claims Act. (March 21, 2014)

In Barley Mill v. Save Our County, Inc., the Supreme Court of Delaware, addressed whether traffic information could be considered in the approval of a rezoning ordinance, to transform property used as an office park, into a larger regional shopping center with additional office space. The court held that the New Castle County Council’s vote approving a rezoning ordinance was arbitrary and capricious, by not evaluating the traffic analysis and information, which should have been made available for consideration, before voting to approve a rezoning ordinance. (March 25, 2014)

In Lexmark International v. Static Control,  the United States Supreme Court addressed whether a party met the “prudential standing” requirement to bring a claim under the Lanham Act, by alleging false or misleading advertisements caused loss of sales and damage to the business. The Court held that the “zone of interest test and the proximate-cause requirement” were the applicable legal principles in determining whether the party fell within the class of plaintiffs able to bring suit under the Lanham Act. (March 25, 2014)

In Sanchez-Guardiola v. City of Philadelphia, the Commonwealth Court of Pennsylvania addressed whether a movable platform, which caused Plaintiff’s trip and fall, was real property for purposes of the real property exception to governmental immunity.  The court held that the real property exception did not apply since the platform was not affixed or attached to the surrounding floor. It was therefore an item of personalty akin to furniture, and not part of the real property. (March 10, 2014)

In Brandt Revocable Trust v. United States, the United States Supreme Court addressed whether land swapped, or transferred, to private owners under the General Railroad Right-of-Way Act of 1875,  became their property in full again once a railroad that ran across the property had been abandoned, or whether it reverted to the federal government.  The Court held that when a railroad abandons the right of way granted under the 1875 law, the private party who acquired the land underlying the right of way obtains full rights over the right of way, which was an easement terminated by the railroad’s abandonment. (March 10, 2014)

In  Daniel v. City of Philadelphia, the Commonwealth Court of Pennsylvania addressed whether the City waived a statute of limitations defense based on failure to effectuate service when it failed to raise the service defense in preliminary objections.  The Court held that only improper service must be brought during preliminary objections and not failure to serve within the statute of limitations. The court held that the statute of limitations defense was preserved because the City pleaded it as a new matter. (March 12, 2014)

In Rom Reinsurance Management Co. v. Continental Insurance Company Inc., the New York Supreme Court, Appellate Division, First Department, addressed whether the timeliness of a demand for arbitration is a matter to be determined by the court or the arbitrator.  The court reversed the lower court’s decision, and held that based on the parties’ agreement and applicable law, the timeliness question is to be determined by the court. (March 11, 2014)

In Cordes v. Associates of Internal Medicine, the Superior Court of Pennsylvania considered whether the trial court should have excluded two jurors in a medical malpractice case whose family members were patients of the defendant-doctor, and a juror whose employer was the parent company of a defendant.  The court held that indirect connections to a party can create a presumption and appearance of bias and thus the jurors should have been excluded.  The court emphasized avoiding even the appearance of impropriety. (March 12, 2014)

In Ali v. State of New York., the New York Supreme Court, Appellate Division, Second Department, addressed whether an employer defendant was vicariously liable for tort liability under the doctrine of respondeat superior when a security guard employee punched a wooden bench and caused injury to the claimant. The court held that the employer was not vicariously liable for the security guard’s conduct because the evidence at trial established that the security guard was acting solely for personal motives unrelated to the defendant’s business at the time of the incident. (March 5, 2014)

In Prioleau v. Kentucky Fried Chicken, Inc., the Superior Court of New Jersey, Appellate Division, held that plaintiff produced sufficient circumstantial evidence regarding the possible existence of a wet floor to justify denying the defendant’s motion for directed verdict.  Additionally, the court held that the mode of operation doctrine, which relieves a plaintiff from proving notice of a dangerous condition if the risk of injury is inherent in the operator’s method of doing business, did not apply because there was no link between the manner in which the fast-food business was conducted and the alleged hazard that plaintiff slipped on or its source. (March 3, 2014)

In Genovesi v. Nelson, the Massachusetts Appeals Court addressed whether claims under M. G. L. c. 93A and the Massachusetts Uniform Securities Act were barred by the statute of limitations, where the claims were filed beyond the limitations period as measured from the date of the alleged tortious conduct.  Accepting the complaint’s allegations as true for the purposes of the appeal, the court decided that the claims were timely filed, reasoning that the tolling of the statute of limitations was appropriate because, at the time of the defendant’s actions, the resulting injury was inherently unknowable. (March 5, 2014)

In Martinez v. E.I. Dupont De Nemours and Company, Inc., the Supreme Court of Delaware addressed Delaware’s jurisprudence in forum non conveniens cases.  The case involved Argentine nationals who claimed asbestos exposure while working in Argentina for Dupont Argentina Sociedad Anomina, a great-great grand-subsidiary of DuPont.  The Court determined that a forum non conveniens motion is addressed to the trial court’s sound discretion, the court may consider issues concerning broad administration of justice, and agreed with the lower court’s dismissal of the complaint on the grounds of forum non conveniens. (March 4, 2014)

In Rebecca Gale v. City of Philadelphia, the Commonwealth Court of Pennsylvania considered the issue of governmental immunity.  Plaintiff asserted that a prisoner, who commandeered a police vehicle and caused severe injury to her, should fall within the vehicle exception to governmental immunity contained in the Tort Claims Act due to the Philadelphia Police’s failure to properly control their prisoner.   The court determined that while the prisoner’s ability to commandeer the vehicle is inexplicable, no employee or agent of the City was operating the vehicle, and therefore nothing triggered liability under the vehicle exception to governmental immunity. (March 4, 2014)

In Feliciano v. Faldetta, the Superior Court of New Jersey, Appellate Division, addressed whether an award of attorneys fees was duplicative under Rule 4:58-2, which governs the consequences of a failure to accept an offer of judgment, because plaintiff’s attorney was entitled to a contingent fee.  The court held that the fees were not duplicative.  Plaintiff’s attorneys were entitled to the fee award pursuant to Rule 4:58-2 for the work done after the offer of judgment was rejected and fair compensation from their client for the period prior to the rejection. (February 21, 2014)

In Martinez v. E.I. Dupont De Nemours and Company, Inc,. the Supreme Court of the State of Delaware addressed venue over a cause of action for asbestos exposure that occurred at the defendant’s plant in Argentina.  Based on the doctrine of forum non conveniens,the court dismissed the cause of action, finding it would cause overwhelming hardship to litigate the case in Delaware, especially given the importance of the foreign sovereign’s right to decide the novel issues of law at stake. (February 20, 2014)

In Graboff v. The Colleran Firm, the United States Court of Appeals for the Third Circuit addressed an alleged inconsistency in jury interrogatories on defamation and false light invasion of privacy claims.  The court ruled that a finding of falsity by implication supports both a defamation and false light claim.  But, because the plaintiff’s damage calculation would have been the same for both claims, the court held that the finding of liability for false light but not defamation was harmless error. (February 20, 2014)

In Adobea v. Junel, the New York Supreme Court, Appellate Division, Second Department, addressed whether a taxi cab passenger could sue the cab driver for damages based upon her own testimony that the cab driver was speeding and, thus, negligent per se.  The court dismissed the case, finding that a third-party’s actions were the sole proximate cause of the accident. (February 19, 2014)

In Roth v. Ross, the Superior Court of Pennsylvania addressed whether delay damages are applicable to an award for future medical expenses under Pa.R.C.P 238(a)(1), which requires delay damages to be awarded where a plaintiff seeks monetary relief for bodily injury.  The court held that future medical expenses that will be incurred as a result of treatment of injuries sustained because of a defendant’s negligent conduct are, “by definition, monetary relief for bodily injury,” and as a result, delay damages should be awarded for future medical care. (February 7, 2014)

In Soto v. Realty Co., LLC, the New York Supreme Court, Appellate Division, First Department, addressed the “open and obvious hazard” defense in the context of a premises liability case.  The court held that a condition is open and obvious if it could not reasonably be overlooked by someone whose eyes were open, but that if the condition is technically visible but in a location that makes it likely to be overlooked, it is not open and obvious. (February 14, 2014)

In Mahamadou v Neighborhood Partnership Housing Development Fund Co., Inc., the New York Supreme Court, Appellate Division, First Department, addressed whether a stairway on which plaintiff was working when he was injured that was originally constructed as a permanent structure falls within the purview of Labor Law § 240(1).  The court held that the injured plaintiff was entitled to the protections afforded pursuant to Labor Law § 240(1) because not only had the stairway provided the sole means of access to the floors of the building, it was an elevated surface on which plaintiff was required to work, which had no walls or guard rails in place.  Thus, “plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.” (January 28, 2014)

In Air Wisconsin Airlines Corp. v. Hoeper, the United States Supreme Court addressed whether airlines and their employees can be held liable for defamation when reporting suspicious behavior to the Transportation Security Administration (TSA). The Court held that under the Aviation and Transportation Security Act (ATSA), airlines and their employees are immune from civil liability for reporting suspicious behavior. However, immunity is not available for disclosures “made with actual knowledge that the disclosure was false, inaccurate, or misleading” or “with reckless disregard as to the truth or falsity of that disclosure,” pursuant to 49 U.S.C. § 44941(b). Immunity under § 44941(b) may also not be denied without a determination that a disclosure was “materially false.” (January 27, 2014)

In Toll Naval Associates v. Hsu, the Superior Court of Pennsylvania held that a party who affirmatively sought resolution of an arbitration by submission only cannot later complain that it was denied a hearing under the Uniform Arbitration Act.  Arbitrators are required to provide the opportunity to be heard, however, it is the duty of the parties to avail themselves of that opportunity. (January 31, 2014)

In Brown v. State of New York, the New York Supreme Court, Appellate Division, Second Department, addressed the issue of timeliness of service under the Court of Claims Act (Act).  Section 11(a)(i) of the Act provides that a copy of the claim shall be served personally or by certified mail, return receipt request, upon the attorney general.  Because the plaintiff improperly served the defendant by regular mail, the court lacked jurisdiction over the defendant. (February 5, 2014)

In McDowell & Walker, Inc. v. Micha, the New York Supreme Court, Appellate Division, Third Department, addressed whether the Supreme Court erred in dismissing the plaintiff’s motion for summary judgment as untimely when the plaintiff filed that motion more than 60 days after filing its note of issue – in violation of the local rules.  The plaintiff contended that the court had impliedly vacated the note of issue when it issued a new discovery order more than 60 days after the note of issue was filed.  The court held that a note may be deemed to be vacated sua sponte, without explicitly saying so, only where the court’s directives with respect to discovery “clearly evince its intent to do so and have the safe practical effect.”  Where no such language exists, the note of issue was not implicitly vacated. (January 23, 2014)

In Ingham v. Thompson, the New York Supreme Court, Appellate Division, First Department, addressed the appropriate grounds for vacating arbitration awards where an arbitration panel approved a settlement involving a dispute in which the plaintiff initially asserted both individual claims against a limited partnership and derivative claims on behalf of that same limited partnership and then settled with one of the defendants on behalf of herself and the limited partnership.  Noting that arbitrators are not bound by the principles of substantive law, and that even mistakes of fact and law do not warrant vacatur of an otherwise rational award, the court held that given that the plaintiff withdrew all of its individual claims and that the panel conditioned the settlement award on the plaintiff’s turning over the settlement funds to the limited partnership, the panel’s award was not irrational and should be confirmed. (January 23, 2014)

In Levy v. Senate of Pennsylvania, the Commonwealth Court of Pennsylvania addressed whether the work product doctrine extends to general descriptions of legal services performed. The court held that, without further detail, such descriptions are not protected from disclosure because they do not reveal what the work product doctrine protects: an attorney’s mental impressions, theories, notes strategies, research and the like. Instead, the court held “they simply explain the generic nature of the service performed and justify the charges for legal services rendered.” (January 15, 2014)

In Re: Right to Know Law Request Served on Venango County’s Tourism Promotion Agency and Lead Economics Development Agency, the Commonwealth Court of Pennsylvania addressed the breadth of the Right to Know Law (RTKL) in the context of whether a private nonprofit corporation constitutes a “local agency.”  A “local agency” is defined in the RTKL in pertinent part as: “any local, intergovernmental, regional or municipal agency, authority, council, board, commission or similar governmental entity.”  In finding that the private nonprofit corporation was not a “local agency” and its records not available to the public, the court enumerated several factors to consider when making such a determination, including the presence or absence of: government control over the corporation’s operations or management; independence of the corporation’s board from government representatives; and government funding. (January 3, 2014)

In Snizavich, v. Rohm and Haas Company, the Superior Court of Pennsylvania upheld a Frye motion precluding plaintiff’s causation expert’s testimony.  The court reiterated that the minimal threshold for expert testimony is that it must point to, rely on, or cite some scientific authority that the expert has applied to the facts and which supports the expert’s conclusion.  Because the plaintiff’s expert relied on only one inconclusive study and reached a conclusion contradictory to that study, this threshold was not met and the testimony was inadmissible. (December 6, 2013)

In Estate of Gaetano Ciuccarelli, the Superior Court of Pennsylvania addressed the proper procedure for handling a claim filed in a court division lacking subject matter jurisdiction.  The court held that it was improper for the Trial Division of the Court of Common Pleas to dismiss the action for lack of subject matter jurisdiction and that it should have instead transferred the case to the Orphan's Court Division. (December 3, 2013)

In Encarnacion v. State of New York, the New York Supreme Court, Appellate Division, Third Department,addressed whether plaintiff’s claim to recover damages for the alleged improper disclosure of his confidential medical records was timely under the Court of Claims Act.  The court noted that the filing requirements of the Court of Claims Act must be strictly construed, and that plaintiff’s claim, whether grounded in negligence or intentional tort, was untimely.  The plaintiff was required to serve and file his claim, or a notice of intention to file the claim, within 90 days of its accrual, and since he failed to do so the Court of Claims was divested of subject matter jurisdiction. (December 5, 2013)

In Ryan v. Dolan, the Superior Court of Pennsylvania addressed the application of a contractual arbitration agreement.  The court noted arbitration agreements are to be strictly construed and not extended by implication, and held that only those categories of individuals identified as fitting under the terms of the agreement were required to submit to binding arbitration. (November 27, 2013)

In Atlantic Marine Construction Co., Inc. v. United States District Court for the Western District of Texas, the United States Supreme Court addressed the proper procedure for a defendant to enforce a forum selection clause contained in a contract.  The Court held that where the appropriate forum was another federal forum, the proper mechanism is a motion to transfer under 28 U.S.C. § 1404(a).  When a defendant files a § 1404(a) motion to enforce a forum selection clause, the case should be transferred unless extraordinary circumstances clearly disfavor a transfer. (December 3, 2013)

In Swindle v. Smith Kline Beecham, the Superior Court of Pennsylvania addressed tolling the applicable statute of limitations due to fraudulent concealment.  The court held the plaintiff bore the burden of demonstrating fraudulent concealment by “clear, precise, and convincing evidence,” and that a general failure to warn the public of a drug’s potential to harm an unborn child did not amount to fraudulent concealment. (November 27, 2013)

In Diamonds Group, Inc. v. Selective Distribution International, Inc., the Appeals Court of Massachusetts addressed whether an out-of-state defendant was subject to its personal jurisdiction under the Massachusetts long-arm statute despite the fact that defendant’s contact with Massachusetts was limited to ordering goods from a Massachusetts-based supplier.  The court held that the defendant was subject to its jurisdiction because defendant’s numerous electronic orders and payments into the state constituted transacting business and purposeful availment under the Massachusetts long-arm statute. (November 27, 2013)

In ISP Bank v. Rajaratnam, the Superior Court of Pennsylvania considered an issue of first impression, whether separate judgments entered against a husband and wife may be consolidated so that assets held as tenants by the entireties may be executed upon to satisfy a joint indebtedness.  The separate judgments in this case were entered pursuant to separate documents, in separate transactions, and for separate consideration.  The court noted that, while Pa.R.C.P. 3025.1 authorizes the consolidation of “two or more judgments entered against the same person in the same county,” no procedural mechanism exists in Pennsylvania to consolidate judgments against different people.  Even if such a mechanism did exist, the court ruled that Pennsylvania substantive law would not permit such a consolidation against the couples’ joint assets, as the judgments against the husband and wife were not based on a “joint act” of the couple.  The court concluded that, to establish a joint debt that may serve as the basis for a lien on entireties property, the two spouses must act together in the same transaction and incur a joint liability. (November 25, 2013)

In Martin v. Rite Aid of Pennsylvania, the Superior Court of Pennsylvania held that a plaintiff who was assaulted and robbed on defendant’s property by three unknown assailants could institute a civil action on the grounds of negligence against a property owner even though the three assailants were not named as defendants in the complaint.  The court held that the assailants were not indispensable parties for the purposes of the claims asserted against the business owner, which included the failure to maintain and operate a safe premise for business patrons. (November 19, 2013)

In Hunter v. City of Philadelphia, the Commonwealth Court of Pennsylvania addressed whether the coordinate jurisdiction rule precludes a trial court from granting a motion for non-suit subsequent to a denial of a motion for summary judgment on the same grounds.  The court held that a trial court was not precluded from such a ruling because a motion for non-suit and a motion for summary judgment differ in kind and in the operative facts used to support them. (November 20, 2013)

In Shaw v. Thomas Jefferson University, the Commonwealth Court of Pennsylvania addressed whether a defect in a sidewalk condition could be so trivial that a property owner cannot be found negligent as a matter of law.  Although Pennsylvania law holds that the trivial nature of a defect may be the basis of a judgment as a matter of law, the court found that the question of whether a defect is trivial should be submitted to the jury where there are genuine issues of material fact surrounding the circumstances of the defect. (November 20, 2013)

In Oliver v. Tropiano Transportation, Inc., the Commonwealth Court of Pennsylvania addressed sovereign immunity as it relates to personal injuries sustained while exiting a shuttle van in a parking garage.  The Philadelphia Parking Authority operated both the van and the garage.  The court held that the Authority was immune from suit because no permanent injury was sustained, and since the garage itself was not defective, the real property exception to government immunity did not apply. (November 8, 2013)

In In Re: Petition to Realign Election Districts in Pennsbury School District,  the Commonwealth Court of Pennsylvania addressed changing voting districts for school board elections.  The court held that population deviations under 10% are of nearly equal population, and satisfy the “one person, one vote” requirement of the Equal Protection Clause of the United States Constitution. (November 8, 2013)

In Knox v. SEPTA, the Commonwealth Court of Pennsylvania addressed the application of sovereign immunity to the Southeastern Pennsylvania Transit Authority (SEPTA). The Court held that SEPTA is a Commonwealth agency for purposes of the Sovereign Immunity Act (Act) and therefore SEPTA passengers are not entitled to uninsured motorist benefits unless some exception to the Act is met. (November 12, 2013)

In State Farm v. Davis, the Supreme Court of Delaware addressed whether 21 Del. C. § 2118 requires insurers to reserve PIP benefits for lost wages for an injured passenger.  Although the court found the issue moot as there were no further benefits to reserve, the court noted the statutory PIP reservation schemes in other jurisdictions “in the event the General Assembly should choose to clarify its policy preferences.” (November 1, 2013)

In Oswald v. WB Public Square Associates, LLC., the Superior Court of Pennsylvania discussed the interplay between Pa.R.C.P. 237.1 and Pa.R.C.P. 237.5 in the context of a Petition to Strike a Judgment.  The court determined that the failure to utilize the proper language in the 10-day notice specified in Rule 237.5 constituted a “fatal defect on the face of the record” pursuant to Rule 237.1 and struck the judgment. (November 7, 2013)

In Champlin v. Pellegrin, the New York Supreme Court, Appellate Division, First Department, addressed whether the plaintiffs’ claims for legal malpractice were barred by the applicable three-year statute of limitations.  The court held that the claims were not tolled by the “continuous representation doctrine” because a 16-year lapse in communications from the attorney was sufficient to constitute reasonable notice to the plaintiff that defendant was no longer representing him. (November 7, 2013)

In McKinley v. Casson, the Superior Court of Delaware addressed whether a motorcycle rider’s failure to wear a helmet was relevant and admissible to prove “secondary assumption of the risk and mitigation of damages.”  The court held, inter alia, that the failure to wear a helmet is not relevant as a matter of comparative negligence, as there is no common law duty to wear a helmet, and Delaware statutory law permits motorcyclists over the age of 19 to ride without a helmet.  The court further noted that the duty to mitigate damages generally arises after a defendant has breached his or her duty to a plaintiff.  The court found that plaintiff could not have done anything to mitigate damages after the accident. (October 31, 2013)

In Brito-Galbez v. 841-853 Broadway Assoc., LLC, the New York Supreme Court, Appellate Division, First Department addressed a contract’s waiver of subrogation provision.  The court dismissed the third-party complaint against the plaintiff’s employer because the contract between first-party defendant/third-party plaintiff (the employer’s landlord) and the employer contained a clause where each party released the other from liability and because the contract required the landlord to maintain commercial general liability insurance to covers injuries such as the one at issue. (October 22, 2013)

In Hedden v. Kean University, the Superior Court of New Jersey: Appellate Division decided whether the attorney-client privilege is waived when a low-level employee discloses a privileged communication to a third party during a private investigation pre-suit.  The court held that, while the communication was privileged, the authority to waive privilege does not belong to every employee of a organization, but rather only to the officers and directors of the organization.  Because the employee at issue was not a director or officer and produced the email without the approval of her employer, there was not an effective waiver for purposes of a later lawsuit. (October 24, 2013)

In Arroyo v. Durling Realty, L.L.C., the Superior Court of New Jersey, Appellate Division, decided whether a customer who was injured after she slipped on a telephone calling card that had been discarded on the sidewalk outside of a convenience store could maintain a negligence action against the store under the "mode of operation" theory of liability. The court held that the store's "method of doing business" did not create the sidewalk hazard.  Therefore, ordinary principles of premises liability, including plaintiff's obligation to show defendant's actual or constructive notice of a dangerous sidewalk condition, applied. (October 23, 2013)

In Stolarski v. Family Servs. of Westchester Inc., the New York Supreme Court, Appellate Division, Second Department addressed whether a plaintiff in a wrongful death action can recover damages for the decedent’s conscious pain and suffering.  The court held that because under New York’s Estates, Powers and Trusts Law (EPTL) no cause of action for an injury to a person is lost because of that person’s death, the plaintiff stated a valid cause of action for damages related to conscious pain and suffering. (October 23, 2013)

The Gomez v. Shop-Rite of New Greenway case of the New York Supreme Court, Appellate Division, First Department, addressed whether a plaintiff raised a triable issue of fact as to whether the defendant created a condition that allegedly caused her to slip and fall.  The court held that the plaintiff’s testimony that she was wet after she fell and had noticed an employee two feet away unloading boxes, one of which was leaking and creating a puddle, was sufficient to raise an issues of fact to whether the defendant created the subject condition. (October 8, 2013)

In Cadena v. Latch, the Superior Court of Pennsylvania held that an injured plaintiff was eligible for non-economic damages under 75 Pa. C.S.A. §1705 even though she stopped treating with her physician for injuries.  The court held that, in light of her contention that she had at least eight ailments related to the accident which have impacted her life, “reasonable minds” could differ as to whether the plaintiff sustained “serious injuries,” which is a requirement for non-economic damages under the statute.  The court concluded by noting that the injuries do not need to be permanent to be “serious.” (October 4, 2013)

In  G.W.E. v. R.E.Z., Jr.,  the Superior Court of Pennsylvania addressed the propriety of the entry of summary judgment in favor of landowners who had constructed a pond where a young child was seriously injured. It was alleged the landowners had created an artificial dangerous condition without taking measures to prevent harm to children who might come onto the property. The Court found that the landowners did not have knowledge or reason to know that children were likely to trespass and therefore could not be held liable. (September 27, 2013)

In Barlow v. Finegan, the Supreme Court of Delaware addressed the standard the court must use when approving a settlement involving a minor.  The court held that the trial court's analysis of such a settlement should start with a “clean slate” and requires an independent judicial determination.  The trial court should not approve a settlement if it has reservations, even if the difference between the settlement and the judge's "clean slate" review is not so great as to render the settlement unfair or unreasonable. (October 2, 2013)

In Norfolk Southern Railway Company v. Public Utility Commission, the Supreme Court of Pennsylvania, addressed the Commonwealth Court’s holding that the Commission may not allocate costs to a transportation utility which regularly uses a crossing site in railroad operations but does not own real property or facilities there.  The court held that a transportation utility need not own facilities at a rail-highway crossing to be a concerned party for purposes of the Commission’s cost-allocation jurisdiction and authority, at least where the utility conducts regular operations at the crossing and may enforce an easement-based right of way. (October 2, 2013)

In Rodriguez v Bronx Zoo Restaurant, Inc., the New York Supreme Court, Appellate Division, First Department addressed the issue of whether a defendant moving for summary judgment in a slip-and-fall matter must proffer to the court personal knowledge of the condition of the property or personal knowledge of inspections of the property.  The court found that such a showing is essential to establishing a prima facie defense to a slip-and-fall cause of action.  Thus, the court held that a defendant moving for summary judgment must proffer evidence of personal knowledge of either the condition of the property or inspection of the property prior to the incident. (October 1, 2013)

In Shuba v. USAA, the Delaware Supreme Court addressed when a wrongful death plaintiff may collect on a underinsured motorist (UIM) policy.  The court rejected a claim by plaintiffs for UIM benefits for the death of their biological mother, due to an automobile accident, under a policy of insurance held by the plaintiffs’ step-mother.  Affirming its own precedent, the court held that, in order for a wrongful death beneficiary to recover UIM benefits, the decedent must be the insured or a “covered person” under the policy.  The court found that it was never contemplated by any party to the policy that decedent, the plaintiffs’ biological mother, would be covered by an insurance policy issued to the plaintiffs’ stepmother. (October 3, 2013)

In Banohashim v. R.S. Enterprises, LLC, the Superior Court of Pennsylvania considered whether, on remand, both liability and damages should be tried in a negligence action where the jury apportioned negligence at fifty percent between the plaintiff and defendant in the first trial. Because, in view of the jury’s apportionment, “the question of negligence or contributory negligence [was] not free from doubt,” the court required a new trial as to both liability and damages. (September 24, 2013)

In Elmaliach v. Bank of China Ltd. (BOC), the Supreme Court of New York, Appellate Division, found that dismissal of a case based on forum non conveniens was unwarranted despite the fact that the parties were from China and Israel. The court cited the fact that the BOC is currently litigating and engaged in discovery in another case in federal court in New York as proof that the defendants failed to meet their burden. The court held that such dismissal would actually increase the burden on the parties by requiring dual litigations in distant fora. (September 17, 2013)

In Perez v. Professionally Green, LLC, the Supreme Court of New Jersey denied plaintiff’s application for attorneys’ fees on a claim brought under the New Jersey Consumer Fraud Act. The trial court had granted Defendant’s motion for involuntary dismissal on the basis that no ascertainable loss claim existed with the meaning of the Act, meeting a standard similar to that for a grant of summary judgment.  Because plaintiffs could not make a prima facie showing that they had suffered an ascertainable loss where they alleged the inability to use their newly-constructed pool for one summer, the plaintiffs were not entitled to attorneys’ fees. (September 12, 2013)

In Henry v. City of Erie, the United States Court of Appeals for the Third Circuit addressed whether a state official’s approval and subsidization of an apartment for the Section 8 housing program, even though the apartment allegedly failed to comply with Section 8 Housing Quality Standards, constitutes a state-created danger in violation of the tenant's substantive due process rights under the United States Constitution.  The court held that this conduct did not warrant application of the state-created danger doctrine and there was no authority offered to expand this doctrine to “licensing-type” activities. (August 23, 2013)

In Kubert v. Best, the Superior Court of New Jersey, Appellate Division, addressed whether, as a matter of civil common law, one who is texting from a remote location to the driver of a motor vehicle can be liable to persons injured because the driver was distracted by the text.  The court held the sender of a text message may be held liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted. (August 27, 2013)

In Massachusetts Teachers’ Retirement System v. Contributory Retirement Appeal Board, the Supreme Judicial Court of Massachusetts addressed whether the Massachusetts Teachers’ Retirement System (MTRS), a public administrative agency, had acted within its authority in promulgating a regulation regarding the amount of interest due when a member of the retirement system buys credit for an additional year of service.  The Legislature enacted a statute in 2005 permitting vocational teachers to buy credit for years spent working in a related trade, provided that they pay “buyback interest” on that amount.  Although the Legislature did not specify whether the “buyback interest” should be calculated from the years for which the trade service credit was sought or from the time that the teacher became a member in MTRS, the Court determined that MTRS acted reasonably in determining that the buyback interest should be calculated from the date for which trade service credit was sought, as the regulation promulgated by MTRS reflects a determination that buyback interest should approximate as closely as possible the return on investment that MTRS could have earned had the member actually contributed during the year of creditable service being purchased. (August 28, 2013)

In Jacaruso v. Keyspan Energy Corporation, the New York Supreme Court, Appellate Division, Second Department,  addressed the issue of whether written post-accident statements of the defendants must be disclosed.  Following the accident, the defendant and his coworker met with a claims investigator and gave written statements about how the accident occurred.  The court noted that under CPLR 3101(g), which mandates full disclosure of any written report of an accident prepared in the regular course of business, such reports must be produced unless the opposing party meets their burden of demonstrating that the report is immune from disclosure. As the defendants failed to meet their burden of showing that the accident reports were not prepared in the regular course of business, the court ordered disclosure of the reports. (August 21, 2013)

In Gager v. Dell Financial Services, LLC, the United States Court of Appeals for the Third Circuit addressed the issue of whether, under the Telephone Consumer Protection Act, a consumer may revoke “prior express consent” to be contacted on a cellular phone via an automated telephone dialing system and, if so, whether there is a temporal limitation on the right to revoke.  The court held, based on common law principles of consent, that a consumer may revoke said consent and that there is no temporal limitation on the revocation. (August 22, 2013)

In Alicea v. Commonwealth, the Supreme Judicial Court of Massachusetts addressed whether a federal court judgment on tort claims brought against a criminal defense attorney by a former client for issues relating to his sentencing prevented him from bringing similar claims against the attorney's employer in state court.  The court determined that application of the doctrine of issue preclusion under federal common law prevents relitigation of the issue. (August 9, 2013)

In Ernest Thomas v. Goldman Sachs Headquarters, LLC, the New York Appellate Division, First Department addressed the issue of whether a temporary wood covering constitutes “accumulated debris or scattered materials” pursuant to Industrial Code (12 NYCRR) § 23-1.7(e)(2).  The court held that the protective covering had been purposefully installed on the floor as an integral part of the renovation project.  Thus, the covering did not constitute “accumulated debris or scattered materials” pursuant to the intended meaning codified in Industrial Code (12 NYCRR) § 23-1.7(e)(2). (August 15, 2013)

In Faircloth v. DiLillo, the Supreme Judicial Court of Massachusetts addressed the Massachusetts statutory requirement that, if an initial review by a medical malpractice tribunal determines that there is not sufficient evidence to raise a legitimate question of defendant's liability, a medical malpractice plaintiff may proceed with the case only by posting a bond to cover defendant's costs. The statute permits the court to reduce but not eliminate the bond requirement in the case of indigence. The court here addressed whether a judge may refuse to reduce the bond if he concludes that an attorney is paying or advancing the court costs and litigation expenses for an indigent client. The court concluded that an attorney's agreement to advance court costs is not a relevant factor in determining whether to reduce the amount of bond because of indigence. (August 5, 2013)

In Foundations of Behavioral Health v. Department of Public Welfare, the Commonwealth Court of Pennsylvania addressed the Department of Public Welfare’s denial of reimbursement to plaintiff for a minor patient’s short-term hospital stay at plaintiff’s inpatient psychiatric facility. The court affirmed the defendant’s decision because the plaintiff failed to provide testimony as to specific methods of care or treatment provided to the patient and why those methods were medically necessary during the period of time at issue. (August 5, 2013)

In Keystone Dedicated Logistics, Inc. v. JGB Enterprises, the Superior Court of Pennsylvania addressed the admissibility of invoices where no records custodian or other qualified witness was available to authenticate the invoices at trial.  The court held it was an abuse of discretion for the trial court to find the invoices authenticated solely because they were produced in discovery.  Moreover, the invoices were not admissible under the business record exception to the rule prohibiting hearsay because the invoices lacked authentication. (August 6, 2013)

In Hirsch v. Amper Financial Services, LLC, the Supreme Court of New Jersey addressed the propriety of compelling arbitration between a non-signatory and a signatory to a contract containing an arbitration clause on the basis that the parties and claims were sufficiently intertwined to warrant application of equitable estoppel. Reasoning that intertwinement of the parties and claims, viewed in isolation, is insufficient to implicate equitable estoppel, the court held that that doctrine was not available to compel arbitration. (August 7, 2013)

In Cannonball Fund, Ltd. v. Dutchess Capital Management, the Appeals Court of Massachusetts addressed whether litigants who initially brought and dismissed a suit in Delaware and re-filed the same action in Massachusetts eight months later, were entitled to the benefits of the Massachusetts Savings Statute which permits claims originally timely filed to be re-filed within one year if they are dismissed for any matter of form. The court concluded that such claims should not be dismissed if the pleadings raise a sufficient question of fact regarding whether plaintiffs voluntarily dismissed their Delaware claims because of an objectively reasonable expectation that the claims would be involuntarily dismissed for lack of personal jurisdiction (a matter of form). (August 2, 2013)

In Russian American Found., Inc. v. Daily News, L.P., the New York Supreme Court, Appellate Division, First Department addressed whether the newspaper-defendant published libelous statements about the plaintiff where the statements were part of a news article discussing judicial proceedings against politicians accepting bribes. The court held that all of the statements claimed to be libelous were part of a report of a judicial proceeding and were therefore protected by civil rights laws.  Further, the court held that the challenged language was “substantially accurate” and therefore not libelous. (August 6, 2013)

In Cumberland County Board of Chosen Freeholders v. Vitetta Group, P.C., the Superior Court of New Jersey, Appellate Division addressed whether a government unit’s claims for willful misconduct, gross negligence, and fraudulent concealment were time barred under the statute of limitations and statute of repose. The court distinguished a statute of limitations as barring a remedy for a cause of action, whereas a statute of repose eliminates the existence of a cause of action after a 10 year time period. While the claims over a courthouse water leak problem fit the government exemption to the ten-year statute of repose, the actions filed 12 years after discovering negligence were still time barred under the statute of limitation. The court held that if an action is barred by the statute of limitations, it cannot be saved by the statute of repose. (July 30, 2013)

In Harris v. Kellogg Brown & Root Services, Inc., the United States Court of Appeals for the Third Circuit remanded a wrongful death suit brought on behalf of the estate of a soldier who was electrocuted while using a shower at a military base in Iraq during the Iraq War. The court held that the lower court must determine which state’s substantive law was to be applied to the case in order to determine whether the defense contractor defendant could rely upon the political question doctrine as a defense. The defendant also sought immunity from suit under the Federal Tort Claims Act’s “combatant-activities exception.”  The court held that the claims were not barred by the Federal Tort Claims Act, because the military did not retain command authority over how the defendant performed under the contract. (August 1, 2013)

In In re New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health and Mental Hygiene, the New York Supreme Court, Appellate Division, First Department addressed the constitutionality of the New York City Board of Health’s Sugary Drinks Portion Cap Rule (Soda Ban), which prohibited the sale of sugary drinks in sizes larger than 16 ounces. The court held the Soda Ban unconstitutional because the Board of Health failed to act within the bounds of its lawfully delegated authority.  The court also noted that drinking sugary soda is not inherently dangerous if done in moderation, and, therefore, the Board of Health’s decision to restrict it was impermissible. (July 30, 2013)

In Feeney v. Dell Inc., the Supreme Judicial Court of Massachusetts reconsidered its June 12, 2013 decision in light of the ruling of the United States Supreme Court in American Express Co. v. Italian Colors Restaurant.  The court reversed course and determined that, under the Federal Arbitration Act, class action waivers in arbitration clauses were valid even where the application of the arbitration clause would effectively deny plaintiffs a remedy. The court characterized the holding in American Express as untenable, but recognized it was bound to accept that view as the controlling statement of federal law. (August 1, 2013)

In Machado v. System4 LLC, the Supreme Judicial Court of Massachusetts reconsidered its June 12, 2013 decision in light of the ruling of the United States Supreme Court in American Express Co. v. Italian Colors Restaurant.  The court reversed course and determined that, under the Federal Arbitration Act, class action waivers in arbitration clauses were valid even where the application of the arbitration clause would effectively deny plaintiffs a remedy.  Nonetheless, the court held that its previous analysis declaring the waiver of multiple damages unenforceable with respect to viable Wage Act claims and its ultimate holding remained sound. (August 1, 2013)

In Pisieczko v. Children’s Hospital of Philadelphia, the Superior Court of Pennsylvania affirmed dismissal of the case pursuant to the doctrine of forum nonconveniens.  The accident causing the injury occurred in New Jersey, the Plaintiffs resided in New Jersey and many witnesses likely resided and worked in New Jersey, but Plaintiffs filed suit in Philadelphia County, Pennsylvania.  The court found that the trial court appropriately exercised its discretion because it would be “expeditious” and less costly to have a New Jersey judge hear the case since he is more familiar with New Jersey law.  Further, dismissal was appropriate because a Philadelphia jury would have no relation to the litigation and Philadelphia courts are more congested than courts in Atlantic County, New Jersey. (July 26, 2013)

In Lozano v. City of Hazleton, the United States Court of Appeals for the Third Circuit addressed whether two city ordinances requiring proof of citizenship were preempted by federal immigration law. The disputed employment ordinance outlawed the recruiting and hiring of employees without proper proof of citizenship. The disputed housing ordinance prevented landlords from leasing to anyone who had not obtained an occupancy permit, which required proof of citizenship. The Court held that the ordinances were preempted because they stand as an obstacle to the accomplishment and execution of the objectives of federal immigration law. (July 26, 2013)

In Conestoga Wood Specialties Corporation v. Secretary of the United States Department of Health and Human Services., the United States Court of Appeals for the Third Circuit addressed whether a for-profit, secular corporation may engage in religious exercise under the First Amendment and the Religious Freedom Restoration Act (RFRA). The owners and operators of a cabinet manufacturing company follow the teachings of the Mennonite Church and objected on religious grounds to a mandate in the Affordable Care Act which requires their company to provide emergency contraception prescription coverage in its health insurance policy for its employees.  The court held that a for-profit, secular corporation cannot engage in religious exercise because the law has long recognized a distinction between the owners of a corporation and the corporation itself and to ascribe the owners' religious principles to the corporation would eviscerate that distinction. (July 26, 2013)

In Bagwell v. Pennsylvania Department of Education, the Commonwealth Court of Pennsylvania addressed whether the Pennsylvania Right To Know Law governs records that originated with the Board of the Pennsylvania State University.  The court held that, while the University’s Board is not a state agency, the Secretary of Education, who is statutorily required to act as a Board member, is subject to the Act.  The court, thus, concluded that the records received by the Department from the University through the Secretary’s capacity as a Board member qualify as “records” subject to the Act. (July 19, 2013)

In Case v. Case, the New York Supreme Court, Appellate Division, Fourth Department, addressed whether a charging lien had priority over a perfected security interest in settlement proceeds.  In exchange for a loan, the plaintiff assigned all of his rights to his portion of the settlement to his creditor.  His attorneys argued that their charging lien pursuant to Judiciary Law § 475 took precedence over the creditors’ perfected security interest.  The court held that, because the attorneys did not become the plaintiff’s attorney of record until after the creditors had perfected their security interest, the creditors were entitled to the settlement proceeds. (July 19, 2013)

In Buyfigure.com, Inc. v. Autotrader.com, Inc., the Superior Court of Pennsylvania addressed the issues of res judicata and collateral estoppel in a state lawsuit brought after a federal lawsuit, allegedly raising similar claims.  The court held that res judicata and collateral estoppel applied because the claims and issues in both the federal and state courts had identical characteristics, and the parties were either identical or had privity with one another.  The court further held that the doctrines of res judicata/collateral estoppel apply not only to matters decided, but also to matters that could have, or should have, been raised and decided in an earlier action. (July 25, 2013)

In Reid v. Milton Savings Banks, the Superior Court of Pennsylvania addressed the issue of when the two-year statute of limitations set forth in 42 Pa.C.S.A. § 5524 for negligence actions begins to run.  The court held that the statute of limitations begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations. (July 25, 2013)

In Viacom International Inc. v. Winshall, the Supreme Court of Delaware, addressed whether an arbitration determination should be vacated because the arbitrator refused to consider certain evidence and because the arbitrator lacked authority to decide whether a particular issue was arbitrable. The court held that neither claim provided a basis to vacate the arbitration determination. (July 16, 2013)

In Rogers v. The Christina School District, the Supreme Court of Delaware, addressed whether a school’s failure to follow school district regulations constitutes negligence per se. In this instance, the school failed to contact the parents of a student expressing suicidal thoughts to his school counselor.  After school, the student hung himself.  The court held that the school’s failure to follow regulations enacted for the safety of others have the force and effect of law and, therefore, constitute negligence per se. (July 16, 2013)

In NES Rentals v. Maine Drilling & Blasting, Inc., the Supreme Judicial Court of Massachusetts addressed whether a subcontractor's amendment of its original complaint to enforce a mechanic's lien constituted timely “commencement” of its action under a Massachusetts statute setting forth procedures for execution and enforcement of bonds to dissolve mechanic's liens, where the original complaint was filed within the appropriate time for bond enforcement under the statute but the date that the amendment of the complaint was filed fell outside that period. The court concluded that the “commencement” requirement of the statute was satisfied by the amendment of the complaint because it related back to the date of filing of the original complaint, and ruled that Massachusetts law permitted bond enforcement actions to relate back to the date of a timely-filed lien enforcement action. (July 15, 2013)

In Washington County v. Pennsylvania Labor Relations Board, the Commonwealth Court of Pennsylvania addressed whether a county is liable for an alleged unfair labor practice concerning employee wages and benefits committed by the court of common pleas. Since the county commissioners are responsible for wage and benefit issues, the county was responsible for implementing that term of the award. The court also addressed whether the charge was timely. The court held that the charge was timely, and that the applicable statute of limitations begins to run when a court of common pleas affirms the award or the appellate process is exhausted, whichever occurs first. (July 18, 2013)

In Massachusetts Community College Council v. Massachusetts Board of Higher Education/Roxbury Community College, the Supreme Judicial Court of Massachusetts addressed the enforceability of an arbitral award, which found that the process denying tenure to a union-member professor was flawed and ordered the college to reinstate the professor and conduct a new tenure evaluation. The court held that the college was not bound by the award because the collective bargaining agreement provided that "[t]he granting or failure to grant tenure shall be arbitrable but any award is not binding." (July 12, 2013)

In V-Tech Services, Inc. v. Thomas Street, the Superior Court of Pennsylvania held that an agency relationship did not exist between Philadelphia Airport Services and its consultant, a co-defendant, because authority was not given by Philadelphia Airport Services to the consultant to approve assignments to the contract. The contract in question specifically prohibited the assignment of the contract without Philadelphia Airport Services approval.  As such, the consultant was not deemed an agent for the purposes of subcontracting. (July 3, 2013)

In Zauflick v. Pennsbury School District, the Commonwealth Court of Pennsylvania addressed a case in which a school bus ran over a girl causing her to lose her leg, amongst other injuries.  The jury returned a verdict in her favor of over $14 million. After the verdict, the district disclosed the fact that they had a $10 million excess policy. In post trial motions, the court reduced the $14 million verdict to the statutory cap of $500,000 against the district pursuant to Section 8553(b) of the Tort Claims Act. The court held that the purchase of additional insurance did not constitute a waiver of the statutory limits under the Act nor was the Act unconstitutional.  The court, however, awarded sanctions against the district for failing to disclose the excess policy during discovery in the amount of $5,000. (July 3, 2013)

In New Jersey Primary Care Association Inc. v. State of New Jersey, the United States Court of Appeals for the Third Circuit, addressed whether the New Jersey Department of Human Service’s (State) methodology for governing wraparound payments, under the federal Medicaid statute, violated the Plaintiff’s due process rights, and federal and state law governing Medicaid wraparound payments, leading to budget shortfalls. The court held that the state’s new policy governing the processing of wraparound payments violated the federal Medicaid statute. (July 9, 2013)

In Belmont Condominium Assoc. Inc., v. Geibel, the Superior Court of New Jersey addressed a jury verdict in favor of the plaintiff related to claims that arose from the construction of the Belmont. The court held the verdict with respect to the negligence claim was proper.  However, the pre-judgment interest awarded on the punitive damages portion was reversible. (July 9, 2013)

In Joyce v. Erie Ins. Exchange, the Superior Court of Pennsylvania addressed an action stemming from a motor vehicle accident which lead to a settlement between the plaintiff and the insurance carriers. Subsequently, the plaintiff was indicted and found guilty for charges related to money laundering and mail fraud. Restitution was awarded to both insurance carriers and the plaintiff subsequently filed a complaint alleging the insurance carriers schemed to defraud him. The court held the insurance carriers were entitled to receive the restitution pursuant to court order, and the subsequent complaint was properly dismissed. (July 9, 2013)

In Del Vecchio v. Danielle Associates, LLC, the New York Supreme Court, Appellate Division, Second Department, addressed the right to contractual indemnification between a landlord and tenant.  Pursuant to the lease, the tenant had agreed to be responsible for all maintenance and repair to the premises, except for those which were specifically set forth to be the obligation of the landlord.  The tenant further agreed to indemnify and hold harmless the landlord for all claims in connection with bodily and personal injury arising from any occurrence on the premises.  In the same lease, the landlord represented that there were no hazardous or toxic materials on the premises, and that the landlord would indemnify and hold harmless the tenant for claims arising out of hazardous substances which were the responsibility of the landlord.  The plaintiff, an employee of the tenant, was injured when he fell in two holes in the parking lot where soil testing had been done by a third party contractor.  The court denied both the landlord and tenant’s motions for summary judgment based on contractual indemnification, as both parties failed to eliminate questions of fact as to whether it bore responsibility for fixing the subject hole. (July 10, 2013)

In Terpis v. Regal Hgts. Rehabilitation & Health Care Ctr., Inc., the New York Supreme Court, Appellate Division, Second Department, addressed the timeliness of the substitution of a plaintiff under CPLR 1021. The court found that it was proper to deny the plaintiff’s motion for leave to substitute himself as a party plaintiff, and to grant dismissal of the complaint, as there was a 21-month delay in obtaining preliminary letters testamentary, a one-year delay in seeking substitution, and the failure to demonstrate a reasonable excuse for the delays, as well as the absence of an affidavit of merit and the prejudice to the defendant. (July 10, 2013)

In Mandakis v. Borough of Matamoras, the Commonwealth Court of Pennsylvania addressed whether the “real property exception” to governmental immunity afforded under the Political Subdivision Tort Claims Act was applicable to a personal injury claim arising from a trip and fall at a public park caused by a broken picnic table. The court held that because a broken picnic table not affixed to the real property is considered an item of personalty, and not part of the real property, the real property exception is inapplicable and the borough is immune from suit. (July 11, 2013)

In Brown v. Midrox Ins. Co., the New York Supreme Court, Appellate Division, Third Department, addressed service of process requirements under the CPLR. The court granted the defendant’s motion to dismiss the complaint for lack of personal jurisdiction, because although the plaintiff mailed the summons and complaint to the defendant, the plaintiff failed to include the required statements by service of mail and acknowledgment of receipt.  It did not matter that the plaintiff was pro se and that the defendant had actual notice of the action. (July 11, 2013)

In RRF Family Partnership v. Burns & Levinson, LLP, the Supreme Judicial Court of Massachusetts addressed whether confidential communications between law firm attorneys and a law firm's in-house counsel concerning a malpractice claim asserted by a current client of the firm are protected from disclosure to the client by the attorney-client privilege. The court adopted a four part test, providing that such communications are privileged if (1) the law firm has designated an attorney or attorneys within the firm to represent the firm as in-house counsel, (2) the in-house counsel has not performed any work on the client matter at issue or a substantially related matter, (3) the time spent by the attorneys in these communications with in-house counsel is not billed to a client, and (4) the communications are made in confidence and kept confidential. As all four conditions were met in this case, the court found that the communications at issue were privileged. (July 10, 2013)

In Dearmitt v. New York Life Insurance Company, the Superior Court of Pennsylvania addressed a plaintiff’s challenge to the grant of summary judgment based on an assessment of the credibility of his deposition testimony.  The court found that summary judgment was improperly granted against the plaintiff, the non-moving party, because the trial court made certain fact-based and credibility assessments against him. (June 28, 2013)

In Irey v.  Commonwealth of Pennsylvania, the Commonwealth Court of Pennsylvania addressed whether a jury properly found a utility company negligent, for failing to maintain a road to prevent flooding, but that its negligence was not a factual cause of a driver’s injuries, which he sustained while driving his vehicle through the flooded area of the road. The court found that the jury was clearly confused about the proper analysis of factual cause governing the utility company’s liability. (June 28, 2013)

In Harmon Law Offices v. Attorney General, the Appeals Court of Massachusetts addressed whether two civil investigative demands (CIDs), sent by the Attorney General pursuant to the Massachusetts consumer protection statute to a law office regarding its foreclosure and eviction practices, should be set aside as interfering with the law office’s attorney-client relationships and litigation privilege.  The court concluded that the law office must comply with the demands where it did not show good cause why it should not produce documents pursuant to the CIDs. (June 28, 2013)

In Empire Trucking Company v. Reading Anthracite Coal Company, the Superior Court of Pennsylvania addressed whether an award of punitive damages 5.6 times as large as the compensatory award violated the defendant’s due process rights. The court observed that the ratio of punitive damages to compensatory damages was significantly lower than the 10 to 1 ratio designated as “constitutionally suspect” by the United States Supreme Court. In holding that the punitive award was warranted, the court stressed that the plaintiff suffered financial hardship and reputational damages caused by the defendant’s “acts of deception,” “all to [the defendant’s] own financial benefit.” (June 21, 2013)

In Villanueva v. Zimmer, the Superior Court of New Jersey, Appellate Division addressed whether evidence of the Social Security Administration’s (SSA) determination that the plaintiff was permanently disabled by a motor vehicle collision was properly excluded from evidence at the trial of plaintiff’s collision-related personal injury claims. The court held that because the SSA's determination was hearsay and did not conform to any exceptions including the “public records exception," and because the SSA's determination lacked a “meaningful adversarial process with respect to the cause, existence and extent” of the alleged disability, it was properly excluded at trial. (June 21, 2013)

In B. Washington v. Department of Public Welfare, the Commonwealth Court of Pennsylvania addressed the issue of whether Act 80, which amended the Public Welfare Code, is substantively unconstitutional because it improperly delegates legislative authority to the Department of Public Welfare (DPW).  The court held that Act 80 vests legislative authority in the DPW, in violation of separation of powers, because they grant the DPW unlimited discretion. (June 24, 2013)

In Shelby County v. Holder, the United States Supreme Court considered the constitutionality of the Voting Rights Act of 1965, which was enacted to address and prevent racial discrimination in voting. The Court held that Section 4(b) of the Act, which provides a formula to define the jurisdictions subject to certain provisions of the Act, is unconstitutional. The Court reasoned that if Congress is to apply a law to some states, it must do so based upon current conditions and not simply rely on history.  The Court specifically noted that this decision does not, in any way, change the nationwide ban on racial discrimination in voting. (June 25, 2013)

In Adoptive Couple v. Baby Girl, the United States Supreme Court addressed termination of parental rights under The Indian Child Welfare Act (ICWA), which establishes Federal standards for child custody proceedings involving Indian children.  The Court held that the ICWA does not bar the a termination of biological father’s parental rights because the ICWA was designed to prevent the removal of an Indian child from an Indian family (i.e., prevent the breakup of an Indian family).  Where, as here, the biological Indian parent did not ever have custody (physical or legal) of the child and where, as here, the biological father voluntarily relinquished his parental rights, the purpose of the ICWA is not implicated and therefore the ICWA cannot be used to bar termination of parental rights.(June 25, 2013)

In Hollingsworth v. Perry, the United States Supreme Court  addressed whether opponents of gay marriage had standing to defend California's Proposition 8 in federal courts after the State refused to appeal the loss at trial. Specifically, after the California Supreme Court found that limiting marriage to opposite sex couples violated the State Constitution, voters passed Proposition 8, which amended the State Constitution to define marriage as between a man and a woman. Suit was then filed in Federal Court challenging Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.  State officials who were named as defendants in the suit refused to defend the law, but proponents of the law were permitted to intervene and defend. Proposition 8 was deemed unconstitutional and public officials were enjoined from enforcing the law.  Proponents of the law appealed the decision. The Court held that proponents of Proposition 8 had neither standing nor a legal right to defend the case on appeal. (June 26, 2013)

In Sony BMG Music Entertainment v. Tenenbaum, the United States Court of Appeals for the First Circuit addressed whether a jury award of $675,000 was so large as to violate the constitutional due process rights of a man who had downloaded copyrighted music without authorization and with knowledge that it was illegal under the Copyright Act. The court explained that the guideposts governing the imposition of punitive damages did not apply to the imposition of expressly stated statutory penalties, because the concerns regarding fair notice were not present for civil penalties specified by statute.  Such civil penalties are unconstitutional only where so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.  Noting that the jury award here was only 15% of the maximum award for willful violations and less than the maximum for non-willful violations, the court concluded that the penalty did not violate due process. (June 25, 2013)

In People v. Greenberg, the Attorney General brought a civil suit seeking, among other things, equitable relief against former executives of AIG for violations of section 63(12) of the Executive Law and Article 23-A of the General Business Law (the Martin Act), alleging the defendants caused AIG to enter into a sham transaction.  The New York Court of Appeals addressed whether evidence of knowledge of a fraudulent transaction was sufficient to raise an issue of fact for trial and whether the Attorney General is barred as a matter of law from obtaining any equitable relief. The court held that (1) there was sufficient evidence for trial where the credibility of the defendants’ denials was an issue for a fact finder to decide; and (2) the Attorney General preserved a claim for equitable relief even though it had not been a major focus at earlier stages in the case. (June 25, 2013)

In Township of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., the United States Supreme Court granted certiorari on the following limited issue: 

Are disparate impact claims (i.e., actions that have a discriminatory effect) cognizable under the Fair Housing Act? (June 17, 2013)

In Arizona v. The Inter Tribal Council Of Arizona, Inc., the United States Supreme Court addressed Arizona’s evidence-of-citizenship requirement for those registering to vote. The Court concluded that the fairest reading of the statute is that a state-imposed requirement of evidence of citizenship is “inconsistent with” the National Voter Registration Act’s mandate that States “accept and use” the Federal Form, and thus, the requirement could not stand.  However, the Court further held that Arizona may request that the Election Assistance Committee (EAC) include such a requirement among the Federal Form’s state-specific instructions, and may seek judicial review of the EAC’s decision under the Administrative Procedure Act. (June 17, 2013)

In Maracich v. Spears, the United States Supreme Court addressed whether an attorney’s solicitation of clients for a lawsuit falls within a statutory exception to the Driver’s Privacy Protection Act. This exception permits obtaining personal information from a state DMV for use “in connection with” judicial and administrative proceedings, including “investigation in anticipation of litigation.” In holding that an attorney’s solicitation of clients is not a permissible purpose covered by the litigation exception, the Court found that attorneys are not without the necessary means to aggregate a class of plaintiffs, and thus, attorneys may not acquire highly restricted personal information from state DMV records to send bulk solicitations without express consent from the targeted recipients. (June 17, 2013)

In American Express Co. v. Italian Colors Restaurant, the United States Supreme Court addressed the validity of a contractual waiver provision that required merchants accepting American Express to arbitrate individually, even when litigation costs were greater than potential recovery.  The Court held that the Federal Arbitration Act (FAA) does not permit judicial invalidation of contractual waivers of class arbitration on the ground that plaintiff’s cost of individually arbitrating a federal statutory claim exceeds the potential recovery. The “effective vindication” exception designed to prevent “prospective waiver of a party’s right to pursue remedies” is not applicable here because litigants still retain the right to pursue a remedy even if it is not worth the expense. (June 20, 2013)

In Town of Kearny v. Brandt, the Supreme Court of New Jersey addressed whether it was appropriate to allocate fault under the Comparative Negligence Act (CNA) and Joint Tortfeasors Contribution Law (JTCL) to a defendant who obtained dismissal by virtue of the statute of repose.  The court held that is was important for the factfinder to evaluate the fault of all potentially responsible parties.  Consequently, the court held allocation of fault may be apportioned to the dismissed defendants under both the CNA and JTCL. (June 20, 2013)

In Flood v. Aluri-Vallabhaneni, the Superior Court of New Jersey, Appellate Division, addressed the propriety of the jury interrogatories appended to the Model Jury Charge (Civil) 5.50(E) "Pre-existing Condition — Increased Risk/Loss of Chance — Proximate Cause" (May 2010).  The Model Charge instructs the jury to consider:  (1) whether the defendant deviated from accepted medical standards; (2) whether that deviation increased the risk of harm posed by the plaintiff’s pre-existing condition; and (3) whether the increased risk was a substantial factor in bringing about the plaintiff’s injury. The interrogatories, however, insert a question that imposes the burden on the defendant to apportion damages before the jury is asked to find if the increased risk was a substantial factor.  The court held that it is “firmly convinced that the Model Charge jury interrogatories are erroneous,” directed the Committee on Model Civil Jury Charges to revisit the issue, and disapproved of the continued use of the model interrogatories for Charge 5.50(E). (June 13, 2013)

In Moore v. Town of Billerica, the Appeals Court of Massachusetts addressed whether a town may be held liable on a theory of negligent maintenance where netting around a baseball field was insufficient to prevent a baseball from entering a children’s play area and striking a child in the head. Although the town would normally be immune from suit under Massachusetts statute, negligent maintenance provides an exception to immunity. As the netting had never previously extended to the area through which the ball had escaped, the court concluded that the failure to extend the netting did not fall into the definition of maintenance, and that the town was immune from suit. (June 7, 2013)

In Chardin v. Police Commissioner of Boston, the Supreme Judicial Court of Massachusetts addressed whether the Massachusetts firearms licensing statute was unconstitutional under the Second Amendment because it prevents any adult who was once a delinquent child from ever obtaining a license. The court concluded that the Second Amendment is not unlimited, and that the Massachusetts legislature could constitutionally enact a law that adjudication as a delinquent child for the commission of a felony is a categorical bar to obtaining a license to carry firearms. (June 4, 2013)

In Angland v. Mountain Creek Resort, Inc., the Supreme Court of New Jersey addressed whether the statutory standard of care in the New Jersey Ski Act governs claims made between skiers. The court concluded that the Ski Act is intended to address duties and responsibilities between ski area operators and skiers. The Ski Act does not apply to claims made between individual skiers. (June 6, 2013)

In Cornelius v. City of Harrisburg, the Commonwealth Court of Pennsylvania addressed Section 8541 of the Tort Claims Act (which but for certain exceptions provides that local agencies and agency employees are immune from tort liability) and whether a common law duty to innocent bystanders during police pursuits of fleeing suspects exists. The court held that a common law duty to innocent bystanders during police pursuits of fleeing suspects exists in Pennsylvania.  Furthermore, the court explained that the vehicle exception to local governmental immunity provides that a local agency or its employees may be liable for damages on account of an injury to a person or property arising out of the operation of any motor vehicle in the possession or control of the local agency. The court opined that at this stage of the proceedings, it cannot be said with certainty that the negligence alleged is based solely upon the act of pursuing a fleeing wrongdoer (where the innocent bystander would apply), rather than the actual operation of the vehicle during the pursuit (where the police officer’s alleged operational negligence itself may have been a substantial factor in causing decedent’s injuries and there the vehicle exception to Section 8541 might apply). (June 5, 2013)

In Sellers v. Township of Abington, the Commonwealth Court of Pennsylvania addressed the issues of to whom a duty of care is owed by police during a police chase of a fleeing automobile and who qualifies as an innocent third party during said chase. In accordance with prior opinions in Pennsylvania courts, where innocent third parties to whom a duty of care is owed were found to have been bystanders unconnected with the wrongdoer or the vehicle being pursued, the court here held that there is no duty of care to passengers in a fleeing automobile whose existence, or whose connection to the driver and the conduct for which he is being pursued, is unknown to the officer. The court also noted that the trial court may have improperly conducted fact-finding with respect to certain items,  but that it is within the province of the court to affirm the action of the trial court, “even if that action was based on an erroneous procedure, if there are independent grounds for affirmance.”  Because there was no duty of care owed, summary judgment was affirmed as appropriate as a matter of law. (June 5, 2013)

In Grijalba v. Maria Floro, the Superior Court of New Jersey, Appellate Division was asked to decide whether an owner occupied two family home which was subsequently converted into an owner occupied three family home was a commercial property for purposes of liability for the condition of an adjacent sidewalk. The Court recognized that this case fell into a “gray area” of the law due to the unique facts. The matter was remanded to uncover the following facts relevant in classifying the predominant use of the residence: (i) whether the property is owned for business purposes; (ii) the amount of space used by the owner; and (iii) the amount of profit, if any, generated by the rentals. (June 3, 2013)

In Interfaith Comm Orgn v. Honeywell Intl, Inc., the United States Court of Appeals for the Third Circuit addressed whether offers of judgment pursuant to Fed. R. Civ. P. 68 may be made in the context of attorney’s fee disputes under the fee-shifting provisions of the Resource Conservation and Recovery Act (RCRA).  The Court held that Rule 68 offers of judgment may be made in this context. (June 4, 2013)

In Guidotti v. Legal Helpers Debt Resolution, LLP, the United States Court of Appeals for the Third Circuit, addressed the standards to be applied to motions to compel arbitration. The court held that when it is apparent from the face of the complaint that a party’s claims are subject to an enforceable arbitration cause, the trial court should consider the motion to compel arbitration as a motion to dismiss. If the complaint and supporting documents are unclear, or if the plaintiff has responded with additional facts sufficient to place the agreement to arbitrate in issue then the parties should be entitled to discovery on the issue of arbitrability and the court should consider the motion under a summary judgment standard. If a genuine dispute as to the enforceability of the arbitration clause exists, the court may then proceed summarily to a trial regarding the making of the arbitration agreement or the failure, neglect, or refusal to perform the same. (May 28, 2013)

In Law Office of Sheldon Eisenberger v. Blisko, the New York Supreme Court, Appellate Division, First Department, addressed the issue of whether a law office could collect fees for work performed for a client after the retainer agreement between the parties terminated. In the suit, the law office sought to obtain unpaid fees for services provided leading up to and including trial. However, because the plain language of the retainer stated that the law office’s representation did not include an actual trial, the court held that the retainer terminated at the commencement of the trial and that the law office was not entitled to any fees for services provided after the trial began. (May 28, 2013)

In McDonald v. Kohanfars, the New York Supreme Court, Appellate Division, Second Department, addressed the standard that must be met for a court to set aside an unreasonable jury verdict in a personal injury action.  A jury awarded the plaintiff damages after it found the defendant to be entirely at fault for the accident.  The court held that this verdict should have been set aside under CPLR 4404(a), because there was no valid line of reasoning and permissible inferences which could lead rational persons to the conclusions reached by the jury. The court found that given the evidence of the plaintiff’s previous injuries and degenerative condition as well as the fact that the plaintiff did not seek treatment for the injuries allegedly suffered in the accident until three years after the accident, it was speculative to conclude that her injuries were causally related to the accident. (May 28, 2013)

In the Estate of Desir v. Vertus,  the Supreme Court of New Jersey addressed whether the shooting death of an individual by a criminal fleeing from a business gives rise to a cause of action in tort on behalf of the decedent’s estate against the owner of the business premises.  The court found that the business owner owed no duty of care to the decedent because the injury occurred on a public sidewalk outside of the business, the business owner did not create the circumstance of the crime, and the decedent did not act in way to rescue the business owner. (May 20, 2013)

In Sholtz v. Delp, the Appeals Court of Massachusetts addressed  a libel claim by a former member of a rock band against a deceased band member's ex-wife, whom the Boston Herald had quoted as saying that interpersonal friction between the musicians had led to her ex-husband's suicide. The court determined that, although the article was susceptible to a defamatory connotation, a jury would have to decide whether the defamatory nature of the article was attributable to the ex-wife or to the writers of the Boston Herald. (May 14, 2013)

In Medina v. Hochberg, the Supreme Judicial Court of Massachusetts addressed the viability of a negligence claim against a physician, who had been treating a patient for an inoperable brain tumor, by an individual injured in a car crash when the patient suffered a grand mal seizure while driving.  The court concluded that a physician does not owe a duty to nonpatients to warn his or her patients of the dangers of driving posed by the patient's underlying medical condition. (May 13, 2013)

In Dos Santos v. Coleta, the Supreme Judicial Court of Massachusetts addressed whether a renter, who unsuccessfully attempted to flip into an inflatable pool from an adjacent trampoline, had a viable claim against his landlord and the owner of the pool and trampoline, for failure to warn.  The court held that a landowner has a duty to remedy an open and obvious danger where he has the knowledge that lawful entrants would, as here, choose to encounter it despite the obvious risk of doing so. (May 13, 2013)

In Klairmont v. Gainsboro Restaurant, the Supreme Judicial Court of Massachusetts addressed an action arising from the death of a college student after a fall down a set of basement stairs at a restaurant that was hidden behind hanging vinyl strips.  The court addressed whether building code violations may give rise to a claim pursuant to the Massachusetts Consumer Protection Statute, Chapter 93A.  The court concluded that a violation of a building code may give rise to a claim under Chapter 93A only if the conduct leading to the violation is both unfair or deceptive and occurs in trade or commerce, which must be discerned from the circumstances of each case. (May 13, 2013)

In Alderwoods, Inc. v. Duquesne Light Company, the Supreme Court of Pennsylvania granted a petition for allowance of appeal on the following issues:

  1. Whether the Superior Court erred in imposing upon electric utilities a burdensome and unprecedented duty to enter customers’ premises and inspect customers’ electrical facilities before restoring power after an outage?
  2. Whether the Superior Court overlooked the deleterious effects of its ruling upon public health and safety, in that by requiring utilities to inspect customers’ premises before restoring power, the new duty created by the Superior Court will delay utilities’ efforts to restore power after storms and other outages?
  3. Whether the Superior Court overlooked undisputed facts of record that undermine the rationale of its decision? (May 14, 2013)

In Korby v. Zoning Hearing Board of Pulaski Township, the Commonwealth Court of Pennsylvania addressed the standard for opening a default judgment. The court denied the petition to open judgment because the petitioner did not present sufficient evidence that he had a meritorious defense to a zoning ordinance violation. Furthermore, while the court found that the actions of petitioner’s counsel may have constituted negligence or legal malpractice, such did not amount to extraordinary cause for opening the judgment. (May 15, 2013)

In Wells Fargo Bank, N.A. v. Van Meter, the Superior Court of Pennsylvania addressed the ten-day notice requirement for a party seeking default judgment. The court found that, pursuant to Pennsylvania Rule of Civil Procedure 237, a party is not required to file its ten-day notice with the court. Rather, a party must certify in its praecipe to enter default judgment that such notice has been provided to the defaulting party, and attach the notice to its praecipe. Because this procedure was complied with in the instant matter (and because petitioner did not present a meritorious defense to the underlying claims), the court affirmed the trial court’s order denying the petition to open the default judgment. (May 14, 2013)

In Lassiter v. City of Philadelphia, the United States Court of Appeals for the Third Circuit held that the district court acted within the scope of its authority by raising the statute of limitations issue sua sponte during the initial Rule 16 conference because the trial court may assume an active managerial role in litigation so as to expedite the efficient disposition of a case. (May 15, 2013)

In Stashkevetch v. City of New York, the New York Supreme Court, Appellate Division, First Department, addressed whether a plaintiff could sustain a personal injury action against the city in light of a defense accorded government employees acting in the scope of their authority. The plaintiff bicyclist had been injured after he was diverted from a bicycle path in a city park, due to cleaning activities of employees of the City of New York. The court rejected the City’s argument that notice of claim was untimely, but held that dismissal of the complaint was still warranted because the city’s employees were engaged in a governmental function giving rise to a governmental immunity defense. (May 14, 2013)

In Armijos v. Vrettos Realty Corp., the New York Supreme Court, Appellate Division, Second Department, addressed whether a defendant building owner had sufficiently established for the purpose of a summary judgment motion that it either did not create the condition, or lacked either actual or constructive notice of the condition to defeat a plaintiff’s slip and fall claim.  Although evidence of a defendant’s cleaning practices is generally insufficient to meet the defendant’s burden on lack of constructive notice, here the defendant submitted a specific affidavit from its superintendent regarding his cleaning practice. The court held that the affidavit was specific enough to satisfy the defendant’s initial burden. (May 15, 2013)

In Henry v. MTA, the New York Supreme Court, Appellate Division, Second Department, addressed the issue of whether a motion for leave to amend a complaint could be made long after the case was certified as ready for trial. The plaintiff sought to amend his complaint, originally alleging personal injuries, to add a cause of action for wrongful death. The court granted the plaintiff’s motion because although the plaintiff delayed in making the motion until after the case had been certified, the defendants did not demonstrate that they would be significantly prejudiced by the amendment and could not claim any surprise in light of the nature of the injuries and the defendant’s knowledge of the decedent’s hospitalizations and deteriorating condition. (May 15, 2013)

In USA v. CITGO Asphalt Refining Co., the United States Court of Appeals for the Third Circuit evaluated a contract claim concerning a safe port/safe berth warranty in relation to a dispute between three parties attempting to apportion monetary liability following an accident in the Delaware River which caused approximately 263,000 gallons of crude oil to spill into the river.  The court found the owner of the ship whose hull was damaged by an abandoned anchor laying on the bottom of the river was an implied beneficiary of the safe berth warranty of the CITGO affiliates who owned the dock 900 feet from the damaging sunken anchor. It also concluded that the safe berth warranty was an express assurance of safety and that the named port exception to the warranty did not apply to hazards that were unknown to the parties and not reasonably foreseeable. (May 16, 2013)

In Green v. City of New York, the New York Supreme Court, Appellate Division, 1st Department, addressed the issue of whether an incorrect address in a notice of claim is grounds for dismissal of a plaintiff’s cause of action in a personal injury matter.  The court held that dismissal was inappropriate because the mistake in the notice was not made in bad faith, nor was it intended to mislead or confuse the City. Further, the City had an obligation to put forth at least "a modicum of effort" to investigate a notice of claim and to obtain missing information. (May 9, 2013)

In Schwartz v. Empire City Subway Company, the New York Supreme Court, Appellate Division, 1st Department, addressed whether lack of prior notice is grounds for dismissal of a personal injury matter. The court held that the plaintiffs failed to raise a triable issue of fact as to whether the defendant had notice of the latent slippery condition of the manhole cover.  Since plaintiffs could not establish this element to their personal injury cause of action, the defendant was entitled to summary judgment. (May 9, 2013)

In Ajemian v. Yahoo!, Inc., the Appeals Court of Massachusetts reviewed, in a case involving whether emails sent by the deceased are property of the estate, whether forum selection clauses in an online contract can be enforced against the administrators of the estate. The court determined that administrators of the estate were not parties to the contract and, absent a term in the contract, were not bound by the forum selection clause. (May 7, 2013)

In Nat’l Amusements Inc., v. The Borough of Palmyra, the United States Court of Appeals for the Third Circuit addressed constitutional claims brought under section 1983, relating to restrictions placed on an open-air flea market. The court held that the section 1983 claims were properly dismissed in their entirety, and attorneys’ fees under section 1988 were not warranted for interim relief obtained through a consent order. (May 9, 2013)

In Scion Breckenridge v. ASB Allegiance Real Estate Fund, the Supreme Court of Delaware addressed whether three real estate joint venture agreements could be reformed on the basis of unilateral mistake and known silence by the other party. The court held that reformation of the agreements was warranted and adopted the standard set forth in the Restatement (Second) of Contracts §157. The court further held that the attorneys’ fees and costs awarded based on the contractual fee-shifting provisions of the agreements were improperly awarded and remanded for further consideration. (May 9, 2013)

In Walston v. Deutsche Bank National Trust Co., the Supreme Court of Delaware addressed whether a Motion for Reconsideration of the Superior Court Commissioner’s decision was properly denied, with respect to the court’s discretion to set aside a sheriff’s sale. The court held that the motion was properly denied and that the competing valuations of the property in question were properly considered. (May 9, 2013)

In SFG Venture, LLC v. 34-10 Development, LLC, et al., the New York Supreme Court, Appellate Division, 1st Department, addressed the issue of whether a bank can establish prima facie entitlement to summary judgment by producing the mortgage, note, and guaranty executed by defendants in a mortgage foreclosure action. The court held that bank’s production shows that no material fact exists in this matter. Thus, the bank was entitled to summary judgment. (May 9, 2013)

In MD Mall Assoc., LLC v. CSX Transp., Inc., the United States Court of Appeals for the Third Circuit addressed whether a property owner who brought suit against a railroad company for alleged violations of the Federal Railroad Safety Act (FRSA) was subsequently preempted from bringing state law tort claims for damages arising from the incident. The court held that the tort claims were not preempted as a matter of law because the FRSA’s regulations provide no affirmative indication of their effect on negligence law. (April 30, 2013)

In Bartolomeo v. Marshall, the Superior Court of Pennsylvania declined to open a judgment of non pros entered against an unrepresented plaintiff.  The plaintiff’s claim that he was prejudiced due to the defense’s failure to include the correct address of the lawyer’s referral service on the notice was unpersuasive as this was a slight defect.  Second, the claim against the defendants for social host liability lacked merit as there was no evidence that alcohol/drugs were furnished by the defendants, neighboring landowners, to the plaintiff. (May 2, 2013)

In Stewart v. Foxworth, the Superior Court of Pennsylvania addressed whether Pa.R.C.P. 218 allows for the imposition of monetary sanctions against an attorney for failure to appear. The plaintiff’s attorney failed to attend and failed to give the court adequate notice of his absence during multiple court appearances.  The court held that there is no authority to sanction an attorney with a monetary fine under Rule 218.  Rather, a court may only enter a nonsuit or a non pros for a plaintiff’s attorney’s failure to appear. (April 19, 2013)

In Turner v. Township of Irvington, the Superior Court of New Jersey, Appellate Division, addressed the scope of governmental immunity for the delivery of 911 services. Under the 911 immunity statute, N.J.S.A. 52:17c-10(d), a public-entity employer is immune for negligence in delivering 911 services unless its operators act in willful disregard for the safety of persons or property. The court held, however, that the Tort Claims Act, N.J.S.A. 59:2-2(a), provides broader immunity protection than the 911 immunity statute because it shields a public-entity employer from vicarious liability for even willful or wanton misconduct of its employees. (April 23, 2013)

In Hopkins v. Erie Insurance Company, the Superior Court of Pennsylvania addressed the triggering of the statute of limitations on an underinsured motorist claim. According to the court, the statute of limitations on an underinsured motorist claim, an action based in contract, begins to run when the insured settles with, or secures a judgment against, the underinsured owner or operator, and therefore, as four years had passed since the claimant’s initial settlement, her petition was time-barred. (April 19, 2013)

In Sprint Communications v. Jacobs, the United States Supreme Court granted a petition for a writ of certiorari to address whether the federal abstention doctrine under Younger v. Harris requires abstention not only when there is a related state proceeding that is “coercive” but also when there is a related state proceeding that is only “remedial.” (April 15, 2013)

In Kiobel v. Royal Dutch Petroleum, the United States Supreme Court, addressed whether a group of Nigerian nationals residing in the United States could hold foreign corporations liable under the Alien Tort Statute (ATS) for aiding and abetting the Nigerian government in committing violations of the law of nations in Nigeria. The Court held that petitioners were not entitled to relief under the ATS because the relevant alleged conduct took place outside of the United States. The Court further opined that even where such claims touch and concern the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. (April 17, 2013)

In Warren Hospital v. John Does, the Superior Court of New Jersey, Appellate Division held that plaintiffs could pursue discovery through subpoena directed to multiple internet service providers for purpose of obtaining the identity of anonymous computer hackers that were alleged to have hacked into the plaintiffs’ computer system for purposes of publishing defamatory e-mails. (April 5, 2013)

In Keller v. Mey, the Superior Court of Pennsylvania held that Pennsylvania Rule of Civil Procedure 237.1, which concerns the notice requirements for intent to enter a praecipe for default judgment or non pros, does not require the independent filing of the 10-day notice intent. The court held that Rule 237.1 only requires that the 10-day notice be attached to the praecipe when it is filed with the Prothonotary. (April 10, 2013)

In SEPTA v. City of Philadelphia, the Supreme Court of Pennsylvania granted a Petition for Allowance of Appeal on the following issues:

  1. Whether SEPTA is a Commonwealth agency which deprives the Philadelphia Commission of Human Relations of jurisdiction to consider discrimination claims against SEPTA?
  2. Whether the Commission on Human Relations should have been permitted to determine any challenges by SEPTA to its jurisdiction in the first instance? (April 11, 2013)

In Mandal v. Port Authority of NY and NJ, the Superior Court of New Jersey, Appellate Division, addressed the applicability of the heightened standard of care imposed on common carriers. The court found that, since the plaintiff was injured in a station, as opposed to on a train or embarking or disembarking from a train, the Port Authority was an occupier of land and the heightened standard of care did not apply. (April 4, 2013)

In Verdejo v. New York City Housing Authority, the New York Supreme Court, Appellate Division, addressed the pleading requirements of a plaintiff in a personal injury action. The court held that the defendant was entitled to summary judgment because the plaintiff raised her theory of liability for the first time in her opposition to the defendant’s motion for summary judgment. (April 4, 2013)

In Scientific Games International, Inc. v. Commonwealth of Pennsylvania, the Supreme Court of Pennsylvania addressed whether the Board of Claims had exclusive jurisdiction over a procurement contract with the Commonwealth. The court acknowledged that the 2002 amendments to the Procurement Code provided that a party may seek non-monetary relief in a forum other than the Board of Claims.  The court stated that “as a matter of jurisdiction – if the General Assembly has not specifically provided by statute for such non-monetary relief in a claim arising from a contract entered into by a Commonwealth agency under the Procurement Code, then either the claim is within the exclusive jurisdiction of the Board of Claims or it is barred by sovereign immunity.” The court held that non-monetary claims against the Commonwealth are cognizable only to the extent they fall within a specific waiver or exception to immunity. (March 25, 2013)

In The Standard Fire Insurance Company v. Greg Knowles, the United States Supreme Court addressed whether a class-action plaintiff’s stipulation, prior to certification of the class, that he, and the class he seeks to represent, will not seek damages in excess of $5 million removes the case from the scope of the Class Action Fairness Act (CAFA).  The CAFA provides jurisdiction to the District Court if the aggregate sum of the claims of the individual class members exceeds $5 million.  The Court held that a plaintiff who files a proposed class action cannot legally bind members of the proposed class before the class is certified. (March 19, 2013)

In Borough of East Rutherford v. East Rutherford PBA Local 275, the Supreme Court of New Jersey reviewed a public-sector arbitration award concerning the provision of health benefits under a collective bargaining agreement.  The court held that the “reasonably debatable” standard controls the review of public-sector arbitration awards and, under that standard, a reviewing court may not substitute its own judgment for that of the arbitrator.  The court sustained the award based on a finding that the arbitrator’s conclusions fell within the range of what is reasonably debatable. (March 19, 2013)

In North Carolina Department of Health and Human Services v. E.M.A,  the United States Supreme Court held that the Federal Medicaid anti-lien provision pre-empts North Carolina’s effort to take a portion of a Medicaid beneficiary’s tort settlement.  The North Carolina statute created an irrebuttable statutory presumption that, when Medicaid expenditures exceed one-third of the tort recovery, one-third of the recovery represents compensation for medical expenses, even if the settlement allocated less.  The Court found that the anti-lien provision pre-empts the statute because North Carolina set an arbitrary percentage, with no mechanism for determining if the allocation was reasonable, which could allow the State to take a portion of the Medicaid beneficiary’s tort settlement not designated for medical care. (March 20, 2013)

In Northwest Wissahickon Conservancy, Inc. v. Philadelphia City Planning Commission, the Commonwealth Court of Pennsylvania addressed whether approvals of real estate development plans by the City of Philadelphia Planning Commission were appealable “adjudications” under the Local Agency Law, 2 Pa. C.S. § 752.  The court held that because the Planning Commission’s approvals were not “final order[s], decree[s], decision[s], determination[s] or ruling[s],” but were instead merely “recommendations” requiring approval by the city council, they were not appealable adjudications under the Local Agency Law. (March 5, 2013)

In 612 Associates, L.L.C. v. North Bergen Municipal Utilities Authority, the Supreme Court of New Jersey addressed whether a sewage authority that treats sewage through a direct or indirect connection could charge a connection fee that was statutorily authorized for entities that owned and operated the sewer lines.  The court held that it was consistent with the language of N.J.S.A. 40:14A-8 and N.J.S.A. 40:14B-22 for each sewage authority that handles and treats sewage, whether through a direct or indirect connection, to charge a non-duplicative connection fee that proportionately reflects the use of its system and contributes towards the system’s cost. (March 7, 2013)

In Bluetarp Financial v. Matrix Construction, the United States Court of Appeals for the First Circuit addressed whether personal jurisdiction existed over a South Carolina corporation sued in Maine.  The court determined that specific personal jurisdiction existed because the cause of action was related to the corporation’s contacts with Maine (relatedness factor), the contacts with Maine were not random, isolated, or fortuitous (purposeful availment factor), and the exercise of jurisdiction was not inconsistent with notions of justice and fair play (reasonableness factor). (March 1, 2013)

In Caprio v. Healthcare Revenue Recovery Group, LLC, the United States Court of Appeals for the Third Circuit addressed the issue of notice of debtor rights and dispute procedure in debt collection efforts.  The court held that the debt collector violated the Fair Debt Collection Practices Act (FDCPA) by misleading the debtor into thinking that a debt could be disputed over the telephone when, according to the FDCPA, debts must be disputed in writing. (March 1, 2013)

In Halvorsen v. Villamil, the Superior Court of New Jersey, Appellate Division, addressed whether the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act requires eyewitness testimony to prove a person was served an alcoholic beverage while visibly intoxicated. The court held that the visible intoxication requirement could be satisfied through direct and circumstantial evidence of record, and that eyewitness testimony was not required to support a finding of liability. (March 6, 2013)

In Freeman v. Pittsburgh Glass Works, LLC, the United States Court of Appeals for the Third Circuit addressed whether a court order to administratively close a case would subsequently deprive the court of jurisdiction to reopen the matter when the parties’ attempts at non-judicial resolution failed. The court held that while orders to “dismiss” are final, orders to “close” are not final, and therefore have no effect on the court’s jurisdiction. (March 6, 2013)

In Premier Capital v. KMZ, the Supreme Judicial Court of Massachusetts addressed whether a suit to recover under a sealed promissory note executed in 1987 was subject to the six-year statute of limitations set forth in art. 3 of the Uniform Commercial Code (UCC), which was enacted into law in Massachusetts in 1998 or the twenty-year statute of limitations governing actions on contracts under seal under a prior Massachusetts statute.  The court held that the UCC statute of limitations applies to both sealed and unsealed instruments, but does not apply retroactively to causes of action that accrued before its 1998 enactment, as the cause of action here had. (March 7, 2013)

In Miller v. SEPTA, the Commonwealth Court of Pennsylvania addressed whether a state common law cause of action for flooding damage caused by a poorly-maintained railroad bridge over a stream was preempted by the Federal Railroad Safety Act.  The court held that the common law cause of action was preempted because the federal statute specifically prescribes regulations that cover the subject matter at issue, i.e. the duty to maintain a water course under a roadbed. (March 7, 2013)

In Motley v. Seaside Park Zoning Board, the Superior Court of New Jersey, Appellate Division, reinstated a stop work order precluding a resident from continuing construction that exceeded the scope of zoning permits.  The court held that the homeowner could not rebuild a non-conforming structure without obtaining proper permits, and the homeowner’s expenditure of significant funds to rebuild was not a defense to the stop work order. (March 4, 2013)

In Townsend v. Pierre, the Superior Court of New Jersey, Appellate Division, addressed whether the trial court erred in barring the plaintiff’s expert testimony to the effect that overgrown shrubs were a significant cause of a motor vehicle accident as a net opinion.  The court held that while the unconditional admission of the expert’s opinion on causation would be inappropriate in light of the defendant’s testimony that she had an unobstructed view of the street, it would be proper to consider the opinion so long as a hypothetical question and limiting instruction were issued. (February 25, 2013)

In Clapper v. Amnesty International, the United States Supreme Court declined to find standing to challenge the constitutionality of the Foreign Intelligence Surveillance Act of 1978, which permits the government to authorize the surveillance of individuals who are not “United States per¬sons” and are reasonably believed to be located outside the United States.  The plaintiffs were United States citizens who engaged in sensitive communications with individuals who could potentially be targeted for surveillance under the Act.  Article III standing to challenge the Act was not found as the plaintiffs could not demonstrate a harm which was concrete, particularized, actual or imminent, fairly traceable to the challenged action and redressable by a favorable ruling.  Furthermore, the plaintiffs could not create standing merely by as taking extraordinary precautions (i.e. buying plane tickets as opposed to making telephone calls) based on a fear of hypothetical future harm from potential future surveillance. (February 26, 2013)

In Pabon v. Miggy’s Corp., the Superior Court of Pennsylvania, addressed whether the trial court erred in dismissing plaintiffs’ complaint due to a lack of actual or constructive notice in a slip and fall case.  The court found that while deposition testimony of supermarket employees may have revealed a “less than vigilant attitude” after the plaintiff fell, it was insufficient evidence of notice of the puddle which allegedly caused her to fall. (February 25, 2013)

In Commonwealth of Massachusetts v. U.S. Nuclear Regulatory Commission, the United States Court of Appeals for the First Circuit addressed whether the environmental findings on spent fuel pool fires and core damage events in an environmental impact statement (EIS) prepared under the National Environmental Policy Act (NEPA) for relicensing of a Massachusetts nuclear power plant had been proven inadequate by the Fukushima disaster. While the emergence of new information will require federal agencies to supplement an EIS, the court determined that the agency had not acted in an arbitrary and capricious manner in refusing to revise the EIS following Fukushima. (February 25, 2013)

In Cameron Painting, Inc. v. University of Massachusetts, the Appeals Court of Massachusetts addressed whether a three-year statute of limitation (applicable to claims against the commonwealth) or a twenty-year statute of limitation (applicable to contracts under seal) applied to a claim arising from a contract under seal regarding painting services for the University of Massachusetts. The court concluded that the plain language of the statute conveyed the explicit intent of the Legislature that all claims against the Commonwealth for breach of contract must be brought within three years of their accrual, regardless of whether the contract was made under seal, which was an express limitation on the scope of sovereign immunity that the Legislature intended to waive.

In Rubin v. Harvard University, the United States Court of Appeals for the First Circuit addressed whether United States citizens injured in a terrorist attack in Jerusalem by Hamas, who had obtained a default judgment against the Republic of Iran based on its alleged material support of Hamas, could attach by trustee process, Iranian antiquities in the possession of Harvard University and the Museum of Fine Arts, Boston. The court concluded that the antiquities could not be attached because only “blocked assets” can be attached under the Terrorism Risk Insurance Act of 2002 (TRIA), which carves out an exception to the normal rule that foreign sovereign assets are immune from attachment and execution. The antiquities were not “blocked assets” because Iran has never made a claim to, or directed transfer of, any of the antiquities at issue. (February 27, 2013)

In McCutcheon v. Federal Election Commission, the United States Supreme Court agreed to decide the constitutionality of biennial aggregate limits on individual donations made directly to presidential or congressional candidates, political parties, and other political committees. (February 19, 2013)

In Cid v. Erie Insurance Group, the Superior Court of Pennsylvania addressed the procedure for challenging proper venue in response to a petition for an underinsured motorist arbitration.  The court held that, in conjunction with the local Philadelphia County rules, improper venue is to be raised in the answer to the petition.  The court cautioned litigants to consult local rules to determine whether preliminary objections are, instead, required in other counties. (February 15, 2013)

In Tera Knoll v. City of Allentown, the United States Court of Appeals for the Third Circuit addressed the standard of review applicable to the dismissal of a post-trial motion as a sanction for noncompliance with procedural rules.  The court refused to extend the standard applicable to dismissals prior to an adjudication on the merits to the post-trial context where the litigant has already had his day in court.  Instead, the court held that dismissal of a post-trial motion as a sanction is reviewable for a mere abuse of discretion. (February 21, 2013)

In Residences at Cape Ann Heights Condominium Association v. Halupowski, the Appeals Court of Massachusetts addressed whether an action to enforce a statutory lien of $3,759.55 on a condominium unit was within the Superior Court’s jurisdiction, which requires a $25,000 minimum amount in controversy.  Noting that the $25,000 minimum only applies to actions for money damages, the court held that the remedy sought was forced sale of a condominium unit worth over $150,000, and thus the suit was not the type the legislature had sought to remove from Superior Court jurisdiction through the minimum amount in controversy requirement. (February 21, 2013)

In Massachusetts Housing Opportunities Corporation v. Whitman & Bingham Associates, the Appeals Court of Massachusetts addressed whether time for filing tort and contract claims arising from a dispute regarding a bid for a contract for a wastewater treatment plant had been tolled under the discovery rule until the full actual cost of the wastewater treatment plant was known.  The court determined that the statute of limitations was not tolled because the property development authority reasonably should have known that the original design was not feasible and that costs of the system design were escalating. (February 21, 2013)

In Mulholland v. the Government of County of Berks, Pennsylvania, the United States Court of Appeals for the Third Circuit addressed whether the removal of several children living in the family home as a result of the guardian being listed on ChildLine as an “indicated” perpetrator of child abuse violated his procedural and substantive due process rights. The court held that there was no constitutional violation because there was no established “municipal policy or custom” and that such activity did not shock the conscience because it was not unreasonable for the county to believe that the person committed child abuse and posed an immediate threat to children residing with him. (January 29, 2013)

In McWeeney v. Estate of Strickler, the Pennsylvania Superior Court addressed whether a named insured’s election of limited tort on an automobile insurance policy could be applied to a permissive driver of the vehicle when that permissive driver was named as the “principal driver” of the vehicle.  The court held that since the injured person was not a “named insured” under the policy, did not have an insurance policy of her own, and since the definition of “insured” under the policy was a narrower definition than that in the applicable Pennsylvania statute, the definition of “insured” in the Pennsylvania statute must apply and the limited tort portions of the policy could not apply to the permissive driver. (January 30, 2013)

In Pierre v. Post Commercial Real Estate Corp., the Pennsylvania Superior Court addressed the issue of leave to amend the Complaint.  The court held that the plaintiff could amend the Complaint as to those issues which were still within the applicable statute of limitations. (January 30, 2013)

In Ass’n New Jersey Rifle and Pistol Clubs v. Governor of the State of New Jersey, the United States Court of Appeals for the Third Circuit addressed New Jersey’s One Gun Law and its relation to federal law.  The court held that because the New Jersey law regulates but does not prohibit the sale of B-B and air guns, New Jersey’s One Gun Law is not preempted by federal law.  Further, the exemptions to the One Gun Law do not violate the Due Process Clause of the Fourteenth Amendment because the parties do not have a property interest which was impaired by requiring documentation for requesting an exemption. (January 30, 2013)

In Shapiro v. City of Worcester, the Supreme Judicial Court of Massachusetts addressed whether a 2010 decision concluding that nuisance claims fell under the Massachusetts Tort Claims Act, and holding that that decision would apply retroactively, invalidated nuisance claims that had been brought prior to the decision that had not followed the procedural requirements of the Massachusetts Tort Claims Act.  The court determined that although the decision had made the change in substantive law retroactive in order to create a uniform body of law, that it would be unfair to invalidate claims for failure to fulfill the procedural presentment requirement which had not applied at the time the presentment would have been due. (January 30, 2013)

In Estate of Steven Gavin v. Tewksbury State Hospital, the Appeals Court of Massachusetts addressed whether an attorney, who is not a duly appointed executor or administrator of an estate, may act as a claimant under the Massachusetts Tort Claims Act, for purposes of having the legal capacity to make a valid presentment under that statute.  The court concluded that the attorney was not a valid claimant, the presentment letter was thus defective, and the suit must be dismissed for a failure of presentment. (January 18, 2013)

In Clair v. Clair, the Supreme Judicial Court of Massachusetts addressed whether, in a dispute over a family business, the executrix of a director and shareholder was entitled to discovery concerning privileged communications from corporate counsel.  The court concluded that, because the executrix of the shareholder’s estate did not step into that shareholder’s role as a director of the company, she was not entitled to have access to the privileged communications with corporate counsel beyond matters the parties had placed at issue in the case. (January 25, 2013)

In Wright v. Eastman, the Superior Court of Pennsylvania addressed the standard for summary judgment. The court held that even uncontradicted testimonial evidence does not support the award of summary judgment because the credibility witnesses and weight to be afforded experts is within the province of the jury. (January 18, 2013)

In Commonwealth of Pennsylvania Office of the Governor v. Donahue, the Commonwealth Court of Pennsylvania addressed whether the duty of an agency to respond to a request for records under Section 901 of the Right-To-Know-Law is triggered by receipt of the request by any employee.  Based on the plain language of Section 901, which states “[t]he time for response [to a request] shall not exceed five business days from the date the written request is received by the open-records officer for an agency,” the court found the statutory language unambiguous, and held that once the open-records officer for an agency, not any agency employee, receives a written request for records, the agency has five business days to respond to the request. (January 23, 2013)

In Zimmerman v. Norfolk Southern Corporation, the United States Court of Appeals for the Third Circuit addressed preemption under the Federal Railroad Safety Act in light of its 2007 amendment. The court held that, if the defendant allegedly violated either a federal standard of care or an internal rule that was created pursuant to a federal regulation, there is no preemption. In contrast, the court held that, if any federal regulation covers the plaintiff’s claim, meaning the regulation “substantially subsume[s] the subject matter” of the claim, then there is preemption. (January 23, 2013)

In Robinson v. Cook, the United States Court of Appeals for the First Circuit addressed whether an arrest that was ultimately dismissed by the state trial court could form the basis of a claim for false imprisonment. The court determined that, although the criminal charges were ultimately dismissed, the arrests were supported by probable cause, and could not form the basis of a false imprisonment claim. (January 23, 2013)

In Nielsen v. Wal-Mart Store #2171, the Superior Court of New Jersey, Appellate Division, addressed whether a retail store had a duty to warn its independent contractor’s employee of a hazardous condition at an area of the store’s facility that the store’s developer was contractually bound to repair and maintain.  The court held that factors such as the relationship of the parties, the nature of the attendant risk, the foreseeability and preventability of the accident, and the public interest weighed in favor of imposing a duty on the store. That is because (1) a “plaintiff is otherwise left to ascertain the applicable contractual terms and the developer’s identity rather than simply seek relief against the [store] owner”; (2) loose sand and gravel in a shared parking lot could have been easily addressed by the store; and (3) “without the imposition of tort liability on abutting occupiers of land, innocent plaintiffs who suffer injuries will be left without recourse and abutting occupiers would have no incentive to remedy the hazardous condition.” (January 11, 2013)

In Advancement Project v. Pennsylvania Department of Transportation, the Commonwealth Court of Pennsylvania concluded that PennDOT properly refused to provide the plaintiff with information about the drivers’ licenses it issued over the past four years.  The court concluded that under the Right to Know Law the information contained within a Pennsylvania driver’s license and a non-driver photo identification card does not have to be produced as the identification cards are considered a type of driving record exempted under the act.  Furthermore, the court held that the federal Privacy Act prevented the disclosure of certain personal information in the control of state departments of motor vehicles, and that the Privacy Act’s research exception did not apply as the information sought was not a public record. (January 14, 2013)

In Allegheny County Department of Administrative Services v. Parsons, the Commonwealth Court of Pennsylvania addressed a televisions reporter’s request for disclosure of certain private contractor employee information under the Right to Know Law.  The reporter sought the payroll list of a third-party contractor who provides social services for Allegheny County.  The court concluded the requested information did not “directly relate” to the performance of a governmental function, and as such, there was no obligation to produce the information under the Right to Know Law.  The court further held that the third-party contractor must state any exemptions to disclosures under the Right to Know Law upon judicial review.  In this case, the government contractor waived the Personal Identification exception to the Right to Know Law because it did not raise it at any point during the initial phase of the litigation. (January 14, 2013)

In Sayles v. G&G Hotels, Inc., the Superior Court of New Jersey, Appellate Division addressed whether an indemnification provision in a franchise agreement was unequivocal with respect to a claim of negligence. The court acknowledged that an indemnity clause should be strictly construed against the indemnitee.  The court, however, found that this legal principle does not require a “magnified emphasis upon a single ambiguous word in order to give it a meaning contradictory to the fair import of the whole remaining language.”  The court upheld the indemnification provision. (January 16, 2013)

In American Civil Liberties Union of Massachusetts v. United States Conference of Catholic Bishops, the United States Court of Appeals for the First Circuit addressed whether the ACLU’s challenge to a public contract awarded to a religious organization that refused on religious grounds to provide referrals for abortion or contraception remained a live controversy after the expiration of the contract under the voluntary cessation exception to the mootness doctrine.  The court concluded that the voluntary cessation exception was not met because the cessation was simply the expiration of the contract unrelated to the litigation and because there was no reasonable expectation of recurrence. (January 15, 2013)

In Kraft Power Corporation v. Merrill, the Supreme Judicial Court of Massachusetts addressed whether claims against an individual on a theory of corporate disregard survive the death of an individual, such that they may be brought against his estate. The court determined that whether a claim survives the death of the individual is determined by whether the underlying claim would have survived the death of the individual had it been brought directly, and that the equitable application of the theory of corporate disregard did not change the result. (January 14, 2013)

In Alexander v. City of Meadville, the Superior Court of Pennsylvania addressed the liability of a possessor of land to a person who slips and falls on snow and ice on the sidewalk.  The court dismissed the claim because the plaintiff failed to make the necessary showing of actual or constructive notice of snowy/icy conditions and otherwise failed to satisfy the requirements of the hills and ridges doctrine. (December 7, 2012)

In Marlette v. State Farm Mutual Automobile Insurance Company, the Supreme Court of Pennsylvania held that a plaintiff’s delay damages were limited to the amount of the legally-recoverable molded verdict, as was adjusted by the court to reflect insurance policy limits. (December 28. 2012)

In Dennis v. Delaware Racing Authority., the Supreme Court of Delaware dismissed a plaintiff’s claims against a racetrack for his employer’s failure to provide workers’ compensation insurance.  The defendant racetrack did not employ the plaintiff but only leased stalls to the employer.  The plaintiff alleged that the racetrack was (i) negligent in failing to enforce its policy requiring the employer to obtain insurance and (ii) that he was an intended third-party beneficiary of a contract between the racetrack and employer which obligated the latter to obtain insurance.  The Court found no duty to enforce a policy which came into effect after the incident and held that the plaintiff could only sue his employer, and not the racetrack, for failing to comply with the contract. (December 31, 2012)

In Adams v. Aidoo, the Supreme Court of Delaware addressed whether a pro se plaintiff’s failure to respond to written discovery requests warranted dismissal of her claim. The court held that because the plaintiff (i) was personally responsible for failing to respond, (ii) engaged in a history of dilatoriness, and (iii) intentionally refused to respond (indicating that sanctions short of dismissal would not induce compliance), her actions merited dismissal. (January 3, 2013)

In Hoffman v. Borough of Macungie, the Commonwealth Court of Pennsylvania addressed whether, under Pennsylvania’s Borough Code, a mayor is a borough’s chief law enforcement officer. The court held that because the Code provides that a mayor “has the ultimate executive authority over a borough police force” with the “privilege to retain [or delegate] such authority,” a mayor is a borough’s chief law enforcement officer. (January 3, 2013)

In Husak v. Fayette County Tax Claim Bureau, the Commonwealth Court of Pennsylvania addressed whether petitioners seeking to set aside an upset tax sale were “owners” of the property at issue under Section 102 of Pennsylvania’s Tax Sale Law. The court held that because the petitioners purchased the property from Fannie Mae and received a quit claim deed for it, they acquired, at the very minimum, equitable title. Therefore, the petitioners had a “legally recognized interest in the subject property,” satisfying the definition of “owner” under the Law. (January 3, 2013)

In United Stated v. Bormes, the United States Supreme Court addressed whether the federal government waived its sovereign immunity based on the Little Tucker Act and thus was subject to suit under the Fair Credit Reporting Act (FCRA). The Little Tucker Act grants district courts jurisdiction of any civil claim against the United States, not exceeding $10,000, founded upon any act of Congress. The Court held that the Little Tucker Act did not waive the government’s sovereign immunity with respect to the FCRA, though the Court did not decide whether the FCRA itself waives immunity. (November 13, 2012)

In In Re Pharmacy Benefit Managers Anti-Trust Litigation, the United States Court of Appeals for the Third Circuit addressed when a party will be deemed to have waived its contractual right to arbitrate by actively litigating the case. The court found that, where a party fails to demand arbitration during pre-trial proceedings and engages in pre-trial activity inconsistent with an intent to arbitrate, the right to arbitrate has been waived. (November 15, 2012)

In Salsman v. Brown, et. al., the Superior Court of Pennsylvania held that it must be determined whether an attorney had express authority to enter into a settlement agreement before that agreement could be binding upon his clients.  The court further held that, because the clients were questioning their prior counsel’s authority to enter into the settlement, an exception to the attorney-client privilege existed and counsel could testify as to conversations with his clients about the settlement. (August 24, 2012)

In Sovich v. Estate of Andrew Sovich, Jr., the Superior Court of Pennsylvania held that an intra-family written agreement was not a “negotiable instrument” under sections 3104 and 3109 the Uniform Commercial Code (“UCC”).  Therefore, the statute of limitations established by section 3-118(a) of the UCC did not apply.  Instead, the four year statue of limitations contained in 42 Pa.C.S.A. § 5525(7) applied. (August 29, 2012)

In The Philadelphia Housing Authority v. American Federation of State, County, and Municipal Employees, the Supreme Court of Pennsylvania held that where an employee engaged in a pattern of  “extraordinarily perverse and unacceptable sexual harassment of his coworker, and then failed to take responsibility for the conduct”, but only received a verbal warning from his superiors prior to termination, it was against public policy for the arbitrator to reinstate the fired employee to his job with back pay.  The Court noted that PHA has a zero tolerance policy on sexual harassment and that a public employer must be able to “do more than engage in adjectival condemnation when faced with this sort of employee misconduct.” (August 21, 2012)

In Nuveen Municipal Trust v. Withumsmith Brown, P.C., the United States Court of Appeals for the Third Circuit addressed whether the District Court had subject matter jurisdiction over a dispute arising from a loan transaction based on its relation to the bankruptcy proceeding of a non-party. The court held that federal “related to” jurisdiction exists under 28 U.S.C. § 1334(b) because the outcome of the action could conceivably affect the pool of assets available in the bankruptcy estate. The court also held that a federal court can apply the New Jersey Affidavit of Merit statute, but is not required to apply the procedural protections afforded to plaintiffs under the statute. (August 16, 2012)

In Krajewski v. Gusoff, the Superior Court of Pennsylvania addressed whether the plaintiff stated a viable cause of action for defamation, libel, and false light against a newspaper relating to various publications. The court held that the extent to which the public perceived the plaintiff in a false light based on the newspaper’s portrayals raised questions of fact sufficient to survive summary dismissal. (August 14, 2012)

In City of Pittsburgh v. Silver, the Commonwealth Court of Pennsylvania addressed whether a newspaper reporter had the right to compel disclosure of documents contained in a city solicitor’s case file, including efforts to settle pending litigation, pursuant to the Pennsylvania Right to Know Law (RTKL). The court held that, because the Supreme Court of Pennsylvania has the exclusive authority to regulate an attorney’s release of client information, the RTKL does not authorize the disclosure of the attorney’s case file. (August 16, 2012)

In Alderwoods, Inc. v. Duquesne Light Co., the Superior Court of Pennsylvania addressed whether a duty of care was properly imposed on an electric company where, after reconnecting power to a funeral home, the building burned down as the result of an alleged high-voltage surge of power. The court held that the company owed the funeral home a duty of care because the parties had a vendor-customer relationship, the need to restore power safely outweighed the social utility of doing so promptly, and a high-voltage surge was reasonably foreseeable. (July 27, 2012)

In Wallace v. Kmart Corporation, the United States Court of Appeals for the Third Circuit addressed whether a Magistrate Judge has statutory authority to enter a contempt order when a non-party witness fails to comply with a subpoena. The court held that Magistrate Judges are granted contempt authority pursuant to 28 U.S.C. §636(e).  However, the court reversed the contempt order because the Magistrate failed to certify the facts of the alleged contempt to the District Judge, who in turn should have held a hearing to determine those facts. (July 25, 2012)

In Murray v. Plainfield Rescue Squad, the Supreme Court of New Jersey, evaluated whether N.J.S.A. 26:2K-29 provides immunity to a rescue squad, regardless of any negligent delay in transporting a gunshot victim to a hospital. The court determined that, although the statute provides immunity to “officers and members” of a rescue squad for civil damages in rendering “immediate life support services in good faith,” the plain language of the statute does not provide immunity to a rescue squad as an entity. Therefore, the Plainfield Rescue Squad was subject to a civil suit for negligence based on the facts alleged by the plaintiffs. (July 17, 2012)

In Tayar v. Camelback Ski Corp., Inc, the Supreme Court of Pennsylvania addressed, as a matter of first impression, the enforceability of exculpatory clauses in releases for reckless conduct. The court reasoned that recklessness was more akin to intentional conduct than negligent conduct. Further, the court noted that the majority of states refuse to enforce such clauses on public policy grounds. Ultimately, the court held that exculpatory clauses for reckless conduct are unenforceable because they jeopardize safety by removing any incentive to adhere to minimal standards of safe conduct. (July 19, 2012)

In Murphy v. Massachusetts Turnpike Authority, the Supreme Judicial Court of Massachusetts addressed a claim by individuals who pay tolls on the Massachusetts Turnpike that the Turnpike Authority was improperly using the tolls to pay for expenses associated with non-toll roads. The court rejected the claim that the use of toll funds for non-toll roads converted the toll from a fee into an unconstitutional tax. (July 12, 2012)

In Szymanski v. Dotey, the Superior Court of Pennsylvania addressed whether the trial court’s decision not to grant a pro se litigant a new trial after entering judgment against him following his failure to appear was proper. The Court held that under the unique facts of this case, a presumption of receipt of the notice scheduling trial is not established when a party seeking to invoke the mailbox rule has failed to demonstrate a presumption of mailing of the notice or that the notice was actually mailed. (July 12, 2012)

In Rousseau v. Department of Treasury, the United States Court of Appeals for the Third Circuit addressed whether the scope of the waiver of sovereign immunity under section 702 of the Administrative Procedure Act (APA) is limited to review of a “final agency action” as provided in section 704. The court held that section 704 addresses whether a plaintiff has a cause of action under the APA but does not provide a basis for dismissal on grounds of sovereign immunity. Accordingly, the court held that the scope of waiver of sovereign immunity under section 702 is not limited by the “final agency action” provision of section 704. (June 27, 2012)

In Drexelbrook Associates v. Pennsylvania Human Relations Commission, the Commonwealth Court of Pennsylvania addressed whether an action was timely-filed pursuant to Section 9(h) of the Pennsylvania Human Relations Act (PHRA) where the original complaint was filed within the 180-day period but misnamed the defendant, and an amended complaint naming the correct defendant was filed after the period had expired. The court held that, because the original complaint brought the correct party before the PHRC, and because the amended complaint sought only to change a closely-related name of corporate designation, the action was timely. (June 27, 2012)

In Perano v. ORD Sewer Authority, the Commonwealth Court of Pennsylvania addressed whether a municipal sewer authority (Authority) provided proper notice to a resident of its intent to connect a sewer system where the Authority sent the resident an “Official Notice to Connect,” including a copy of the relevant township ordinance, but failing to include all amendments to the ordinance. The court held that, because the missing amendments did not contain information relevant to the resident’s obligation to connect, their omission was de minimis, and notice was proper. (June 27, 2012)

In Fox v. Millman, the Supreme Court of New Jersey held that the doctrine of laches could not be used to foreclose a claim filed within an applicable statute of limitations. The court held that the doctrine of laches should not be used to replace the time limitations set for certain actions by the Legislature. (June 20, 2012)

In Libertarian Association of Massachusetts v. Secretary of the Commonwealth, the Supreme Judicial Court of Massachusetts addressed a lawsuit by a political organization, too small to be classified as a political party under Massachusetts law, seeking to substitute a candidate’s name midway through the process of assembling nomination papers. The court concluded that signatures collected for nomination papers cannot be assigned, and ballot substitution is not available when there was still adequate time to collect signatures in the normal course. (June 18, 2012)

In Petrina v. Allied Glove Corp., the Superior Court of Pennsylvania addressed whether interrogatory responses from a non-party in prior litigation were admissible evidence and sufficient to oppose the defendant’s motion for summary judgment. The court reversed the trial court’s holding that the non-party’s interrogatory responses, which stated that the defendant was the exclusive supplier of asbestos used in its Gold Bond joint compound from 1967 to 1975, constituted inadmissible hearsay insufficient to create a genuine issue of fact for trial. (June 8, 2012)

In Commonwealth v. Office of Open Records, the Commonwealth Court of Pennsylvania addressed whether record requests to the Gaming Board were valid under the Right-to-Know Law even though the request did not mention the Right-to-Know Law or use the Gaming Board’s form adopted for record requests. The court held that the request was made under the Right-to Know Law regardless of the fact that the requester did not mention the Right-to-Know Law or use the Gaming Board’s form, and remanded the action back to review whether the Gaming Board should grant or deny access to those records in accordance with the Right-to-Know Law. (June 11, 2012)

In Quinones v. Department of Transportation (DOT), the Commonwealth Court of Pennsylvania addressed whether a narrow median and lack of guardrail on a state roadway that allegedly caused a motor vehicle crossover accident constituted a defect in real property sufficient to overcome sovereign immunity.  The court held that the condition of the highway did not render it unsafe for its intended purposes, i.e. travel on the roadway, so as to subject DOT to the waiver exception to the Sovereign Immunity Act, 42 Pa. C.S. § 8522(b)(4). (June 5, 2012)

In Boland v. George S. May International Company, the Appeals Court of Massachusetts addressed the effect of a forum selection clause that provided “jurisdiction shall vest in the state of Illinois.”  The court determined that this language created only permissive forum selection, effectively a waiver of any defense of lack of personal jurisdiction, and not mandatory forum selection to divest other states of jurisdiction. (June 7, 2012)

In Johnson v. School Committee of Sandwich, the Appeals Court of Massachusetts addressed the legal status of a school superintendent whose contract had been renewed at a meeting that may have violated the open meeting law. The court held that the meeting would become invalid only if an action was brought in court to invalidate the meeting and that, until then, the renewed contract was valid. (June 7, 2012)

In Weiley v. Albert Einstein Med. Ctr., the Superior Court of Pennsylvania addressed the standard for the element of intent in the tort of intentional interference with a dead body. The court held that the element of intent is established by showing either a desire to cause mental distress or a belief or knowledge that one’s conduct is substantially certain to cause the plaintiff mental distress.  Further, the court declined to recognize the tort of negligent interference with a dead body. (May 25, 2012)

In Smith v. Massachusetts Bay Transportation Authority, the Supreme Judicial Court of Massachusetts addressed whether the 2009 law making the Massachusetts Bay Transportation Authority a “public employer” covered by the Massachusetts Tort Claims Act had retroactive effect for purposes of calculating post-judgment interest. The court concluded that the law does not have retroactive effect, and that the plaintiff was entitled to post-judgment interest up to the effective date of the act, but not post-judgment interest after the effective date of the act because the right to that future interest had not accrued at the time of the act. (May 31, 2012)

In Manahawkin Convalescent v. O'Neill v. Broadway Health Care Management, the Superior Court of New Jersey, Appellate Division, the court addressed whether a nursing home's lawsuit filed against the family of a resident to collect the outstanding debt owed for services rendered for the resident’s care, violates the Consumer Fraud Act. The court held that the "learned professional" exception to the Consumer Fraud Act applies to hospital billing activities due to state and federal regulations associated with the receipt of Medicaid and Medicare funding. Based upon that exception, the court concluded that defendant's nursing home is similarly regulated and as such, their billing services fall within the "learned professional" exception of the CFA. (May 31, 2012)

In Taniguchi v. Kan Pacific Saipan, Ltd., a personal injury action, the United States Supreme Court addressed whether “compensation of interpreters,” as used within the Court Interpreters Act, which amended 28 U.S.C.§ 1920, includes the cost of document translation in the costs that may be awarded to prevailing parties in federal court. The Court held that “compensation of interpreters” is limited to the cost of oral, not document translation. (May 21, 2012)

In W.J.A. v. D.A., the Supreme Court of New Jersey addressed the doctrine of presumed damages in a defamation case. The court held that the Internet publication of statements of alleged sexual abuse by a private person was not public concern and therefore did not trigger the actual malice standard. The court further held that, in matters that do not involve a public figure, public official or public concern, a private plaintiff need only prove fault, and is not barred from recovering presumed damages. (May 21, 2012)

In Lyons v. Duncan, the Appeals Court of Massachusetts addressed the sufficiency of contacts to establish personal jurisdiction. The court held that two letters were insufficient to constitute transacting business in Massachusetts as required by the long arm statute. (May 23, 2012)

In Gorbatova v. Semuels, the Supreme Judicial Court of Massachusetts addressed the propriety of an individual’s court petition seeking disciplinary action for an attorney’s alleged violation of the Rules of Professional Conduct. The court concluded that there is no private right of action to seek disciplinary action against an attorney. (May 23, 2012)

In Vizcaino v. Commonwealth, the Supreme Judicial Court of Massachusetts addressed the availability of summary contempt, a criminal sanction without due process protection available when a judge has personally witnessed the contempt, and swift punishment is necessary to maintain order in the courtroom. The court held that this procedure, which requires notice and written judgment, is available to a judge to punish an individual’s refusal to testify. (May 21, 2012)

In Lasky/AFDA v. Moorestown Township, the Superior Court of New Jersey, Appellate Division held that a showing that a plaintiff is disabled and that a public property is inaccessible is not sufficient to entitle a plaintiff to a judgment as a matter of law under the ADA and NJLAD. As the defendant must make a reasonable accommodation, a jury is needed to undertake a fact sensitive analysis regarding the public entity’s actions. The court further declined to hold that, if a plaintiff proposes methods of making public property accessible, the burden of proof shifts to the defense to show that they are not achievable without undue burden. As the defendant had an alternative, effective means of access to the property, it was not required to show that the plaintiff’s suggested means of access was impractical. (May 11, 2012)

In a separate appeal on the same matter, the Appellate Division considered whether a request for assistance/accommodation from a plaintiff is required to sustain a NJLAD claim for public accommodation disability discrimination. The court noted that in a failure to accommodate claim, a plaintiff will likely be required to first request and then be denied accommodation in order to sustain a claim. However, in an overall lack of access claim, a plaintiff is not required to first request accommodation from the public entity prior to bringing suit. (May 11, 2012)

In Seals v. County of Morris, the Supreme Court of New Jersey addressed the extent of immunity afforded utility companies for placement and maintenance of utility poles along public roadways. The court reaffirmed that if a governmental entity directs a utility company where to place a utility pole, the company is immune from liability. However, absent a governmental directive, there is no immunity from liability and ordinary negligence standards will apply. (May 14, 2012)

In Vita v. Berman, DeValerio & Pease, LLP, the Appeals Court of Massachusetts addressed what conduct is sufficient evidence to demonstrate an implied contract regarding referral fees between lawyers. The court held that, in the absence of a written contract, extensive correspondence and a referral list was sufficient evidence to demonstrate that an implied contract existed. The court further held that the defendant law firm’s attempt to pressure the plaintiff into accepting a referral fee lower than agreed upon constituted an unfair and deceptive trade practice in violation of Chapter 93A, entitling the plaintiff to multiple damages. (May 17, 2012)

In Cumberland Farms, Inc. v. Framingham Division of the District Court Department, the Appeals Court of Massachusetts addressed whether the clerk magistrate has the authority to act on contested motions in small claims matters. The court concluded that the clerk magistrate does have the authority to act on contested motions, and was within his authority in denying the plaintiff’s motion to amend its statement of small claim. (May 11, 2012)

In Melone v. Department of Utilities, the Supreme Judicial Court of Massachusetts addressed whether the plaintiff’s status as a National Grid ratepayer gave him standing to intervene in a proceeding before the Department of Public Utilities regarding the Cape Wind project. The court concluded that the Department of Public Utilities acted within its discretion in denying the plaintiff’s motion to intervene. (May 9, 2012)

In Marcus v. City of Newton, the Supreme Judicial Court of Massachusetts addressed whether the city was immune from suit under the recreational use statute. The court determined that the statute merely provides an exemption from liability for negligence, and does not provide immunity from suit. (May 7, 2012)

In Bratic v. Rubendall, the Superior Court of Pennsylvania reversed and remanded an order to transfer a case on the grounds of forum non conveniens from Philadelphia to Dauphin County because the trial court relied on irrelevant factors in reaching its decision, and the moving party failed to offer particularized averments sufficient to satisfy the standard set forth in Cheeseman v. Lethal Exterminator Inc. Specifically, the court held that the fact that none of the appellants were from Philadelphia County is irrelevant to a claim of forum non conveniens. In addition, the court also held that the relevant inquiry regarding witnesses with client-based professions is the impact that participation in a particular venue will have to the witness, not his or her clients. (April 23, 2012)

In Wheeler v. Ulisny, the United States Court of Appeals for the Third Circuit addressed whether the doctrine of sovereign immunity barred claims against the United States Postal Service (USPS) under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., when the USPS allegedly lost several items Wheeler had mailed. The court held that while the FTCA generally waives USPS’s sovereign immunity for claims for money damages arising out of the loss of property, the USPS retains sovereign immunity for “[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” 28 U.S.C. § 2680(b). The USPS was thus immune from suit because the claim arose out of the alleged loss of postal matter. (April 25, 2012)

In Wharton v. Wharton, the Supreme Court of Delaware addressed whether a spouse’s student loans were marital debt. The court held that because the loans were incurred before separation and because both spouses had agreed to joint responsibility for repayment, the loans were marital debt. (April 25, 2012)

In Lin v. Attorney General, the United States Court of Appeals for the Third Circuit addressed a claim for asylum and protection under the Convention against Torture (CAT). The court held that because the petitioners failed to establish “past persecution or a well founded fear of future persecution” under 8 U.S.C. § 1158(b)(1)(B)(i), they were not entitled to asylum, and, because the petitioners acknowledged that they were not tortured in the past on account of their political activity and failed to establish that they would likely be tortured on return, they were likewise not entitled to protection under the CAT. (April 19, 2012)

In Walid, et al. v. Yolanda for Irene Couture, Inc., the Superior Court of New Jersey, Appellate Division, addressed whether the trial court erred in determining that the plaintiffs failed to prove by clear and convincing evidence that they justifiably relied upon material misrepresentations made by defendants respecting the income of a business the plaintiffs purchased. The court held that the plaintiffs justifiably relied upon misrepresentations of the business income which induced them to enter into a contract. (April 5, 2012)

In International Diamond Importers, Ltd. v. Singularity Clark, L.P., the Superior Court of Pennsylvania addressed whether the trial court misapplied the governing legal standard and abused its discretion in granting a directed verdict in favor of the defendant for breach of contract and tortious interference claims. The court held that a new trial was required because there were disputed questions of fact that had to be decided by a jury. (March 22, 2012)

In Solow v. Aspect Resources, LLC, the Supreme Court of Delaware addressed what constitutes good cause for a failure to prosecute a claim under Court of Chancery Rule 41(e). The court held that neither a search for counsel nor participation in settlement discussions was good cause for a two-year period of inactivity that resulted in dismissal of a suit. (March 16, 2012)

In Race Tires America, Inc. v. Hoosier Racing Tire Corp., the United States Court of Appeals for the Third Circuit addressed, as a matter of first impression, whether costs for the collection, processing, and production of electronically stored information (ESI) are taxable against a losing party under 28 U.S.C. § 1920(4). The court held that only costs for scanning of hard copy documents and the conversion of files and videos are taxable, finding that all other costs for preservation, collection, processing, and searching do not constitute “exemplification” or “making copies” within the meaning of the statute. (March 16, 2012)

In Schiavone v. R.J. Aveta, the Superior Court of Pennsylvania addressed whether the Pennsylvania Long-Arm Statute conferred personal jurisdiction over a New Jersey based company that directs no business activities to Pennsylvania with regard to its vicarious liability for a motor vehicle accident involving its employee. The court held that the employee was still within the course and scope of his employment at the time of the accident for purposes of conferring specific jurisdiction under the Long-Arm Statute because the employee’s use of a company car for his commute furthered the business interests of the employer. (March 20, 2012)

In Sackett, et al. v. Environmental Protection Agency, the United States Supreme Court addressed whether the plaintiffs could bring a civil action under the Administrative Procedure Act, 5 U. S. C. §500 et seq., to challenge an administrative compliance order issued by the Environmental Protection Agency (EPA) under §309 of the Clean Water Act, 33 U. S. C. §1319. The Court held that the plaintiffs could bring a civil action under the APA to challenge the issuance of the EPA’s order based on the APA’s provision for judicial review of “final agency action for which there is no other adequate remedy in a court.” (March 21, 2012)

In Wimble v. Parx Casino and Greenwood Gaming & Entertainment, Inc., the Superior Court of Pennsylvania addressed whether the decision to transfer venue from Philadelphia to Bucks County was appropriate.  In the case, the complaint alleged that the plaintiff tripped over a defective electrical cord at a Greenwood Gaming facility in Bucks County. The court held that Greenwood Gaming sustained its burden of demonstrating that venue in Philadelphia was improper.  In doing so, it stated that the “mere solicitation of business in a county does not amount to conducting business.” And, furthermore, Greenwood Gaming’s related Philadelphia County entities were not subsidiaries, but rather sister entities. There was no precedential support for subjecting the defendant to a venue based solely upon the business activities of a sister corporation. (March 9, 2012)

In Pennsylvania, Dept. of Public Welfare v. Sebelius, the United States Court of Appeals for the Third Circuit addressed whether Section 116(b)(3) of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) permits the Department of Health and Human Services (HHS) to conduct its own audits of states’ compliance in returning unused welfare funds to the federal government, or whether the PRWORA §116(b) designates the Single Audit Act (SAA)—which grants states the power to perform their own audits—as providing the exclusive audit procedure. The court held that §116(b)(3) restricts HHS from imposing additional audit requirements on states but does not preclude HHS from conducting its own audits in addition to the single audit procedure granted to the states by the SAA. (March 15, 2012)

In Stewart v. Stewart, the Supreme Court of the State of Delaware addressed whether a provision of a marital property settlement agreement requiring the husband to pay alimony to the wife for the duration of her life was unconscionable, where the husband was unrepresented by counsel when he signed the agreement and the wife had since cohabitated with another man for two years. The court held that because the wife was represented by counsel throughout the proceedings and because her counsel drafted the agreement and hosted the meeting at which the agreement was executed, the agreement’s alimony provision was unconscionable. (March 15, 2012)

In Roache v. Charney, the Supreme Court of Delaware held that plaintiff’s expert reports failed to state a causation opinion, but that it was an abuse of discretion for the Superior Court to deny plaintiff’s request for 24 hour leave to seek a clarification causation opinion from her expert. Although the request for a continuance occurred 8 days before trial, the Supreme Court held that the plaintiff had satisfied the Secrest requirements: (1) that the request included relevant facts relating to the criteria for a continuance included a specific length of time for the continuance; (2) that plaintiff was diligent in getting her expert reports and mistakenly believed that they satisfied the causation element of negligence and that the clarification report would satisfy plaintiff’s burden of proof to survive summary judgment;  and (3) that the inconvenience to the court and opposing parties was insubstantial in light of the fact that plaintiff’s case was dismissed as a result of the denial of the continuance. This case was defended by Dana Spring Monzo of White and Williams. (February 28, 2012)

In the matter of Durando v. The Nutley Sun, the Supreme Court of New Jersey decided whether clear and convincing evidence demonstrated that a local paper acted with actual malice in publishing a false teaser regarding two men charged with securities fraud. The teaser indicated that two men had been “arrested” despite the fact that no arrest had occurred. The Supreme Court held that, despite the paper being guilty of “sloppy” journalism, there was insufficient evidence of actual malice to support a claim for defamation. (February 28, 2012)

In Kappe v. Lentz, Cantor & Massey, Ltd., a concurring opinion was filed in connection with a majority ruling of the Superior Court on the issue of venue in a legal malpractice action. The Superior Court found that, as the Defendant law firm derived 1.7% of its revenue from business in Philadelphia County, business was regularly conducted in Philadelphia County and venue was appropriate.(February 28, 2012)

In Davis v. Devereux Foundation, the New Jersey Supreme Court addressed the duty of due care imposed on caregivers with in loco parentis responsibilities to persons with developmental disabilities.  The Court held that the parties’ relationship, the nature of the risk, the opportunity and ability to exercise care, and public policy, do not justify imposing on such caregivers a “non-delegable duty” to protect residents from harm caused by employees’ intentional acts. (February 29, 2012)

In Simpson v. Colonial Parking, Inc., the Supreme Court of Delaware addressed the duty of care owed by commercial owners/occupiers of land to trespassers and licensees. The court held that the status of a plaintiff who cut across the defendant’s parking lot while riding his bicycle was irrelevant because the landowner’s duty was the same-to refrain from willful and wanton conduct. (February 13, 2012)

In Sayler v. Skutches, the Superior Court of Pennsylvania addressed whether the award of attorneys' fees under Section 509 of the MCARE Act is to be based on the total amount of future medical expenses awarded or only the percentage of the future medical payments actually accrued. At the time of the attorney fee award, the plaintiff had passed away. Noting that Section 509(b) provides that “liability for future damages terminates upon a claimant’s death,” the court held that the “present value” of the plaintiff’s future medical expenses was the amount actually accrued before her death, and that her attorneys’ fees must be calculated on that figure. (February 7, 2012)

In Canot v. City of Easton, the Commonwealth Court of Pennsylvania addressed whether a municipality was entitled to immunity from civil liability pursuant to the exclusivity provisions of the Workers’ Compensation Act, 77 P.S. §§ 1-1041.4, 2501-2708, for injuries sustained by an employee of a private contractor working for the city. Pursuant to the “borrowed servant” doctrine, the court held that the municipality was the employer at the time of the alleged incident because it had the right to control the worker’s performance of his job and, therefore, immune from suit. (February 9, 2012)

In Willie C. Rowe v. Mazel Thirty, LLC, the Supreme Court of New Jersey addressed whether a licensee’s awareness of a dangerous condition is an issue of fact that must be submitted to a jury. Under New Jersey law, a landowner owes a licensee a duty to warn of any dangerous conditions of which the owner knew, or had reason to know, and of which the licensee is reasonably unaware. Because the record presented a genuine issue of material fact regarding the officer’s awareness of the dangerous condition due to his prior visits to the premises, the court held that summary judgment was improper and the question of the officer’s awareness should be submitted to a jury. (February 2, 2012)

In Easton Area School District v. Baxter, the Commonwealth Court of Pennsylvania considered a ruling by the Office of Open Records that a reporter was entitled to emails and email addresses of school officials under the Right-to-Know Law (RTKL). The court refused to find that all emails sent from a work computer were records under the RTKL as some emails could be personal in nature. The court held, however, that emails which documented the school district’s activities and transactions were records and discoverable under RTKL. (January 24, 2012)

In Mabey Bride & Shore v. Schoch, the United States Court of Appeals for the Third Circuit decided whether the Pennsylvania Steel Products Procurement Act (PSPPA) is unconstitutional because it prohibits the use of temporary bridges made out of foreign steel on public works projects. The court rejected the argument that an exception for structures which do not permanently incorporate foreign steel (i.e. temporary bridges) set forth in the Buy America Act preempts the PSPPA. The court reasoned that the Buy America Act provides leave for states to enact more restrictive regulations and was not meant to preempt the PSPPA. (January 24, 2012)

In Doroshow, Pasquale, Krawitz and Bhaya v. Nanticoke Memorial Hospital, the Supreme Court of Delaware held that an attorney’s charging lien exists at common law and must be deducted from a recovery before a hospital’s lien for the cost of medical treatment attaches. The court held that the plaintiff’s attorney was entitled to deduct its contingency fee from the settlement amount before satisfying the provider’s lien, even though the medical expenses far exceeded the value of the settlement. (January 23, 2012)

In Walker v. Guiffre, the Supreme Court of New Jersey addressed the continued validity of the “contingency enhancement” that was first adopted in the context of a fee-shifting provision found in the New Jersey Law Against Discrimination, N.J.S.A. 10:5-27.1, in light of the United States Supreme Court’s rejection of such an enhancement in Perdue v. Kenny A., 130 S. Ct. 1662 (2010). In holding that “contingency enhancements” are still applicable in New Jersey, the court stated that statutory fee-shifting provisions: 1) combat the problem of unequal access to court; 2) provide individuals protected by such statutes with the resources to enforce those rights in court; 3) encourage sufficient representation which is essential to ensuring that the applicable statutes will be enforced; and 4) promote respect for the underlying laws. (January 25, 2012)

In Polzo v. Essex, the Superior Court of New Jersey, Appellate Division addressed whether a county can be sued under the New Jersey Tort Claims Act for injuries arising from a bicycle accident caused by a roadside pothole. In finding that the Tort Claims Act barred the suit, the court held that the county did not create the pothole, was on neither constructive nor actual notice of its existence, and the presence of the pothole was not “palpably unreasonable,” as required to maintain an action against the county. (January 18, 2012)

In Bell Tower Condominium Association v. Haffert, the Superior Court of New Jersey addressed whether a dispute over the refusal of condominium residents to pay a special assessment is required to be submitted to arbitration or another means of alternative dispute resolution.  The court found that such a refusal constituted a “housing-related dispute” under the New Jersey Condominium Act.   Due to the Condominium Act’s requirement that housing-related disputes be brought to some form of alternative dispute resolution, and considering New Jersey law’s strong public policy of favoring arbitration as a mechanism for resolving disputes, the court held that the use of alternative dispute resolution was required. (January 12, 2012)

In J.C.B. v. Pennsylvania State Police, the Superior Court of Pennsylvania addressed whether the lower court properly interpreted the Firearm Prohibition Statute, 18 Pa. C.S.A. § 6105(c)(4), when it found the physician’s certification required to invoke a firearm prohibition was executed by an emergency room doctor conducting the initial exam under § 7302(b) of the Mental Health Procedures Act and not by the examining psychiatrist.  The court found that the record supported the trial court’s determination that the Appellant had been involuntarily committed, pursuant to Section 302 of the MHPA, thus prohibiting him from possessing a firearm pursuant to 18 Pa.C.S.A. § 6105(c)(4). (January 6, 2012)

In Barber v. Commonwealth of Pennsylvania, the pro se Plaintiff originally brought suit against multiple financial institutions for alleged mortgage fraud, breach of contract and other claims connected with her eviction from her home.  After these claims were dismissed for procedural deficiencies, plaintiff brought suit against a number of governmental entities claiming that they improperly impeded her from obtaining default judgments.  The Commonwealth Court of Pennsylvania sustained preliminary objections of the various defendants arguing that the cases had been litigated and the complaint contained no specific allegation of wrongdoing and affirmed the dismissal of the Complaint. (January 9, 2012)

In Compucredit Corp v. Greenwood, the Supreme Court of the United States issued a decision regarding the Credit Repair Organizations Act (CROA), specifically whether the Act precludes enforcement of an arbitration agreement.  Despite the fact that the respondents’ credit card agreement required claims to be resolved by binding arbitration, they filed a lawsuit alleging, inter alia, violations of CROA.  The Supreme Court held that because CROA is silent on whether claims under the Act can proceed in an arbitrable forum, the Federal Arbitration Act (FAA) requires the arbitration agreement to be enforced according to its terms. (January 11, 2012)

In Toney v. Chester County Hospital, the Supreme Court of Pennsylvania decided whether to recognize a cause of action for negligent infliction of emotional distress (NIED) where the plaintiff alleged that she suffered severe emotional distress after a radiologist misinformed her of the results of a fetal ultrasound, leaving her unprepared to see her child born with significant deformities. There was no allegation that the radiologist’s alleged negligence caused any physical harm to the mother or fetus. An evenly divided court held that an NIED claim can be sustained in situations involving a special relationship, such as a pregnant patient and hospital, which makes it foreseeable that extreme emotional harm could result. By operation of law, the split decision is not precedential, but affirms the Superior Court of Pennsylvania’s en banc decision. (December 22, 2011)

In McDade v. Siazon, et. al., the Supreme Court of New Jersey addressed whether a plaintiff who failed to comply with the notice of claim requirements of New Jersey’s Tort Claims Act could avoid the dismissal of his claim by invoking the discovery rule.  The court held that the plaintiff’s claim was barred under the Act because of counsel’s failure to comply with the notice requirement or otherwise file a motion for late notice of claim. (December 22, 2011)

In Price v. Liebfried, the Superior Court of Pennsylvania addressed whether a plaintiff was vicariously liable to herself when she negligently entrusted a vehicle to another and was injured as a result.  The court held the plaintiff’s violation § 1574(a) of the Vehicle Code by negligently entrusting the vehicle to the defendant barred her from a recovery. (December 22, 2011)

In Brandywine Smyrna, Inc. v. Millennium Builders LLC, the Supreme Court of Delaware addressed whether the plaintiff was entitled to prejudgment interest on the amount awarded by the jury in an action for defective construction work. The court held that the plaintiff was entitled to prejudgment interest on its breach of contract claim where there was no differentiation by the jury as to whether the award was for damages in tort (no prejudgment interest recoverable) or contract (where prejudgment interest was recoverable). (December 9, 2011)

In Sodders v. Fry, the Commonwealth Court of Pennsylvania addressed whether a police officer’s admitted violation of the Vehicle Code constituted negligence per se in a personal injury action. The defendant police officer’s vehicle collided with that of the plaintiff while the officer was responding to an emergency call without his lights and sirens in violation of the Vehicle Code.  The court held that, while not every violation of a statute constitutes negligence per se, a violation of the Vehicle Code that causes harm to another person is negligence per se. (December 9, 2011)

In Reilly v. Ceridian Corp., the United States Court of Appeals for the Third Circuit issued a decision regarding the requirement of standing in the context of “future harm” cases.  In a matter involving the potential identity theft of a number of employees, the court held that the employees lacked standing because no actual harm could be established.  The court confirmed that a plaintiff lacks standing if his “injury” stems from an indefinite risk of future harms inflicted by unknown third parties. (December 12, 2011)

In Betts Industries v. Heelan, the Superior Court of Pennsylvania addressed the threshold requirement of a Dragonetti Act claim, for wrongful use of civil proceedings, that the proceedings have terminated in favor of the plaintiff.  The court held that the plaintiff could rightfully bring a Dragonetti claim based on the dismissal of a federal cause of action against him even though the pendent state claims were re-filed and pending in state court. (December 12, 2011)

In Dana Companies, LLC. v. Crawford, the Supreme Court of Delaware held that the trial court committed legal error in denying the plaintiff’s motion for additur or, in the alternative, a new trial on damages.  In this asbestos lawsuit involving multiple plaintiffs with multiple claims, the court held that the trial court failed to consider the adequacy of the damages awarded for each claim and, instead, erroneously focused on the combined damages awarded. (December 14, 2011)

In Samuel-Bassett v. Kia Motors America Inc., the Supreme Court of Pennsylvania addressed whether the trial court had properly certified a class of 9,402 vehicle owners in a breach of warranty class action lawsuit.  The court held that all of the procedural prerequisites to certify a class action lawsuit were satisfied, reiterated that Pennsylvania generally adheres to the “American Rule,” where a litigant cannot recover counsel fees from an adverse party absent statutory authorization or agreement of the parties. (December 2, 2011)

In Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, the Superior Court of Pennsylvania held that correspondence between a party’s attorney and expert was not discoverable.  The court held that the defendant’s subpoena and related interrogatories exceeded the scope of Pennsylvania Rule of Civil Procedure pertaining to discovery of expert testimony. (November 23, 2011)

In Gresik v. P.A. Partners, L.P., the Supreme Court of Pennsylvania considered whether Section 385 of the Restatement (Second) of Torts (relating to liability of contractor or employee who creates a dangerous land condition on behalf of land’s possessor) provides a cause of action where the defendant owned the land at all relevant times. The court held that because the defendant had possessed the land, “there was no interval where [it] could have acted as a contractor or servant of a separate possessor of land,” and thus there was no cause of action under Section 385. (December 1, 2011)

In New Providence Apartments Co., L.L.C. v. Mayor and Council of Borough of New Providence, the Superior Court of New Jersey, Appellate Division considered whether a municipal ordinance establishing a hybrid system of sanitary sewer services—under which the costs of a sewer system are paid partly from municipal revenues from real estate taxes and partly from user fees—violated N.J.S.A. 40A:26A-10. Because the ordinance imposed a smaller aggregate than the system explicitly authorized by statute, it was not “patently unreasonable.” (December 1, 2011)

In Mario and Tabatha Umbelina v. Adams, the Superior Court of Pennsylvania addressed whether plaintiffs may rescind a fully executed contract and whether plaintiffs were entitled to an award of restitution when plaintiffs’ request was for the rescission of a construction agreement.  The court held that an executed contract cannot be rescinded or annulled in the absence of a showing fraud or mistake.  The court further held that the award of restitution was inconsistent with the request for a rescission of a contract. (November 30, 2011)

In Scientific Games International Inc. v. Commonwealth of Pennsylvania, Department of Revenue, the Commonwealth Court of Pennsylvania addressed whether the plaintiff’s complaint should be dismissed because the Commonwealth Court of Pennsylvania lacked jurisdiction after the Defendants filed preliminary objections.  The court held that it had jurisdiction because the plaintiff is seeking to validate the contract and not seeking monetary damages.  Therefore, the plaintiff’s complaint did not have to be filed with the Board of Claims pursuant to 62 Pa. C.S. Section 1724(a). The court further overruled the defendant’s objection that the plaintiff lacks standing as a disappointed bidder because the plaintiff brought the action as a contractor and not as a bidder. (November 30, 2011)

In Nardella v. Southeastern Pennsylvania Transit Authority, the Commonwealth Court of Pennsylvania addressed whether plaintiff established the real estate exception of failure to maintain real estate pursuant to Section 8522(b)(4) of the Sovereign Immunity Act (The Act).  Plaintiff sustained injuries at a SEPTA platform when she slipped and fell on ice.  The court held that the real estate exception does not stand for the proposition that any failure to maintain real estate falls within the real estate exception of the Act, but rather the focus must be on whether there is proof of a defect in the real property itself.

In Cogley v. Duncan, the Superior Court of Pennsylvania addressed whether a trial court prothonotary can refuse to accept a complaint for filing by relying on an unpublished local “rule.”   The court ruled that a prothonotary errs if it rejects a complaint that complies with the Pennsylvania rules of civil procedure but does not with a local rule. (November 30, 2011)

In Brandon v. Ryder Truck Rental, Inc., the Superior Court of Pennsylvania addressed whether a plaintiff, who claimed that a defect existed in a rental truck was required to support the claim with expert testimony.  The court held that, except in situations where the doctrines of res ipsa loquitur or exclusive control might be applicable, a plaintiff asserting a product liability claim based on defective design or manufacture must present expert testimony. (November 14, 2011)

In Raymond F. Schuenemann, III, v. Dreemz, LLC, the Superior Court of Pennsylvania, addressed the trial court’s admission of evidence relating to plaintiffs’ claims under 47 Pa.C.S.A. § 4-493 of the Pennsylvania Liquor Code (“Dram Shop Act”).  The Dram Shop Act provides, in relevant part, “It shall be unlawful… [fo]r any licensee…to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated…”  The court held that admission of evidence relating to the bar’s training of employees, licensing, internal policies, admission of underage patrons and patrons without identification and reference to the legal limit for blood alcohol content did not constitute an abuse of discretion. (November 4, 2012)

In CBS v. FCC., the United States Court of Appeals for the Third Circuit  reversed the FCC’s decision to fine CBS television stations $550,000 for airing singer Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl.  The Court held that, in the absence of notice and a reasoned explanation, the FCC had “arbitrarily and capriciously” departed from its long-standing policy that exempted “fleeting” indecency from sanctions. (November 2, 2011)

In Kelly v. BBK, Inc., the Superior Court of Pennsylvania addressed the three-pronged standard for opening a default judgment, namely that there be: 1) a prompt filing of the petition to open default judgment; 2) a reasonable excuse or explanation for failing to file a responsive pleading; and 3) a potentially meritorious defense to the allegations contained in the complaint.  Because the defendant did not substantiate his excuse of attorney neglect for his 10-month delay in filing a responsive pleading, the court denied the defendant’s petition to open default judgment. (November 3, 2011)

In Schultz v. MMI Products, Inc., et. al., the Superior Court of Pennsylvania addressed whether the trial court properly transferred the venue from Philadelphia County to Lehigh County, the location where the accident at issue occurred.  The court held that the transfer of venue was proper since all of the defendants had principal places of business outside of Philadelphia, the alleged incidents did not occur in Philadelphia, and all of the witnesses resided outside of Philadelphia. (October 21, 2011)

In Pennsylvania S.P.C.A.  v. Sixth Angel Shepherd Rescue Inc., et al., the Superior Court of Pennsylvania addressed whether the state court retained jurisdiction when the defendant’s attempt to remove the case to federal court was defective.  The court held that the state court retained jurisdiction over the matter because the party seeking removal failed to strictly comply with the removal statute by filing the notice of removal in state court as required. (October 24, 2011)

In Furman v. Delaware Department of Transportation, the Supreme Court of Delaware addressed whether the trial court properly dismissed the complaint where it relied on an affidavit extrinsic to the complaint. The court held that because the trial court considered matters outside the pleadings, it erred by applying the Delaware Rule of Civil Procedure 12(b)(6) standard instead of converting the motion to one for summary judgment. (October 19, 2011)

In Estate of Borst v. Edward Stover Sr. Testamentary Trust, the Pennsylvania Superior Court addressed whether requests for admissions that called for conclusions of law were properly deemed admitted where response was untimely. The court held that as conclusions of law, the admissions were “beyond the permissible scope” of Pennsylvania Rule of Civil Procedure 4014 and should not have been deemed admitted. (October 19, 2011)

In City of Scranton v. Firefighters Local No. 60, the Supreme Court of Pennsylvania addressed whether the City of Scranton’s payment of arbitration awards to police and firefighters’ unions under the Policemen and Firemen Collective Bargaining Act violated the directive in the Municipalities Financial Recovery Act against paying “arbitration settlements” that impinged on the city’s recovery plan. The court held that the Municipalities Financial Recovery Act does not extend to arbitration awards, and therefore does not impinge upon such awards. (October 19, 2011)

In Heller v. Pennsylvania League of Cities and Municipalities, the Supreme Court of Pennsylvania addressed whether an exclusion that prevented those eligible for workers’ compensation benefits from receiving uninsured/underinsured motorist (UM/UIM) coverage violated public policy. The court held that because the exclusion would operate to “foreclose the majority of expected claims,” it rendered coverage illusory and struck down the exclusion.  The exclusion also contradicted the legislature’s intent that the tortfeasor or UM/UIM carrier bear the burden of paying benefits, and was therefore void as against public policy. (October 19, 2011)

In Williams v. GEICO Government Employees Insurance Company, the Supreme Court of Pennsylvania addressed whether denial of uninsured/underinsured (UM/UIM) coverage based on the “regular-use” exclusion in a personal auto insurance policy violated public policy. The court held that the exclusion did not violate public policy, and that a “contrary decision is untenable, as it would require insurers to compensate for risks they have not agreed to insure.” (October 19, 2011)

In Wilco Mechanical Services, Inc. v. Department of General Services, Inc., the Commonwealth Court of Pennsylvania addressed whether the Department of General Services’ rejection of Wilco’s application for certification as a Women’s Business Enterprise (WBE) was an adjudication entitling Wilco to appellate review. The court held that because the certification process for a WBE did not operate pursuant to either a regulation or a statute, it did not constitute such an adjudication. (October 19, 2011)

In Delalla v. Hanover Insurance, the United States Court of Appeals for the Third Circuit adopted the “later-served defendant rule” to determine a defendant’s deadline for removal to federal court.  Under the “later-served defendant rule,” each defendant in a case involving multiple defendants has 30 days to file a notice of removal beginning from when that particular defendant is served. (October 12, 2011)

In Keystone Freight Corporation v. Stricker, the Superior Court of Pennsylvania affirmed the dismissal of a Dragonetti action where the evidence indicated that the underlying plaintiffs had probable cause to believe they could prevail on a wrongful death and survival action and did not act with gross negligence in initiating and continuing the underlying action when they had expert testimony supporting their claims. (October 12, 2011)

In City of Philadelphia v. David J. Lane Advertising, Inc., the Commonwealth Court of Pennsylvania addressed whether a default judgment could be set aside when the notice of intent to seek a default judgment complied with a former iteration of the Rules of Civil Procedure.  The court held that the written notice was not substantially in the form required by the current version of the Rules so the default judgment should have been set aside. (October 4, 2011)

In Unglo v. The Roman Catholic Diocese of Pittsburgh, the Superior Court of Pennsylvania addressed whether a plaintiff may recover due to a defendant’s discontinuance of payments for psychological services.  The court, relying on the Restatement (Second) of Torts § 323, found that a party may discontinue gratuitous services at any time unless those services have put plaintiff in a worse position.  Because the defendant’s services had not placed plaintiff in a worse position, plaintiff could not recover for the discontinuance of payments for psychological treatment. (September 29, 2011)

In Amica Mutual Insurance Company v. Fogel, the United States Court of Appeals for the Third Circuit addressed whether New Jersey or Pennsylvania law applied to an automobile insurance dispute after the case was transferred sua sponte from the District of New Jersey to the Middle District of Pennsylvania pursuant to 28 U.S.C. § 1404(a). The court held that when a civil action is transferred sua sponte from one district court to another, the transferee forum must apply the law of the initial forum.    (September 8, 2011)  

In John Doe v. Attorney General of the United States, the United States Court of Appeals for the Third Circuit addressed whether the Board of Immigration Appeals (BIA) had jurisdiction to rule on arguments based upon the Convention Against Torture (CAT), where the immigration judge decided the case on other grounds. The court held that under 8 C.F.R. § 1003.1(b), the BIA’s jurisdiction is limited to “[d]ecisions,” that the immigration judge explicitly did not decide the CAT questions, and that the BIA therefore lacked jurisdiction. (September 8, 2011)

In Arnberg v. Wendell Tolbert, the Supreme Court of New Jersey addressed the interplay between a statute which bars a lawsuit for personal injuries by an uninsured motorist and the Wrongful Death Act. The court held that when an uninsured motorist’s cause of action is barred under the statute, an heir has no right of recovery under the Wrongful Death Act.   (August 29, 2011)  

In Herd Chiropractor Clinic, P.C., v. State Farm Mutual Automobile Ins. Co., the Superior Court of Pennsylvania addressed the effect of an insurer’s compliance with the medical expense peer review process of the Motor Vehicle Financial Responsibility Law (MVFRL) in the denial of the claim.  The court  held that, because the insurer adhered to the peer-review process, it could not be held liable for treble damages for bad faith, though it could still be liable for attorneys’ fees if it was determined on review that the care provided was medically necessary. (August 23, 2011)

In Ingraham v. Ortho-McNeil Pharmaceutical, the Superior Court of New Jersey, Appellate Division, addressed whether a plaintiff could pursue a claim for intentional infliction of emotional distress and constructive discharge against an employer who asked her to limit discussions of her deceased daughter in the workplace after reports from her coworkers that they were uncomfortable.  The court held that there was no cause of action for intentional infliction of emotional distress against the employer because there was no proof that the actions were intentional or reckless, or that the conduct was extreme and outrageous. (August 25, 2011)

In Washington v. Hovensa LLC, the United States Court of Appeals for the Third Circuit considered a party's domicile for purposes of subject-matter jurisdiction and concluded that the court must locate the center of one's business, domestic, social, and civil life and consider factors such as ownership of a residence, driver's license, vehicle registration, bank account, cell phone, and locus of primary medical care. (July 21, 2011)

In N. Morning Cloud Jones-Molina and Pennsylvania Financial Responsibility Assigned Claims Plan v. SEPTA, the Commonwealth Court of Pennsylvania addressed whether a person injured by an unidentified vehicle while transferring from a SEPTA bus to a SEPTA trolley was considered an "occupant" of a SEPTA vehicle for purposes of determining liability. The court held that the plaintiff could not be considered an "occupant" of a motor vehicle under Pennsylvania's Motor Vehicle Financial Responsibility Law, because the term "occupant" does not include a pedestrian crossing the street. As a result, no liability could attach to SEPTA under Pennsylvania's Financial Responsibility Assigned Claims Plan. (July 22, 2011)

In Luchejko v. City of Hoboken, the Supreme Court of New Jersey held that a condominium complex was not liable in tort for injuries sustained on an abutting sidewalk as a result of an accumulation of snow/ice. The court held that the condominium complex's liability was akin to the liability of residential owners, who are not liable for conditions on abutting sidewalks absent active misconduct. In contrast, commercial property owners are liable for injuries on abutting sidewalks caused by the negligent failure to maintain the sidewalk in a reasonably good condition. The court held that the condominium complex and its property manager, acting as its agent, were considered "residential" entities as their primary function was not to generate income, such as the case with a commercial retail entity or apartment building complex, but to foster private home ownership and general property upkeep. (July 27, 2011)

In 700 Highway 33 LLC v. Pollio, the Superior Court of New Jersey, Appellate Division, addressed whether the entire controversy doctrine precluded suit against a contractor who was not named in a previous action. Because the entire controversy doctrine requires the same core set of transactional facts, and because the factual basis for the previous action was unclear, the court held that the doctrine was inapplicable. (July 8, 2011)

In Tristani v. Richman, the United States Court of Appeals for the Third Circuit addressed the constitutionality of the Pennsylvania Department of Public Welfare's practice of recouping expenditures for injured Medicaid recipients by asserting liens against personal injury litigation settlements and judgments. The court held that the practice was constitutional because liens limited to recoveries for medical costs are not prohibited by the anti-lien and anti-recovery provisions of the Social Security Act, and Pennsylvania's default apportionment mechanism for dividing settlements between medical costs and other expenses provides Medicaid recipients a right of appeal from the default allocation. (June 29, 2011)

In Badalamenti v. Victor C. Simpkiss, III, et al., the Superior Court of New Jersey, Appellate Division, addressed whether the driver of a delivery truck owed a duty of care to an unseen trespasser who fell off the back of the truck and was injured. The court held that the driver had no duty to inspect the rear of the vehicle for unauthorized riders. (July 6, 2011)

In Pulli v. Ustin, the Superior Court of Pennsylvania held that fraudulent concealment will act to toll the statute of limitations if the defendant committed some affirmative, independent act of concealment upon which the plaintiff justifiably relied. (July 5, 2011)

In Dockery v. Borough of East Stroudsburg, the Commonwealth Court of Pennsylvania addressed whether the trial court improperly denied the plaintiffs' second petition to open or strike the judgment of non pros without considering the merits of their petition. The court held that the plaintiffs' failure to file a petition to open or strike a judgment of non pros before filing an appeal resulted in a waiver of all of their substantive claims. (June 24, 2011)

In Gulan v. Zoning Hearing Board of East Berlin, the Commonwealth Court of Pennsylvania was faced with a challenge to a ruling that a display smoker/cooker located on a sidewalk, sometimes used to cook and sometimes to advertise, was a sign in violation of Section 507(1) of the East Berlin Borough Zoning Ordinance. The Court affirmed the trial court and found that the device was an improper sign as it was a "structure, demonstration or display" which was improperly within the "established right-of-way of any street." (June 22, 2011)

In Voellinger v. Dow, the Superior Court of New Jersey, Appellate Division addressed whether or to what extent the Division of Criminal Justice can be liable for losing/destroying evidence seized during a prior criminal investigation. The Court ultimately found that the cause of action arose under principles of bailment and that the proper standard to be used was gross negligence. (June 22, 2011)

In Singer Management Consultants, Inc. v. Live Gold Operations, Inc., the United States Court of Appeals for the Third Circuit considered the availability of attorney's fees when a party prevails under 42 U.S.C. § 1988(b), a code section which awards attorney fees as costs to party's which "prevail" under an enumerated set of claims. The court held that in order to "prevail," parties must either be awarded a judgment on the merits or by a court ordered consent decree. In the context of TROs, the Court stated that for a temporary restraining order to confer prevailing party status, it must be merit based. (June 15, 2011)

In Nieves v. Allstar Title Inc., the Supreme Court of Delaware upheld a dismissal and subsequent denial of a motion for reargument where the plaintiff's pleadings failed to state a claim for relief and failed to provide any factual basis for the plaintiff's claims of consumer fraud, deceptive trade practices, breach of contract and negligence. (June 14, 2011)

In Warren General Hospital v. AMGEN, Inc., the United States Court of Appeals for the Third Circuit addressed the issue of whether a hospital that purchases pharmaceutical products from a wholesaler middleman has standing to bring an illegal tying claim against the manufacturer of the pharmaceutical drugs under the Sherman Act and the Clayton Act. The court held that the hospital was an indirect purchaser of the products and thus lacked antitrust standing. (June 14, 2011)

In Silver v. Thompson, the Superior Court of Pennsylvania addressed whether venue was proper in Philadelphia County, where the defendant was personally served with original process, instead of Bucks County, where the accident occurred, all parties are resident, and the witnesses are located. The Superior Court held that venue properly lies in Philadelphia County, basing its decision on PA. R. CIV. P. 1006(a)(1), which establishes that venue is proper in a county where the defendant may be served, and PA. R. CIV. P. 402(a)(1), which states that original process may be served by handing a copy to the defendant. (May 27, 2011)

In In re: Application of Chevron Corporation, the United States Court of Appeals for the Third Circuit addressed whether communications made in the presence of third parties result in the subject-matter waiver of the attorney-client privilege for all communications on that subject. The court held that public disclosures of non-privileged communications do not lead to a subject-matter waiver. Because communications in the presence of third parties are not made in confidence and are therefore not protected by the attorney-client privilege, the court held that they cannot be the impetus for a subject-matter waiver. (May 25, 2011).

In Walnut Street Associates, Inc. v. Brokerage Concepts, Inc., et al., the Supreme Court of Pennsylvania addressed whether Restatement (Second) of Torts §772(a) applies in Pennsylvania to preclude an action for tortious interference with contractual relations where defendant's interfering statements were truthful. Because truthful information cannot reasonably be deemed to be "improper" interference, the court adopted § 772(a) and held that a tortious interference with contractual relations claim may not be based on truthful statements. (May 13, 2011)

In Hoffman v. Supplements Togo Management, LLC, et al., the Superior Court of New Jersey, Appellate Division, addressed whether a forum selection clause contained in an agreement for an internet sale of goods was enforceable. The court found that the purchaser was not provided reasonable notice because the forum selection clause was not visible unless the purchaser scrolled down to a submerged portion of the webpage. Therefore, the court held that the clause was presumptively unenforceable. (May 13, 2011)

In William A. Graham Co. v. Haughey and USI MidAtlantic, Inc., the United States Court of Appeals for the Third Circuit considered whether the jury's verdict for the defendants' infringement copyrights over the course of a decade shocked the judicial conscience, and whether the prejudgment interest award was improper. The court held that the damages award was not excessive and that prejudgment interest was available under the Copyright Act, and it was appropriate in infringers'-profits cases. In addition, the court agreed that the discovery rule tolled the limitations period thus permitting prejudgment interest to be calculated from the date of the first infringement. (May 16, 2011)

In Frumer v. National Home Ins. Co., et al., the Superior Court of New Jersey, Appellate Division, addressed whether arbitration is the exclusive remedy available to plaintiffs, new home buyers, in their dispute with the National Home Ins. Co. and Home Buyers Warranty Corp. The court found that under the private warranty plan in which the builder participated, which was approved pursuant to the New Home Warranty and Builders' Registration Act, the homeowner can either file a claim for workmanship/systems defects or pursue other remedies, but once a claim is filed binding arbitration is the exclusive remedy. (May 16, 2011)

In SWB Yankees LLC v. Wintermantel, the Pennsylvania Supreme Court granted a Petition for Allowance of Appeal on the following issues:

  1. Did the Commonwealth Court err by determining that SWB's operation of a professional baseball team and concessions at a multi-purpose stadium constitutes a "governmental function" within the meaning of the Pennsylvania Right to Know Law?
  2. Did the Commonwealth Court err by holding that the information requested in this matter constitutes a "record" within the meaning of the Pennsylvania Right to Know Law? (May 3, 2011)

In Today's Housing v. Times Shamrock Communications, the Superior Court of Pennsylvania addressed whether a company selling modular homes could maintain a defamation by innuendo case against the publishers of investigative journalism articles decrying the quality of the homes. The court held that the articles could not be "fairly and reasonably construed" as misleading so the plaintiff could not carry its burden of proof as a matter of law. (May 4, 2011)

In Smith v. Hudson County Register, the Superior Court of New Jersey addressed the standard by which a litigant will be entitled to attorney's fees under the Open Public Records Act (OPRA) of New Jersey. Under New Jersey law, a litigant who provides a catalyst to induce a party's compliance with the law will be entitled to attorney's fees where statutorily available. The court therefore held that where a litigant's cause of action resulted in the limiting of copying costs under OPRA, that litigant was a prevailing party who was entitled to attorney's fees under that statute. (April 25, 2011)

In VOPA v. Stewart, the Supreme Court of the United States addressed whether the "Ex Parte Young" exception to sovereign immunity under the Eleventh Amendment permitted a state agency to sue its own state government on a federal claim in federal court. The Court held that, under the decision in Ex Parte Young, there is no distinction between a private citizen and a state created agency. (April 19, 2011)

In Knopick v. Connelly, the United States Court of Appeals for the Third Circuit addressed the statute of limitations in a legal malpractice action. The court held that the discovery rule (the statutory period "begins to run where the plaintiff knew or in the exercise of reasonable diligence should have known of the injury and its cause") applied to such cases. (April 13, 2011)

In Gleason v. Borough of Moosic, the Supreme Court of Pennsylvania addressed whether a plaintiff who invokes Pennsylvania's discovery rule to toll the statute of limitations on a claim is required to prove reasonable diligence in order to survive summary judgment. The Court held that the determination of a plaintiff's reasonable diligence-specifically the point at which the plaintiff should have been reasonably aware of his or her injury and its cause-is typically an issue of fact to be determined by the jury. According to the Court, this issue should be decided on summary judgment only when the facts are so clear that reasonable minds cannot differ. (April 4, 2011)

In Landsman & Funk PC v. Skinder-Strauss Associates, the United States Court of Appeals for the Third Circuit addressed whether federal courts can exercise diversity jurisdiction over private suits brought under the Telephone Consumer Protection ACT (TCPA), despite the Court's prior holding in ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513 (3d Cir. 1998) that private TCPA claims do not present a federal question. The Court held that federal courts can exercise diversity jurisdiction over such claims, as Congress did not intend for exclusive state court jurisdiction. (April 4, 2011)

In Sigall v. Serrano, the Superior Court of Pennsylvania addressed a claim of failure to properly serve a motion to dismiss, when the motion was filed on the electronic filing system. Pennsylvania Rule of Civil Procedure 205.4 allows service by electronic means "if the parties agree thereto or an electronic mail address is included on an appearance or prior legal paper filed with the court in the action[...]." The court found that there was no agreement to accept electronic service, no e-mail address on a prior filing and the party did not avail "themselves of the electronic filing system at any point in the case." As such, the appellants were not properly served and the trial court erred in determining the motion to dismiss was uncontested. (March 18, 2011)

In Estate of Desir v. Vertus, the Superior Court of New Jersey examined whether a person who has reason to believe that an intruder on his premises poses a danger to others owes a duty of reasonable care to a friend that he brings to the danger by request for assistance. After weighing factors most pertinent to the determination of whether a duty is owed-such as foreseeability of harm, relationship between parties, and opportunity and ability to exercise care-the court held that such a person does owe a duty to exercise reasonable care. (March 7, 2011)

In Snyder v. Phelps, the Supreme Court of the United States addressed whether state tort claims of intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy could be maintained against a church group for protesting on public land outside of a military funeral. The Court held that those claims cannot be maintained as a matter of law because the church group's speech is protected by the First Amendment. (March 2, 2011)

In Anselma Crossing v. United States Postal Service, the United States Court of Appeals for the Third Circuit addressed whether breach of contract claims against the United States Postal Service (USPS) could be brought in federal court. The court ruled that the Contract Disputes Act (CDA) barred breach of contract claims against the USPS in federal courts. (February 28, 2011)

In Knowles v. Levan, the Superior Court of Pennsylvania addressed an evidentiary issue of first impression when it considered whether it was proper for the trial court to admit evidence of alcohol and drug use to illustrate how an automobile accident occurred, when liability was conceded. The court held that the evidence was improperly admitted, but nonetheless affirmed because the error was harmless in light of the trial court's limiting instructions to the jury. (February 15, 2011)

In Gillard v. AIG, the Supreme Court of Pennsylvania addressed the scope of protection afforded to attorney-to-client communications. Responding to inconsistent rulings by the lower courts, the court held that the attorney-client privilege operates in a two-way fashion to protect confidential client-to-attorney or attorney-to-client communications made for the purpose of obtaining or providing professional legal advice. (February 23, 2011)

In Pilchesky v. Gatelli, the Superior Court of Pennsylvania considered whether a party may be required to disclose the identities of six anonymous posters on an internet political message board where the statements made by the posters were constitutionally protected by the First Amendment. Addressing this issue for the first time, the Superior Court adopted a four-part test that considers: (1) notification of the petition to disclose a person's identity; (2) sufficient evidence to establish a prima facie case for all elements of a defamation claim; (3) affidavit of good faith and necessity; and (4) a balance of the defendant's First Amendment rights against the strength of the plaintiff's prima facie case. The Superior Court remanded the case for further proceedings consistent with the newly adopted test. (January 5, 2011)

In Fox v. Millman, the Supreme Court of New Jersey granted a Petition for Certification of Appeal to address the following question: "Is the equitable doctrine of laches available as an affirmative defense when the statute of limitations period has not expired?" (December 10, 2010)

In Eckroth v. Pennsylvania Elec., Inc., the Superior Court of Pennsylvania addressed whether the defendant's conduct-turning off the plaintiff's electricity-was a proximate cause of the fatal fire at issue. The fire occurred after the plaintiff left a candle burning overnight. Discussing causation, the court stated that the determination of proximate or legal cause depends on whether the alleged negligence was so remote that, as a matter of law, the defendant cannot be held legally responsible for the subsequent harm. The court held that even if it was foreseeable that a resident of the house might light a candle to illuminate the house after dark, with two days and several unreasonable decisions by the residents of the home separating the defendant's conduct and the fire, the causal chain between the defendant's conduct and the fire was too remote, as a matter of law, to hold the defendant legally responsible for the plaintiff's harm. (December 17, 2010)

In Helpin v. Trustees of Pennsylvania, the Supreme Court of Pennsylvania considered whether damages for future income, that would have been calculated, in part, based on a business' profits, should be discounted to present value to compensate for the competing effects of interest and inflation on a lump-sum damages award. Previously, in Kaczowski v. Bolubasz, 421 A.2d 1027, 1029-30 (Pa. 1980), the Supreme Court adopted the "total offset" approach. Under the total offset approach, a court does not discount the award to its present value, but assumes that the effect of the future inflation rate will completely offset the interest rate, thereby eliminating any need to discount the award to its present value. Although Kaczowski was decided narrowly, in that the total offset approach in that case applied to lost wages (and not lost profits), the Supreme Court held that the total offset approach is equally applicable to future damages in the form of lost profits. The fact that the lost future earnings at issue in this case were partially derived from the future profits of a business was not significant because the general effect of inflation to diminish the purchasing power of a lump-sum award for lost future earned income does not depend on whether some of those lost future earnings are derived from profits. (December 21, 2010)

In Kovalcik v. Somerset County Prosecutor's Office, the Supreme Court of New Jersey granted a Petition for Certification of Appeal to address the following question: "Do records of a public employee's coursework or training beyond those demonstrating the minimum job qualifications constitute 'personnel records' that are exempt from disclosure as 'government records' under the Open Public Records Act, N.J.S.A. 47:1A-1 to -13?" (December 10, 2010)

In Goldman v. Southeastern Pennsylvania Transportation Authority, the Supreme Court of Pennsylvania granted a Petition for Allowance of Appeal to consider questions related to SEPTA's immunity from suit brought in Pennsylvania courts under the Federal Employer's Liability Act (FELA). The Superior Court of Pennsylvania held that "the sovereign immunity of the Commonwealth of Pennsylvania does indeed encompass SEPTA where claims are brought under FELA in the courts of this Commonwealth." The issues the court will decide, as stated by the petitioner, are:

  1. Whether the Commonwealth Court in a case of first impression-for the first time in SEPTA's 46-years existence-incorrectly held that, because the court failed to follow the United States Supreme Court's mandated "arm of the state" jurisprudence, SEPTA is not obligated to comply with federal laws, stripping SEPTA employees of the rights and protections railroad employees have enjoyed for a century under [FELA].
  2. Whether the Commonwealth Court's decision should be reversed because the decision (a) ignores the United States Supreme Court's mandate in Lake County and Hess that sovereign immunity must be determined based upon a detailed analysis of several specific factors against which to determine an entity's nature and structure and (b) was only based on the state legislature's label of SEPTA as a "Commonwealth Agency and Instrumentality," and the Commonwealth's partial voluntary funding of SEPTA.
  3. Whether the Commonwealth Court improperly held, in a case of first impression, that all claims brought under [FELA], 45 U.S.C. §§ 51-60, were completely barred by the Pennsylvania Sovereign Immunity Act, 42 Pa.C.S. § 8522(B), rather than leaving it to the trial courts to decide each FELA accident on a case by case basis as is done in other personal injury actions. (December 20, 2010)

In Komninos v. Bancroft Neurohealth, the Superior Court of New Jersey, Appellate Division, reviewed the Law Division's denial of the defendants' motion for summary judgment, which relied on protections afforded under the Charitable Immunity Act, N.J.S.A. 2A:53A-7. This case arose from the death of a developmentally disabled young man, who died after he choked on a bagel during a trip to a convenience store. At the time of his death, the decedent was a resident of a community group home in Cherry Hill that was operated by the defendants. The trial judge held that genuine issues of material fact existed as to whether the outing to the convenience store was in furtherance of the decedent's education, and therefore whether the defendants were entitled to charitable immunity under the Act. The Appellate Division reversed, holding that the defendants were entitled to the protections of the Act, as a matter of law, with respect to the plaintiff's claims of ordinary negligence. However, the court remanded the case for further proceedings on the plaintiff's claims alleging gross negligence and more severe wrongdoing, which are not immunized under the Act. (December 13, 2010)

In Betz v. Pneumo Abex LLC., et. al., the Supreme Court of Pennsylvania granted a Petition for Allowance of Appeal to consider a question related to the admissibility of expert testimony in a friction-product asbestos case. The question that the court agreed to consider is: "Did the Superior Court err in reversing the trial court's decision to exclude the testimony of Plaintiff's expert in this friction-product asbestos case?" (December 1, 2010) 

In Mosteller v. Naiman and Coyne Tree Service, Inc., the Superior Court of New Jersey, Appellate Division concluded that the trial court correctly applied a diminution-of-market-value damages approach to defendant's unauthorized removal of trees from a rental property owned by the plaintiff. The Court explained that the diminution-of-value measure (the difference in the value of property immediately before and immediately after the injury) is the predominant measure of damages in cases involving the destruction or removal of trees and shrubs. Moreover, the replacement cost method (the cost of restoring land to its original condition) is appropriate only in special instances where the trees have a "peculiar value" to their owner-which the plaintiff could not show here. (December 3, 2010)

In Gensollen v. Pareja, et. al, the Superior Court of New Jersey, Appellate Division, considered the extent to which a party can inquire into an expert's finances and litigation work history in order to prove the expert's bias. The Appellate Division held that while a party is entitled to explore an expert's possible bias, such discovery is not limitless. Thus, in the vast majority of cases, discovery into an expert's background should cease once the expert provides information that would allow the opposing party to argue to a fact finder that the expert is a "professional witness" or "hired gun."
(November 19, 2010)

In Luchejko v. City of Hoboken, the Supreme Court of New Jersey granted a Petition for Certification of Appeal to consider the following question: Does a condominium association have a duty to maintain an abutting public sidewalk free of dangerous conditions? (November 18, 2010)

In Seals v. Jersey Central Power & Light, First Energy Corporation, et al., the Superior Court of New Jersey, Appellate Division, addressed whether a utility company enjoys immunity from suits alleging negligent pole placement. The court held that, under long-standing New Jersey law, a utility company owes no duty to the motoring public in regard to the placement of its poles and that the responsibility for the safety of motorists rests with those who own, control, and maintain the thoroughfare. (November 24, 2010)

In Dean v. Barrett Homes, Inc., the Supreme Court of New Jersey addressed the applicability of the economic loss rule and the integrated product doctrine in a case arising from the purchase of a residence found to have certain exterior defects related to its original construction. The court held that the integrated product doctrine did not apply and that the economic loss rule limited any recovery to damages for harm other than to the allegedly defective product itself. (November 15, 2010)

In Tayar v. Camelback Ski Corp., Inc., the Supreme Court of Pennsylvania granted a Petition for Allowance of Appeal to address several questions related to exculpatory provisions in releases. In particular, the court agreed to consider the following questions:

1. Is it against public policy for a party's exculpatory agreement to release it from liability for recklessness?

2. If it is not against public policy, how specific must the release language be to successfully release a party from recklessness?

3. Does a release from liability that mentions an employer, but does not specifically mention its employees, operate to release those employees from liability for acts committed in the course and scope of their employment? (November 9, 2010)

In Zaleppa v. Seiwell, the Superior Court of Pennsylvania considered whether the Medicare Secondary Payor Act (MSPA) requires or allows a private entity to assert the rights of the United States government regarding a potential claim for reimbursement of a Medicare lien. In Zaleppa, judgment was entered against the defendant, Seiwell, in the amount of $15,000. In a post-trial motion, Seiwell asked that the court enter an order directing her to pay the verdict either: (1) by naming Medicare, along with Zaleppa and her attorneys, as payees on the draft satisfying the verdict; or (2) by paying the verdict into the court pending notification from Medicare that all outstanding Medicare liens have been satisfied. The trial court denied Seiwell's post-trial motion, and Seiwell appealed. The Superior Court affirmed the decision of the trial court, holding that "there is no legal basis under either federal or Pennsylvania law to assert the interests of the United States government as to the reimbursement of Medicare liens." (November 17, 2010)

In Johnson v. American Standard, et al., a consolidated asbestos litigation appeal, the Supreme Court of Pennsylvania considered whether the plaintiffs have standing to raise constitutional challenges - under the Commerce and Equal Protection Clauses of the U.S. Constitution - to 15 Pa.C.S. § 1929.1. Section 1929.1 caps a successor corporation's asbestos-related liability. The court held that the plaintiffs have standing to challenge the constitutionality of § 1929.1 because they have a direct, substantial, and immediate interest in challenging the statute's validity. (November 18, 2010)

In Spectraserv, Inc. v. Middlesex Co. Utilities Authority, the Superior Court of New Jersey, Appellate Division, discussed whether the trial court erred in denying the plaintiff's request for attorneys fees under New Jersey's Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to 13. The court held that the plaintiff was not entitled to attorneys fees because its OPRA requests were not sufficiently specific, as required by the statute, and because the defendant's responses to the records requests were reasonable. (November 18, 2010)

In Allen v. V and A Brothers, Inc., the Supreme Court of New Jersey granted a Petition for Certification of Appeal to address questions related to an employee's personal liability for violations of New Jersey's Consumer Fraud Act (CFA). The questions that the court agreed to consider are: "May employees be held liable for their personal participation in a corporation's violation of [CFA] regulations without requiring [the] plaintiff to establish grounds to pierce the corporate veil; and where the employees had been dismissed from the case and did not participate in the jury trial against the corporation, may they be bound by the jury's findings on liability and damages?" (October 21, 2010)

The Supreme Court of New Jersey, in Risko v. Thompson Muller Automotive Group t/a Hammonton Chrysler Jeep Dodge, granted a Petition for Certification of Appeal to address a question related to an attorney's comments during closing arguments. The question that the court agreed to consider is: "In this wrongful death case arising from a slip-and-fall, did the cumulative effect of plaintiff's attorney's comments during summation, including telling the jury that they would be 'ignoring the law' if they had an issue with 'a million dollar case,' violate the prohibition against suggesting a verdict?" (October 21, 2010)

In Fox v. Vice, the Supreme Court of the United States granted certiorari to decide issues relating to the award of attorney's fees under 42 U.S.C. § 1988 in a case where the petitioner filed a lawsuit alleging both civil rights claims and common law tort claims. Section 1988 authorizes courts to award reasonable attorney's fees to prevailing parties in civil rights litigation. The issues that the Court agreed to consider are:

  1. whether defendants can be awarded attorney's fees under Section 1988 in an action based on the dismissal of a civil rights claim where the plaintiff has asserted other interrelated and non-frivolous claims; and
  2. whether it is improper to award defendants all of the attorney's fees they incurred in an action under Section 1988 where the fees were also spent defending non-frivolous claims that were intertwined with a frivolous civil rights claim. (November 1, 2010)

In Stevenson v. Swiggett, the Supreme Court of Delaware addressed the standards to vacate a default judgment when a defendant refuses service. The Supreme Court concluded that the evidence permitted a reasonable fact finder to find that service was proper despite the defendant's contention that it refused service. (October 25, 2010)

In Doe v. Wyoming Valley Health Care System, Inc., the Supreme Court of Pennsylvania granted a Petition for Allowance of Appeal to address several issues:

  1. Whether a jury decides if the judicial privilege applies, or the trial court makes a threshold determination if the privilege applies with the jury deciding if the privilege was abused.
  2. Whether a party seeking to preserve an objection to a trial court's error of law must object to jury instructions that included the error, although the party repeatedly raised the issue in pre-trial motions.
  3. Whether petitioner's confidential information from her personnel record was not material and pertinent, and thus not privileged for disclosure, at the NLRB hearing.
  4. Whether the Superior Court, contravening the appropriate standard of review, inappropriately accepted the testimony of respondent's agent. (October 19, 2010)

In Eurofins Pharma v. BioAlliance Pharma, the United States Court of Appeals for the Third Circuit affirmed in part and vacated in part the United States District Court for the District of Delaware's findings of personal jurisdiction, and affirmed the District Court's dismissal of the action under forum non conveniens. The case involved a dispute over intellectual property and claims of patent infringement involving Delaware corporations and French entities. The Third Circuit held that "being the foreign parent of a Delaware subsidiary, without more, is insufficient to confer personal jurisdiction over a nonresident defendant under the Delaware long-arm statute." The court also held that a nonresident who is an officer of a Delaware corporation is deemed to have consented to service of process in any action in which the officer is "a necessary and proper party, or in any action against that officer for any violation of his duties as an officer." As to the motion to dismiss on forum non conveniens grounds, the court upheld the ruling granting dismissal, noting that the details of the transaction at issue took place in France, the sources of proof were located in France, and the key third-party entity was located in France. (October 12, 2010)

In Perrelli v. Pastorelle, the Supreme Court of New Jersey granted a Petition for Certification of Appeal to address a question related to the recovery of losses by an individual injured in an automobile accident who did not carry required PIP coverage. In particular, the court will consider the following question: "Does N.J.S.A. 39:6A-4.5(a) bar a person who was injured while a passenger in her own uninsured vehicle from pursuing an action for automobile accident injuries?" (October 7, 2010)

In Goodyear Luxembourg Tires v. Brown and J. McIntyre Machinery, Ltd. v. Nicastro the Supreme Court of the United States granted Petitions for Writ of Certiorari to decide two questions related to personal jurisdiction over foreign corporations. In Goodyear, the Court agreed to consider the following issue: "Whether a foreign corporation is subject to general personal jurisdiction, on causes of action not arising out of or related to any contacts between it and the forum state, merely because other entities distribute in the forum state products placed in the stream of commerce by the defendant." In J.McIntyre, the Court will consider the following question: "Does a 'new reality' of 'a contemporary international economy' permit a state to exercise, consonant with due process under the United States Constitution, in personam jurisdiction over a foreign manufacturer pursuant to the stream-of-commerce theory solely because the manufacturer targets the United States market for the sale of its product and the product is purchased by a forum state consumer?" (September 28, 2010)

In Astra USA, Inc. v. Santa Clara County, CA, the Supreme Court of the United States granted a Petition for Writ of Certiorari to consider an issue related to the private enforcement of sections of the Public Health Service Act, 42 U.S.C. § 256b. The issue that the Court will consider is "whether, in the absence of a private right of action to enforce a statute, federal courts have the federal common law authority to confer a private right of action simply because the statutory requirement sought to be enforced is embodied in a contract." (September 28, 2010)

The Supreme Court of the United States, in FCC v. AT&T, Inc., granted a Petition for Writ of Certiorari to consider a question related to the Freedom of Information Act, 5 U.C.C. 552(b)(7)(C). The issue the Court agreed to consider is: "Whether Exemption 7(C)'s protection for 'personal privacy' protects the 'privacy' of corporate entities." (September 28, 2010)

In Bullcoming v. New Mexico, the Supreme Court of the United States granted a Petition for Writ of Certiorari, agreeing to consider the following issue: "Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements." (September 28, 2010)

In GMAC v. Pittella, the Supreme Court of New Jersey granted a Petition for Certification of Appeal to address a question related to the finality of arbitration orders. The question that the court agreed to consider is as follows: "Pursuant to Rule 2:2-3(a) and Wein v. Morris, 194 N.J. 364 (2008), is an order compelling arbitration as to some but not all parties a "final judgment" for appeal purposes? (September 30, 2010) 

In Aronberg v. Tolbert, the Supreme Court of New Jersey granted a Petition for Certification of Appeal to address the following question: "Does N.J.S.A. 39:6A-4.5(a), which bars a lawsuit for automobile accident damages by an individual who was operating an uninsured vehicle, also preclude a wrongful death claim by the estate of that individual?" (September 10, 2010)

In Too Much Media, LLC v. Shellee Hale, the Supreme Court of New Jersey granted a Petition for Certification of Appeal, agreeing to consider the following question: "Is this blogger, who operated a website she claimed was intended for investigative reporting on issues of public importance, and who posted information about plaintiffs on another website's bulletin board, a journalist entitled to the protections of New Jersey's Shield Law and the First Amendment?" (September 10, 2010)

In W.J.A. v. D.A., the Superior Court of New Jersey, Appellate Division, determined whether internet postings that accuse an individual of engaging in sexual misconduct are the type of defamatory statements for which damages may be presumed, therefore making it unnecessary for the aggrieved party to prove actual harm to reputation. The court held that such internet postings are libel and that damages may be presumed, unless the public interest is involved. (September 27, 2010)

The Supreme Court of Pennsylvania, in Boyle v. Independent Lift Truck, Inc., addressed whether it was an error for the Superior Court to order a new trial where the jury never reached the issue on the verdict slip that was the basis for the claimed error. In reversing the order of the Superior Court awarding a new trial, the Court held that where a jury does not consider an issue (here, comparative negligence), any alleged error concerning the verdict sheet premised on that issue is harmless and a new trial is not warranted. (September 29, 2010)

In Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, the Superior Court of Pennsylvania, in a case of first impression, addressed whether written correspondence between a plaintiff's attorney and a treating physician, who was also acting in an expert-witness capacity, was discoverable. In affirming the order of the trial court compelling production of the written correspondence, the Superior Court held that if an expert is being called to advance a party's case-in-chief, the work-product privilege must yield to discovery of those communications because the expert's testimony and opinions may be impacted by communications from counsel. (September 16, 2010)

In Betts v. New Castle Youth Development Center, the United States Court of Appeals for the Third Circuit addressed the circumstances under which an entity must show that it is an alter-ego of the state to invoke the state's Eleventh Amendment immunity. The court held that an entity need not show alter-ego status where the entity is regulated and maintained by an agency that has no existence apart from the state. (September 13, 2010)

In Lockley v. CSX Transportation, Inc., the Superior Court of Pennsylvania addressed whether a trial court's erroneous decision to strike a juror for cause leads to a presumption of prejudice and automatically results in a new trial. The court held that no such presumption exists under Pennsylvania law. Therefore, the burden rests on the aggrieved party to establish that it was prejudiced. (September 13, 2010)

In State Farm Mutual Automobile Insurance Company v. Enrique, the Supreme Court of Delaware addressed whether the trial court properly admitted photographs of the parties' damaged automobiles and issued a proper curative instruction in a case in which an insured sought payment of the uninsured motorist coverage limits provided by her policy. The court held that the Superior Court did not abuse its discretion by admitting the photographs because the insured bore the burden of establishing a prima facie basis for recovery as to all elements of her claim, and the photographs were relevant to prove that there was an accident and that the insured's knees struck the dashboard during the crash. The court further held that the limiting instruction given by the court-that the jurors were only to consider the photographs as evidence that the insured's knees hit the dashboard in the accident and not for a determination of the correlating severity of the insured's injuries-was sufficient to prevent the jury from considering the photographs for any improper purpose. (September 3, 2010)

In Hinton, et al. v. Meyers, the Superior Court of New Jersey, Appellate Division, considered whether the third element of a claim for negligent infliction of emotional distress-observation of the death or injury at the scene of the accident-is satisfied with proof of knowledge or awareness of death or injury, but without any contemporaneous sensory perception. In this case, the plaintiff did not witness the accident and was unaware that an accident had occurred, and his subsequent observation of his daughter at the hospital just before she died was sufficiently attenuated from the accident to negate the requisite element of contemporaneousness. As the facts did not establish the plaintiff's real-time perception of his daughter's fatal injury, the court affirmed the holding of the trial court that proof of knowledge or awareness of death alone does not satisfy the third element of a claim for negligent infliction of emotional distress. (September 7, 2010)

In Delta Airline v. Chimet, the United States Court of Appeals for the Third Circuit addressed whether a declaratory judgment action could continue in light of a forum non conveniens challenge. The court affirmed the District Court's decision to dismiss the case on forum non conveniens grounds based on the fact that the key witnesses and documents were in Italy, the defendant was an Italian company, and the events at issue occurred in Italy. (August 30, 2010)

In Brown v. United Water Delaware, the Supreme Court of Delaware addressed claims of gross negligence and willful and wanton conduct against the defendant, a water company, after the plaintiff's house burned down when the fire department was unable to open the two closest fire hydrants to their house. The Supreme Court upheld the Superior Court's ruling that denied the defendant's motion for summary judgment on the plaintiff's gross negligence claims, finding that a jury could find gross negligence if the water company was on notice of improper maintenance of the fire hydrants but failed to correct the problem. The Supreme Court also upheld the Superior Court's ruling that any such improper maintenance would not constitute willful or wanton conduct. (August 26, 2010)

In Indian Brand Farms v. Novartis Crop Protection, Inc., the United States Court of Appeals for the Third Circuit reviewed a district court's grant of summary judgment on the plaintiff's claims of negligent misrepresentation/fraud under the New Jersey Consumer Fraud Act (NJCFA). In pertinent part, the issue before the Third Circuit was whether the plaintiffs' negligent misrepresentation/fraud, violation of the NJCFA, and failure-to-warn claims were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The Third Circuit held that, because the plaintiffs' negligent misrepresentation/fraud and NJCFA claims were based on alleged misrepresentations in Novartis's marketing brochure and the brochure did not qualify as "labeling" under FIFRA, those claims were not preempted. The Third Circuit also held that, because the plaintiffs' failure-to-warn claim, if successful, would not result in a labeling requirement in addition to or different from those required by FIFRA, the failure-to-warn claim was not preempted. (August 13, 2010)

In Tagouma v. Investigative Consultant Service, Inc., the Superior Court of Pennsylvania reviewed claims based on an alleged invasion of privacy and intrusion on seclusion arising from surveillance done on the plaintiff, a Muslim, during prayer services as the result of a workers' compensation claim. The plaintiff sued the defendant claiming he had a reasonable expectation of privacy during his prayer service. The Superior Court held that the plaintiff had a diminished expectation of privacy because of his workers' compensation claim. In addition, the Mosque where he was praying was open to the public and the plaintiff was praying directly in front of a plate glass window. The court also held that the investigator's use of a zoom lens, similar to using binoculars, was not unreasonable. (August 13, 2010)

In Bell v. Dean, the Superior Court of Pennsylvania addressed whether the Pennsylvania Skier's Responsibility Act barred recovery for injuries sustained in a collision between a skier and snowboarder. The court dismissed the plaintiff's action because the Act provides that skiers cannot recover for injuries resulting from the inherent risks of skiing, which were held to include the risk of collision with another skier or snowboarder. (August 16, 2010)

In EBC, Inc., et al. v. Clark Building Systems, Inc., et al., the United States Court of Appeals for the Third Circuit addressed, for the first time: (1) the extent to which a party may establish a genuine issue of material fact in response to a Motion for Summary Judgment by using a deposition errata sheet; and (2) whether and when a District Court may ignore a noncompliant errata sheet. The court held, among other things, that "[i]f the party or deponent proffering changes in the form or substance of a deposition transcript fails to state the reasons for the changes, the reviewing court may appropriately strike the errata sheet." Regarding the scope of changes that can be made, the court stated, that as a general proposition, "a party may not generate from whole cloth a genuine issue of material fact (or eliminate the same) simply by retailoring sworn deposition testimony to his or her satisfaction." Thus, when a court is reviewing a motion for summary judgment, "it does not abuse its discretion under Rule 30(e) when it refuses to consider proposed substantive changes that materially contradict prior deposition testimony, if the party proffering the changes fails to provide sufficient justification." (August 18, 2010)

In Kincy v. Petro, the Supreme Court of Pennsylvania addressed whether an order under Rule of Civil Procedure 213 "consolidating cases for all purposes" merged the pleadings and causes of action for two different plaintiffs. The court held that, while different cases can be consolidated for purposes of discovery and trial, "complete consolidation" of actions cannot be achieved unless the actions involve the same parties, subject matter, issues and defenses. (August 18, 2010)

In Ruzszala v. Brookdale Living Communities and Azzaro v. Brookdale Living Communities, the Superior Court of New Jersey, Appellate Division, in two consolidated appeals, determined whether § 2 of the Federal Arbitration Act (FAA), 9 U.S.C.A. § 2-which declares arbitration provisions in contracts "valid, irrevocable, and enforceable"-preempts the public policy of the State, as expressed by the Legislature in N.J.S.A. 30:13-8.1, one of the key components of the "Nursing Home Responsibilities and Rights of Residents" Act. N.J.S.A. 30:13-8.1 renders void and unenforceable "[a]ny provision or clause waiving or limiting the right to sue . . . between a patient and a nursing home." The Appellate Division held that the FAA preempts the anti-arbitration provision in N.J.S.A. 30:13-8.1. However, the court found that certain discovery restrictions, limitations on compensation for noneconomic damages, and the outright preclusion of punitive damages in the arbitration agreement at issue were substantively unconscionable, and, therefore, invalid. (August 13, 2010) 

In Hudson v. Old Guard Insurance Co., the Supreme Court of Delaware affirmed the trial judge's grant of summary judgment and a directed verdict against a 12-year-old child hit by a car while riding his bicycle. The court found that the driver of the car had no duty to anticipate the bicycle "darting into the road," and did not otherwise act negligently. (August 12, 2010)

In MMU of New York, Inc. v. Grieser, the Superior Court of New Jersey, Appellate Division, addressed whether a judgment debtor is entitled to a fair market value credit for property after an execution sale to a judgment creditor for a nominal amount. The court held that, even in the absence of express statutory authorization, a judgment debtor has the right to a fair market value credit after an execution sale to a judgment creditor. Thus, courts have inherent authority to allow a fair market value credit in order to prevent a double recovery against the judgment debtor. (August 4, 2010)

In Jones v. Crawford, the Supreme Court of Delaware addressed the quantum of evidence needed in a wrongful death action involving a high-speed police chase in order to survive summary judgment. The Court held that a police officer's failure to terminate a chase before entering a residential area could be found to be "an extreme departure from the ordinary standard of care" sufficient to impose liability on emergency responders. (July 30, 2010)

The Supreme Court of New Jersey, in Robertet Flavors, Inc. v. Tri-Form Construction, Inc., addressed issues concerning the spoliation of evidence in commercial construction litigation. According to the Supreme Court, trial courts confronted with spoliation issues in commercial construction litigation should consider: (1) the identity of the spoliator; (2) the manner in which the spoliation occurred: (3) the prejudice to the non-spoliating party; and (4) the alternate sources of information that are, or are likely to be, available to the non-spoliator from its own records and personnel. Trial courts should balance all of these considerations in crafting an appropriate remedy designed to level the playing field. Although the sanction of preclusion should be used sparingly, the Supreme Court held that, in this instance, the plaintiff was not permitted to proceed against Tri-Form Construction, Inc. because it had no opportunity to inspect the leaking windows before remediation and, thus, no independent evidence with which to mount a defense. (August 3, 2010)

In Juzwiak v. John/Jane Doe, the Superior Court of New Jersey, Appellate Division was confronted with issues concerning the tort of intentional infliction of emotional distress in the context of a First Amendment case. The plaintiff, a school teacher, brought suit after the defendant sent a series of anonymous emails urging the plaintiff to resign. Plaintiff sought damages for intentional inflection of emotional distress and also served a subpoena on Yahoo!, the internet service provider listed on the defendant's emails, in an effort to determine the defendant's identity. According to the Court, the plaintiff must produce sufficient evidence supporting his or her causes of action before a court can order the disclosure of a poster's identity. The Court held that the emails, although filled with expressions of anger, did not rise to the level of "extreme or outrageous," which is a necessary showing for an intentional infliction of emotional distress claim. Because the plaintiff could not make out a prima facie case of intentional infliction of emotional distress, the identity of the defendant was protected. (August 3, 2010)

In Delta Eta Corp. v. University of Delaware, the Supreme Court of Delaware addressed the imposition of prejudgment interest in the context of a dispute over a real estate lease agreement. The court, noting that in an action based on a breach of contract or a debt pre-judgment interest is awarded as a matter of right, held that interest starts to accrue on the date when payment should have been made. (July 29, 2010)

In Kent Motor Cars, Inc. v. Reynolds and Reynolds Co., the Supreme Court of New Jersey granted a Petition for Certification of Appeal, agreeing to decide the following question: "Was defendant entitled to the sanction of dismissal of the action under Rule 4:5-1(b)(2) because plaintiff failed to provide notice in its first pleading in prior litigation that defendant was a potentially liable party?" (June 30, 2010)

In Frederick v. Tranquilino, the Supreme Court of New Jersey granted a Petition for Certification of Appeal to consider provisions of New Jersey's No Fault and Dram Shop Acts. The question the court agreed to consider is: "Does N.J.S.A. 39:6A-4.5(b), the No Fault Act provision that precludes a DUI offender's action to recover damages for losses resulting from a motor vehicle accident, bar the intoxicated motorist's claim under the Dram Shop Act, N.J.S.A. 2A:22A-1 to -7, against the tavern that served him?" (July 12, 2010)

In I.H. v. County of Lehigh, et al., the Third Circuit Court of Appeals considered, in an issue of first impression under Pennsylvania law, whether a private foster care agency can be vicariously liable for the ordinary negligence of a foster parent. The Court held that the agreement between the foster care agency and the foster parents, which gave the agency a broad supervisory role but not a right to control the parents' day-to-day activities, did not establish a master-servant relationship. Because such a relationship did not exist, the agency could not be held vicariously liable for the actions of the parents. (July 7, 2010) 

In Vopa v. Reinhard, the Supreme Court of the United States granted certiorari to decide a question of Eleventh Amendment immunity. In particular, the Court agreed to consider the following issue: "Whether the Eleventh Amendment categorically precludes an independent state agency from bringing an action in federal court against state officials for prospective injunctive relief to remedy a violation of federal law under the doctrine of Ex parte Young." (June 21, 2010)

In Szcecina v. PV Holding Corp., et al., the Superior Court of New Jersey, Appellate Division, addressed whether clearly inappropriate statements about the defense made by the plaintiff's counsel in his opening statement and summation warranted a new trial. The statements included derisive comments about defendants, their counsel, and their expert witnesses, as well as a request that the jury "send a message" through its verdict. Although defense counsel did not object to the statements during the opening statement and summation, the Appellate Division concluded that the trial judge had an affirmative duty to intervene in the face of patently inappropriate conduct. Thus, the Appellate Division reversed and remanded the case. (June 25, 2010)

In Davis v. Devereux Foundation, et al., the Superior Court of New Jersey, Appellate Division, addressed whether Devereux, a charitable foundation, was liable under the common-law doctrine of respondeat superior in a case arising from a low-level, non-managerial employee throwing hot water on Roland Davis. Mr. Davis was a disabled resident at a facility run by Devereux. Although the Appellate Division declined to impose vicarious liability based on charitable institutions housing and caring for the mentally disabled having a non-delegable duty of care to their clients, the court held that Mr. Davis was entitled to pursue common law claims against Devereux under the rule laid down by the Supreme Court of New Jersey in Gibson v. Kennedy, 23 N.J. 150 (1957). Under that rule, an employer is liable for its employee's action if the action is within the employee's scope of employment and intended, at least in part, to serve the employer. (June 25, 2010)

In Paragon Contractors, Inc. v. Peachtree Condo. Ass'n., et al., the Supreme Court of New Jersey examined whether the failure to hold a case management conference pursuant to Ferreira v. Roncocas Orthopedic Assoc., 178 N.J. 144 (2003) tolls the time period for filing an Affidavit of Merit set forth in N.J.S.A. 2A:53A-26-29. The court held that the failure to hold a case management conference has no effect on the time limit prescribed by the Affidavit of Merit statute. (June 28, 2010)

In Hall v. Danberg, the Supreme Court of Delaware addressed whether the plaintiff's appeal from an apparent interlocutory order should be dismissed because he failed to comply with Supreme Court Rule 42, which governs such appeals. The court held that the appeal was indeed from an interlocutory order and that the plaintiff's pro se status did not excuse his failure to comply with the court's rules. The court further held that the collateral order doctrine did not permit review of the plaintiff's appeal because his dismissed 42 U.S.C. § 1983 claims were not collateral to his remaining mandamus claims. (July 1, 2010)

In Estate of Nick Hanges v. Metropolitan Property & Casualty Insurance Company, the Supreme Court of New Jersey considered whether the decedent's statement concerning the cause of the automobile accident was admissible under a hearsay exception for unavailable declarants. The decedent's statement concerned a phantom vehicle that allegedly caused the accident. The trial court did not allow the statement, finding it was neither trustworthy nor reliable enough to be admitted under the hearsay exception. The Supreme Court of New Jersey disagreed, holding that while the trial court's skepticism was understandable, notions of self interest alone were not enough to preclude the statement and that evidence must be adduced to demonstrate the impossibility or unlikelihood of the decedent's statement. (June 21, 2010)

In Blessing v. Johnson & Johnson, the Supreme Court of New Jersey granted a Petition for Certification of Appeal to address a question related to the discovery rule in a products liability case. The question the court agreed to consider is stated as follows: "Under the circumstances presented, was [the] plaintiff's products liability action alleging defective sutures timely filed by application of the discovery rule; and[,] were [the] defendants equitably estopped from asserting the statute of limitations?" (June 3, 2010)

In Shamrock Lacrosse v. Klehr, Harrison, Harvey, Branzburg & Ellers, LLP, et al, the Superior Court of New Jersey, Appellate Division, addressed the applicability of the affidavit of merit requirement under N.J.S.A. 2A:53A-26 to -29 to a malpractice action that the plaintiff brought against two law firms. The plaintiff did not name the allegedly negligent attorney in the suit. The suit involved a patent for a lacrosse stick head that expired because the attorney, who worked, in succession, at the two firms, failed to pay renewal fees to the U.S. Patent and Trademark Office. The plaintiff alleged that the law firms were negligent in failing to protect the plaintiff's intellectual property. The New Jersey Affidavit of Merit Statute requires plaintiffs bringing suit for malpractice or negligence against certain "licensed persons" to make a threshold showing that their claim is meritorious by filing an affidavit of merit. While the Appellate Division sustained the Law Division's conclusion that the plaintiff was required to timely serve an affidavit of merit in support of its claims because the law firms were "licensed persons," it vacated the dismissal of the complaint on equitable grounds, noting that the plaintiff's argument that a law firm is not a "licensed person" was "not frivolous or insubstantial" given the unsettled case law on this issue. (June 14, 2010)

In Krupski v. Costa Crociere S.p.A., the Supreme Court of the United States clarified the requirements of Federal Rule of Civil Procedure 15(c)(1)(C), which addresses when amendments to a complaint relate back to the original filing date, in cases where a plaintiff sues the wrong defendant and seeks to amend the complaint after the statute of limitations has run. Here, the plaintiff was injured on a cruise and sued the sales agent, not the cruise line, for her injuries. After the statute of limitations ran, the sales agent moved for summary judgment and identified the cruise line as the proper defendant. The plaintiff then sought to amend her complaint to name the cruise line as the defendant. The trial court denied her request, stating that because she knew of the existence of the cruise line, her failure to sue the cruise line was a deliberate decision rather than a mistake. The trial court also held that she waited too long to amend the complaint. The Supreme Court reversed both holdings, finding them inconsistent with the text of Rule 15(c)(1)(C). The Court found that a plaintiff can know of the existence of a party without knowing that the party is the proper defendant. A plaintiff's knowledge of the existence of a party does not foreclose the possibility of a mistake. The Court also found that the rule does not set any time limits for correcting this type of mistake. If the Rule 15(c) requirements for relation back are met, the trial court should grant a requested amendment. Trial courts have no discretion to deny the amendment on equitable grounds, such as undue delay. (June 7, 2010)

In Ross v. Foremost Ins. Co. and Sentry Serv., Inc., the Superior Court of Pennsylvania addressed, among other things, whether the release of the principal (Foremost) acted as a release of the agent (Sentry). In this case, the plaintiff filed an insurance claim after his trailer was damaged in a flood. Foremost denied the plaintiff's claim because his policy did not provide flood insurance. After the suit was filed, the plaintiff settled with Foremost and signed a release. The court held that even though the agent (Sentry) may have been acting as an agent for the principal (Foremost), the release of the principal did not release the agent because the release expressly reflected the plaintiff's reservation of rights against the agent. (June 11, 2010)

In Levin v. Commerce Energy, Inc., et al., the Supreme Court of the United States addressed whether a taxpayer's complaint of allegedly discriminatory state taxation must proceed initially in state court. The respondents were independent natural gas marketers that did not enjoy tax exemptions exclusively granted to local distribution companies. The respondents sought a declaratory judgment invalidating the exemptions under the Commerce and Equal Protection Clauses of the United States Constitution. The Supreme Court dismissed the suit, holding that the comity doctrine, which restrains federal courts from adjudicating claims that risk disrupting state tax administration, demands that a taxpayer's allegation of discriminatory state taxation proceed originally in state court. Thus, a state's tax-enforcement methods should not be interfered with absent strong cause. Because no suspect classifications or fundamental rights were involved, comity required that the lawsuit begin in a state court, where a judge more familiar with state legislative preferences would be better suited to correct any violation. (June 1, 2010) 

In Jones v. ABN AMRO Mortgage Group, et al., the United States Court of Appeals for the Third Circuit recently addressed, inter alia, whether the perpetrator of a Ponzi scheme can be considered a loan "servicer" under the Real Estate Settlement Procedures Act (RESPA), 1212 U.S.C. § 2605. RESPA defines "servicing" in terms of the "receipt of scheduled periodic payments" from the borrower "pursuant to the terms of any loan" and making those payments "as may be required pursuant to the terms of the loan." See 12 U.S.C. § 2605(i)(3). In the Ponzi scheme at issue, the perpetrators were mortgage brokers who offered the plaintiffs a "bogus" mortgage agreement that purported to "convert" the terms of a legitimate mortgage, which they had brokered, to a lower interest rate and lower monthly payments in exchange for a large prepayment of the principal balance. The legitimate lenders, SunTrust, Countrywide, and others, were not a party to the additional agreement for reduced interest and monthly payments. The plaintiffs sued the lenders under the theory that the perpetrators of the scheme were "servicers" of the loans. In deciding that the perpetrators of the Ponzi scheme were not "servicers" of the loan, the Third Circuit reasoned, in part, that the conduct of the perpetrators in collecting payments on the "bogus" agreement did not render the perpetrators "servicers" of the legitimate mortgage companies' loans because the defendants were not collecting payments under the legitimate terms of the initial agreement. (May 25, 2010) 

In Washington, et al. v. FedEx Ground Package System, Inc., et al., the Superior Court of Pennsylvania addressed a consolidated, procedurally complex appeal and considered whether the lower court violated the due process rights of individual plaintiffs by granting defendants' motion to: 1) transfer the venue of ten Philadelphia County cases to Allegheny County; 2) coordinate all cases with two related Allegheny court putative class action lawsuits; and 3) stay all state court matters pending disposition of a related district court class action lawsuit in Illinois. The plaintiffs in this consolidated appeal were 233 FedEx drivers from 42 different states. The plaintiffs alleged, among other things, that their employment contracts characterizing their relationships as independent contractors were invalid because, in reality, an employer-employee relationship exists. The plaintiffs have either opted out of pending class actions or, should the class actions be certified, intend to opt out of the class actions. The Superior Court affirmed the lower court's orders related to the transfer and coordination of the actions, reasoning that the plaintiffs' due process rights were not violated because their rights will not expire or be indefinitely delayed by waiting until the resolution of a related federal court class action lawsuit. Additionally, the plaintiffs were still permitted to file a motion to lift the stay so as to conduct limited discovery. With regard to coordinating the actions with the two related putative class action lawsuits, the Superior Court found that the plaintiffs' individual rights were not violated because they were not bound to the outcome of the class actions and were still entitled to opt out and pursue their individual theories. Further, transferring and coordinating related cases promotes judicial efficiency and avoids the waste of judicial resources. With respect to the order entering the stay, the court quashed the appeal. Orders staying proceedings are generally considered interlocutory and are appealable only if made so by statute, or if the effect of the stay is tantamount to a dismissal of the case, or amounts to a permanent denial of relief. The Superior Court found that no exceptions applied. (May 27, 2010) 

In Williamson v. Mazda Motor of America, the Supreme Court of the United States granted certiorari to address a federal preemption question related to federal motor vehicle safety standards. The Court granted certiorari to address the following question: "Where Congress has provided that compliance with a federal motor vehicle safety standard 'does not exempt a person from liability at common law,' 49 U.S.C. § 30103(e), does a federal minimum safety standard allowing vehicle manufacturers to install either lap-only or lap/shoulder seatbelts in certain seating positions impliedly preempt a state common-law claim alleging that the manufacturer should have installed a lap/shoulder belt in one of those seating positions?" (May 24, 2010) 

In Yousef v. General Dynamics Corp., the Supreme Court of New Jersey granted a Petition for Certification of Appeal to address a forum non conveniens question. The question the court agreed to hear is stated as follows: "Is New Jersey an appropriate forum to hear the claims of these New Jersey residents against a Florida resident and an American corporation for injuries sustained in a motor vehicle accident that occurred in South Africa?" (May 7, 2010)

In Taddei v. State Farm Indemnity Co., the Supreme Court of New Jersey granted a Petition for Certification of Appeal to address the following question: "Where plaintiff's uninsured motorist claim proceeds to verdict against the tortfeasor, is plaintiff barred on entire controversy grounds from filing a subsequent complaint against the insurer alleging bad faith in not settling plaintiff's claim?" (April 22, 2010) 

In Catroppa v. Carlton, the Superior Court of Pennsylvania discussed a collateral estoppel argument associated with a prior underinsured motorist (UIM) arbitration. Collateral estoppel operates to prevent a question of law or issue of fact which has once been litigated and fully determined in a court of competent jurisdiction from being relitigated in a subsequent suit. State Farm insured both the plaintiff and the defendant. The plaintiff and State Farm arbitrated the plaintiff's UIM claim. Subsequently, the plaintiff argued that the defendant was collaterally estopped from challenging the plaintiff's damages because the defendant's insurer, State Farm, was a party to the UIM arbitration. The Superior Court held that the defendant was not precluded from disputing the amount of the plaintiff's damages because the defendant was not a party to the UIM arbitration between the plaintiff and State Farm, nor could she have been, as she had no interest in the matter. (May 14, 2010) 

In Ortiz v. Jordan, the Supreme Court of the United States granted certiorari to consider the following question: "May a party appeal an order denying summary judgment after a full trial on the merits if the party chose not to appeal the order before trial?" (April 26, 2010)

In Perry v. Berkley, et al., the Supreme Court of Delaware issued a decision regarding the admissibility of expert testimony where the expert's opinions lacked an adequate factual basis and were based on an inaccurate medical history. In this auto-accident litigation, plaintiff alleged injuries to the lumbar and cervical spine. Plaintiff identified one medical expert, who only offered causation testimony as to the lumbar injuries. The expert claimed that plaintiff had not had any complaints regarding her lumbar spine prior to the motor vehicle accident. That opinion was inaccurate, as plaintiff had a history of back pain which was documented in multiple treatment records. Those records were never reviewed by plaintiff's expert even though he was sent a prior MRI and the history of lumbar pain was referenced by defendants' experts. The lower court granted defendants' motion to preclude any causation testimony from plaintiff's expert for lack of an adequate factual basis under Delaware Rule of Evidence 702. On appeal, plaintiff argued that factual inaccuracies in the expert's report only went to "the weight and credibility of the testimony rather than the admissibility." The Supreme Court disagreed and reasoned that an expert must be disqualified under Rule 702 if his proposed testimony is not based upon "sufficient facts or data." The judgment of the lower court was, therefore, affirmed. (May 11, 2010)

In Daley v. A.W. Chesterton, Inc., et al, the Pennsylvania Supreme Court granted a Petition for Allowance of Appeal on the following question: "Did the Superior Court err by permitting suits for more than one malignant disease resulting from the same asbestos exposure under the 'two-disease' rule?" (May 11, 2010)

In Salzano v. North Jersey Media Group, Inc., the New Jersey Supreme Court issued a decision regarding the fair-report privilege in a defamation action, holding that the initial pleadings exception is no longer viable under New Jersey law. Plaintiff was the subject of a complaint in bankruptcy court filed by the trustee of a telecommunication company. In the bankruptcy complaint, plaintiff was accused of unlawfully diverting, converting, and misappropriating company funds for his own personal benefit. After suit was filed, The Record, a periodical owned by the North Jersey Media Group (NJMG), published an article about the bankruptcy proceedings entitled "Man accused of stealing $500,000 for high living." Plaintiff sued NJMG for defamation, arguing that statements in the report were defamatory per se because the words "stealing," "stolen funds," and "taken" imputed criminal conduct to him. Defendant moved to dismiss plaintiff's defamation suit, arguing that its reporting was covered by the fair-report privilege, which protects the publication of defamatory matters that appear in a report of an official action or proceeding. The trial court agreed with defendant and dismissed the action. The Appellate Division reversed and remanded for trial, concluding that, although the publication was a full, fair, and accurate report of the bankruptcy proceedings, the fair-report privilege did not apply to initial pleadings. The Supreme Court reversed, in part, and held that the fair-report privilege extends to defamatory statements in filed pleadings, even if those averments have not yet come before a judicial officer. The Supreme Court noted that the privilege is conditional insofar as it attaches only to full, fair, and accurate reports of government proceedings. The Supreme Court found that the portion of the challenged publication that was based on the bankruptcy complaint was full, fair, and accurate and, thus, immune from a defamation lawsuit. (May 11, 2010)

In Montagazzi v. Crisci, the Superior Court of Pennsylvania addressed whether a group of minor boys owed a duty to warn another minor boy, who was injured when an explosive device that the boys made together blew up in his hand. The trial court granted summary judgment to all of the boys after determining that no duty was owed and that the injured boy assumed the risk of injury. On appeal, the injured boy argued that because there was evidence suggesting that the other boys were aware of the danger and did nothing about it, Section 321 of the Restatement (Second) of Torts imposed an affirmative duty on the other boys to intervene and stop the device from being lit. The Superior Court held that no such duty exists and reasoned that Section 314 of the Restatement (Second) of Torts limits the duty to act affirmatively to protect someone else to circumstances where a special relationship exists between the parties, which was not the case here. The injured minor also argued that the other boys were liable under Section 491 of the Restatement (Second) of Torts because they were engaged in a "joint enterprise." The Superior Court dismissed this argument as well because it had already found that no duty existed, and Section 491 does not create an independent duty; it merely limits liability among members of the "joint enterprise." (April 30, 2010)

The Superior Court of Pennsylvania, in Mull v. Ickles, et. al., addressed whether defects in a sidewalk were "trivial defects." Although Pennsylvania property owners have a duty to maintain their sidewalks in a safe condition, they are not responsible for trivial defects that exist in their sidewalks. The sidewalk at issue had a 1 1/2 inch-deep depression and a slight grade away from the road. The question of whether a defect is a trivial defect is a question of law. There is "no definite or mathematical rule that determines when a defect is trivial." Thus, each case must be determined on its individual facts. If the defect at issue is not obviously trivial, the question of negligence must be submitted to the jury. The Superior Court held that the defect at issue in this case was not so obviously trivial as a matter of law to justify the entry of summary judgment. Thus, the Superior Court reversed the decision of the trial court. (May 4, 2010)

In Gormley v. Edgar, the Superior Court of Pennsylvania clarified that a plaintiff who places her mental health at issue in a civil action waives her entitlement to assert privilege or confidentiality protections with respect to her mental health treatment or records. The court first addressed whether orders compelling the disclosure of privileged documents or communications are immediately appealable under the collateral order doctrine. Although the court acknowledged that the United States Supreme Court recently held that the federal collateral order doctrine does not apply to orders compelling the disclosure of privileged documents, the court nonetheless held that under Pennsylvania Rule of Appellate Procedure 313, such orders are immediately appealable. The court then held that the defendant was entitled to discover the records of the plaintiff's mental health evaluation during an emergency room visit because she alleged in her complaint that, as a result of the defendant's negligence, she suffered anxiety and the loss of the enjoyment of life. (April 26, 2010) 

In Kurowski v. A. Parker Burroughs, the Superior Court of Pennsylvania reviewed the grant of summary judgment in favor of a newspaper in a defamation lawsuit. The plaintiff was an attorney and property owner, whose building was destroyed by arson. The plaintiff was slow to repair the premises, and a series of editorials and other articles were subsequently published citing the plaintiff's building as an example of property that the city should condemn. The Superior Court upheld the grant of summary judgment in favor of the defendant-publisher and reaffirmed the principle that statements of opinions are not actionable unless they imply the existence of undisclosed facts. Because the editorial at issue did not make such an implication, the editorial was not capable of defamatory meaning. (April 26, 2010)

In Mirizio v. Cathy Joseph., the Superior Court of Pennsylvania addressed the gist of the action doctrine as it relates to claims of fraud in a situation where the plaintiff asserts both breach of contract and breach of fiduciary duty claims. The gist of the action doctrine precludes plaintiffs from recasting ordinary breach of contract claims as tort claims. The court explained that "the central analysis is whether the tort claim [- fraud in this case -] is based on contractual duties, or conversely, whether the contract is collateral to a tort claim that is based on duties imposed by 'larger social polices embodied in the law of torts.'" The court then reasoned that each tort claim must be analyzed independently, and simply because the plaintiff is asserting both contract and breach of fiduciary duty claims, it does not follow that a fiduciary duty claim creates a "shield against the gist of the action doctrine," permitting the plaintiff to assert various tort claims in a contract case. The court emphasized that each "tort claim must be analyzed independently and a determination made as to whether the tort claim is the gist of the action and the contract is collateral to the matter." The court nonetheless affirmed the decision of the trial court because the gist of the action doctrine does not bar a fraud claim stemming from an alleged fraudulent inducement to enter into the contract. (April 26, 2010)

In Black v. Labor Ready, Inc., the Superior Court of Pennsylvania analyzed the judicial estoppel doctrine. Pursuant to the doctrine, a party to an action is estopped from assuming a position inconsistent with his or her assertion in a previous action if his or her contention was successfully maintained. In Black, the plaintiff was injured at work and filed a workers' compensation claim against Labor Ready, Inc. (Labor Ready) her employer, and Williamsport Steel Container Corporation (Williamsport), the owner of the factory where she was working when she was injured. Williamsport denied that it was the plaintiff's employer. Ultimately, the parties reached an agreement whereby Labor Ready agreed to pay workers' compensation benefits, and the plaintiff withdrew her claim against Williamsport. Subsequently, in defense of the plaintiff's tort-based lawsuit, Williamsport sought summary judgment in its favor on the basis that the plaintiff was its "borrowed employee." After the trial court granted Williamsport's motion for summary judgment, the plaintiff appealed, arguing that the judicial estoppel doctrine barred Williamsport from taking inconsistent positions as to whether it was the plaintiff's employer. The Superior Court agreed, and reaffirmed that the judicial estoppel doctrine applies where: (1) a litigant assumes a position that is inconsistent with its position in an earlier action; and (2) the litigant's position was "successfully maintained" in the prior action. (April 26, 2010)

In Lisa, S.A. v. Mayorga, et al., the Supreme Court of Delaware addressed the forum non conveniens standard for actions that were not "first-filed." Plaintiff's suit was brought in the Delaware Court of Chancery on November 22, 2006, more than eight years after plaintiff filed an action arising out of a "common nucleus of operative facts" in the Florida Circuit Court. After the Florida action was dismissed on forum non conveniens grounds, the defendants were successful in dismissing the Delaware action on the same basis. Plaintiff appealed, arguing that the court improperly failed to require defendants to establish that they would be subject to "overwhelming hardship" if forced to litigate in Delaware. The Supreme Court of Delaware affirmed the dismissal. The Court held that where the suit is not the "first-filed" action, the "overwhelming hardship" test does not apply. Rather, the court may freely exercise its discretion in favor of staying or dismissing the action. (April 20, 2010)

In Fletcher v. Cessna Aircraft Co., the Superior Court of New Jersey examined the circumstances under which a manufacturer is sued "in its capacity as a manufacturer" under the General Aviation Revitalization Act of 1994 (GARA). Plaintiff's husband was killed when his Cessna plane crashed because of a preflight inspection that failed to recognize ice in the fuel system. Defendant unsuccessfully moved for summary judgment under GARA, which generally bars suits against airplane manufacturers brought more than 18 years after the delivery date to an initial purchaser. The Superior Court reversed and held that an action based on failure to warn or advise about safety measures is brought against a manufacturer "in its capacity as a manufacturer." GARA, therefore, barred the plaintiff's action. (April 20, 2010)

In Miller v. State Farm Mutual Auto. Ins. Co., the Supreme Court of Delaware reviewed whether the collateral source rule applies in the underinsured motorist context. Plaintiff was struck by another car while driving a car owned by his employer. Plaintiff's workers' compensation carrier paid most of his medical expenses. At trial for his personal injuries, the court admitted into evidence the fact that the plaintiff received workers' compensation benefits and instructed the jury that his WC carrier had paid nearly all of his medical bills. As a result, the jury awarded $0 damages. The Supreme Court reversed, finding that the collateral source - plaintiff's WC carrier - had no connection to the defendant, State Farm. Under the underinsured motorist provision of the insurance contract between State Farm and the plaintiff, State Farm was required to pay the plaintiff whatever damages plaintiff was legally entitled to recover. Because State Farm contributed nothing to the collateral source fund, the court determined that State Farm should not have been permitted to benefit from it. (April 21, 2010)

In Lee v. Choice Hotels International, Inc., the Supreme Court of Delaware addressed whether the concept of negligence per se is applicable under Indonesian law and explored expert witness qualifications under the Delaware Rules of Evidence. The minor-plaintiff suffered brain damage after he nearly drowned in a pool at a resort in Indonesia. The Superior Court granted summary judgment for defendant after precluding the testimony of plaintiff's expert on the grounds that he had not previously investigated accidents in Indonesia. The Supreme Court reversed, holding that negligence per se is applicable under Indonesian law and that plaintiff did not need an expert in order to offer sufficient evidence of a violation of the relevant Indonesian regulation. Additionally, the Supreme Court held that the testimony of plaintiff's expert should not have been precluded because, under Delaware Rule of Evidence 702, he was well qualified to opine on the appropriate standard of care in Indonesia. (April 13, 2010)

In State of New Jersey v. A.G., the Supreme Court of New Jersey reviewed the standard for deciding when the cleric-penitent privilege may be invoked. The court held that the privilege applies when, under the totality of the circumstances, an objectively reasonable penitent would believe that a communication was secret - that is - made in confidence to a cleric, in the cleric's professional role as a spiritual advisor. (April 7, 2010)

In Reyes v. Egner, the Supreme Court of New Jersey considered whether a real estate agent owes a duty of care to inspect the premises of a short-term rental property. The court affirmed the decision of the Superior Court, Appellate Division and, thus, held that a real estate agent, who is leasing a short-term rental property, does not have a duty to conduct a reasonable inspection of the premises. In so holding, the court declined to extend the rationale of its earlier decision in Hopkins v. Fox & Lazo Realtors, wherein the court held that a real estate agent conducting an open house for potential home buyers had a duty to conduct a reasonable inspection of the property to ensure the safety of visitors to the property. (April 8, 2010)

In Meadows v. Goodman, the Superior Court of Pennsylvania considered whether the trial court committed reversible error when it denied a motion to amend a complaint to join a new defendant before the statute of limitations had expired. The Superior Court held that the trial court erred, as a matter of law, when it denied the motion to amend on the basis that it was procedurally improper and held that the plaintiff should have, instead, filed a motion to join a defendant. The Superior Court reasoned that the motion to amend was, in fact, procedurally proper and that the trial court erred when it denied the motion because the statute of limitations had not yet expired and, therefore, the defendants were not prejudiced. (April 8, 2010)

In Stengart v. Loving Care Agency, Inc., an employment discrimination matter, the Supreme Court of New Jersey recently addressed an issue of first impression involving an employee's right to privacy and confidentiality in email communications. The specific issue before the court was whether an employee retains a reasonable expectation of privacy in email communications with the employee's lawyer that are sent and received on a company laptop using a web-based, password-protected, personal email account. The court, in a unanimous decision, held that by using a personal email account and not saving the password on the company-issued computer, the employee retained an expectation of privacy in her communications with her attorney. (March 30, 2010) 

In Manella v. Port Authority of Allegheny County, the Supreme Court of Pennsylvania granted a petition for allowance of appeal to decide a question related to sovereign immunity. The issue the court will consider is as follows: "Whether 42 Pa.C.S. § 8522(b)(1), relating to the statutory exception to sovereign immunity associated with the operation of a motor vehicle, applies to the negligent lowering of a motorized mechanical wheelchair ramp that is an integral part of a bus." (March 16, 2010)

In Gillard v. AIG Ins. Co., the Supreme Court of Pennsylvania granted a petition for allowance of appeal to address questions related to the attorney-client privilege. The issues the court agreed to consider are: "a) Whether the attorney-client privilege applies to communications from the attorney to the client; and b) Whether the Superior Court erred in holding the attorney-client privilege applies only to confidential communications from the client to the attorney pursuant to Nationwide Mut. Ins. Co. v. Fleming , 924 A.2d 1259 (Pa. Super. 2007)." (March 16, 2010)

In Kozma v. Starbucks Coffee Company, the Superior Court of New Jersey, Appellate Division issued a decision regarding a slip-and-fall case where the jury found liability on the part of the defendant, but awarded zero damages to the plaintiff. The plaintiff argued on appeal that, in view of "the undisputed evidence" that he suffered an injury to his knee, "the jury was not authorized to return a verdict of no damages," and "the verdict amounted to an imperious abdication of the jury's responsibility." The Appellate Division upheld the verdict, explaining that it was reasonable for the jury to conclude that the impact of the fall was so insignificant that no additional injury beyond plaintiff's preexisting condition was sustained. (March 19, 2010)

In Walter Holmes v. Kimco Realty Corp., et al., the United States Court of Appeals for the Third Circuit had to predict whether the State of New Jersey would impose a common law duty on a tenant in a multi-tenant shopping center to maintain the parking lot, which was owned by the landlord. The District Court granted summary judgment in favor of the tenant, finding that the State of New Jersey would likely not extend liability because of the multi-tenant use of the parking lot. The Third Circuit affirmed, predicting that, although New Jersey places a relatively broad duty on commercial landowners, it would not impose a duty on an individual tenant in a multi-tenant facility when the landlord owned, controlled, and was responsible for maintaining the parking lot. Robert Devine, a litigation partner in White and Williams LLP's Cherry Hill, New Jersey office, represented the tenant in the trial court, and on appeal. (March 17, 2010)

In Los Angeles County v. Humphries, the Supreme Court of the United States granted certiorari to address whether claims for declaratory relief against a local public entity are subject to the requirement in Monell v. Department of Social Services, 436 U.S. 658 (1978) that the plaintiff demonstrate that the constitutional violation was the result of a policy, custom or practice attributable to the local public entity. The Court will also address issues associated with when attorneys' fees can be recovered against a municipality pursuant to 42 U.S.C. § 1988. (February 22, 2010)

In Gleason v. Borough of Moosic, Pennsylvania, the Supreme Court of Pennsylvania granted a Petition for Allowance of Appeal. The court will address the following question: "Should plaintiffs who attempt to invoke Pennsylvania's narrow discovery rule to toll the statute of limitations be required to prove their "reasonable diligence" in order to survive summary judgment, or should the determination of plaintiffs' "reasonable diligence" necessarily be submitted to the jury? (February 23, 2010)

In Rohm & Haas, Co. v. Lin, the Superior Court of Pennsylvania reviewed whether the trial court erred in entering a default judgment and a preliminary injunction in favor of the plaintiff, the defendant's former employer, as a discovery sanction against the defendant in a case involving trade secret litigation. The Superior Court affirmed the entry of a default judgment against the defendant and held that the defendant's willful defiance of the trial court's numerous discovery orders prejudiced the plaintiff as it prevented the plaintiff from pursuing its underlying claims for past appropriations, and from enforcing the preliminary injunction against future appropriations. The court also held that the prejudice identified could not be cured because of the defendant's refusal to provide the necessary information. With regard to the permanent injunction issue, the Superior Court affirmed, in part, the trial court's grant of the permanent injunction against defendant, reasoning that the latter's discovery abuses were "willful, numerous, continuing, and in complete disregard of the trial court's orders." (March 1, 2010)

In Berkery v. Estate of Lyle Stuart, the Superior Court of New Jersey, Appellate Division, addressed the standard for imposing liability in a defamation action brought by a limited-purpose public figure against a non-media defendant. The defendant, author Allen M. Hornblum, wrote a book entitled Confessions of a Second Story Man: Junior Kripplebauer and the K&A Gang about a group of burglars that operated in the Kensington and Allegheny sections of Philadelphia in the 1950s and 1960s. Plaintiff claimed that he was defamed on at least 20 pages of the book. The trial court held that, because of his limited-purpose public figure status, plaintiff could prevail only if he showed that the defendant acted with actual malice. The Appellate Division affirmed the trial court's decision, reasoning that the actual-malice test applies to both non-media and media defendants. It further reasoned that the investigative function an author performs is not substantively different from that of an investigative journalist. Ultimately, the Appellate Division held that, because the plaintiff failed to present clear and convincing evidence of actual malice, the trial court properly granted summary judgment in favor of the defendant. (February 19, 2010)

In Thaler v. Haynes, the Supreme Court of the United States addressed whether a judge must reject a demeanor-based explanation for a challenge to the use of a peremptory strike unless the judge personally observed the aspect of the juror's demeanor upon which the explanation is based. After the prosecutor in the respondent's capital-murder trial struck an African-American juror, the respondent's attorney objected on the basis that the decision to strike the juror was based on race (i.e., a "Baston objection" ). The prosecutor explained that he struck the juror because of her insincere and indifferent demeanor. The judge, who had not witnessed the individual questioning of the juror, concluded that the strike was race-neutral and denied the objection. The United States Court of Appeals for the Fifth Circuit held that the respondent was entitled to a new trial because the judge had not observed the juror's demeanor first-hand. The Supreme Court reversed, holding that a judge need not witness a juror's alleged demeanor to properly rule upon a demeanor-based explanation given in response to a Baston objection. Rather, first-hand knowledge of the juror's demeanor is only one of several factors that the judge should consider when making such a ruling. (February 22, 2010)

In Hertz Corp. v. Friend, the Supreme Court of the United States clarified the meaning of the term "principal place of business" for the purpose of establishing diversity jurisdiction. The case involved residents of California who sued the Hertz rental car company for violations of California law. Hertz removed the action to federal court, but the Northern District of California determined that Hertz was a citizen of California on the basis that Hertz conducted a plurality of its business activity in the state and, thus, California was a principal place of business. In the interests of establishing "a single, more unified interpretation" of the term "principal place of business," the Court adopted a "nerve center" test, concluding that the term "'principal place of business' is best read as referring to the place where a corporation's officers direct, control, and coordinate the corporation's activities." The Court noted, however, that in practice, the nerve center should normally be a company's corporate headquarters. (February 23, 2010)

In County of Bergen Employee Benefit Plan v. Horizon Blue Cross Blue Shield of New Jersey, the Superior Court of New Jersey, Appellate Division, was faced with the issue of whether the collateral source rule, N.J.S.A. 2A-15:-97 (Section 97), barred the plaintiff's claim against its third-party administrator. Section 97 provides that if a plaintiff receives or is entitled to receive benefits from any source other than a joint tortfeasor, the amount of those benefits, other than workers' compensation benefits or the proceeds of a life insurance policy, shall be deducted from any award recovered by the plaintiff. The plaintiff, an employee benefit plan, sued its third-party plan administrator (TPA) because the TPA failed to seek reimbursement from a third-party tortfeasor. The TPA defended on the basis that Section 97 barred any subrogation claim on the Plan's behalf because the plaintiff was not a liability carrier. The Appellate Division agreed with the TPA, noting that Section 97's twofold purpose is to eliminate a double recovery by a plaintiff, and to allocate the benefit of the rule to liability carriers, as opposed to the health insurers. Because the plaintiff's payments for healthcare costs constituted "benefits" under Section 97, the court held that the benefits paid were not recoverable in subrogation. (February 24, 2010)

In Brown v. United Water Delaware, Inc., the Supreme Court of Delaware considered whether the "filed rate doctrine" protected the public utility defendant from the plaintiff homeowners' claims for damages following a fire. The filed rate doctrine applies when utilities include liability restrictions in the rate tariffs that they file with the State. In this case, the defendant's Tariff for Water Service stated, in part, that parties receiving service agreed that the defendant "shall be free and exempt from any and all claims of injury to persons or property by reason of fire, water, failure to supply water pressure or capacity." The Supreme Court agreed with the trial court's finding that the filed rate doctrine may restrict or eliminate liability for a public utility's ordinary negligence. However, noting that it is not clear that the filed rate doctrine provides absolute immunity, the court remanded the case so that the trial court can determine whether the homeowners stated a claim for gross negligence or willful conduct and, if so, whether those claims are also barred by the filed rate doctrine. (February 15, 2010)

In Nationwide Mutual Ins. Co. v. Fleming, the Supreme Court of Pennsylvania addressed whether the attorney-client privilege applied to a confidential memorandum written by Nationwide's in-house senior counsel to its senior executives and attorneys. The memo related to pending and future litigation, and reflected confidential information previously shared by the client with the attorney, as well as the attorney's legal advice. The Superior Court, interpreting 42 Pa.C.S. § 5928, held that the attorney-client privilege applies only to confidential communications made by the client to the attorney. The Superior Court also found that communications from counsel to a client may be protected, but only to the extent they reveal the confidential communications previously made by the client for the purpose of obtaining legal advice. On appeal, the Supreme Court of Pennsylvania was evenly divided, thereby affirming the Superior Court's finding that the document was not protected. In the Supreme Court's decision in favor of affirmance, the court noted that Nationwide had waived the attorney-client privilege and, thus, did not determine the case on the merits. The opinion in favor of reversal, however, supported a broader reading of the attorney-client privilege that would protect the document. (January 29, 2010)

In Cockerline v. Menendez, the Superior Court of New Jersey, Appellate Division, addressed several issues arising from a multi-vehicle accident. The accident culminated in the plaintiff's decedent either jumping or being pushed over a barrier on the highway and falling to his death. With respect to the first issue, the Appellate Division held that it was reversible error for the trial court to provide a res ipsa loquitur instruction where the plaintiff asserted five potential scenarios under which the defendants would be liable, and it was impossible to conclude that the instrumentality causing the injury was within the defendants' exclusive control. On the second issue, the Appellate Division concluded that the trial court erred when it precluded the jury from apportioning liability against the "phantom vehicles" allegedly involved in the accident. Addressing the third issue, the Appellate Division held that the trial court erred when it did not reduce the plaintiff's award by the amounts of the social security survivor and death benefits, and the PIP benefits she received. With respect to the final issue, the Appellate Division determined that the trial court properly provided an adverse inference charge for the defendants' failure to retain the information captured by the defendants' "in-vehicle information system." (February 4, 2010) 

In Squire v. USPS, the United States Court of Appeals for the Third Circuit addressed the jurisdiction of a federal court to hear a case under the Federal Tort Claims Act (FTCA). The plaintiff alleged that she was injured in a motor vehicle accident involving a USPS truck. She brought her claim in the United States District Court for the District of New Jersey, and the USPS moved to dismiss the case based on a lack of subject matter jurisdiction. The District Court granted the motion, and dismissed the case because the plaintiff failed to provide the USPS with a sum certain request for damages as required by the FTCA. The Third Circuit affirmed the decision, holding that the sum certain requirement is jurisdictional under the FTCA. (January 27, 2010) 

In Asbury Park Press v. County of Monmouth, the Supreme Court of New Jersey addressed whether a settlement agreement entered into by the County of Monmouth and one of its employees was subject to disclosure pursuant to New Jersey's Open Public Records Act (OPRA), N.J.S.A. 47:1 A-1 to -13. The parties entered into a confidential settlement agreement after the employee brought charges of sex discrimination against the county. The Supreme Court upheld the Appellate Division's decision finding that the OPRA "requires disclosure" of the settlement agreement. As the court noted, given the public nature of the lawsuit and the OPRA's core concern for transparency in government, a governmental entity cannot enter into a voluntary agreement to settle a public lawsuit and then claim that it had a reasonable expectation of privacy in the amount of the settlement. (January 26, 2009) 

The Supreme Court of the United States granted certiorari in Krupski v. Costa Crociere, S.P.A. to resolve a question regarding whether an amendment to a complaint "relates back" under Federal Rule of Civil Procedure 15(c)(1)(C) in a situation where the plaintiff sought to amend the complaint to substitute the correct defendant for a related corporation with a similar name. The question the Court will resolve is whether an amendment corrects a "mistake" concerning the proper party's identity when the plaintiff had imputed knowledge of the identity of the added defendant prior to filing suit. (January 15, 2010)

In Zambelli Fireworks v. Wood, the United States Court of Appeals for the Third Circuit addressed an issue of first impression in the Third Circuit: the rule for determining the citizenship of a limited liability company (LLC) for diversity jurisdiction purposes. The court held that the citizenship of an LLC is determined by the citizenship of each of its members. Although the court's holding, in effect, deprived the court of jurisdiction, the court was able to work around the issue by dismissing the non-diverse party pursuant to the authority granted to the court by Federal Rule of Civil Procedure 21. The court dismissed the non-diverse party after finding that it was not an indispensable party, as defined in Federal Rule of Civil Procedure 19(b). The court also reviewed "the propriety of a preliminary injunction enforcing, under Pennsylvania law, a restrictive covenant not to compete." The court held that a restrictive covenant is an "appropriately narrow protection of a legitimate business interest," and because the plaintiff-corporation remained the appropriate entity to enforce the covenant under Pennsylvania state law, the court affirmed the District Court's decision to grant the preliminary injunction. However, the Third Circuit remanded the case to the District Court because it failed to require a bond in connection with the injunction, as required by Federal Rule of Civil Procedure 65(c). ( January 15, 2010)

In Pote v. City of Atlantic City, et al., the Superior Court of New Jersey, Appellate Division, affirmed the dismissal of the plaintiff's claim against the manager of Boardwalk Hall for injuries allegedly sustained when the plaintiff fell on ice and snow on the Atlantic City boardwalk as she was approaching Boardwalk Hall to attend a show. The court found that the boardwalk is a public thoroughfare maintained and controlled by the city, and that it is not reasonable to impose on the owner of a commercial property a duty to maintain the abutting portion of the boardwalk, even in situations where the commercial entity can expect that its customers will gather on the boardwalk. In reaching its decision, the court reiterated the common law rule that a property owner does not have a duty to pedestrians to clear ice and snow from a public street that abuts the property. (January 19, 2010)

In Rapposelli v. State Farm Mut. Auto. Ins. Co., the Supreme Court of Delaware considered whether a claimant seeking underinsured motorist coverage is entitled to prejudgment interest pursuant to 6 Del. C. sec. 2301(d). In Rapposelli , the claimant suffered damages in excess of the tortfeasor's bodily injury coverage. The claimant made a claim against his underinsured motorist coverage, and he offered to settle this claim. The carrier rejected the claimant's offer to settle, arguing that the tortfeasor was not legally responsible for compensatory damages. The claimant instituted a tort action and was awarded compensatory damages in excess of the tortfeasor's bodily injury coverage. The claimant then sought statutory prejudgment interest, available for tort actions on the award, which was denied by the trial court. The trial court reasoned that the claimant's recovery arose from the insurance contract (for underinsured motorists coverage), and did not sound in tort. The Supreme Court reversed, holding that the carrier only contested the claimant's compensatory damages arising from the automobile accident, which was an issue that "only a proceeding in tort could resolve." Accordingly, the court held that the claimant was entitled to statutory prejudgment interest on his award. (January 20, 2010)

The Supreme Court of Pennsylvania, in Piehl v. City of Philadelphia, addressed a matter of first impression, to wit: whether a complaint which names the Commonwealth as a defendant in the caption may be amended to substitute a Commonwealth agency - here, the Department of Transportation (DOT) - as a party, even after the statute of limitations has run, where the agency was named throughout the body of the complaint and served with process. The court held that Commonwealth Court properly allowed the plaintiffs to amend their complaint to include the DOT as a defendant. (December 28, 2009)

In Bernstein v. New Jersey, Dep't of Corrections, the Superior Court of New Jersey, Appellate Division, upheld the trial court's grant of summary judgment in favor of state correctional employees in a lawsuit based upon an inmate's death while in prison. The plaintiff argued that the employees' conduct fell outside of the immunity provided by the New Jersey Tort Claims Act, N.J.S.A. 59:2-10, because they engaged in willful misconduct. The Appellate Division, in affirming the grant of summary judgment, held that willful misconduct is defined as the "commission of a forbidden act with actual knowledge that the act is forbidden." In this case, however, the record amply demonstrated that the employees were acting within the scope of their employment and in full compliance with prison policies and procedures as they understood them. (January 11, 2010).

In Atwell v. John Crane Inc., the Superior Court of Pennsylvania reviewed an appeal from the judgment of $150,000 in favor of the plaintiff on strict liability claims stemming from the death of plaintiff's decedent from lung cancer. The question raised by the appellant was whether the litigation of state tort claims based on work-related asbestos exposure is preempted by federal law where the employment, and thus the exposure, occurs in a railroad maintenance facility. The defendant claimed, inter alia, that it was entitled to judgment in its favor because the plaintiff's state tort claims were preempted by federal law occupying the field of railroad safety. In affirming the judgment, the Superior Court noted that state tort law, especially in strict liability asbestos cases, occupies one of the "interstices not covered by Congressional command." Citing the Pennsylvania Supreme Court precedent of Dooner v. Didonato, the Superior Court explained: "consistent with United States Supreme Court case law, it would be entirely rational for Congress not to preempt common law claims, which - unlike most administrative and legislative regulations - necessarily perform an important remedial role in compensating victims of torts." (December 17, 2009)

In Zabilowicz v. Kelsey, the Supreme Court of New Jersey considered whether the plaintiff, a Pennsylvania resident whose automobile insurance carrier was authorized to do business in New Jersey, was bound by New Jersey's limitation-on-lawsuit threshold and, thus, barred from suing for noneconomic injuries caused by another Pennsylvania resident. In this case, the defendant-PA resident was not insured by a carrier doing business in New Jersey and, therefore, was not entitled to New Jersey PIP benefits. The New Jersey Supreme Court held that under the plain language of N.J.S.A. 39:6A-8(a), the limitation-on-lawsuit threshold can be invoked only by a defendant who is eligible to receive New Jersey PIP benefits. Because the defendant's out-of-state insurance policy did not provide her with New Jersey PIP benefits, she was subject to suit for noneconomic damages without restriction under that statute. (December 17, 2009)

In Jane Doe v. Wyoming Valley Health Care System, the Superior Court of Pennsylvania addressed the application of absolute privilege to information revealed to a National Labor Relations Board (NLRB) tribunal, and the trial court's role in determining whether or not to submit the issue of punitive damages to a jury. The plaintiff was a nurse on a union organizing committee whose personnel file was used by the Wyoming Valley Health Care System (WVHCS) during a NLRB hearing. She sued the WVHCS for intentional infliction of emotional distress and invasion of privacy, and sought punitive damages. The WVHCS asserted that the disclosure of the personnel file information was subject to absolute privilege because it was made during a judicial proceeding. The trial court submitted the privilege issue to the jury. The jury returned a $400,000 verdict in favor of the plaintiff that included $350,000 in punitive damages. The Superior Court reversed, holding that the trial court erred by failing to address the privilege issue as a matter of law. The court also held that privilege protected the disclosure. Furthermore, it was erroneous to allow the jury to address punitive damages because the evidence was insufficient as a matter of law to support such an award. (December 21, 2009)

In Gresik v. PA Partners, L.P., the Superior Court of Pennsylvania held that a former owner of property is not liable for injury on the premises caused by a dangerous artificial condition that the former owner had no reason to believe would not be discovered. Years before the incident that led to the litigation, the defendant removed an escape landing that was previously used by employees to avoid the potentially dangerous effects of a "burn out." The defendant sold its steel mill with the escape landing still missing, and a later "burn out" killed one employee and injured another. The plaintiffs asserted a cause of action under § 353 of the Restatement (Second) of Torts, which addresses liability for a vendor's nondisclosure of dangerous conditions. The trial court granted the defendant's motion for summary judgment on the claim. The Superior Court affirmed, holding that a vendor is not liable under § 353 if it had no reason to believe that the vendee would not discover the dangerous condition. Because the defendant's former employees were aware of the condition and the condition was open and obvious, the Superior Court found that defendant had no reason to believe that the new owner would not discover it. (December 24, 2009)

In Lesko v. Frankford Hospital - Bucks County, the Supreme Court of Pennsylvania granted a Petition for Allowance of Appeal to address whether the Superior Court properly found that the parties' Settlement Agreement and Release required the appellant-defendants to pay the respondent's estate an additional sum of $1,660,110 if, and after she died. The court agreed to consider whether the Superior Court's decision contravened controlling law governing contract interpretation, where:

"(i) there is no language anywhere in the four corners of the contract stating that Petitioners are required to pay the respondent's estate an additional lump sum of $1,660,110 if, and after she died;

(ii) the Superior Court improperly made its own fact-finding on appeal in violation of controlling principles of appellate jurisdiction and procedure, when it found that the defendants "drafted the contract" (a fact which even the trial court itself did not and could not find), causing the Superior Court to improperly construe the contract against the supposed "drafter" which corrupted the entire legal reasoning of its decision;

(iii) the Superior Court otherwise misapplied [the Supreme] Court's controlling legal precedent for construing a contract against a drafter, said rule which would apply only if there is an ambiguity, and the Superior Court itself inconsistently purported that there was no ambiguity;

(iv) the Superior Court misapplied [the Supreme] Court's doctrine of impracticability/ impossibility, without citation to any authority, to impermissibly judicially create a new contract obligation, when the doctrine applies only to instances to excuse performance; and

(v) the Superior Court disregarded entirely [the Supreme] Court's controlling precedent that specific provisions control general provisions in construing a contract, which forecloses any possibility of reading into this contract language stating that the defendants shall pay the respondent's estate an additional lump sum of $1,660,110." (December 24, 2009)

In Snead v. SPCA, the Supreme Court of Pennsylvania addressed whether the Society for the Prevention of Cruelty to Animals of Pennsylvania (SPCA) was entitled to sovereign immunity under the Sovereign Immunity Act or governmental immunity under the Tort Claims Act. The court upheld the Superior Court's decision that the SPCA was not entitled to sovereign or governmental immunity under either the Sovereign Immunity Act or the Political Subdivision Tort Claims Act. (December 29, 2009)

The Supreme Court of Pennsylvania, in McMullen v. Kutz, addressed whether a court may consider the reasonableness of attorney fees claimed in a breach of contract action where the contract does not specify that the fees incurred must be reasonable. The court held that a trial court may consider whether the fees claimed to have been incurred are "reasonable" and can reduce the fees claimed if appropriate. As noted by the court, reasonableness is implicit in a contract provision allowing for the recovery of attorneys' fees. (December 28, 2009)

In Mohawk Indus., Inc. v. Carpenter, the Supreme Court of the United States held that orders compelling discovery of documents that contain information protected by the attorney-client privilege are not collateral orders subject to immediate appellate review. In Mohawk, an employee notified his employer that the company was employing undocumented immigrants. Unbeknownst to the employee, the employer was being sued in a class action for conspiring to drive down its legal employees' wages by knowingly hiring undocumented workers. The employer directed the employee to meet with its attorneys, who pressured the employee to recant his statements concerning undocumented workers. When the employee refused, he was allegedly terminated. After the employee filed suit against his employer for wrongful termination, the employee sought to discover information concerning his meeting with the employer's attorneys. The district court held that the employer had waived the attorney-client privilege and, thus, the documents were discoverable. The Eleventh Circuit dismissed the employer's appeal as interlocutory. The Supreme Court affirmed the dismissal of the employer's appeal, and held that orders compelling discovery of documents protected by the attorney-client privilege do not qualify as collateral orders subject to immediate appeal. (December 8, 2009) 

In Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, et al., the Superior Court of New Jersey, Appellate Division addressed the enforceability of an attorneys' fee clause by an attorney, and an attorney's right to recover attorneys' fees awarded as a sanction, in situations where the attorney represents himself. The lower court ordered that Defendants, a realty company and its owners, had to pay legal fees to Plaintiff, a law firm. The primary issue before the Appellate Division was the enforceability of an attorneys' fee clause in Plaintiff's Master Retainer Agreement. The Master Retainer Agreement provides that, among other things, if the firm withdraws from a client's matter and is further entangled with the client, its time will be billable to and payable by the client, together with expenses. Another significant provision in Plaintiff's Master Retainer Agreement is that no bills will be discounted unless the client agrees not to challenge any of the items billed in the "traditional" manner. However, Plaintiff's Master Retainer Agreement was not provided to Defendants, and the provisions therein were not explained to them. Accordingly, the Appellate Division held that the provisions of the Master Retainer Agreement were unenforceable as violative of public policy because they were not disclosed in writing and given and explained to the client at the time of retention. With respect to the second issue, the lower court awarded attorneys' fees to Plaintiff for the time its lawyers spent litigating frivolous claims brought by Defendants. The Appellate Division reversed the award of attorneys' fees, ruling that parties, including attorneys, who represent themselves cannot recover fees under Rule 1:4-8(d)(2). Only legal fees actually incurred are recoverable. (November 24, 2009)

In Maloney, et al. v. Valley Medical Facilities, Inc., et al., the Supreme Court of Pennsylvania considered whether, under the common law, a plaintiff's release of principals whose potential liability was vicarious also discharges the plaintiff's claims against the agent, regardless of an express reservation of rights. In this case, Plaintiffs sued an internist, a radiologist, and their employing institutions. Plaintiffs subsequently settled with the radiologist. The joint tortfeasor release released "the above named Health Care Providers," and the released health care providers included the internist's employers, but not the internist. The release expressly reserved the right to proceed against the internist. The Superior Court held that all claims against the internist's employers were released, but that the claims against the internist were preserved. The Supreme Court affirmed, holding that in a scenario where the plaintiff releases only vicarious liability claims and expressly preserves claims against an agent, the parties to a settlement should be afforded latitude to effectuate their express intentions. Thus, the release of the principal did not release the agent. To the extent the Superior Court's decision in Pallante holds to the contrary, see Pallante v. Harcourt Brace Jovanovich, Inc., 427 Pa. Super. 371, 377 629 A.2d 146, 149 (1993) ("Given the supreme court's decision that principal and agent are not joint tortfeasors, we conclude that the release of the principal acts as a release of the agent."), the Supreme Court disapproved that holding. (November 24, 2009)

In Cobbs v. SEPTA, et. al., the Superior Court of Pennsylvania addressed issues arising from a failure to hire, race discrimination case. Among other things, the court discussed whether the Court of Common Pleas has jurisdiction over an appeal of a decision by the Pennsylvania Human Rights Commission (PHRC), and whether the trial court violated the coordinate jurisdiction rule. With respect to the appeal of a PHRC decision, the court held that only the Commonwealth Court has subject matter jurisdiction over an appeal of a PHRC decision. Regarding the coordinate jurisdiction rule, the court held that the trial court did not violate the coordinate jurisdiction rule when, after one judge denied the defendants' motion for summary judgment based upon a lack of subject matter jurisdiction, a second judge granted a motion for judgment on the pleadings in the defendants' favor based upon a lack of subject matter jurisdiction. "[W]here the issue of subject matter jurisdiction has been erroneously decided in a prior decision, application of the coordinate jurisdiction rule is inappropriate, as continuing the case would be clearly erroneous and amount to manifest injustice." (November 18, 2009)

In Liss & Marion, P.C. v. Recordex Acquisition Corp., the Supreme Court of Pennsylvania addressed an alleged violation of the Medical Records Act (MRA). The plaintiff, suing individually and on behalf of its class, alleged that it was overcharged for medical record copying services performed by the defendant with respect to reproducing electronic records. With respect to producing copies of electronic records, the defendant charged the rate that the MRA expressly reserved for microfilm copies. The court held that, while the MRA does not create a private cause of action, its pricing limits are incorporated into a contract that is the subject of a common law breach of contract action. Further, the Supreme Court held that the MRA requires the use of its default rate schedule for all paper copies from any medium other than microfilm, which may still be charged at a higher rate. (November 16, 2009)

The Supreme Court of Pennsylvania, in Breneman, et. al. v. Stonemor Operating LLC, et. al., agreed to decide whether a plaintiff can recover for the negligent infliction of emotional distress associated with the mishandling of a corpse. Specifically, the court will address the following issue: "Whether [the court] should adopt Section 868 of the Restatement (Second) of Torts, permitting recovery for negligent infliction of emotional distress resulting from the mishandling of a family member's corpse?" (November 5, 2009)

In In re Estate of John E. DuPont, an Alleged Incapacitated Person, the Supreme Court of Pennsylvania agreed to address, among other things, the following issue: "Whether the burden of persuasion is on the party offering, or the party opposing, a motion to modify an order placing documents under seal?" (November 5, 2009) 

In Mantilla v. Riverdale Equities, Ltd., the New York Supreme Court, Appellate Division, 1st Department, addressed the issue of whether the dismissal of a slip-and-fall negligence claim against third-party defendant and general contractor precluded the latter’s contractual indemnification of landowner-defendant. The Court found that it did not, noting that the general contractor’s indemnification obligations existed separate and distinct from the issue of its direct liability to plaintiff. The court noted that the general contractor subcontracted the snow removal work to another company that never performed the work, and that summary judgment for general contractor on the issue of contractual indemnification was properly denied. (December 22, 2015)

In Tagayun v. Americhoice of New Jersey, Inc., the Superior Court of New Jersey, Appellate Division, addressed whether the trial court improperly ordered two pro se plaintiffsto pay defendant’s counsel fees because their complaints were frivolous. The court held that even though the original complaint lacked merit, it was not frivolous. The amended complaint, however, was frivolous. As such, the court vacated the attorneys’ fee award relating to the original complaint and affirmed the attorneys’ fee award as to the amended complaint. (September 20, 2016)

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