Case Summaries

Case Notes from Richard E. Freeburn, Esquire, “The Lawyers Lawyer”.

The content on this web page is provided primarily for other lawyers. It is intended to assist other attorneys in keeping current with the latest developments in the law, in regards to personal injury, workers’ compensation and litigation issues. Every week, attorney Dick Freeburn reviews a case summary for his local Bar Association, that you can find here.

At Freeburn Hamilton, we welcome referrals.


Dep’t of Labor & Indus. v. Workers’ Comp. Appeal Bd. (Lin & E. Taste), 27 EAP 2017, 2018 WL 3118537 (Pa. June 26, 2018)

July 23rd, 2018

In Dep’t of Labor & Indus. v. Workers’ Comp. Appeal Bd. (Lin & E. Taste), the Supreme Court of Pennsylvania held that the Construction Workplace Misclassification Act (“CWMA”) only applies to construction businesses for purposes of determining whether a worker is an employee or an independent contractor.

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Pennsylvania State Police V. Workers’ Comp. Appeal Bd. (Bushta)

July 18th, 2018

In Pennsylvania State Police v. Workers’ Comp. Appeal Bd. (Bushta), 14 WAP 2017, 2018 WL 2408166, at *1 (Pa. May 29, 2018), the Supreme Court of Pennsylvania unanimously affirmed the Commonwealth Court’s decision that the Pennsylvania State Police (“PSP”) is not entitled to subrogation of a state trooper’s third-party settlement for benefits paid under the Heart and Lung Act.

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A Split 3 Judge Panel Of The Superior Court Reverses Twenty-One Million Dollar Bad Faith Verdict Against Nationwide

June 29th, 2018

In Berg v. Nationwide, 2018 WL 1702785 (April 9, 2018), a split three judge panel of the Pennsylvania Superior Court reversed a Twenty-One Million Dollar bad faith award against Nationwide and remanded the case to the trial court for judgment in favor of Nationwide. 

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An Auto Insurance Carrier Must Provide Stacked Underinsured Motorist (“UIM”) Coverage Because It Failed To Obtain A Signed UIM Stacking Waiver After A New Car Was Added To The Policy By Way Of An Amended Declarations Page

June 22nd, 2018

In Newhook v. Erie, No. 1917 EDA 2017 (April 25, 2018), a three judge panel of the Pennsylvania Superior Court held in an unreported case that Erie was required to provide stacked underinsured motorist benefits because it added a new car to its policy by way of an endorsement, (an amended declarations page), and failed to obtain a signed waiver of stacking form from its insured. 

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A Prospective Juror Who Shows Bias Must Be Disqualified, And No Deference Is Given To A Judge Who Is Absent From Voire Dire

June 12th, 2018

In Triggs v. Childrens’s Hospital , 2018 WL 2192218, (Pa. Super., May 14, 2018), the Pennsylvania Superior Court found that a prospective juror’s answers to voir dire questions in this medical malpractice case demonstrated bias in favor of the medical profession, and the court gave no deference to the trial judge because the judge was absent from voir dire. 

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Self-Insured Employer Is Not Entitled To Subrogation Of A Workers’ Compensation Lien For Periods An employee Is Eligible For Benefits Concurrently

June 5th, 2018

In Commonwealth v. Workers’ Comp. Appeal Bd. (Piree), 995 C.D. 2017, 2018 WL 1611532 (Pa.Cmwlth. Apr. 4, 2018), the Commonwealth Court of Pennsylvania reaffirmed that a self-insured employer is not entitled to subrogation of a workers’ compensation lien for periods an employee is eligible for benefits concurrently under the Heart and Lung Act and Workers’ Compensation Act. 

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Motion For Summary Judgement Granted To Uber After Determining Plaintiffs Did Not Meet Their Burden Of Proving They Were Employees Of Uber

May 30th, 2018

In Razak v. Uber Techs., Inc., CV 16-573, 2018 WL 1744467 (E.D. Pa. Apr. 11, 2018), the District Court for the Eastern District of Pennsylvania granted Defendant, Uber Technologies, Inc.’s (“Uber”), motion for summary judgment after determining Plaintiffs did not meet their burden of proving they were employees of Uber under federal and state minimum wage and overtime laws.

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A Flight Attendant Injured On A Shuttle Bus Transporting Her From The Airport To An Employee Parking Lot Is Found To Be In The Course Of Her Employment For Purposes Of Her Workers’ Compensation Claim

May 11th, 2018

In US Airways v. WCAB, 2018 WL 1003596 (2/22/18), the Commonwealth Court held that a flight attendant who was injured on a shuttle bus which was transporting her from her job at the Philadelphia Airport to an employee parking lot was in the course of her employment. 

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Bad Things Happen To The Employee When They Don’t Notify Their Employer Of Injury

May 2nd, 2018

In Burch v. WCAB, 2018 WL 1102078 (Pa. Cmwlth Ct., 3/1/18), employee didn’t notify her employer of a work injury because her employer gave bonuses to all employees if the company had no work injuries for the year. 

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A Confessed Judgment Filed After The Statute Of Limitations Will Be Stricken

April 18th, 2018

In Driscoll v. Arena, 2018 WL 823202, (Pa. Super., 2/12/18), the Superior Court affirmed the lower court’s order striking a confessed judgment because it was filed after the applicable statute of limitations.

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An Auto Insurance Carrier Is Required To Obtain A Signed Written Waiver Of Stacking When A Policy Holder Increases Their Limit Of UM/UIM Benefits

April 10th, 2018

In Barnard v. Travelers, E.D. Pa, Feb. 5, 2018, the Federal Court for the Eastern District of Pennsylvania held that a carrier is required to obtain a signed written waiver of stacked uninsured motorist, (“UM”), or underinsured motorist , (“UIM”), benefits when a policy holder increases their limit of such benefits. 

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State Police Officer Was Immune From Suit For Intentional Torts Committed In The Course Of His Employment

March 5th, 2018

In Justice v. Lombardo, 2017 WL 5329370, (Pa. Cmwlth. Ct., 11/14/17), the Pennsylvania Commonwealth Court held that a State Police Officer had sovereign immunity from intentional tort claims brought by a motorist who sued for assault and battery, invasion of privacy, intentional infliction of emotional distress, false arrest, false imprisonment, and abuse of process arising from a traffic stop where the trooper handcuffed the motorist to get her off a busy highway when her vehicle was being towed.

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Workers’ Compensation Death Benefits Widows And Widowers Who Were Separated At The Time Of Death Requires A Showing Of Dependency

February 26th, 2018

In Grimm v. WCAB, Pa. Cmwlth. Ct., WL 280380, (1/4/18), claimant separated from his wife 18 months before she suffered a fatal work-related heart attack.  The record showed that decedent provided health insurance for claimant through her employer. 

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The Superior Court Reviews The Standards For Defamation Per Se And Defamation By Implication

February 15th, 2018

In Menkowitz v. Peerless Publ’n, Inc., 2017 WL 6397649, the Superior Court granted a judgment n.o.v. to defendant newspaper with regard to plaintiff’s claims for defamation per se, and defamation by implication. 

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Driving For Uber After Losing One’s Regular Employment Does Not Disqualify Them For UC Benefits

February 8th, 2018

In Lowman v. Unemployment Compensation Board of Review, 2018 WL 521866, (January 24, 2018), the Commonwealth Court held that a person who applied for unemployment compensation, (UC), benefits did not disqualify themselves for UC benefits by becoming an Uber driver while waiting for a determination on his application for UC benefits.

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The Employer’s Burden Of Proof With Respect To Petitions To Modify Benefits Based On A Labor Market Survey Is Clarified

January 29th, 2018

In Smith v. W.C.A.B., 2018 WL 296840 (January 5, 2018), the Commonwealth Court clarified the employer’s burden of proof with respect to petitions to modify benefits based on a labor market survey. 

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The PA Supreme Court Holds That The Statute Of Limitations In An Uninsured Motorist Action Begins On The Date That A Breach Of Contract Occurred

December 4th, 2017

In Erie Insurance v. Bristol, 2017 WL 5617628, (Pa., November 22, 2017), the Pennsylvania Supreme Court held that the four year statute of limitation In an uninsured motorist claim did not begin on the date that the insured learned that the adverse driver was uninsured, but rather, on the date that the uninsured motorist carrier allegedly breached a contractual duty, which in this case was either the insurer’s denial of coverage or refusal to arbitrate.

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The Two Year Statute Of Limitation For Wrongful Death Or Survival Commences On Date Of Death Under The MCARE Act

November 30th, 2017

In Dubose v. Quinlan, 2017 WL 5616235, (Pa., Nov. 22, 2017), the Pennsylvania Supreme Court affirmed the decision of the trial court and the Pennsylvania Superior Court, both of which had held that the statute of limitations for medical professional liability in the form of wrongful death or survival action is two years, commencing on the date of decedent’s death, as opposed to two years commencing on the date that the victim ascertained, or in the exercise of due diligence should have ascertained the fact of a cause of action. 

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Employer Required To Compensate Employees For Breaks Of Short Duration

November 13th, 2017

In Secretary United States Department of Labor v. American Future Systems, Inc., 873 F.3d 420 (10/13/2017), the Third Circuit held that the employer’s flexible time policy was subject to the Fair Labor Standards Act, (“FLSA”), that the Department of Labor’s interpretation of FLSA as requiring compensation for rest periods of short duration was subject to the highest level of deference, and that the District Court did not abuse its discretion in awarding liquidated damages

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Regularly Used Non-Owned Vehicle Exclusion Upheld

November 3rd, 2017

In Reeves v. Travelers, 2017 WL 4930900, (E.D. Pa., 10/31/17), the Eastern District Court upheld the “regularly used, non-owned vehicle” exclusion contained in Traveler’s automobile insurance policy.

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