A recent Law360 article (subscription required) includes analysis by Swartz Campbell partner, Josh J.T. Byrne of the Barrick v. Holy Spirit decision and what might happen to the applicability of the work product doctrine for attorney-expert communications following review by the Pennsylvania Supreme Court.
Posts Tagged ‘Pennsylvania Supreme Court’
Pennsylvania has had more than its share of judicial conduct issues in the news over the last several months. From the top (conviction of Supreme Court Justice Joan Orie Melvin) to the bottom (Philadelphia traffic court judges removed for ticket fixing and lewd conduct), Pennsylvania’s judges have been making news for all the wrong reasons. However, it is important to remember that we are not alone.
The Los Angeles Times has just published an editorial decrying the prevalence of ticket fixing in southern California, and noting references to ticket fixing from the 1930’s. The editorial quotes a 1955 article describing ticket fixing as a “tenacious and widespread evil.”
A Southwest Georgia judge, Bill Bass, Sr., has been suspended for 60 days and agreed not to seek reelection. Among other misconduct, Judge Bass was accused of trying an empty courtroom chair as a defendant (perhaps serving as a model for Clint Eastwood), engaging in vindictive conduct against those who did not support his election, and talking about his sex life in court. The judge in question defended himself stating his sense of humor may have been misinterpreted, but admitted it was unconstitutional to try a chair.
The Wisconsin Supreme Court makes Pennsylvania’s Supreme Court look almost functional by comparison. Last year Wisconsin Supreme Court Justice David Prosser faced allegations of judicial misconduct after allegedly choking fellow justice Ann Walsh Bradley during the discussion of Gov. Scott Walker’s collective-bargaining law. Justice Prosser has also admitted to shouting obscenities at Wisconsin Chief Justice Shirley Abrahamson. Justice Bradley has removed herself from consideration of Justice Prosser’s misconduct case. Three years ago the Wisconsin Supreme Court deadlocked on an ethics case against Justice Michael Gableman. The allegation against Justice Gableman was that an attack ad in the 2008 election campaign amounted to a lie about a former Wisconsin Supreme Court Justice. While a judge with the Circuit Court of Washington County, Justice Annette Ziegler of the Wisconsin Supreme Court faced ethics charges for failure to disclose her husband’s association with a bank which appeared before her as a defendant.
Judicial misconduct is not new, and will never disappear. It is not unique to Pennsylvania, but happens in every jurisdiction throughout the country. We can only hope to control it by carefully monitoring the conduct of our judges, and not allowing their elevated status to blind us to faults.
An article in the Philadelphia Inquirer over the weekend raised questions about whether Pennsylvania Supreme Court Justice Seamus McCaffery should have disclosed referral fees received by his wife, Lise Rapaport, a non-practicing attorney, who works in his office. This article comes not too long after the release of a report which raised questions about whether a traffic ticket was fixed for Justice McCaffery, and an apparent growing feud between Justice McCaffery and Chief Justice Ronald Castille. The politics of Pennsylvania’s highest courtremain interesting.
There has long been a debate over the extent to which the seminal criminal malpractice case in Pennsylvania, Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108 (1993), applies to civil legal malpractice actions. Bailey, held that for a breach of contract claim against a lawyer, damages “will be limited to the amount actually paid for the services plus statutory interest.” Although Bailey arose in the context of an underlying criminal action, the courts in both Massullo v. Hamburg, Rubin, Mullin, Maxwell & Lupin, P.C., 1999 U.S. Dist. LEXIS 7177 (1999) and Green v. Altman, 2004 U.S. Dist. LEXIS 19145 (2004); and Nuyannes v. Thompson, No. 11-2029, 2012 WL 1033912, at *11 (E.D. Pa. Mar. 27, 2012) extended the ruling of Bailey regarding damages to civil matters.
In December, a panel of the Superior Court reversed course in Coleman v. Duane Morris, 2012 Pa. Super. 281, holding the Bailey decision would not extend outside of the criminal context. Last week, in an opinion titled Lodato v. Silvestro, U.S. District Judge Joel Slomsky of the Eastern District of Pennsylvania relied upon the opinion in Coleman v. Duane Morris to restrict the Bailey holding to cases arising out of underlying criminal matters. Judge Slomsky’s opinion recognizes there is a significant split between the courts both in Pennsylvania and federal courts utilizing Pennsylvania law. This issue is far from settled, and cases will likely be decided both ways until the Pennsylvania Supreme Court addresses the issue head-on.
A unanimous Pennsylvania Supreme Court has affirmed the extension of the corporate negligence doctrine beyond hospitals to nursing homes. Nearly a full year after it was argued, the court has issued a forty-four page opinion authored by Chief Justice Castille in the case of Scampone v. Highland Park Care Center, LLC, holding courts must weigh the five factors found in the Althaus v. Cohen decision to decide corporate negligence for healthcare facilities: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. The opinion appears to step back from the Thompson v. Nason Hospital decision, and broaden the scope of the “comprehensive health center” concept. Professional liability avoidance best practices require medical facilities of all types be more aware than ever that they may bear liability for the actions of their employees.
In March 2011, we posted on the plight of counsel in Newman Development Group v. Genuardi’s, 744 EDA 2010 (Pa. Super. 2010). The Superior Court quashed an appeal of an $18,489,221.60 verdict because defendants did not file any post-trial or reconsideration motions after the trial court’s final verdict following a remand from the Superior Court. Although the defendants had filed a motion for reconsideration of a January 15, 2010 opinion, they did not file any motion with respect to a subsequent February 25, 2010 decision. Plaintiff argued that the failure to file a post-trial motion with respect to the February 25, 2010 decision resulted in a waiver of the issues on appeal pursuant to Pa. R.C.P. 227.1, and the Superior Court agreed. The Superior Court rejected defendants’ argument that no post-trial motion could be filed because there was no trial following the remand.
The Supreme Court of Pennsylvania, in a unanimous decision authored by Justice Castille, has reversed, largely on the basis that Rule 227.1 speaks to “trials,” and the matter at hand “involves a gray area, where there are to be further proceedings below, but the proceedings do not amount to a new trial.”
The court further notes:
Our holding interprets this Court’s Rule as it is written. This case has revealed, however, that there are circumstances and nuances, involving appellate remands, that the current Rule does not account for. Accordingly, we will refer this issue to the Civil Procedural Rules Committee for an examination and recommendation of whether, in the Committee’s view, revisions should be made to the Civil Rules.
This is a sensible ruling, but does not detract from the warning that malpractice avoidance requires careful consideration of appropriate post-trial filings.