Pennsylvania Litigation Blog : Pennsylvania Litigation Lawyer & Attorney : Barley Snyder Law Firm : Serving Lancaster, Reading, York, Chambersburg

Disappointed beneficiaries attempt to attack a will on numerous grounds. Among those that are commonly targeted are the attorneys who drafted the testamentary documents. Although an action for legal malpractice is prohibited in the Commonwealth for those not in privity with the attorney, a seemingly related cause of action for breach of contract by an intended third party beneficiary is allowed in extremely limited circumstances. Such a cause of action dates back to 1983 where it was recognized in the Guy v. Liederback, 459 A2d 744 (Pa. April 29, 1983) decision.

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On April 22, 2009, in Diehl v. WCAB (IA Constr. & Liberty Mut. Ins.) , 972 A.2d 100,  the Commonwealth Court determined that even though an employer’s request for an Impairment Rating Evaluation (IRE) was beyond the 60-day window following the expiration of 104 weeks of total disability benefits, it was still entitled to pursue a petition to modify the claimant’s benefit status from total to partial without having to prove either job availability or earning power. This decision represents a reversal of the Court’s previous ruling in this case.

In Diehl, the IRE evaluation determined that the Claimant had an impairment rating of 28% (i.e., well below the 50% impairment threshold for change of status to “partial” disability). However, the employer requested the IRE well beyond the 60-day window. Upon receipt of the IRE determination, the employer then sought to unilaterally modify the claimant’s disability status from one of total disability to partial disability. The Claimant argued that the employer could not prevail by merely proving an impairment of less than 50%, but was also required to show evidence of job availability and/or earning power. 

In its April 2008 decision, the Commonwealth Court agreed with the Claimant and indicated that employers who seek to show that a claimant is no longer temporarily totally disabled must prove their case by not only establishing an impairment rating of less than 50%, but also through vocational rehabilitation proof. Specifically, an employer cannot unilaterally shift a claimant’s benefits from TTD to PPD upon a showing of an impairment rating below 50%, but must also demonstrate job availability or restored earning power. However, in its revised decision, the Court held that “under the Act, an employer seeking to change a claimant’s benefit status using results of an IRE requested outside the 60-day window must obtain an agreement from the claimant or an adjudication that the claimant’s condition improved to an impairment rating less than 50 percent. Proof of earning power and job availability is not required.”

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Maintaining attorney-client communications where a corporation is the client can be a  sensitive area. To whom, within the corporation, can communications be made without waiving the privilege? Is the communication for business purposes or for legal purposes? What if there are mixed purposes? Business litigators often have to confront these and other issues in their daily practice. The issues can be complicated even more by the fact that many current communications occur in the context of string e-mail exchanges.

The Eastern District of Pennsylvania recently issued a decision that very succinctly reminds us of the applicable principles and applies them to e-mail chains and draft legal documents in the case at hand. See SEPTA v. CaremarkPCS Health, L.P., No. 07-2919, 254 F.R.D. 253 (E.D. Pa. Dec. 9, 2008).

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According to a decision by the Third Circuit, the simple fact that an employee receives FMLA leave does not necessarily mean that the employee is disabled for purposes of the Rehabilitation Act. Further, an employee does not automatically have a “record of disability” if the FMLA leave was approved.

In an October 21, 2008 unpublished opinion, the Third Circuit held that a nurse with post-traumatic stress disorder, depression, and alcoholism failed to demonstrate that she had a disability under the Rehabilitation Act. In Nicholson v. West Penn Allegheny Health System, 3d Cir., No. 07-4354 (2008 WL 4636353), the Third Circuit upheld the U.S. District Court for the Western District of Pennsylvania’s grant of summary judgment in favor of the West Penn Allegheny Health System.

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Every year, millions of people spend hours of their free time engrossed in sports. Whether it is college athletics, professional baseball or football, NASCAR, the Olympics or even little league, America’s pastimes have come to center around the pursuit of excellence in the sporting arena. Sports have become so important to Americans that Congress has taken time to investigate steroid drug use in professional sports and the Olympics. Even President-elect Obama has shown his passion for college football in saying that “I’m going to throw my weight around a bit” in calling for a national playoff system. John Ward, Obama to Push for College Football Playoff, Washington Times, Nov. 17, 2008,

With the increasing focus on sports, especially at the collegiate level, colleges and universities are seeing an increase in litigation from their current and former athletes. This is an area of interest in legal circles as it invokes a variety of legal issues especially for those athletes attending school under an athletic scholarship. Of utmost concern, though, is whether a legal duty of care is owed to the athlete by the team physicians and athletic trainers.

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The Commonwealth Court in Hoffman Mining Company v. Zoning Hearing Board of Adams, (958 A.2d 602) determined that the Surface Mining Conservation and Reclamation Act, 52 P.S. 1396.1 et. seq. ("SMCRA"), does not preempt a Township setback requirement. The Township enacted an ordinance which established a 1000 foot setback for mining activity from residential structures. The Surface Mining Act establishes a 300 foot setback requirement. The Surface Mining Act at 52 P.S. Section 1396.17a incorporates a preemption relating to the regulation of surface mining activity and specifically provides:

Except with respect to ordinances adopted pursuant to the act of July 31, 1968 (P.L. 805, No. 247) known as the "Pennsylvania Municipalities Planning Code", all local ordinances and enactments purporting to regulate surface mining are hereby superseded. The Commonwealth by this enactment hereby preempts the regulation of surface mining as herein defined.  

The Court in Hoffman saw the issue as a question of whether the preemption related to all zoning regulations promulgated after the adoption of SMCRA. The Court held that the setback limitation of 1000 feet was a proper zoning requirement, which was not preempted by SMCRA. The Court distinguished the setback limitations at issue in Hoffman from the operational requirements at issue in Warner Co. v. ZHB of Tredyffrin Township, 612 A.2d 578 (Pa. Cmwth 1992). The ordinance at issue in Warner addressed, buffer and berms, storage of overburden and details regarding reclamation of a quarry. The Court in Hoffman viewed the setback limitation as a proper land use control connected to land use planning, rather addressing operational surface mining activity. The Court reasoned that if the Township could properly prohibit a use within a zoning district, it should properly be permitted to take the less onerous step of establishing setback requirements that are more than the 300 foot limit imposed by SMCRA.

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The White House has been working diligently on healthcare reform efforts, as promised during President Obama’s campaign. Around the country, healthcare providers and their attorneys (such as myself) are following and/or participating in the developments. Here is a summary of some activity in the past week:

• Last week (on June 16, 2009), Peter R. Orszag, Director of the Office of Management and Budget,, posted an entry on the OMB Blog June 16th stating that in addition to the White House’s commitment to ensuring healthcare reform is “deficit neutral”, the healthcare system as a whole needs to adopt best practices that achieve higher quality and lower cost throughout the country. I heard Mr. Orszag give a speech last year in which he made the same pitch for higher quality and efficiency as a necessary part of the effort to lower healthcare costs. This has become a theme of the White House’s health care reform efforts.
• On the same day (June 16), Douglas W. Elmendorf, Director of the Congressional Budget Office (“CBO”), issued letters to the Chairs of the Senate Budget Committee and the House Ways and Means Committee. The upshot of the letters, as I read them, is that fundamental changes in healthcare delivery and financing are believed to be needed for significant reductions in federal healthcare spending to occur. This is consistent with Mr. Orszag’s message (see above). (I wonder if they coordinated their efforts.) Mr. Elmendorf says: “In the absence of significant changes to policy, rising costs for health care will cause federal spending to grow much faster than the economy, putting the federal budget on an unsustainable path.” Citing an interest by some in policy changes combined with “a mechanism or framework to impose ongoing pressure for achieving efficiencies in the delivery of health care”, he concludes that, absent “meaningful reforms”, “the substantial costs of many current proposals to expand federal subsidies for health insurance would be much more likely to worsen the long-run budget outlook than to improve it.”
• The CBO’s review of pending reform proposals as described above seems to have put reform effort on a path longer than what the White House had hoped for.
• Yesterday (June 22), President Obama reported that, over the weekend, an “understanding” about upcoming reform was reached that would close Medicare Part D’s “doughnut hole.” The hole is a gap in prescription drug coverage that requires seniors to pay out-of-pocket for costs between $2,700 and $6,100. The President reports: “So as part of the health care reform I expect Congress to enact this year, Medicare beneficiaries whose spending falls within this gap will now receive a discount on prescription drugs of at least 50 percent from the negotiated price their plan pays.” AARP supports this reform effort. The change reportedly will cost drug manufacturers $80 billion over the next ten years.
• Yesterday, President Obama also signed into law the Family Smoking Prevention and Tobacco Control Act of 2009  that gives the FDA, for the first time, the power to regulate the tobacco industry. 
• Potential cuts in Medicaid payments to states, as part of healthcare reform, have been a hot topic over the past couple of days. Senator Dianne Feinstein, from California, stated on CNN’s State of the Union that changing the rate would have a huge impact on her state that would “take down her state.” Not surprisingly, then, she questioned her ability to support such a change. The White House responded by pointing out that California has received billions of dollars in Medicaid assistance as a result of this year’s stimulus bill.

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