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On The Pulse…Marshall Dennehey Is Happy to Celebrate Our Recent Appellate Victories*

June 1, 2016

Shane Haselbarth (Philadelphia, PA) garnered a unanimous judgment in the Pennsylvania Superior Court affirming a defense verdict at trial and rejecting allegations of trial error. Marshall Dennehey’s client was a hospital in which an ear, nose and throat doctor performed an upper endoscopy. The plaintiff complained of food lodged in his esophagus, and the doctor removed it. When he inserted the scope for a second time to inspect the esophagus, the doctor noticed a tear, which was later repaired, with complications following. The suit against the doctor and hospital asserted that the endoscopy was performed negligently, without adequate sedation and caused the tear. The trial court precluded a theory of liability premised on failing to record information in the medical chart and instructed the jury that the failure to record data could not cause an esophageal tear. The plaintiff sought a new trial, but the Superior Court affirmed, holding that the theory of unrecorded data causing a tear was unsupported by expert and non-expert evidence. The court concluded that the verdict was consistent with the evidence and that there was no trial error regarding the missing-chart-data theory. Butka v. Andrews, 2016 Pa. Super. Unpub. LEXIS 589 (Pa. Super. Feb. 24, 2016).

Audrey Copeland (King of Prussia, PA) convinced the Commonwealth Court to affirm the decisions of the Workers’ Compensation Judge and Workers’ Compensation Appeal Board that denied the claimant’s claim petition on the basis that he was not in the course and scope of employment when injured. The court rejected the claimant’s argument that the injuries he incurred when he assaulted a passenger emanated from his essential job function of collecting bus fares. The court observed that the claimant did not ask the passenger (who presented a woman’s fare pass) for bus fare but, rather, if he was a man or a woman, knowing the passenger was a man. The video showed that the claimant, despite pushing the police call button, did not wait for assistance; instead, he physically confronted the passenger when there was no immediate reason to do so, conduct that was “wholly foreign” to his job as a bus driver. The court held that the claimant also abandoned his employment “by spoiling for a fight and unnecessarily engaging in an altercation that substantially deviated from Employer’s objectives.” The claimant’s substantial evidence and “after acquired” evidence arguments also failed. Keith v. Workers’ Comp. Appeal Bd. (SEPTA), 2016 Pa. Commw. Unpub. LEXIS 63 (Pa. Commw. 2016).

Audrey also obtained an affirmance in three other Commonwealth Court cases. In Tipton v. Workers’ Comp. Appeal Bd. (Pleasant Twp.), 2016 Pa. Commw. Unpub. LEXIS 14 (Pa. Commw. Jan. 5, 2016), a workers’ compensation case in which we represented the employer, the Commonwealth Court affirmed the grant of the employer’s modification petition, thereby rejecting the claimant’s assertion that she was fully disabled on the basis that she was unable to return to her pre-injury position as a volunteer fire fighter. The court also found that the claimant’s benefits could be modified based on a labor market survey, despite her being unemployed at the time of her injury. In Kazimer v. Methacton Sch. Dist., 2016 Pa. Commw. Unpub. LEXIS 71, at* 8-9 (Pa. Commw. Jan. 22, 2016), a candidate who participated in a question and answer forum at a school claimed to have slipped on “shiny” steps while descending from the stage. The court affirmed the trial court’s grant of summary judgment for the defendants as reasonable minds could not find that the stairs constituted a dangerous condition of the real property, which was necessary for the claim to fall within the exceptions to governmental immunity. The plaintiff did not present sufficient evidence that a cause of the injuries was either a structural defect in the stairs (in the form of a varnish or finish) or negligent maintenance. The record also supported a lack of notice of defendants of any defective or dangerous condition of the “real estate,” as the stairs had been maintained “in the same observable condition for many years and no incidents or accidents were reported during that time,” and the mere fact that an accident occurred did not establish either a dangerous condition or actual or constructive knowledge. Finally, in Del. Twp. Bd. of Auditors v. Del. Twp., 2016 Pa. Commw. LEXIS 6 (Pa. Commw. Jan. 5, 2016), the Commonwealth Court affirmed the trial court’s grant of preliminary objections to the complaint filed by the Delaware Township Board of Auditors. At issue was Section 606(b) of the Second Class Township Code, which mandates auditor approval for the participation of township supervisors, who also are employed by the township, in employee pension plans. The court held that there was no indication that the Board of Auditors did not give its approval to a specific pension plan in accordance with its statutory duties under the Code; participation of supervisor-employees in the pension plan did not constitute compensation “of the elected office” under Section 606(a); and one of the former supervisor-employees still continued to be an employee, regardless of the fact that she was not was reelected and reelection was irrelevant to her right to participate in the plan.

*Prior Results Do Not Guarantee A Similar Outcome

Defense Digest, Vol. 22, No. 2, June 2016

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

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