Viewing entries posted in July 2012

Law Blog:

The content of this blog is intended for informational purposes only. It is not intended to solicit business or to provide legal advice. Laws differ by jurisdiction, and the information on this blog may not apply to every reader. You should not take, or refrain from taking, any legal action based upon the information contained on this blog without first seeking professional counsel.

Pennsylvania Product Liability Law – Still No Resolution Regarding the Third Restatement

Posted by John Bagby and Pam Crowther on 24 July 2012

In a recent decision, the Pennsylvania Supreme Court issued an interesting opinion in a products liability matter, Beard v. Johnson & Johnson, Inc., No. 35 WAP 2010, slip op. (Pa. March 22, 2012).  The medical device in question was designed for use in a variety of different surgical applications.  The plaintiffs claimed that risk-utility balancing concerning the design of the device should be limited to the particular use to which the device was put in the plaintiff's surgery, thus ignoring other potential uses for the product.  The Pennsylvania Supreme Court refused to limit the scope of risk-utility balancing in that fashion, noting:

Insurance Agent Has No Duty Following the Sale of a Policy

Posted by Pamela A. Crowther on 19 July 2012

Simply stated, an insurance agent has no general duty to advise its insureds with regard to essentially anything after the issuance of the policy.  In many jurisdictions, the basis for not holding agents to an ongoing duty to advise stems from a fear that to do so would create a situation where the tort floodgates would open to allow claims against brokers whenever an incident surrounding the policy occurs.  When viewed exclusively in the insurance context, once the policy is issued, the insured is responsible for noticing any problems with the policy and bringing them to the attention of the agent immediately. With regard to administration of the policy following issuance, the basis for not requiring a duty of care stems from a belief that such would require an agent to continuously monitor a clients assets and adjust coverage accordingly. Since agents are generally in a position where they must rely on the information given to them by the insured, imposing such a duty of care is considered unreasonable.

Pennsylvania Commonwealth Court Raises Evidentiary Standard to “Clear and Convincing” Standard of Proof for Maintaining ChildLine Registry Reports

Posted by Pamela A. Crowther, Esquire on 19 July 2012

A split en banc Commonwealth Court has raised the evidentiary standard for the Department of Public Welfare to maintain information from certain child abuse reports on the ChildLine and Abuse Registry, a toll-free system for disclosing reports of child abuse to certain designated government officials, law enforcement, and other third parties.  Under Pennsylvania Child Protective Services Law, a person seeking employment in which there is a significant likelihood of direct contact with children or residing in a family day care home must provide certification that he/she is not on the ChildLine registry.  While it is undisputed that the state’s General Assembly has pronounced that substantial evidence must support a report, there was no legislative mandate regarding the standard of proof to be met for maintaining a report summary of the ChildLine registry. 

Good News for Mental Health – Supreme Court Decision Offers More Benefits for Treatment of Mental Illness

Posted by Pamela A. Crowther, Esquire on 13 July 2012

In a 5 to 4 decision, on June 28, 2012, the Supreme Court upheld the constitutionality of the cornerstone provision of President Obama’s Affordable Care Act, the individual mandate. In the Court’s majority decision, which was written by Chief Justice Roberts and concurred in by Justices Breyer, Ginsburg, Sotomayor and Kagan, the law’s individual mandate was ruled a valid exercise by Congress of its taxing power. Justice Kennedy, who was widely viewed as the likely swing vote, joined with Justices Scalia, Alito and Thomas in a dissenting opinion. A surprise to most was that the controlling swing vote in favor of upholding the law proved to be that of the Chief Justice. 

Defendant’s Smile Earns Him an Extra Six Months in Prison

Posted by Pamela A. Crowther, Esquire on 3 July 2012

In court for sentencing after being convicted of assaulting the mother of his children, White Twin was facing up to 78 months in prison plus three years of supervised release. U.S. District Judge Charles Kornmann of the District of South Dakota then noticed Twin was smiling at the sentencing. Finding a lack of humor in the proceedings, Judge Kornmann noted for the record that the defendant was smiling and then added six more months to the defendant’s prison sentence. The Eighth Circuit upheld Judge Kornmann’s upward sentencing departure on June 27, 2012, noting that the district court has discretion to increase its sentence under four guidelines, including criminal history, inadequacy, extreme psychological injury for the victim, extreme conduct, and dismissed and uncharged conduct.

Pennsylvania Ranked 12th in Worst States to Obtain a Divorce

Posted by Pamela A. Crowther, Esquire on 3 July 2012

Forget Pennsylvania, according to Bloomberg Ranking’s analysis. For a quick divorce, New Hampshire is the place to go. Bloomberg rated the Keystone State the 12th worst state in the country as far as obstacles one might face in obtaining a divorce. As reported by msn.com on February 2, 2012, the rankings took into account obstacles to obtaining a divorce, such as filing fees, minimum separation period, minimum length of residency, minimum waiting period after filing for the divorce, and minimum number of days for the entire process (start to finish). Bloomberg’s reasoning for Pennsylvania’s low ranking was the minimum processing time of 270 days, the $270 filing fee, and the grounds for a fault divorce which include “such indignities to the innocent and injured spouse as to render that spouse’s condition intolerable and life burdensome.” The slow processing time is yet another reason to prepare for your first meeting with your divorce lawyer to address the following four topics: (1) child custody and visitation; (2) the marital home post-separation; (3) child support; and (4) marital assets and debt.

Joint-Employer Test Established by Pennsylvania Appellate Court

Posted by Bagby & Associates LLC on 3 July 2012

In a case of first impression, the Third Circuit recently created a four-part test to determine whether a company is an employer under the Fair Labor Standards Act. The issue arose in class action litigation against Enterprise Holdings, which was sued by assistant managers at Enterprise Rent-A-Car branches across the country for allegedly failing to pay overtime wages in violation of the FLSA. Rejecting the assistant managers claims, the Third Circuit established a four-prong test that focuses on how much control the alleged employer would have over the work and structure of the employment and enumerated four factors to assess this relationship: (1) Does it have authority to hire and fire?; (2) Does it have authority to promulgate work rules and assignments, and set condition of employment, including compensation, benefits and hours?; (3) Does it conduct day-to-day supervisions, including employee discipline?; and, (4) Does it control employee records, including payroll, insurance, taxed and the like? These factors are similar to those used in other circuits across the country and reflect a practical approach taken by the court. Thus, Enterprise Holdings was not found to be a joint employer with the individually owned branches of Enterprise Rent-A-Car.