Pennsylvania Law Monitor : Pennsylvania Lawyer & Attorney : Stark & Stark Law Firm : Yardley, Philadelphia, New York, New Jersey

As our kids leave to go to school, one of the issues that parents need to be aware of is bullying.  There are basically three forms of bullying:

1. Physical - which is the most common form;
2. Verbal - which includes taunting, malicious teasing, name-calling and making threats; and
3. Psychological - which involves spreading of rumors, manipulating social relationships and engaging in social exclusions

Bullying affects the school and the children in many different ways. Bullying has a negative effect on the social environment of a school and creates an atmosphere of fear amongst students. Bullying also reduces a student’s ability to learn. Moreover, a child who bullies is more likely to engage in other negative behaviors, such as stealing and taking drugs. Studies show that more than 16% of U.S. school students said that they had been bullied by other students during a school term. 

To address bullying, students, parents, teachers and school administrators are becoming more proactive. The first thing parents can do is raise awareness by looking for symptoms, asking the right questions, listening and understanding. You should teach your child how to avoid bullying situations that expose him/her to bullying and encourage him/her to speak out. Schools are also taking proactive steps to decrease bullying, by increasing safety and supervision in hallways, bathrooms, lunchrooms, stairways and playgrounds. Additionally, schools have developed peer mediation, a program in which staff and students are trained in non-violent conflict resolution. Hopefully, this will make our children feel safer throughout their years at school.

 

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In a non-precedential but yet informative and helpful decision the Superior Court of Pennsylvania in Lipsky v. State Farm Mutual Automobile Insurance Company, upheld a Trial Court and ruled broadly that the definition of “bodily injury” in State Farm’s policy allowed for claims to include negligent infliction of emotional distress. The Appellate Court did so on a different basis than the Trial Court by finding that the definition of bodily injury was ultimately broad enough to include emotional harm without physical injury. The Superior Court said “nothing in the language of the State Farm policy departs from the common law understanding that the injury contemplated in such a negligent infliction of emotional distress claim results not from the bodily injury suffered by the accident victim, but from the claimant’s witnessing the accident from nearby.” The relevant part of the policy defines bodily injury as “bodily injury to a person and sickness, disease or death which results from it.”  

These critical coverage issues arose as a result of an October 7, 2006 incident wherein Joseph White, while intoxicated was driving his wife’s car with her permission when he then struck and killed a 17 year old pedestrian, Benjamin Lipsky in the presence of Benjamin’s father and two brothers.

The lesson learned here is when interpreting an insurance contract, one must carefully look at the intent of the parties as manifested by the terms in the policy.   If there is any term which is ambiguous, the policy must be construed in favor of the insured to further the purpose of the indemnification, or benefits, to be provided by the insurer.  That has been well settled law in Pennsylvania and was more recently discussed at length by the Superior Court in Telecommunications Network Design v. Brethren Mut. Ins. Co., 5 A.3d 331 (Pa. Super. 2010).   The Courts in Pennsylvania also more recently stated that they continue to accept that physical injury and physical impact are not synonymous terms (see Schmidt v. Boardman Co., 11 A.3d 924 (2011) in a case addressing bystander emotional distress claims).  The Superior Court critically held that to the extent State Farm, in this situation, argued that a physical impact is necessary for a “bodily injury to a person”, had no basis in either prevailing law or the language of its own policy.

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Before the weather gets too cold, why not brush up on your driving skills. Pennsylvania residents with a motorcycle license or learners permits are able to take free courses through the Pennsylvania Motorcycle Safety Program. There are approximately 70 locations throughout Pennsylvania.

The course consists of 5-hour in class instructions and 10 hours of practical riding. For new riders, this is a chance to have a hands-on learning experience to feel confident and safe on the roadways. For experience riders, it is an opportunity to correct any unsafe riding habits. 

If you have already completed the first  basic course, there is a second course you can take. This second course allows the driver of the motorcycle to carry a passenger and learn steering techniques.

Finally, a three-wheeled motorcycle course is also being given. If you take the three wheeled course and pass, you will be issued a license with a “9" restriction, meaning you are not permitted to operate a two wheeled motorcycle.

Regardless of the course you enroll in, you must have either a motorcycle license or permit. If you don’t have all the equipment, don’t worry, riders will be provided with a helmet and a motorcycle but you must bring all other protective gear such as glasses, gloves, boots and a jacket. 

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In Pennsylvania if someone dies and at the time of their death they had a viable lawsuit for personal injuries, the decedent’s legal representative (either the Executor the decedent appointed in his will, or an Administrator the court has appointed) may hire a lawyer and bring a lawsuit on behalf of the decedent’s estate. Damages recoverable under the Survivor act are to compensate the estate for the losses suffered by the decedent.

Damages may be awarded for pain and suffering that the decedent suffered prior to his death and also for loss of income that the decedent will no longer earn. The loss of income is calculated by taking the amount of gross income and fringe benefits the decedent would have earned during the course of his work life expectancy less the projected and probable cost of his personal maintenance (the money he would have spent on himself) during that period.

If the decedent was retired at the time of his death the estate can recover the value of the loss of future social security benefits the decedent would likely have received less a personal maintenance deduction.

The damages recovered go directly to the estate and pass through the estate to either the beneficiaries appointed in the decedent’s will, or if no will, in accordance with the Pennsylvania Intestacy laws. If you have questions regarding Pennsylvania's Survivor Act, please contact me to set up a free consultation here in my firm's Newtown, Pennsylvania office.

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On June 28, 2011, Governor Tom Corbett signed SB 1131, better known as the “Fair Share Act.” 
The Fair Share Act abolishes joint and several liability of Defendants in the Commonwealth of Pennsylvania.  Formerly, under joint and several liability, any Defendant who was found liable for an injury could be liable to pay 100 percent of the jury award to the injured party, even if it was 1%.

Joint and several liability was important to Pennsylvania personal injury victims for a variety of reasons. Primarily it prevented victims from being not compensated or under-compensated for their injuries. This was because if one defendant did not have the money to pay the victim for their injuries, the victim could be fully compensated by any other defendant who was partly at fault.

The legal principle behind joint and several liability rested upon the premise that defendants were in the best position to pay for the victim’s  damages. Now, under the “Fair Share Act” injury victims may very well be not compensated and/or under-compensated for their injuries.  

Now, Defendant’s liability will be “several” as opposed to “joint” unless the case falls into one of the following categories:

1. Defendant is 60% or more at fault;
2. There was an intentional misrepresentation;
3. There was an intentional tort;
4. There was a release or threatened release under the Hazardous Sites Cleanup Act; and
5. There was a violation of Section 497 of liquor code (Dram Shop Actions, where a bar serves alcohol to a visible intoxicated patron).

The ramifications of “Fair Share Act” is unclear since the law is so new.  However, there could be great impact on taxpayers.  If a victim is not compensated or under-compensated, then medical bills go unpaid and would fall on the state or federal government programs (i.e. Medicare and Medicaid) for payment.  Moreover, if a victim is not compensated or under-compensated for wage loss, then a victim would like seek assistance through state or federal government programs.

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If you are within four months of 65 and not ready to start your monthly Social Security cash retirement benefits, you can sign up just for Medicare and apply for your retirement benefits or your spouse’s retirement benefits later.

Before you decide, you need to be sure that you understand how waiting until later will affect the lifetime benefits Social Security can pay on your record and your current health insurance coverage.

If you have a Health Savings Account (HSA) and/or health insurance based on employment, you may want to ask your personnel office or insurance company how signing up for Medicare will affect you.

Health Insurance Coverage
Most people age 65 or older are eligible for free Medicare Hospital Insurance (Part A) if they have worked and paid Medicare taxes long enough. You should sign up for Medicare Hospital Insurance (Part A) within 4 months of your 65th birthday, whether or not you want to begin receiving retirement benefits. When you sign up for Medicare, you will be asked if you want to enroll in Medical Insurance (Part B).

Anyone who is eligible for free Medicare hospital insurance (Part A) can enroll in Medicare medical insurance (Part B) by paying a monthly premium. Some beneficiaries with higher incomes will pay a higher monthly Part B premium.

Social Security has a booklet which you can request, or read on their website, www.ssa.gov, which will assist you in figuring out the premium amount you will pay should you be considering enrolling for Medicare Part B coverage. This booklet is titled: "Medicare Premiums: Rules For Higher Income Beneficiaries" (Publication No. 05-10536).

If you do not choose to enroll in Medicare Part B and then decide to do so later, your coverage may be delayed and you may have to pay a higher monthly premium unless you qualify for a "Special Enrollment Period (SEP)”.

An SEP will generally apply if you are age 65 or older and your medical insurance coverage is under a group health plan based on your, or your spouse's, current employment. In this case, you may not need to apply for Medicare Supplementary Medical Insurance (Part B) at age 65. An SEP exception will let you sign up for Part B during any month you remain covered under the group health plan and your, or your spouse's employment continues; or within the 8-month period that begins with the month after your group health plan coverage or the employment it is based on ends, whichever comes first.

If you are working at age 65 and your business has a personnel or human resources department, you should discuss your health coverage with a representative of that department before you apply for your Medicare Part A benefit. 

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Here at Stark & Stark several of our staff participate in fund raising activities to help prevent breast cancer.  As a reminder to help protect yourself given that October is Breast Cancer Awareness Month, you should keep a few things in mind.  First, remember that regular breast self examinations should be performed a few days a month.  In addition, your doctor should perform a breast exam annually.  Moreover, yearly mammograms are suggested if you are 40 years old or older (your doctor may have you start sooner if you have a family history of breast cancer).  There is no sure way to prevent the disease but discovering breast cancer earlier maximizes your chances of survival.  Statistics from the Center for Disease Control Prevention confirm that approximately 122 women out of 1000 die from developing breast cancer each year.  Some types of breast cancer are:

• Ductile carcenoma which is considered the most common form of breast cancer and begins in the cells that line the milk ducts. 
• Lobular carcinoma, this kind of cancer begins in the lobules of the breast.  Lobules are the glands that make milk.
• Inflammatory Breast Cancer is a rare and very aggressive type of breast cancer that causes the lymph vessels in the skin of the breast to become blocked.  This type of breast cancer is called "inflammatory" because the breast often looks swollen and red, or "inflamed".

Any form of breast cancer is serious and you should always consult a doctor.  If you or someone you know has breast cancer, that was not timely diagnosed, please feel free to call us with questions to set up a consultation here in our Newtown, Pennsylvania office.

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In Pennsylvania, if someone dies as a result of an accident, their Personal Representative can file a lawsuit under the Pennsylvania Wrongful Death Act. The Act is designed to compensate certain designated surviving family members of the decedent for the loss they sustained as a result of the death of their loved one.

The damages include reasonable medical care, the cost of the funeral and estate administration, and the pecuniary value of the services that the decedent would have rendered to his or her family, including contributions or support that the decedent would likely have provided to the survivors for living expenses food, clothing, shelter, entertainment, education etc.. A surviving husband or wife may recover for the loss of affection, assistance and consortium. If there are surviving minor children the can recover for the loss of guidance and nurturing.

It is important to note that the damages recoverable under this Act go directly to the decedent’s beneficiaries and do not pass through the estate and therefore the creditors of the decedent, if any, cannot make any claims to the funds recovered.

If you, or someone you know, has questions regarding the Pennsylvania Wrongful Death Act, please feel free to contact me here in my firm’s Newtown, Pennsylvania office to set up a free consultation to discuss your case in more detail.

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Stark & Stark is pleased to announce that Henry E. Van Blunk has been appointed to the Bucks County Community College Foundation Board. As a member of the Board, Mr. Van Blunk will serves as an advocate of Bucks County Community College and its Foundation and seek opportunities to promote the Foundation’s mission and vision to all communities.  Additionally, as a member of the Board, Mr. Van Blunk will assist in determining and monitoring the Foundation’s programs and services and manage the organization’s financial resources effectively.

Mr. Van Blunk is a Shareholder and member of Stark & Stark's Business & Corporate and Public Finance Groups. Mr. Van Blunk's practice emphasizes corporate law, labor law, banking law, real estate law, estate planning and administration.  He represents numerous businesses in the following industries: health care, banking, gaming, home building and commercial building, construction, technologies and manufacturing. Mr. Van Blunk assists these clients with initial formation, financing, employment issues, acquisitions and sales, liquor license issues, shareholder agreements, succession planning, banking work outs and litigation.

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In Scampone v. Grane, 11 A.3d 967 (Pa. Super. 2010), the Pennsylvania Superior Court  significantly changed the litigation landscape of nursing home cases, particularly in the area of skilled nursing facilities and healthcare companies that run nursing homes. 

As background, Madeline Scampone went a skilled nursing facility - Highland Park Care Center- in February of 1998 as a result of a number of co-morbidities.  The Complaint focused on the care from December 2003 until her death in February of 2004.  Specifically, the Complaint alleged that as result of neglect, primarily due to under staffing, Mrs. Scampone developed illnesses which were substantial factors in causing her death. 

There were multiple parties named in the Complaint and two remained in the case for trial - Highland Park Care Center and Grane Healthcare Company.  At the conclusion of Mrs. Scampone’s case, the trial court granted a compulsory non-suit and allowed Grane out of the case.  The trial court also determined there was insufficient evidence to support a punitive damages claim.  The case was submitted to the jury on vicarious and corporate negligence.  The jury awarded $193,000.00 and both sides appealed to the Superior Court. 

On appeal, the Superior Court ruled that corporate negligence applies to a skilled nursing facility and the healthcare company responsible for its operation.   The Scampone case applied the Pennsylvania Supreme Court decision Thompson v. Nason Hospital, 591 A.2d 703 (Pa. 1991) (which applied to hospitals) and extended corporate negligence to skilled nursing facility and the healthcare company. 

Essentially, the Superior Court determined a nursing home owes the following duties to its residents: (a) to use reasonable care in the maintenance of safe and adequate facilities and equipment; (b) to select and retain only competent physicians; © to oversee all persons who practice medicine within its walls as to patient care; and (d) to formulate, adopt and enforce adequate rules and policies to ensure quality care for its patients.  More specific to the Scampone case, the Superior Court determined that under staffing can be the basis for a corporate negligence claim, which can be supported by evidence of under staffing and a history of citations and complaints.

Perhaps more importantly, the Superior Court reversed the trial court with regard to punitive damages.  The Superior Court stated “deliberately altering patient records to show care was rendered that was actually not is outrageous and warrants submission of the question of punitive damages to the jury.”

The Scampone decision is a very important decision in that is finally establishes that a corporate negligence claim may be brought against not only the facility but the managing entity.  Moreover, the Scampone decision provides guidance on punitive damages and what is sufficient for a punitive damages claim in the context of a nursing home claim.  The matter is currently on appeal to the Pennsylvania Supreme Court and many attorneys, including myself, are anxiously awaiting the decision.

If you, or someone you know, has been injured due to the negligence of a nursing home or assisted living facility, please contact me to set up a free consultation here in my firm's Newtown, Pennsylvania office to discuss your rights in more detail.

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