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PA Primer for NY Counsel

A Pennsylvania Primer for New York Counsel

1.  Pennsylvania Motor Vehicle Financial Responsibility Law

While Pennsylvania has a similar No-Fault scheme as New York, there are also stark differences.  Pennsylvania's minimum statutory first party benefits are only in the amount of $5,000.00.  In addition there is no requirement that there be any coverage provided for loss of income, such coverage is optional. 

Pennsylvania's no-fault priority is also different than New York's.  Under Pennsylvania law (PA MVFRL § 1713) the order of priority is as follows:  

1. The policy under which the claimant is a named insured.

2. The policy under which the claimant is an insured.          

3. The policy covering the motor vehicle where the claimant is an occupant of that motor vehicle.          

4. For claimants other than occupants of motor vehicles, the policy covering any vehicle involved in the accident.       

Pennsylvania also has a dual system for determining whether a person may successfully recover for their pain and suffering.  At the time of purchase or renewal of a Pennsylvania auto policy the insured has to choose whether to purchase "full tort" or "limited tort" coverage.  If they elect "full tort" coverage then they may recover for any pain and suffering they have suffered, regardless of the severity.  However, if they elect "limited tort" coverage, then they may only recover if they are able to show that they suffered a "serious injury."  Note, however, that the definition of serious injury and its interpretation by Pennsylvania courts is very different than New York.  The key component is not the injury itself, but the effect the injury has had on the injured person.  There are legions of cases where a person suffered a fracture and yet a judge or jury found that they had not suffered a serious injury.  Depending on the County and the Judge, the actual proof required to meet the standard can vary greatly.  Currently, the Pennsylvania Supreme Court has held that Summary Judgment should only be granted on the clearest of cases, but unfortunately there are still numerous cases dismissed. 

In addition, a "limited tort" plaintiff can be deemed to have elected full tort coverage in certain situations.  Most applicable, any non-resident motorist injured in Pennsylvania is deemed to have elected full tort.  In other words, a New York resident injured in Pennsylvania by a Pennsylvania driver need not prove that they suffered a serious injury to recover for their injuries.  If the defendant is convicted or pleads guilty to an alcohol related offense, then the injured plaintiff is deemed to have elected full tort coverage.  Finally, if the defendant is driving a vehicle with a weight greater than 9,000 pounds (i.e. tractor trailer), then the injured plaintiff is deemed to have elected full tort coverage.

The minimum liability limits in Pennsylvania are $15,000.00 per person and $30,000.00 per occurrence.

2.  Medical Malpractice

Similar to New York to bring a medical malpractice action in Pennsylvania the plaintiff's attorney must file an affidavit of merit that the attorney has consulted with a knowledgeable medical professional who has concluded that there was a deviation from the standard of care and that the deviation was a proximate cause of the plaintiff's injuries.   The Medical Care Availability and Reduction of Error Fund (MCARE) Act provides specifically what credentials your expert must have to render such an opinion.  Different than in New York, the attorney must secure a signed affidavit from their expert prior to the filing of suit.  While the affidavit does not have to be provided to defense counsel at the onset of litigation, defense counsel can request that the Court review the document.  See, §512(c)(3) of MCARE; see also, 40 Pa. C.S. § 1303.512. 

3.  Statute of Limitations

Injury to Person = 2 years.  See, 42 Pa. C.S.  § 5524(1)

Libel/Slander = 1 year. See, 42 Pa. C.S. § 5523(1)

Fraud = 2 years. See, 42 Pa. C.S. § 5524(7)

Injury to Personal Property = 2 years. See, 42 Pa. C.S. § 5524(3)

Professional Malpractice = 2 years. See, 42 Pa. C.S. § 5524(7), (8)

Trespass = 2 years. See, 42 Pa. C.S. § 5524(4)

Collection of Rents = 21 years. See, 42 Pa. C.S. § 5530(2)

Contracts Written/Oral = 4 years. See, 42 Pa. C.S. § 5525(8), (3)

Collection of Debt on Account = 2 years. See, 42 Pa. C.S. § 5524

Judgments = 4 years. See, 42 Pa. C.S. § 5525(5)

4. Sovereign Immunity, Municipal Liability and Political Subdivision Tort Claims Act

Claims against the Commonwealth of Pennsylvania and its local/municipal agencies can be rather complex.  First, you must determine if you are dealing with the Commonwealth or a local agency (municipality). 

Similar to New York, 42 Pa. C.S. § 5522 requires that notice of intention to make a claim against either a Commonwealth party or political subdivision must be made, however, in Pennsylvania the claimant has six months after the cause of action accrued to file their notice of claim, not three months.

Claims against the Commonwealth of Pennsylvania

42 Pa. C.S. § 8501 defines a Commonwealth party as "a Commonwealth agency and any employee thereof, but only with respect to an act within the scope of his office or employment."  The best way to determine whether an entity is a Commonwealth or local agency for immunity purposes is to look to the entity's enabling legislation.

To avoid the Sovereign Immunity bar, under 42 P.S. § 8522(b), only the following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by:

(1) vehicle liability...;
(2) medical-professional liability...;
(3) care, custody or control of personal property...;
(4) commonwealth real estate, highways and sidewalks...;
(5) potholes and other dangerous conditions...;
(6) care, custody or control of animals...;
(7) liquor store sales...;
(8) national guard activities...;
(9) toxoids and vaccines....

If your claim involves the Commonwealth, the Sovereign Immunity Act does not require notice where liability is premised on "a dangerous condition" of its real estate, highways and sidewalks. See, 42 Pa. C.S. § 8522(b)(4). However, for "potholes and other conditions," under 42 Pa.C.S. § 8522(b)(5), "the Commonwealth agency" may need actual written notice of the dangerous condition of the highway a sufficient time prior to the event to have taken measures to protect against the dangerous condition."

Claims against Local Agencies (i.e. Municipalities, etc.)

42 Pa. C.S. § 8501 defines a local agency as "[a] government unit other than the Commonwealth government. The term includes an intermediate unit; municipalities cooperating in the exercise or performance of governmental functions, powers or responsibilities under 53 Pa. C.S. Ch. 23, subch. A (relating to intergovernmental cooperation); and councils of government and other entities created by two or more municipalities under 53 Pa. C.S. Ch. 23 subch. A.  Again, the best way to determine who you are dealing with is to look to the enabling statute.

Claims against municipal defendants in Pennsylvania are governed by the Municipal Liability and Political Tort Subdivision Claims Act.  See, 42 Pa. C.S. § 8541 et seq.  The Political Subdivision Tort Claims Act provides that a plaintiff can recover personal injury damages, under 42 Pa. C.S. § 8542(b), if the claim involves the following acts by a local agency or any of its employees:

(1) vehicle liability...;
(2) care, custody or control of personal property...;
(3) real property...;
(4) tress, traffic controls and street lighting...;
(5) utility service facilities...;
(6) streets...;
(7) sidewalks...;
(8) care, custody or control of animals....:

Under the Tort Claims Act, a municipal defendant does not require notice for a liability claim arising from the "care, custody or control" of its real property. See, 42 Pa. C.S. § 8542(b)(3). However, under this Act sections (b)(4), (5), (6) and (7) provide that a dangerous condition of trees, utility service facilities, streets and sidewalks require "that the local agency have actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition for a long enough time prior to the incident causing harm to take measures to protect against the dangerous condition." See, 42 Pa. C.S. 8542 (b)(4), (5), (6) and (7).

Differences Between the Statutes

Although much of the language and principles of these statutes are similar, they are wholly autonomous of one another and an exception in one statute may not apply to the other.  Here are a few examples:

Damages Cap: Commonwealth - $250.000.00. v. Local agency - $500,000.00. 

Pain and Suffering Limited: Commonwealth, other than the damages cap, No.  v. Local Agency - Maybe, only if claimant to recover pain and suffering against a municipality they must demonstrate a permanent loss of bodily of function, permanent disfigurement or permanent dismemberment where medical expenses exceed the sum of $1,500. 

Condition of Property:  Under 8522(b)(4) the issue is "a dangerous condition" of Commonwealth real estate/sidewalks. v. Under 8542 "the care, custody or control" of real property of the local agency.

In addition to the differences between the statutes, unlike New York where the status of a person injured on a premises is only a factor to consider, in Pennsylvania a claimants status as invitee, licensee or trespasser is very important as the jury charge and associated duties are tailored specifically to this type of claimant.

Claimants Status Relevant: Commonwealth - No. v. Local Agency - Yes, if the claimant is found to be a trespasser. 

Please be aware that this list is not exhaustive and there are additional factors to consider when dealing with a governmental defendant.

The Government Immunity Check List

When dealing with a governmental claim, please consider the following when looking at one of these claims:

A. Has the notice requirement been met and if not is there any prejudice?

B. If a local agency, can the plaintiff establish permanent loss of bodily function; permanent disfigurement or permanent dismemberment or medical expenses exceed the sum of $1,500 so that they can claim conscious pain and suffering?

C. Do you have the right defendants (correct name)?

D. Any prior losses or incidents at the location in question? Has any work been done in the area where the person was injured? If so, by whom? Is there a code, ordinance, regulation or statute violation? Can you obtain records concerning construction, design or maintenance, including any contracts?

E. Other than the Sovereign Immunity Act and Political Subdivision Tort Claims Acts, are there any other statutes that bar the case (i.e. Recreational Use of Land and Water Act (RULWA)?

G. Does the condition causing injury require the government to be put on notice under 8522 or 8542 (i.e. potholes) and if so, was it done?

H. Does the claim involve real property or property affixed to the real property (permanent fixture, moveable, temporary, etc.)?

I. If dealing with the Political Subdivision Tort Claims Act, is your plaintiff a trespasser?

5. Comparative Negligence and Joint and Several Liability

Unlike New York, Pennsylvania is not a pure comparative negligence state.  Instead, Pennsylvania is a modified comparative negligence state. This means that if the plaintiff is found to be 51% or more at fault for the accident then the plaintiff is not entitled to recover.  42 Pa. C.S. § 7102.  Of course where there are multiple defendants, a defendant can be held responsible for his proportionate share of damages if the combined fault of the defendants is 51% or greater.  As of 2011, Pennsylvania has modified its Joint and Several Liability rule.  Currently, a defendant is only jointly liable if their fault is in excess of 60%.  You can read more about this new change in the law under the Updates section of our website by clicking, here.

6. Wrongful Death

Pennsylvania wrongful death and conscious pain and suffering claims are governed by 42 Pa. C.S. § 8301.  As in New York, to file a wrongful death suit in Pennsylvania, you must show that the death of a person was caused by negligence and that the act, neglect or default would have entitled the injured person to file an action to recover damages had the decedent survived.  In addition, there must be surviving beneficiaries, children, or dependants of the victim and monetary damages must have resulted from the decedent's death.

Pennsylvania law makes a distinction between persons who can file a wrongful death suit and persons who are beneficiaries.  In Pennsylvania, a surviving spouse, child, parent or guardian, or personal representative of the deceased person may file a suit on behalf of the surviving spouse, children or parents.  Siblings and cousins of the decedent do not have the right to bring the lawsuit unless they have been named as guardian or personal representative of the decedent, in which case they still have no right of recovery so long as there is a surviving spouse, child, or parent of the decedent.  If there is no surviving spouse, child or parent, however, siblings may file the suit on behalf of the decedent's estate and may participate in the recovery through the estate.

7. Court System

Similar to New York, the Pennsylvania court system is structured like a pyramid. At its base are the magisterial district courts where cases involving small claims, minor crimes and traffic offenses are heard.  These are the equivalent of Town and Village courts in New York.  One step up on the pyramid are the Common Pleas courts in 60 judicial districts (typically corresponding with a county) around the state where trials are held in civil and criminal cases and disputes involving family and estate matters are litigated.  This is the equivalent of our New York Supreme Courts, or courts of general jurisdiction.  The appellate level represents the most drastic difference between New York and Pennsylvania.  At these intermediate appellate courts there are two appellate courts, the Superior Court, a general court of appeals with 15 judges, and the Commonwealth Court, a special court with nine judges which hears government-related matters.  These would be equivalent to the Appellate Division Judicial Departments in New York.  Finally, at the top of the pyramid is the highest court, the Supreme Court with seven justices.  The Supreme Court of Pennsylvania is the equivalent of the Court of Appeals in New York.  For an overview of the Pennsylvania Court System, go to: www.pacourts.us/courts/.

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