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A personal injury verdict which awards lost wages but nothing for pain and suffering may be against the weight of the evidence but is not necessarily inconsistent.

Photo by Matt Chesin on Unsplash

In Avery v. Cercone, 2019 Pa. Super. 366 (Dec. 23, 2019), the Superior Court of Pennsylvania held that a jury verdict in a motor vehicle accident personal injury case that awarded lost wages of $8,500 but nothing for pain and suffering was not necessarily inconsistent but might be against the weight of the evidence. Accordingly, the trial court should not have sent the jury back to continue deliberations but should have considered a motion for a new trial on the basis that the verdict was against the weight of the evidence and shocked the conscience.

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Don’t drive so fast you can’t stop from hitting the car in front of you.

Photo by Joline Torres on Unsplash
Photo by Joline Torres on Unsplash

The Pennsylvania Superior Court recently reaffirmed, in the case Smith v. Wells, 2019 Pa. Super 181, the principle that driving at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead constitutes negligence per se, i.e. the defendant’s conduct must legally be found to be negligent (the judge or jury has no discretion to find the defendant’s conduct was not negligent). Of course, this assumes the defendant’s conduct was voluntary and that there was no contributory negligence by the driver of the vehicle ahead, e.g. the result might be different if there was ice on the road.

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Personal Jurisdiction

A litigation defendant, when sued in a court located in a state in which it does not reside, may be able to challenge the jurisdiction of that court. For example, in a recent case decided in the Superior Court of Pennsylvania, Seeley v. Caesar’s Entertainment Corporation, the Court held that the plaintiffs could not sue a New Jersey casino in the Philadelphia Court of Common Pleas for a slip and fall which occurred in New Jersey.

Photo by Claire Anderson on Unsplash


Photo by Claire Anderson on Unsplash

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Mental Health Professionals may have a duty to warn concerning the danger presented by their patients.

In Maas v. UPMC, 2018 Pa. Super 195, the Pennsylvania Superior Court upheld the trial court’s denial of summary judgment to defendants Michelle Barwell, M.D., a psychiatrist and her employer who had failed to warn the neighbors of the danger of their patient who had communicated his intent to kill a neighbor.  He, in fact, ended up murdering his neighbor with a pair of scissors. The defendants had argued that there was no duty to warn because the patient had not specifically identified the neighbor he intended to kill. The Superior Court held that a duty to warn exists when the person at risk is reasonably identifiable. In this instance, the murdered neighbor lived on the same floor of the apartment building as the mental patient.

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You could be compelled to disclose your computer password to the police

In Commonwealth v. Joseph J. Davis, 2017 Pa. Super. 376, the Pennsylvania Superior found that a criminal defendant accused of sharing child pornography from his encrypted computer could be legally compelled to disclose the password necessary to decrypt the computer drive to law enforcement officials. The defendant argued that his right against self-incrimination provided by the 5th Amendment to the U.S. Constitution prevented him from being compelled to disclose the password.  The court held that compelled disclosure of the password would not violate the defendant’s right against self-incrimination because disclosure would not be testimonial in nature because disclosure would add little or nothing to the sum total of the government’s information because the defendant had already implied the existence of the pornographic files on his computer and the prior investigation had already established that pornographic videos had been shared on the internet from the defendant’s computer.

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You can be fired for not getting a flu shot

The United States Court of Appeals for the Third Circuit (a court in which I am admitted) has upheld the firing of a psychiatric crisis intake worker by the Mercy Catholic Medical Center of Southeastern Pennsylvania for failure to be inoculated against the flu.  The employee claimed that the reason for his refusal to be inoculated was his strong personal beliefs opposing the flu vaccine and alleged that his firing constituted religious discrimination. The court held that his beliefs were not religious and, therefore, his firing did not constitute religious discrimination.

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Illegal drug use by pregnant mother may constitute child abuse

The Superior Court has held that illegal drug use by a pregnant mother may constitute child abuse pursuant to the Child Protective Services Law, 23 Pa.C.S.  6301, et seq., if the mother is found to have by her drug use intentionally, recklessly, or negligently caused or created a reasonable likelihood of bodily injury to the child after birth.

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Recording court related proceedings in PA could land you in jail

In Commonwealth v. Patrick Cline, 2017 Pa. Super 417, the Pennsylvania Superior Court upheld the criminal conviction of a man who recorded a custody conference in the Lehigh County Courthouse.  He was convicted of violating the Pennsylvania Wiretapping and Electronic Surveillance Control Act and given a sentence of incarceration for 11 1/2 to 23 months.

The defendant appealed on the grounds that, 1. He did not know that his act was illegal, 2. He was denied due process since information from the custody conference was received and utilized by the judge in a subsequent custody trial, and that, 3.  He was denied due process because court proceedings are supposed to be public and not held in secret.

The Court denied his appeal on the first issue, because of the general principle  (also stated in the Pennsylvania Criminal Code at 18 Pa.C.S. 304) that ignorance of mistake of law is no defense. However, the Court did not make any substantive ruling on the other two issues, holding that the defendant had waived those grounds by not raising them before the trial court.  Accordingly, it is possible that those due process arguments may still be viable if properly raised in the correct procedural context.