ACT 80 of 2021: School Bus Stop Enforcement

Effective October 20, 2021, Act 80 of 2021 amends Title 75 (Vehicles) of the Pennsylvania Consolidated Statues to extend temporary regulation for the school bus stop-arm camera enforcement program by two (2) years. The regulation shall now expire on October 20, 2023.

ACT 81 of 2021: Extension of Liquor License Service Areas

Effective November 5, 2021, Act 81 of 2021 authorizes the Pennsylvania Liquor Control Board (LCB) to temporarily extend the licensed premises of a licensed entity, including a club, retail dispenser, hotel, and restaurant, upon request. An extended licensed premise includes any outside serving area that is adjacent to the existing licensed area or within the 1,000 feet of the main licensed building even if separated by a road. The act also:

ACT 87 of 2021: First Responders Day

Effective November 17, 2021, Act 87 of 2021 declares September 27 of each year as the First Responders Day in Pennsylvania. The act calls upon all public schools and educational institutions to observe First Responders Day and to “conduct exercises recognizing the contributions and remembering the sacrifices that first responders have made.” “First Responders Day may not be a paid holiday or a day the school district closes.”

ACT 96 of 2021: Broadband Development Authority

Effective December 22, 2021, Act 96 of 2021 creates a Pennsylvania Broadband Development Authority to disburse state and federal funds for the expansion of broadband to unserved and underserved areas, coordinate broadband development, and produce a state wide broadband development plan. The act sets forth the structure and governance of an authority, as well as its powers and duties. The act also enables Pennsylvania to access $100 million in federal aid for broadband roll out. 

ACT 97 of 2021: Bonds for Development Improvements

Effective February 20, 2022, Act 97 of 202 amend the Pennsylvania Municipalities Planning Code to clarify that a municipality may require a developer to post a bond that equals  “but does not exceed” 110% of the cost of the improvements. The act also clarifies that the municipality may, prior to release at the time of completion and certification by its engineer, retain 10% of the estimated cost of the remaining improvements. 

The Pennsylvania psychiatrist/psychologist-patient privilege, codified as 42 Pa.C.S. § 5944, protects confidential communications shared between a psychiatrist or psychologist and their patient from disclosure. 

The privilege precludes the discovery of confidential communications between a patient and psychiatrist/psychologist made in the course of treatment. See 42 Pa.C.S. § 5944. Communications includes oral communications and any reference to privileged communications in a file. Commonwealth v. Simmons, 719 A.2d 336, 343 (Pa. Super. Ct.  1998). The privilege applies not only to psychiatrists and psychologists, but to any member of a patient’s treatment team. Farrell v. Regola, 150 A.3d 87, 100 (Pa. Super. Ct. 2016). Significantly, the psychiatrist/psychologist-patient privilege does not protect the psychotherapist’s own opinion, observations, diagnosis, or treatment alternatives. Commonwealth v. Segarra, 228 A.3d 943, 953-54 (Pa. Super. Ct. 2020), appeal denied, 237 A.3d 975 (Pa. 2020).

The purpose of the psychiatrist/psychologist-patient privilege is “to aid in the effective treatment of the client by encouraging the patient to disclose information fully and freely without fear of public disclosure.” Gormley v. Edgar, 995 A.2d 1197 (Pa. Super. Ct. 2010) (citation and quotation marks omitted). 

Although a highly regarded privilege, a patient waives the psychiatrist-patient privilege when they put their mental health at issue in a case. The leading precedent on the waiver of psychiatrist-patient privilege is Gormley v. Edgar where an injured plaintiff alleged that a defendant’s negligence in an auto accident caused the plaintiff to suffer anxiety, shock, mental anguish and humiliation. Id. at 1205. In answering whether or not the plaintiff put their mental health at issue in the case, the Pennsylvania Superior Court held that general allegations of emotional or mental pain and suffering alone are insufficient to put a party’s medical condition at issue, and thus waive the psychiatrist-patient privilege. Id. However, allegations of “mental injury, severe emotional trauma requiring treatment, or psychiatric/psychological conditions” or allegations of the aggravation of existing mental health problems may waive the privilege. Id. The Gormley plaintiff was found to have waived the psychiatrist/psychologist-patient privilege when they alleged anxiety, a medically diagnosable mental disorder, as a result of defendant’s alleged negligence. Therefore, communications between the patient and psychiatrist/psychologist regarding the patient’s anxiety was discoverable.

When either pleading or responding to a personal injury complaint, it is important to be mindful of the types of injury allegations raised, and whether the injuries complained of are general allegations or medically diagnosable conditions or disorders, putting the patient’s mental health at issue, and potentially waiving the psychiatrist/psychologist-patient privilege.

Please contact Kathleen M. Mannard at kmannard@smgglaw.com or call us at (412) 281-5423 should you have any questions on the initiation or defense of a personal injury lawsuit.

Independent client research – NOT completed at the direction of an attorney – is protected as work product in Pennsylvania federal courts so long as it was prepared in anticipation of litigation.

The work product doctrine provides that “a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent)).” Documents are prepared “in anticipation of litigation” when, “in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation.” In re Grand Jury Proceedings (3rd Cir. 1979).

Although the work product doctrine is a tool most often utilized by attorneys, Pennsylvania federal precedent indicates that attorney involvement is not necessary for the work-product protection as the plain language of Federal Rule of Civil Procedure 26(b)(3) applies to materials prepared or obtained in anticipation of litigation by an attorney or non-attorney.

In particular to clients, the Western District of Pennsylvania has found that the work product doctrine applies to client research prepared or obtained in anticipation of litigation. In the 2012 SightSound Techs., LLC v. Apple, Inc. case, a managing member of party SightSound drafted emails that reflected the mental impressions, conclusions, and opinions of SightSound’s potential filing of legal claims. The defense argued that the work-product doctrine did not protect the member’s emails from discovery because the emails were made by the party without attorney input or direction. However, the Court held that the mental impressions, conclusions and opinions of the member, whether with or without attorney input, were still not subject to production because the e-mails were documents prepared in anticipation of litigation, by or for a party or its representatives.

SightSound is significant persuasive authority that a client’s independent research prepared with the prospect of litigation is protected from discovery under the work-product doctrine.

If you have questions about the work-product doctrine contact Kathleen M. Mannard at kmannard@smgglaw.com or a member of SMGG’s Litigation Practice Group attorneys.

If an attorney works on a plaintiff’s claim raised under the Unfair Trade Practices and Consumer Protection Law (UTPCPL), they must be careful with their time keeping of billable hours if they want to recover attorneys’ fees. When a plaintiff is successful with their UTPCPL claim, the court may award costs and reasonable attorneys’ fees, in addition to other relief provided under the UTPCPL. 73 Pa.C.S.A. § 201-9.2. The trial court considers multiple mandatory factors in the award of attorneys’ fees, including:

  1. the time and labor required; and
  2. the novelty and difficulty of the questions involved; and
  3. the skill requisite to properly conduct the case; and
  4. the customary charges of the members of the bar for similar services; and
  5. the amount involved in the controversy and the benefits resulting to the clients from the services, including ensuring that there is a sense of proportionality between the award of damages and the award of attorneys’ fees; and
  6. the contingency or certainty of the compensation.

Croft v. P &W Foreign Car Service, Inc., 557 A.2d 18 (Pa. Super. 1989).

After the consideration of the Croft factors, the trial court must then link the fee award to the amount of damages the plaintiff sustained under the UTPCPL and eliminate from the award of attorney fees the efforts of counsel to recover on non-UTPCPL theories. Neal v. Bavarian Motors, Inc., 882 A.2d 1022, 1030-31 (Pa. Super. 2005).

The trial court’s subtraction of attorneys’ fees can drastically reduce the award of fees sustained under the UTPCL claim if an attorney does not carefully record their hours spent on the UTPCPL claim. Attorneys must wisely apportion their time for the time spent on the UTPCPL claims and other claims for relief. UTPCPL and non-UTPCPL claims may be extremely difficult to delineate the time spent where the underlying facts of each cause of action mirror those in the UTPCPL claim. Where such claims are extremely difficult to delineate the time spent, the trial court may still award attorney’s fees under the Croft factors, but counsel should not rely on the court’s discretion to apportion the time spent in their favor. In order to preserve the recovery of attorneys’ fees under a UTPCPL claim, where there are other theories of relief, attorneys should record their time for the UTPCPL claim separately and exclusively from other theories of relief in the case.

If you have any questions about the UTPCPL, please contact Kathleen M. Mannard, Esquire at kmannard@smgglaw.com