Developments in Pennsylvania Civil Procedure

Transcription

1 Developments in Pennsylvania Civil Procedure David J. Caputo, Esquire Youman & Caputo, LLC (215)

2 Outline A. AMENDMENTS TO THE RULES OF CIVIL PROCEDURE 1. Rule Confidential Information/Documents 2. Rule Relief from Judgment of Non Pros or by Default 3. Rule Amendment 4. Rule Mechanic s Liens

3 Outline (cont d) B. CASE LAW 1. SUPREME COURT DECISIONS a. Collateral order doctrine Shearer v. Hafer, 2018 WL (Pa. Jan. 1, 2018) b. Arbitration/Wrongful Death and Survival Act/Federal Preemption Taylor v. Extendicare Health Facilities, Inc., 147 A.3d 490 (Pa. 2016) c. Appeals in consolidated cases Melanchuk v. Tsimura, 137 A.3d 1283 (Pa. 2016)

4 Outline (cont d) B. CASE LAW 2. SUPERIOR COURT DECISIONS a. Continuance of actions Rutyna v. Schweers, 2018 WL (Pa. Super. Jan. 4, 2018)(en banc). b. Affirmative defenses/dead Man s Statute Davis v. Wright, 156 A.3d 1261 (Pa. Super. 2017)

5 Outline (cont d) B. CASE LAW 2. SUPERIOR COURT CASES (CONT D) c. Discovery/Requests for Admission Discover Bank v. Repine, 157 A.3d 978 (Pa. Super. 2017) d. Litigating Pro Se/LLCs David R. Nicholson Builder LLC v. Jablonski, 163 A.3d 1048 (Pa. Super.), appeal denied, 173 A.3d 266 (Pa. 2017)

6 Outline (cont d) B. CASE LAW 2. SUPERIOR COURT CASES (CONT D) e. Privilege Attorney Client Waiver Bousamra v. Excela Health, 167 A.3d 728 (Pa. Super. 2017), allocatur granted, 2018 WL (Pa. Jan. 30, 2018) f. Venue medical malpractice actions Wentzel v. Cammarano, 166 A.3d 1265 (Pa. Super. 2017)

7 Filing Documents Public Access Policy Pa.R.C.P : Confidential Information and Confidential Documents. Certification (effective January 6, 2018). New Rule requires attorneys and pro se parties to review the confidentiality requirement of Sections 7.0 and 8.0 of the Public Access Policy of the Unified Judicial System of Pennsylvania. Filers are required to certified compliance with the Public Access Policy. A form certification is included in the Note.

8 Filing Documents Public Access Policy Text of new Pa.R.C.P : Unless public access is otherwise constrained by applicable authority, any attorney, or any party if unrepresented, who files a document pursuant to these rules with the prothonotary s office shall comply with the requirements of Sections 7.0 and 8.0 of the Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts (Policy) including a certification of compliance with the Policy and, as necessary, a Confidential Information Form, unless otherwise specified by rule or order of court, or a Confidential Document Form in accordance with the Policy.

9 Filing Documents Public Access Policy Section 7.0 of the Public Access Policy of the Unified Judicial System of Pennsylvania identifies Confidential Information as: 1. Social Security Numbers; 2. Financial Account Numbers, except an active financial account number may be identified by the last four digits when the financial account is the subject of the case and cannot otherwise be identified; 3. Driver License Numbers; 4. State Identification (SID) Numbers; 5. Minors names and dates of birth except when a minor is charged as a defendant in a criminal matter (see 42 Pa.C.S. 6355); and 6. Abuse victim s address and other contact information, including employer s name, address and work schedule, in family court actions as defined by Pa.R.C.P. No. 1931(a), except for victim's name

10 Filing Documents Public Access Policy Section 7.0 Confidential Information C. Instead of using the Confidential Information Form, a court may adopt a rule or order permitting the filing of any document in two versions, a Redacted Version and Unredacted Version. The Redacted Version shall not include any information set forth in Subsection A, while the Unredacted Version shall include the information. Redactions must be made in a manner that is visibly evident to the reader. Visit PACOURTS.US/PUBLIC-RECORDS for a list of court s practices and links to local rules

11 Filing Documents Public Access Policy Section 8.0 of the Public Access Policy of the Unified Judicial System of Pennsylvania identifies Confidential Documents as: 1. Financial Source Documents (tax returns and schedules, W-2 forms, Wage and Earnings Statements, Credit Card and Bank statements); 2. Minors educational records; 3. Medical/Psychological records; 4. Children and Youth Services records; 5. Marital Property Inventory and Pre-Trial Statement as provided in Pa.R.C.P. No ; 6. Income and Expense Statement as provided in Pa.R.C.P. No (c); and 7. Agreements between the parties as used in 23 Pa.C.S. 3105

12 Filing Documents Public Access Policy Conforming amendments to other rules (effective Jan. 6, 2018): Rule (Petition to transfer structured settlement payment rights) Rule 240 (In forma pauperis) Rule 1018 (Caption) Rule 2028 (Actions By and Against Minors)

13 Filing Documents Public Access Policy Amended Note to Rule 1018 (Caption): The caption of all legal papers filed in a civil action by and against a minor must designate the minor by the initials of his or her first and last name. See Rule 2028.

14 Filing Documents Public Access Policy Amendments to Rule Actions By and Against Minors. Averments in Plaintiff s Pleading. (a) An action in which a minor is plaintiff shall be entitled A, a Minor, by B, Guardian, against the party defendant. The minor shall be designated by the initials of his or her first and last name. (c) An action in which a minor is the defendant shall be commenced against the minor in the manner in which a like action is commenced against an adult. The minor shall be designated by the initials of his or her first and last name.

15 Filing Documents Public Access Policy Amendment to Note to Rule Actions By and Against Minors. Averments in Plaintiff s Pleading. Note: The filings required by this rule are subject to the Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts. See Rule

16 Filing Documents Public Access Text of required certification (per the Note to Pa.R.C.P ): I certify that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than nonconfidential information and documents

17 Filing Documents Public Access Policy Useful resources Comprehensive information about the new rules: Video series produced by AOPC explaining the new rules:

18 Relief from Default Judgment Amended Rule Relief from Judgment of Non Pros or by Default (effective Jan. 1, 2017) (a) A petition for relief from a judgment of non pros or of default entered pursuant to Rule shall have attached thereto a copy of the complaint, preliminary objections, or answer which the petitioner seeks leave to file. (b)(1) If the petition is filed within ten days after the entry of a judgment of non pros on the docket, the court shall open the judgment if the proposed complaint states a meritorious cause of action. (2) If the petition is filed within ten days after the entry of a default judgment on the docket, the court shall open the judgment if one or more of the proposed preliminary objections has merit or the proposed answer states a meritorious defense.

19 Relief from Default Judgment Intech Metals, Inc. v. Meyer, Wagner & Jacobs, 153 A.3d 406 (Pa. Super. 2016) Holding: On appeal from the entry of a judgment non-pros, the appealable order is the order denying a petition to open the judgment, which is governed by Pa.R.C.P. 3051(c).

20 AMENDMENT STATUTE OF LIMITITATIONS RELATION BACK NEW RULE: Pa.R.C.P. 1033(b) Effective April 1, 2017

21 Rule Amendment (b) An amendment correcting the name of a party against whom a claim has been asserted in the original pleading relates back to the date of the commencement of the action if, within ninety days after the period provided by law for commencing the action, the party received notice of the institution of the action such that it will not be prejudiced in maintaining a defense on the merits and the party knew or should have known that the action would have been brought against the party but for a mistake concerning the identity of the proper party.

22 NEW RULE 1033(B) AMENDMENT STATUTE OF LIMITITATIONS RELATION BACK The party received notice of the action within 90 days of the expiration of the statute of limitations No prejudice The party knew or should have known that the action would have been brought against the party but for a mistake concerning the identity of the proper party.

23 Example type of amendment expressly permitted by new rule 1033 Harry Roberts is the driver of a car that struck the plaintiff when he was crossing the intersection at 16th and Locust Streets in Philadelphia at approximately 11:00 a.m. on October 14, Harry Roberts resides at 50 South 16th Street in Philadelphia. The plaintiff s complaint, filed on October 2, 2016, mistakenly identifies the driver as Henry Rosen. He is the only named defendant in the case. The Sheriff made service by serving Mary Roberts at 50 South 16th Street. The Sheriff s Return of Service describes her as the wife of the defendant. On January 2, 2017, the complaint is amended to correct Henry Rosen to Harry Roberts.

24 AMENDMENT STATUTE OF LIMITITATIONS RELATION BACK Flanagan v. Mine Run, Inc., 2017 WL (Pa. Super. Dec. 20, 2017) (NON-PRECEDENTIAL) Premises liability case arising from an accident on January 23, 2014 at Eagle Stream Apartments, which was a fictional name Plaintiff s counsel corresponded pre-suit with the apartment complex s insurance carrier, which identified its insured as Eagle Stream Trust On Dec. 8, 2015, plaintiff filed suit naming Mine Run, Inc. d/b/a Eagle Stream Apartments as the defendant On Feb. 6, 2016, plaintiff filed (without leave to amend) a first amended complaint naming the defendant only as Eagle Trust Apartments. In the body of the pleading, plaintiff alleged that Eagle Stream Trust operates the apartments

25 AMENDMENT STATUTE OF LIMITITATIONS RELATION BACK The trial court granted summary judgment but the Superior Court reversed, finding that (1) service of the complaint at the Eagle Stream Apartments on the incorrectly named corporate defendant coupled with (2) the amended complaint were sufficient to protect the statute of limitations as to the correct property owner. The court noted that while new Rule 1033(b) didn t apply, it would still permit the amendment: Amendment was within 90 days of the expiration of the statute of limitations Service of the original complaint at the apartment complex let the correct defendant know that it was the intended defendant but for the plaintiff s counsel mistake about who the owner was

26 Mechanics Liens Commencement of Action Pa.R.C.P has been amended and annotated to clarify that A claim for a mechanics lien and the complaint to obtain judgment on the mechanics lien shall be filed under the same docket number. Prior to the amendment, the rules were silent on whether a complaint to obtain judgment on a mechanics lien should be filed under the same docket number as the lien itself, or constituted a separate action to be filed at a separate docket number. Both procedures were used in the courts of common pleas. In the interest of efficiency and clarity, the action to obtain judgment must be filed under the docket number of the lien itself.

27 Appellate Jurisdiction Collateral Orders Shearer v. Hafer, 2018 WL (Pa. Jan. 18, 2018) The Supreme Court examined the contours of the collateral order doctrine and provided an interpretation that strictly construes the requirement that the appellant will suffer irreparable harm absent immediate appeal. This recalibration of the collateral order doctrine will make it more difficult for litigants to seek interlocutory review of trial court determinations.

28 Appellate Jurisdiction Collateral Orders Plaintiff was injured in a car accident and allegedly suffered cognitive impairment as a result of a closed head injury. Defendant sought a neuropsychological IME Plaintiff insisted that her attorney be present during the interview and examination portions of the IME. Defendant and the physician objected to counsel s presence during the examination portion. The court of common pleas entered an order holding that the counsel was not permitted in the examination and that the examination could not be recorded. Plaintiff appealed under the collateral order doctrine The Superior Court affirmed.

29 Appellate Jurisdiction Collateral Orders The Supreme Court granted allocatur and sua sponte reviewed the jurisdictional issue even though parties agreed that there was appellate jursidiciton. It reiterated the elements of the Collateral Order Doctrine (codified at Pa.R.A.P. 313) which permits an appeal from a non-final collateral order where these three elements are satisfied: (1) the issue must be separable from the main cause of action; (2) the right to be reviewed must be too important to be denied; and (3) the right will be irreparably lost if not immediately reviewed. Pennsylvania s Collateral Order Doctrine is more expansive than federal law, which does not orders overruling claims of privilege to be appealed under the C.O.D., but it still must be construed narrowly, particularly since interlocutory appeals by permission are permitted under Pa. R.A.P. 312.

30 Appellate Jurisdiction Collateral Orders The Supreme Court held that the second element was not satisfied. The question of who was permitted in an IME was significant but not too important to be denied immediate review. It is neither constitutional nor deeply rooted in public policy beyond the particular litigation at hand. The Court also held that the issue does not satisfy the third prong it will not be irreparably lost. Rather, if reversed on final order appeal, the action could be remanded and another IME conducted with the results of the first IME excluded. Justice Mundy was lone dissenter, arguing that the right to counsel is a fundamental right and that, because a person s condition may change over time, the inability to turn back the clock and conduct a timely evaluation with a representative present is forever lost.

31 Appellate Jurisdiction Collateral Orders The Shearer decision recognizes that our appellate courts have been more liberal in permitting interlocutory review than warranted under the language of Rule 313 and chose to set forth a more stringent requirement. The Court s examination of the second prong suggests that only issues of constitutional importance or those deeply rooted in our legal system such as privilege will suffice for collateral review. The appellate courts will now be required to take a far more stringent view of the irreparable harm prong of Rule 313.

32 CONSOLIDATION TIME TO APPEAL Melanchuk v. Tsimura, 137 A.3d 1283 (Pa. 2016) Facts and trial court proceedings: Workplace injury resulted in two separate personal injury actions, one against the property owner and another against another worker on site. Cases were consolidated pursuant to Rule 213(a) for discovery, arbitration and, if appealed, trial Both defendants moved for summary judgment, but the trial court granted SJ only as to the defendant worker Plaintiff appealed, but the trial court concluded that the order was not a final appealable order under Pa.R.A.P. 341 and that the appeal was an impermissible, interlocutory one

33 Melanchuk v. Tsimura, 137 A.3d 1283 (Pa. 2016) Superior Court: Panel reversed summary judgment in favor of the defendant worker on the merits Panel held that absent complete consolidation which can only occur among cases sharing the same parties and claims consolidated cases do not merge. The cases retain separate identities for judgment and appealability. On reargument en banc, the Superior Court reversed the panel and held that the order was not appealable as of right no functional difference than if claims had been instituted in a single action.

34 Melanchuk v. Tsimura, 137 A.3d 1283 (Pa. 2016) Supreme Court: Reaffirmed precedent (Kincy and Azinger) that consolidated actions remain distinct and require separate verdicts and judgments no merger unless complete overlap of parties and causes of action No merger even where consolidated purports to be for all purposes Order granting SJ for worker defendant was appealable final judgment in that case (so Superior Court en banc ruling quashing that appeal was reversed) Court recognized tension between this rule and policy against piecemeal appeals, but noted that some inefficiency unavoidable in this situation Justice Baer concurred, writing separately to state that the issue could be decided based on the rules, not the case law

35 Melanchuk v. Tsimura, 137 A.3d 1283 (Pa. 2016) Key Point: Unless a matter is completely consolidated pursuant to Rule 213(a), keep track of all claims separately to avoid appellate waiver.

36 ARBITRATION WRONGFUL DEATH AND SURVIVAL CLAIMS FEDERAL PREEMPTION Taylor v. Extendicare Health Facilities, Inc., 147 A.3d 490 (Pa. 2016)

37 Taylor v. Extendicare Health Facilities, Inc., 147 A.3d 490 (Pa. 2016) (cont d) Wrongful Death and Survival Action arising from the death of an elderly woman at a Skilled Nursing Facility On admission to the SNF, the woman s POA signed a binding arbitration agreement Under Pisano v. Extendicare Homes, Inc., 77 A.3d 651 (Pa. Super. 2013), only Survival Act claims are subject to binding arbitration agreement because a wrongful death beneficiary cannot be bound by the decedent s contract.

38 Taylor v. Extendicare Health Facilities, Inc., 147 A.3d 490 (Pa. 2016) (cont d) The Federal Arbitration Act ( FAA ), 9 U.S.C. 2, provides that arbitration agreements shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. Pa.R.C.P. 213(e) requires that Wrongful Death and Survival Act claims shall be consolidated for trial Issue before the Court was how to reconcile the conflict between the FAA and Rule 213(e)

39 Taylor v. Extendicare Health Facilities, Inc., 147 A.3d 490 (Pa. 2016) (cont d) Holding (5-1): FAA preempts Rule 213(e), requiring that the Survival Act claim be submitted to binding arbitration while the Wrongful Death Act claim is litigated The FAA s twin aims are enforcement of arbitration agreements and streamlining of proceedings, but where there is a conflict, enforcement trumps efficiency

40 Taylor v. Extendicare Health Facilities, Inc., 147 A.3d 490 (Pa. 2016) (cont d) The FAA s twin aims are (1) enforcement of arbitration agreements and (2) streamlining of proceedings, but where there is a conflict, enforcement trumps efficiency The PA Supreme Court recognized the erosion of the constitutional right to a jury trial

41 Taylor v. Extendicare Health Facilities, Inc., 147 A.3d 490 (Pa. 2016) (cont d) Key Point: Where a decedent is bound by an arbitration agreement, a wrongful death plaintiff has to choose either to proceed in court in parallel proceedings or to forgo the right to proceed in court and proceed alongside the survival claim in arbitration. Open question: Collateral estoppel effect of arbitration proceedings?

42 Continuance of Actions Rutyna v. Schweers, 2018 WL (Pa. Super. January 4, 2018)(en banc). In a protracted legal malpractice action arising out of an underlying medical malpractice action the Court of Common Pleas bifurcated the issues so that the underlying medical malpractice claim would be presented to the jury first. Plaintiff sought a seven-month continuance fewer than two weeks before trial when they discovered that their medical expert had, only six days prior, signed a settlement agreement with the target hospital (in an unrelated legal dispute) precluding him from testifying against it. The CCP denied the continuance -- it had previously granted a defense request for a continuance but had admonished the parties then that there would be no further continuances.

43 Continuance of Actions The CCP later granted defendant s motion in limine to exclude the doctor holding that he was not qualified to testify under MCARE s ten year requirement. Absent an expert, the CCP granted summary judgment for defendant. The plaintiffs appealed, arguing that they should have been given an opportunity to replace their expert after they learned about his agreement with the target hospital. Defendants countered that the case had been continued enough, that plaintiffs were not diligent, that the defense expert had health issues that might render him unavailable in seven months, and, most of all, that plaintiff s expert was unqualified under MCARE anyway.

44 Continuance of Actions The Superior Could held that the issue of the expert s qualifications was a red herring as relating to the question of whether a continuance should have been granted. The Court held that it is a manifest abuse of discretion for a trial court to deny a continuance to secure a new expert where a party s existing expert is unable to testify through no fault of its own. The CCP s interests in case management did not outweigh the plaintiffs right to present evidence in support of their case.

45 Affirmative Defenses Dead Man s Statute Davis v. Wright, 156 A.3d 1261 (Pa. Super. 2017) The Superior Court held that the Dead Man s Statute is not an affirmative defense under Pa.R.C.P It is not waived, therefore, if not raised in a party s New Matter. It is also not waived by participating in discovery provided that the party claiming the protection of the statute does not depose or take discovery from the adverse party.

46 Affirmative Defenses Dead Man s Statute The Dead Man s Statute, 42 Pa. C.S.A. 5930, disqualifies a witness from testifying where: (1) the deceased must have had an interest in the matter at issue; (2) the interest of the witness must be adverse to the deceased; and (3) the right of the deceased must have passed to a party of record who represents the deceased s interest.

47 Affirmative Defenses Dead Man s Statute Plaintiffs were involved in a car accident with a man who died before suit was filed, so the man s estate was named as the defendant. The estate participated in discovery but only sought discovery from thirdparties (a witness and a police officer). The estate moved for summary judgment based on the Dead Man s Statute, arguing that the plaintiffs, the sole witnesses to the crash, lacked capacity to testify against the interests of the decedent. Plaintiffs argued that the defendant waived a defense based on the Dead Man s Statute by failing to raise it as a New Matter. The Court of Common Pleas granted the motion for summary judgment, and the Superior Court affirmed.

48 Affirmative Defenses Dead Man s Statute Under case law interpreting Pa.R.C.P. 1030, an affirmative defense pertains to a defendant s assertion of facts and arguments that, if true, will defeat the plaintiff s claim, even if all the allegations in the complaint are true. The Dead Man s statute is not an affirmative defense because the asserting party does not do so based on the assumption of the truth of the complaint s allegations. Nor will participation in discovery waive the Dead Man s Statute unless the party asserting the Statute took the deposition of or written discovery from the party against whom it is asserted.

49 Discovery Requests for Admission Discover Bank v. Repine, 157 A.3d 978 (Pa. Super. 2017) General denials to requests for admission will be deemed admissions if provided in bad faith.

50 Discovery Requests for Admission Discover Bank brought a breach of contract action against a cardholder for failure to pay outstanding amounts. Discover Bank served basic requests for admission. The defendant responded by general denials which were contradicted by a 200 page-long summary of his account. The trial court struck the general denials without leave to amend, finding that the cardholder did not make a reasonable inquiry into the information at his disposal or exercise good faith required by Rule 4014 in responding to the requests. Deeming the requests admitted, the court granted summary judgment for the defendant.

51 Discovery Requests for Admission Cardholder waived right to amend responses by not seeking permission to do so, as required by Rule 4014 The Superior Court acknowledged that Rule 4014 does not specify the form of denial required to satisfy the rule. Rule 4014 is not as stringent as the requirement of a denial of allegations in a pleading set forth by Pa.R.C.P. 1029(b). Comment (4) to Rule 1014 explains that a good faith general denial which would be insufficient under Rule 1029(b) might be sufficient here. By implication, a bad faith general denial will not suffice to satisfy the rule. Thus, when faced with a general denial under Rule 4014, a court must consider whether it is in good faith before finding the answer sufficient.

52 Litigating Pro Se LLCs David R. Nicholson Builder LLC v. Jablonski, 163 A.3d 1048 (Pa. Super.), appeal denied, 173 A.3d 266 (Pa. 2017) A single member LLC brought a breach of contract action before a MDJ through its sole member (who was not an attorney). The MDJ entered judgment in favor of defendants. The LLC appealed pro se to the Court of Common Pleas of Union County. Defendants filed preliminary objections alleging that the LLC could not proceed pro se. The court sustained the preliminary objections.

53 Union County, Pennsylvania

54 Litigating Pro Se LLCs The Superior Court reiterated the long established principle that corporations cannot proceed pro se, even where there is only a single shareholder. The Court held that the rationale prohibiting pro se litigation by corporations applies to LLCs. LLCs are legally distinct from their members, and that distinction confers benefits on the members. The requirement that artificial entities be represented is to protect both the litigant and the court system. There is no exception for appeals from MDJ.

55 Privilege Attorney Client Waiver Bousamra v. Excela Health, 167 A.3d 728 (Pa. Super. 2017), allocatur granted, 2018 WL (Pa. Jan. 30, 2018) Holding: Defendant hospital waived attorney-client privilege regarding an from the hospital s outside counsel by forwarding the to the hospital s public relations firm. Superior Court declined to address whether the attorney-client privilege should be expanded to encompass outside agents of the client where (1) the agent s presence is necessary or, at the very least, useful to the lawyer in rendering legal advice or (2) the lawyer directed the client to contact the agent so the lawyer could give better legal advice.

56 Privilege Attorney Client Waiver Action by doctor against hospital alleging malfeasance in a peer review process that concluded the doctor performed unnecessary medical procedures. Hospital had retained an outside public relations firm to handle publicity related to the dispute with the plaintiff, which included holding a press conference to announce the peer review findings. In the days leading up the press conference, there was discussion about whether to identify the doctor by name to the media. The decision was initially not to do so, but the hospital ultimately directed the PR firm to name the doctor relying on advice from its outside counsel contained in the at issue.

57 Privilege Attorney Client Waiver In discovery, the plaintiff sought the , and the hospital asserted both the attorney-client and the work product privileges. Following in camera review, the trial court held that the privilege was waived when the was sent to an outside public relations consultant. The Superior Court affirmed holding that forwarding the to an outside consultant waived the privilege.

58 Privilege Attorney Client Waiver Legal analysis focused on the seminal Second Circuit case United States v. Kovel, 296 F.3d 918 (2d Cir. 1961): Communications between a client and third-party are privileged if the third party was employed to facilitate the legal advice rendered by the lawyer. In Kovel (a tax case), the third-party was an accountant hired by the lawyer. Another classic example is an interpreter. Privilege not waived where (1) the agent s presence is necessary or, at the very least, useful to the lawyer in rendering legal advice or (2) the lawyer directed the client to contact the agent so the lawyer could give better legal advice. Second Circuit drew no distinction between agent hired by the lawyer and agent hired by the client.

59 Privilege Attorney Client Waiver Superior Court noted that it is established that the attorneyclient privilege does extend to an agent of an attorney who assists in the provision of legal advice. Whether the privilege extends to the client s outside agents has not been addressed in Pennsylvania. Court ultimately declines to address this issue, concluding that the s in question do not satisfy either prongs of the Kovel test.

60 Privilege Attorney Client Waiver After reviewing the s in camera, discussed their contents in the opinion because the defendant hospital made claims about the substance of the s with which the court disagreed. The s were not necessary to the effective consultation of the lawyer regarding the legal issue of whether to identify the doctor by name did not assist the lawyer in providing advice, merely told the PR what to do. Finally, work product privilege did not apply because the did not aid outside counsel in preparing for litigation.

61 Privilege Attorney Client Waiver Supreme Court granted allocator on these issues: (1) Did the Superior Court commit an error of law when holding that a client waives the work-product protection of its counsel s pre-litigation by forwarding the to its public relations consultant? (2) Did the Superior Court commit an error of law when holding that, to qualify as a privileged person within the attorney-client privilege, a third party must provide legal advice and have the lawyer or client control its work?

62 Venue Medical Malpractice Actions Wentzel v. Cammarano, 166 A.3d 1265 (Pa. Super. 2017) Medical malpractice lawsuit filed in Philadelphia County against health care providers in both Berks County and Philadelphia alleging delay in treatment of cardiac condition in premature infant. Baby was born at Reading Hospital and a patient in its NICU when an echocardiogram was performed and sent to St. Christopher s Hospital in Philadelphia for interpretation. A pediatric cardiology resident at St. Christopher s read the echocardiogram as showing a condition that required immediate intervention and the physician recommended that the infant be transferred to St. Christopher s for the treatment.

63 Venue Medical Malpractice Actions 27 hours elapsed between the time the physician signed her report and the time that the report was transmitted to Reading Hospital. This resulted in a delay in the child s transfer to St. Christopher s, which allegedly caused harm. The trial court sustained preliminary objections, finding venue improper and transferring the case to Berks County.

64 Venue Medical Malpractice Actions The Trial Court dismissed the action under Pa.R.C.P. 1006(a.1), which requires a medical professional liability action to be brought in the county in which the cause of action arose, and the cause of action is deemed to have arisen where the health care services are furnished. Under the Judicial Code, a medical professional liability claim is [a]ny claim seeking the recovery of damages or loss from a health care provider arising out of any tort or breach of contract causing injury or death resulting from the furnishing of health care services which were or should have been provided. 42 Pa.C.S.A

65 Venue Medical Malpractice Actions The trial court found venue improper for two reasons: First, the court found that an allegation that the report was not timely transmitted was not an allegation of professional negligence (i.e., negligent provision of medical services) but rather an allegation of clerical or ministerial negligence on the part of support staff. Second, relying on several Superior Court cases, the court ruled that the alleged negligence occurred before the child was in the direct care of any health care provider in Philadelphia County.

66 Venue Medical Malpractice Actions The Superior Court reversed. On the first issue, the Superior Court rejected the trial court s characterization of the complaint as alleging merely clerical or ministerial negligence. Even if administrative staff was to blame, the physician is still responsible for the timely communication of important medical information, and thus the claim involves the provision of health services. On the second issue, the Superior Court attached significance to the facts that (1) the physician s involvement transcended mere offer of advice from a remote location; and (2) the care that was ultimately rendered untimely was care provided in Philadelphia County. Both considerations distinguished the case from the precedent on which the defendants relied. Judge Lazarus wrote a short concurrence focusing simply on the doctor s location when she engaged in the allegedly negligent acts.