Pennsylvania Legal Update, Spring 2006

"TAKING" PROPERTY IN PENNSYLVANIA

In 2005, the United States Supreme Court ignited a national debate about the states' exercise of eminent domain when it found that the United States Constitution permits governmental "taking" of private property as part of an overall economic redevelopment plan, even if the property taken is promptly turned over to a private developer. In doing so, the Court noted that the individual states may place stronger and broader restrictions on eminent domain than those arising from the Constitution.

In a recent case, the Pennsylvania Commonwealth Court ruled that a government taking of private property violates the United States and Pennsylvania Constitutions if the taking advances religion. The court announced specifically that the government "may not use public funds to acquire land for a religious organization for its construction and operation of a private school." As yet undecided is how much Pennsylvania courts will allow Pennsylvania government takings to advance or impact some level of private interests.

Particularly where neighborhoods are certified as blighted, it is possible that Pennsylvania law may tolerate condemnation of private property as part of a redevelopment scheme that may serve, in part, to profit private entities. But a redevelopment plan that includes a church, religious school, or other religious property clearly cannot utilize the powerful tool of condemnation to acquire real estate.

SCHOOL LIABLE TO INJURED STUDENT

Pennsylvania's local government agencies are immune from most lawsuits. "Local government agencies" include public schools, counties, townships, boroughs, and cities. One exception relates to the use and management of real property--a local government agency's negligent management of its real property does trigger liability to injured third parties. If the negligence of a government agency or employee in the operation of government-owned real estate injures someone, then the injured victim can sue.

Recently, a Pennsylvania court found that a high school was not immune from suit by an eleventh grade student who was seriously injured in wood-shop class. The student accidentally cut his hand with a table saw. The high school demanded dismissal of the suit, claiming that it did not fall within any of the exceptions to the immunity that protects local government agencies. The student relied on the real estate exception to local government immunity and won the suit.

What Is a "Fixture"?

Traditional principles of real estate law provide that "fixtures" are actually part of the real estate. Disputes sometimes arise in real estate transactions over whether a part of a home or a commercial building is or is not a fixture. Because local government agencies are vulnerable to liability claims over their management of real estate, litigants frequently attempt to characterize a dangerous condition as involving a fixture and thus part of the real estate.

In this case, the student claimed that the table saw was a fixture of the real estate and that the teacher's temporary removal of a safety guard amounted to negligent management of the school's real estate. The court focused on the location and condition of the table saw. The table saw was bolted to the wood-shop floor and had not been moved since its initial installation. It was not plugged into an electrical outlet but was "hard wired" directly to a circuit breaker. The saw was attached to an electric dust collection system run by a vacuum motor located outside the building.

The court concluded that the table saw was in fact a fixture and thus part of the real estate. Because the maintenance or management of the saw included the teacher's removing a safety guard, the court further concluded that the saw was a part of the school's real estate that was not properly managed.

DENTAL MALPRACTICE CLAIMS AND THE STATUTE OF LIMITATIONS

Injured patients have two years within which to bring negligence lawsuits against dentists. The Pennsylvania Supreme Court recently extended the two-year deadline, also known as the "statute of limitations," in two cases where the injured patients did not understand the extent of their injuries and the dentists who were sued were deemed to have contributed to their patients' delay in bringing the suits.

Statute of Limitations

Generally, all personal injury suits must be filed within two years of the date of the injury. This limitations period cannot be extended just because the injured person is unaware of the limitations period or because the injured person may have calculated the period mistakenly. However, if an injured person does not realize the cause or extent of his or her injury, the "discovery rule" extends the time for the filing of a suit. The two-year period only starts to run when an injured person actually discovers that he or she has suffered a wrong or when he or she should have realized the existence of the wrong.

The running of the limitations period is also stopped, or "tolled," if the defendant health-care provider misleads a patient or in any way conceals an injury from a patient. Even an unintentional deception by a health-care provider will toll the limitations period. If a health-care provider purposefully or mistakenly gives an injured patient inaccurate information about his or her condition, the doctrine of "fraudulent concealment" works to suspend the running of the limitations period until the patient knows or should know the true details of his or her condition.

Dental Damage

In these two cases, both patients suffered from nerve damage and facial numbness following the extraction of wisdom teeth. Recovery from wisdom teeth extraction is sometimes accompanied by temporary facial numbness. But where important facial nerves have been damaged accidentally or carelessly, the numbness is permanent unless the nerve damage is surgically repaired.

Both patients claimed that their dentists advised them to wait six months or more to permit the numbness to resolve. The court found that assurances that pain and numbness would subside may have lulled the patients into a false sense of security. The court also observed that where a dentist does not refer a patient to a neurosurgeon for diagnosis of the cause of the numbness, the patient may have a fraudulent concealment claim. The court held that both patients were entitled to have a jury determine whether they had sued on time.

Patients and their dentists are certainly entitled to wait a reasonable period of time before treating facial numbness as permanent nerve damage, but both must be aware of the fact that while the cause of the condition remains unresolved, the limitations period will not be running. As soon as a patient is directed to a neurosurgeon or other appropriate specialist, he or she should assume that the two-year limitations period has started to run and should promptly conclude all postsurgical diagnostic investigation.

CHILD SUPPORT UPDATE

Effective January 26, 2006, the Pennsylvania Child Support Guidelines were revised as part of the state's overall practice of periodically revising the Guidelines to keep up with economic changes. Pennsylvania's support calculations are based on the incomes of both parties, and little or no regard is paid to the individual expenses of the parties.

The law presumes that parents whose joint incomes are at a certain level should pay the same amount of support as other parents with the same incomes, whether or not their particular personal expenses are vastly different. This approach focuses on fairness to the child or spouse entitled to support rather than on the other economic obligations of the payor.

If you have an existing child support, spousal support, or alimony pendente lite order, you should consider requesting modification of your existing obligation. The 2006 revisions to the Guidelines tend to increase support obligations where the parties have one child and their combined monthly net income is under $6,000 per month. For parties with higher incomes, the revisions tend to reduce existing orders for one child. For parties with more than one child, the revisions vary.

Before requesting modification proceedings at your county support office, you should secure a calculation to confirm whether modification will benefit you. Sometimes a parent seeking a change in a support order is unpleasantly surprised to find that his or her request leads to a modification in the opposite direction. It is wise to explore the likely result before you actually file for a change in your order.

INSTANT MESSAGING ADMISSIBLE IN COURT

"Instant messaging" is an increasingly popular and convenient means of communicating over the Internet. An instant message is a written communication that is instantly exchanged between participants. A Pennsylvania court recently decided that printouts of instant messaging are admissible in court. A juvenile accused of assault was convicted based on trial evidence that included "instant messages" that he sent to the victim over the Internet.

The juvenile denied that he was the aggressor in a serious fight that occurred at a school bus stop. To prove motive, the prosecutor offered into evidence printed copies of the juvenile's instant messages in which the juvenile accused the victim of stealing from him and threatened that he would beat the victim physically. The juvenile's lawyer objected to the admission of the messages because no proof existed that the juvenile actually wrote or sent them himself.

The court declined to create a "whole new body of law just to deal with e-mails or instant messages." The court acknowledged that e-mails and instant messages are cloaked in anonymity--while they can be traced to a particular computer they usually cannot be connected to a specific author with certainty. Unless the purported author is actually witnessed sending the e-mail, there is always the possibility it is not from the individual identified as the sender. The court agreed that anyone with the right password can gain access to another's e-mail account and send a message ostensibly from that person.

However, the court also noted that the same uncertainties exist with traditional written documents--a signature may be forged, a letter may be typed on another person's typewriter, distinct letterhead stationery may be copied or stolen. The court concluded that e-mail messages and similar forms of electronic communication can properly be authenticated within the existing framework of Pennsylvania law. There is a history in the courts of admitting writings into evidence if the circumstances surrounding the creation or delivery of the writing tend to prove the identity of the author. It is then up to the judge or jury to decide if the proof of authorship is clear.

Increasingly, Pennsylvania courts are recognizing faxed and e-mailed documents and signatures as binding. While it remains advisable to sign important legal documents by hand and to keep the original document, your use of electronic communications can be legally binding and will be admissible in court if all of the circumstances support the attribution of the document to you. Any time your e-mail or instant message account appears to be compromised by unauthorized use, you should review the account and preserve any available evidence of the unauthorized use. Otherwise, unauthorized communications could be attributed to you.

"CASHING OUT" WORKERS' COMP

Normally, an injured worker is entitled to receive medical coverage and a portion of his or her wages for the duration of any disability that results from a work-related injury. Rather than collect months or years of benefits, some workers negotiate with the paying insurance company for a "commutation," also called a "compromise and release." The worker then receives either a single lump-sum settlement payment or a combination of a lump-sum payment and some monthly installments.

While Pennsylvania law does not favor "cashing out" workers' compensation benefits, doing so is perfectly legal. The Workers' Compensation Act has specific procedures for settlements. Workers who consider settling their claims should only do so with a lawyer's advice to be certain they are fully informed of the impact of the settlement.

Approved by a Judge

Workers' compensation settlements are not legal unless approved by a judge after a hearing. The workers' compensation judge may not approve any settlement unless he or she first determines that the claimant understands the full legal significance of the agreement. The agreement must be explicit with regard to the payment, if any, of reasonable, necessary, and related medical expenses. The agreement must summarize the facts of the case and the reasons why the parties are agreeing to the settlement. The judge is entitled to require a vocational evaluation of the worker, that is, an expert's evaluation to determine what skills and work ability the worker currently possesses.

Divorce May Affect Benefits

Any worker who is separated or divorcing and who is settling his or her claims should get legal advice on whether his or her spouse can claim a share of the settlement money. Whether workers' compensation settlements are divisible in divorce will vary dramatically from case to case. The Pennsylvania Supreme Court has held that workers' compensation settlements are marital property if the right to the settlement "accrues" or arises during the marriage. According to Pennsylvania law, "timing rather than the method of obtaining the property controls what is marital property."

Workers' compensation settlements can be distributed in divorce even if they include an award of future benefits. If the settling spouse could have sought the settlement during the marriage, the settlement is marital property no matter when it is actually sought or received.

Backing Out

In rare instances, workers who enter into settlement agreements can back out of those agreements. Where the worker proves that the agreement was the product of fraud, deception, duress, or mutual mistake, the worker may be able to have the agreement declared void by a judge. Any worker who realizes that his or her settlement agreement should be set aside must act very quickly to bring the problem before a judge. Delay could make a bad agreement binding on the worker.