Pennsylvania Legal Update Fall 2014

FALL 2014 ISSUE

INJURED WORKER WINS BENEFITS

A laborer seriously injured at a construction site won workers' compensation benefits despite the fact that his employer was uninsured.

The laborer was tearing off a roof and told the employer that the beams were dry‑rotted and could not support him. The employer disagreed and told the laborer to slide plywood over the beams and stand on the plywood; he did, and he fell from the roof onto a concrete slab. He suffered a skull fracture, an orbital fracture, and mild brain injuries. Placed in a drug‑induced coma, he was hospitalized for over a week and later treated by neurosurgeons and brain trauma specialists.

The Pennsylvania Uninsured Employers Guaranty Fund (the Fund) stands in the shoes of uninsured employers, managing claims and litigating against workers when necessary. The Fund challenged the laborer's right to benefits, focusing largely on the expectation that he should return to work. The laborer's brain trauma expert testified at the hearing that the laborer had pressure headaches, vision blurring, fatigue, short‑term memory problems, and mild cognitive deficits. He characterized the injury as a mild traumatic brain injury that left the laborer with ­significant cognitive problems and vision problems. He noted that the laborer had discontinued treatment but had not recovered.

The Fund engaged a physician to conduct an independent medical exam that was performed after the laborer's other medical treatment had essentially ended. Because its physician concluded that the laborer could return to work, and because the laborer's health‑care providers did not reexamine him after the independent exam, the Fund claimed that its physician's testimony was superior, in part because it was more recent in time.

On appeal, the Commonwealth Court disagreed, first noting that the hearing officer found the laborer's expert more credible. Next, the court found that the most recent examination in workers' compensation cases is not necessarily or always the more reliable.

Workers seeking compensation for injuries must prove the nature and duration of their disabilities. Once they have met that burden to the satisfaction of the hearing officer, the fact that a more recent exam results in a different opinion is not binding on a hearing officer.

Workers should keep up with their medical care in order to present the best case at a hearing. But the most recent medical exam does not carry any superior weight at a hearing simply by reason of its date and time.

PUBLIC EMPLOYEES FORFEIT PENSIONS

Two recent Pennsylvania cases illustrate the enormous consequences misconduct or criminal convictions have on public employees' retirement benefits. Both employees in the two cases lost their entire pensions, based on different Pennsylvania laws; one was a judge, the other a teacher.

The office of magisterial district judge, formerly justice of the peace, is an elected judicial office. Magisterial district judges have varied duties, including setting initial bail in criminal cases, hearing criminal preliminary hearings, issuing orders of protection, and handling minor civil cases. Magisterial district judges can be removed from office as a sanction for misconduct. The Pennsylvania Court of Judicial Discipline hears cases of judicial misconduct brought against judges of all levels of office.

A magisterial district judge was brought before the Court of Judicial Discipline on charges of "pervasive and extreme" misbehavior toward his staff. Some of the judge's behavior had sexual connotations, and much of it included his routinely using "crude, coarse, vulgar, offensive and improper language." The judge was removed from office after the trial following the court's finding that he had "brought his judicial office into disrepute." Some of the charges of misconduct against him were dismissed by the court. First elected in the late 1980s, the judge had been reelected several times and had a state pension.

After the judge's removal by the court, the state pension service notified the removed judge that his pension had been forfeited due to his removal from office. The judge appealed to the State Employees Retirement Board, claiming that some misconduct charges against him had been dismissed, that he had been removed on the ground that he had brought his office into disrepute rather than on the ground of misconduct, and that he had not actually been removed from several terms of office he had previously served in his cycle of reelections. Despite the fact that the judicial removal proceedings had concluded against him, the judge characterized his behavior toward his staff as "jovial repartee."

The retirement board upheld the forfeiture, noting that both the Pennsylvania Constitution and the Pennsylvania statutes that regulate judges provide that judges forfeit their pensions if removed from their office. The board noted that all elected officials renew their pension contracts upon reelection and that the terms of the pension contract "place at risk" all previous service and previous pension earnings. The board also noted that the judge was aware of the contents of the Judicial Code and the Pennsylvania Constitution.

In the case involving the teacher, he lost his pension after pleading guilty to corruption of a minor and indecent assault. Pennsylvania's Public Employee Pension Forfeiture Act (PEPFA) provides for the loss of pension when a public official or employee is convicted of crimes involving the job or office "when public employment places him in a position to commit the crime." The crimes involved are enumerated in the PEPFA and include crimes against students and crimes involving theft, forgery, records tampering, bribery, false swearing, and obstruction of law. Public officials and employees who can lose their pensions under the PEPFA include both state and local officials and employees.

In the case involving the teacher, he was already collecting his monthly pension payments at the time he entered the guilty plea and was not aware that his conviction would trigger a pension forfeiture. When he received notice of the forfeiture, he tried to withdraw his guilty plea, but the presiding judge found that pension forfeiture was not a valid reason to withdraw a fully counseled guilty plea.

Judges and all public officials and employees are subject to these strict laws that create the potential for pension forfeiture. Given the objections raised by the judge and teacher described above, it appears that some individuals with public pensions may not be fully aware that they face grave risks of forfeiture.

WHEN CHILDREN SUE

Children who suffer personal injuries have the right to sue but can do so only through a guardian. Usually a child's parent serves as the guardian. In a recent Pennsylvania case, a trial judge substituted a lawyer as guardian ad litem for an injured child, but on appeal the child's mother regained the right to manage the lawsuit.

The child was a 15‑year‑old‑girl who suffered from seizure disorder, global developmental delay, and hearing problems. She was fed by a feeding tube and relied on daily nursing assistance for her routine care. One of the assigned nurses preferred to care for the child at her own home rather than at the child's home, but that arrangement was not permitted by the agency. The nurse and the mother secretly agreed that the nurse would care for the child at the nurse's home; only on the days the agency reviewed or monitored the nurse would she and the child stay at the mother's home.

While at the nurse's home, the child was extensively bitten by the nurse's dog, resulting in serious facial and eye injuries. The eye injuries required a series of surgeries, and it was expected that the child would require future surgeries as well.

After a period of delay, but before the time for filing suit expired, the mother sued the nurse and the agency for negligence and negligent supervision. The mother hired an attorney who filed the lawsuit and also entered into serious settlement negotiations. The agency and the nurse's homeowners' insurance company made substantial offers, but as the case proceeded to trial, confusion arose about the amount and detail of the offers.

Just before trial, the trial judge appointed an attorney to take over the mother's role and act as guardian ad litem for the child. The judge was critical of the mother's failure to accept substantial settlement offers and concluded that she was not sufficiently focused on the child's best interests but was instead motivated to get a larger offer or award for her own financial gain.

The mother immediately appealed, and on appeal she won the right to act as sole guardian in the case. The Pennsylvania Superior Court held that a trial court does have the authority to substitute an attorney for a parent guardian in a personal injury case involving a child. But in doing so, the court must give valid reasons before setting aside the parent. Parents have a fundamental right in Pennsylvania law to make decisions regarding the care and control of their children. Largely due to the fact that the parties all disputed the history of the settlement offers and counteroffers, the appeals court found that the trial judge did not have enough reliable evidence that the mother was not acting in her daughter's best interests.

Parents are entitled to bring lawsuits for their children and are permitted to hire attorneys to do so. Trial judges may substitute an attorney as guardian ad litem for a child if sound reasons support the conclusion that the parent is not managing the litigation adequately.

PEDESTRIAN CAN SUE STREETLIGHT COMPANY

A woman struck by a car as she walked to her bus stop was given the right to take her claims against the streetlight utility company to trial.

The trial judge made initial findings that the intersection where the woman was struck by the car was lit by a streetlight owned by the utility company. The parties did not dispute that the light was old, installed when the roadway was two lanes. The road had doubled in size, and the streetlight had not been modernized for over 30 years. The light was described as "antiquated" by the woman, who claimed it did not light the roadway fully. The utility company countered that its obligation to maintain the light was met when it inspected it regularly and replaced the bulbs as needed. The trial judge agreed and dismissed the woman's claims against the utility company.

On appeal, the woman claimed that the utility company took on the responsibility to light the roadway and thus was responsible to do it properly. Arguing that maintenance of the light required more than "changing light bulbs every four years," she sought the right to take her claims to a jury.

The appeal court agreed, noting that a jury may find that the utility company's duty extended beyond merely providing the electricity and changing the bulbs. Because the question of whether a party used "reasonable care" is a question for the jury, the appeal court remanded the case for trial against the utility company.

TIRE HAULER FINED

A Pennsylvania tire hauler was held responsible for part of the costs of cleanup of an illegal dump as a result of Pennsylvania environmental regulations.

The hauler paid a rural family business to accept his dumping of waste tires. Over a period of three years, the hauler dumped 55 truckloads of tires on the family's dump site, totaling over 330 tons of tires. The site became the largest illegal tire dump site in Pennsylvania, containing over 4 million waste tires before it was shut down by the Department of Environmental Protection (DEP). The family did not have permits for the site.

After extensive litigation and negotiations with the family to advance the removal of the millions of tires, and after some were removed, DEP began its own cleanup of the site. DEP requested the haulers who had dumped the tires to remove the same amount of tires as they had dumped on the site, and many did. Some of the haulers simply paid DEP's costs of removal. Several haulers resisted taking any responsibility, and one went to trial.

The hauler who went to trial maintained that he never knew the dump was illegal and that the family told him they processed tires into paving material. He admitted that he never asked to see a permit and never inquired about the tire processing the family claimed they did. He also admitted he never inspected their business operations at any time.

He was found responsible for over $23,000 in costs incurred by DEP to remove his 330 tons of waste tires from the site, because the Pennsylvania Solid Waste Management Act makes individuals or companies who dump solid waste responsible if the site does not have a permit. Whether solid waste is transported to a dump or a processing facility does not matter; haulers must be sure that the site where they dump waste has a legal permit to accept that waste.

THEY SAID IT

The following exchange between an attorney and a witness actually took place in a courtroom.

Attorney: Are you married?

Witness: No. I'm divorced.

Attorney: And what did your husband do before you divorced him?

Witness: A lot of things I didn't know about.