PENNSYLVANIA

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A. STATUTES OF LIMITATION

Causes of action founded on negligent, intentional, or tortious conduct for personal injuries, death, or property damage must be brought within two years.⁽¹⁾ The beginning of the tolling period is either the time the cause of action accrued⁽²⁾ or in accordance with specific court rules⁽³⁾. Pennsylvania applies a liberal "discovery" rule.⁽⁴⁾ The statute of limitations for tortious interference with business relations is two years.⁽⁵⁾

Causes of action alleged to have arisen from a breach of contract for sale and breach of warranty have a four-year statute of limitations, including recovery for personal injuries, death, or property damage.⁽⁶⁾ The tort discovery rule does not apply to the statute of limitations on breach of warranty actions.⁽⁷⁾

Actions for libel, slander, defamation, invasion of privacy and actions upon a bond must be brought within one year.⁽⁸⁾

Actions under the Unfair Trade Practices and Consumer Protection Law⁽⁹⁾ have a six-year statute of limitations.⁽¹⁰⁾

A "catch-all" provision for actions that are neither subject to another limitation section nor excluded from the application of a limitation period must be commenced within six-years.⁽¹¹⁾

A twelve-year statute of repose is applicable to claims involving improvements to real property.⁽¹²⁾

Any person who is to commence any civil action or proceeding against the Commonwealth or government unit for damages to his person or property must file a statement of claim within six months from the accrual of the cause of action.⁽¹³⁾

B. TORT REFORM

There has been no recent "tort reform" legislation in Pennsylvania, although many bills have been introduced. Currently pending is Senate Bill 5, also known as the Lawsuit Abuse/Civil Justice Reform Act, which proposes to reduce frivolous lawsuits, abolish joint and several liability, adopt a 15-year statute of repose for most consumer products, institute an "innocent seller provision" for merchants who unknowingly sell defective products that injure plaintiffs and place a cap on punitive damages.

C. "NO FAULT" LIMITATIONS

The Pennsylvania Motor Vehicle Financial Responsibility Law⁽¹⁴⁾ ("MVFRL") legislates insurance compensation for injuries resulting from motor vehicle accidents.⁽¹⁵⁾ The "limited tort option"⁽¹⁶⁾ under the MVFRL provides for reduced insurance premiums, but limits recovery to economic damages, absent the suffering of a serious injury⁽¹⁷⁾ from a vehicle accident.⁽¹⁸⁾ In all but the clearest of cases, whether the injured suffered "a serious injury" is a question for the jury.⁽¹⁹⁾ Without the reduced premium, the "full tort option"⁽²⁰⁾ allows recovery for both noneconomic⁽²¹⁾ and economic damages.⁽²²⁾ In close or doubtful cases, the court will resolve the insurance policy in favor of the greatest possible coverage to the injured claimants.⁽²³⁾

D. THE STANDARD FOR NEGLIGENCE

To establish negligence under Pennsylvania law, plaintiff must prove (1) a duty, (2) a breach of that duty, (3) a causal connection between the breach and the resulting injury, and (4) injury suffered by the plaintiffs.⁽²⁴⁾ Breach is shown when the plaintiff demonstrates that the defendant engaged in conduct that deviated from the general standard of care expected under the circumstances.⁽²⁵⁾

Pennsylvania recognizes a professional standard of care.⁽²⁶⁾ When a special relationship exists between the plaintiff and defendant, a higher standard of care is required.⁽²⁷⁾ Contrary to the general rule that there is no duty to control the actions of a third party, when a special relationship exists between the defendant and either an intended victim or the plaintiff, the defendant could have a duty to control the third party.⁽²⁸⁾

The standard of care expected of a child requires a comparison of the individual child to minors of like age, experience, capacity and development under similar circumstances.⁽²⁹⁾ Children less than seven years old are conclusively presumed incapable of negligence.⁽³⁰⁾ Children between the ages of seven and fourteen are presumed incapable of negligence, but the presumption may be rebutted and weakens as the child nears fourteen years.⁽³¹⁾ Minors older than fourteen are presumptively capable of negligence.⁽³²⁾

Pennsylvania's Supreme Court has abolished the common law presumption that a deceased or incapacitated plaintiff⁽³³⁾ or defendant⁽³⁴⁾ exercised due care at the time of injury.

E. CAUSATION

Pennsylvania follows the general rule that to establish a prima facie case in negligence, the plaintiff must demonstrate that the defendant's negligence was the proximate cause, or legal cause, of plaintiff's injury⁽³⁵⁾ and the defendant's negligence was the cause-in-fact of plaintiff's injury.⁽³⁶⁾ Proximate cause is shown when the defendant's negligence was a substantial factor in causing the plaintiff's injury.⁽³⁷⁾

Pennsylvania follows the Restatement (Second) of Torts § 447 to determine whether an intervening cause constitutes a superseding cause that relieves the original actor from liability.⁽³⁸⁾ In determining whether an intervening force is a superseding cause, the test is whether the intervening conduct was so extraordinary as not to have been reasonably foreseeable.⁽³⁹⁾

F. CONTRIBUTORY NEGLIGENCE, COMPARATIVE NEGLIGENCE AND ASSUMPTION OF RISK

1. Contributory Negligence

   The Pennsylvania Comparative Negligence Act⁽⁴⁰⁾ abolished contributory negligence as an absolute defense in actions seeking recovery for death, personal injury, or injury to property when the defendant's negligence is greater than the plaintiff's negligence.⁽⁴¹⁾ Contributory negligence is still an absolute defense in actions seeking recovery for financial loss.⁽⁴²⁾ The burden of establishing contributory negligence lies with the defendant.⁽⁴³⁾

2. Comparative Negligence

   The Pennsylvania Comparative Negligence Act applies to actions for death, personal injury, or injury to property.⁽⁴⁴⁾ Under the Act, the plaintiff may recover damages when plaintiff's negligence does not exceed the aggregate of the defendants' negligence.⁽⁴⁵⁾ Plaintiff's recovery is then reduced by plaintiff's proportion of fault.⁽⁴⁶⁾ Comparative negligence does not apply when defendant is guilty of willful or wanton misconduct.⁽⁴⁷⁾

3. Assumption of Risk

   Assumption of risk remains a viable affirmative defense in cases involving express assumption of risk, strict liability, or when assumption of risk is preserved by statute.⁽⁴⁸⁾ The essential elements of assumption of risk are the plaintiff's subjective understanding of the risk, voluntary choice to encounter the risk, and willingness to accept that risk.⁽⁴⁹⁾ In negligence actions, assumption of risk is a matter of law, incorporated into the analysis of whether defendant's duty of care to plaintiff is relieved because plaintiff voluntarily and knowingly assumed a risk.⁽⁵⁰⁾ If the court finds the defendant still owed the plaintiff a duty of care, then the case proceeds to the jury on a comparative negligence theory.⁽⁵¹⁾

G. RES IPSA LOQUITUR AND INHERENTLY DANGEROUS ACTIVITIES

1. Res Ipsa Loquitur

   Res Ipsa Loquitur permits an inference that the defendant caused the plaintiff's harm if: (1) the event is of the kind that ordinarily does not occur in the absence of negligence; (2) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated; and (3) the negligence is within the scope of the defendant's duty to the plaintiff.⁽⁵²⁾

   The court's function is to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.⁽⁵³⁾ The jury's function is to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.⁽⁵⁴⁾

2. Inherently Dangerous Activities

   The standard of reasonable care applies, but the standard of care is proportionate to the danger involved.⁽⁵⁵⁾ The greater the danger, the greater the care which must be exercised.⁽⁵⁶⁾

H. NEGLIGENCE PER SE

Negligence per se is based upon the breach by a party of a statutory duty⁽⁵⁷⁾ and establishes both duty and the required breach of duty elements of a negligence action.⁽⁵⁸⁾ A negligence per se claim must fulfill four requirements: (1) the purpose of the statute or regulation on which the plaintiff relies must be, at least in part, to protect the interests of a group of individuals, as opposed to the general public;⁽⁵⁹⁾ (2) the statute or regulations must clearly apply to the conduct of the defendant;⁽⁶⁰⁾ (3) the defendant must violate the statute or regulation;⁽⁶¹⁾ and (4) violation of the statute or regulation must be the proximate cause of the plaintiff's injuries.⁽⁶²⁾

Negligence per se is not liability per se. A defendant may still invoke defenses such as contributory negligence and proximate cause.⁽⁶³⁾

I. JOINT AND SEVERAL LIABILITY

Under the Pennsylvania Uniform Contribution Among Joint Tortfeasors Act (the "Contribution Act"), joint tort-feasors are "two or more persons jointly or severally liable in tort for the same injury to persons or property ."⁽⁶⁴⁾ Joint tort-feasors are defendants who acting together commit the wrong or whose independent acts unite in causing a single injury⁽⁶⁵⁾ which is incapable of apportionment between the defendants.⁽⁶⁶⁾ Whether the injury is capable of apportionment is a question of law for the court.⁽⁶⁷⁾

Courts consider several factors to determine if the defendants are separate or joint tort-feasors: identity of a cause of action against each of two or more defendants; existence of a common duty; whether the same evidence will support an action against each defendant; the single, indivisible nature of the injury to the plaintiff; identity of the facts as to time, place, or result; and whether the injury is direct and immediate.⁽⁶⁸⁾

A release by the plaintiff of one joint tort-feasor does not discharge the other tort-feasors unless the release so provides, but the release reduces the claim against the other tort-feasors in the amount of the consideration paid for the release.⁽⁶⁹⁾ Under the Contribution Act, the right of contribution exists among joint tort-feasors so long as two requirements are met: one joint tort-feasor has discharged the common liability or paid more than his prorata share;⁽⁷⁰⁾ and the liability of the other joint tort-feasor to the plaintiff has been extinguished by the settlement.⁽⁷¹⁾

When defendants are held liable for plaintiff's injury, but not as joint tort-feasors, the jury determines apportionment in situations when sufficient evidence is presented for the jury to make a reasonable determination.⁽⁷²⁾

Where several tort-feasors independently cause the plaintiff's injury, but not jointly, the plaintiff may bring a cause of action and recover a judgment against any or all of the tort-feasors, but the plaintiff only has "one satisfaction".⁽⁷³⁾

J. INDEMNITY

Indemnity shifts the entire loss of the plaintiff from one defendant to another by reason of some legal obligation to pay damages occasioned by the negligence of another.⁽⁷⁴⁾ Of course, indemnity may be provided by contract. Common law indemnity is generally available to those who are secondarily liable from those who are primarily liable.⁽⁷⁵⁾ If the party seeking indemnification is actively negligent, and whose negligence also is a cause of underlying injuries, common law indemnity is not available as a matter of law.⁽⁷⁶⁾

K. BAR OF WORKERS' COMPENSATION STATUTE

Under the Pennsylvania Worker's Compensation Act,⁽⁷⁷⁾ the employee is barred from suing the employer who has paid worker's compensation benefits for the employee's work-related injuries.⁽⁷⁸⁾ Worker's compensation is an exclusive remedy.⁽⁷⁹⁾

A general contractor can be deemed a statutory employer and covered under the Worker's Compensation Act where (1) an employer is under contract with an owner or one in the position of an owner, (2) the premises are occupied by or under the control of such employer, (3) a subcontract is made by such employer, (4) part of the employer's regular business is entrusted to such subcontractor, and (5) there is an employee of such subcontractor.⁽⁸⁰⁾ There need not be a direct contractual relationship between the general contractor and the employee. It is intended to cover employees who do work in furtherance of the employer's business.⁽⁸¹⁾

The receipt of benefits does not bar an employee from seeking damages from a third party.⁽⁸²⁾ Where an employee has collected worker's compensation benefits from an employer and then proceeds to sue a third party for the same incident, the employer may be subrogated to the rights of the employee as against a third party.⁽⁸³⁾ If the employee successfully sues the third party, the employer or his insurer may be reimbursed for previously paid worker's compensation benefits, reduced proportionately by the employer's share of the attorney's fees.⁽⁸⁴⁾

The employer's right of subrogation gives the employer standing to intervene pursuant to Pennsylvania Rules of Civil Procedure 2327.⁽⁸⁵⁾ Standing, however, does not guarantee that the court will grant permission to intervene.⁽⁸⁶⁾

Certain work-related injuries caused by the intentional conduct of the employer have been found to be covered by the Act, but not all intentional torts committed by an employer fall within this category.⁽⁸⁷⁾ In determining whether an intentional act will give rise to a cause of action against a co-worker, Pennsylvania courts examine whether the alleged "intentional wrong" is one that is not normally expected to be present in the workplace and if the wrong is one that is not normally expected to be present in the workplace, an intentional tort is actionable.⁽⁸⁸⁾ An employee may maintain a cause of action against an employer for injuries sustained on the employer's premises from personal animosity,⁽⁸⁹⁾ fraudulent misrepresentation,⁽⁹⁰⁾ defamation,⁽⁹¹⁾ or abuse of process.⁽⁹²⁾

L. PREMISES LIABILITY

A landowner's liability for injuries sustained on the premises depends upon the individual's common law legal status as trespasser, licensee, or invitee.⁽⁹³⁾ A landowner is liable to a trespasser if the landowner is guilty of wanton or willful negligence or misconduct.⁽⁹⁴⁾ The landowner must take care to warn licensees of actually or constructively known dangerous conditions.⁽⁹⁵⁾ A landowner must exercise reasonable care to protect invitees from any actually or constructively known dangerous conditions that the invitees will not realize or will fail to protect themselves against.⁽⁹⁶⁾

A possessor of land is subject to liability for the criminal acts of third parties when he knows or has reason to know of the dangerous condition and fails to give a warning adequate to enable a visitor to the premises to avoid harm or otherwise take reasonable precautions to prevent the type of injuries plaintiff claims he suffered.⁽⁹⁷⁾

M. DRAM SHOP LIABILITY

Pennsylvania's Dram Shop Act⁽⁹⁸⁾ is primarily litigated in the area of liability for serving alcohol to visibly intoxicated persons. The Act does not apply to social hosts who serve alcohol to adults, but there is some indication that it may apply when alcohol is served to a visibly intoxicated minor.⁽⁹⁹⁾

While a violation of the Dram Shop Act is negligence per se,⁽¹⁰⁰⁾ liability for the violation will not attach absent proof that the patron served alcohol to a visibly intoxicated person⁽¹⁰¹⁾ and that the patron's service of alcohol to that visibly intoxicated person was the proximate cause of the plaintiff's injury. ⁽¹⁰²⁾

N. ECONOMIC LOSS

Recovery under tort law is permitted only for personal injury or property damage.⁽¹⁰³⁾ Recovery solely for economic loss is prohibited in strict liability and negligence actions.⁽¹⁰⁴⁾ Although courts prohibit the recovery of economic loss in traditional tort cases, the application of this rule is unclear in the case of "business torts."⁽¹⁰⁵⁾ The better reasoning would not prohibit such recovery in "business torts."

O. FRAUD AND MISREPRESENTATION

The Pennsylvania Rules of Civil Procedure require that a cause of action for fraud be pleaded with particularity.⁽¹⁰⁶⁾

Each of the following elements for fraud, deceit or intentional misrepresentation must be proved by clear and convincing evidence:⁽¹⁰⁷⁾ (1) a representation; (2) which is material to the transaction; (3) made falsely; (4) with the intent of misleading another into relying on it; (5) the recipient's justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance.⁽¹⁰⁸⁾

The elements of negligent misrepresentation are as follows: (1) a misrepresentation of a material fact; (2) made under circumstances in which the misrepresenter ought to have known of its falsity; (3) with the intent to induce another to act on it; and (4) which results in injury to a party acting in justifiable reliance on the misrepresentation.⁽¹⁰⁹⁾ These elements differ from intentional misrepresentation in that the speaker need not know his/her words are untrue, but must have failed to make a reasonable investigation of the truth of the words.⁽¹¹⁰⁾

P. CONSUMER FRAUD STATUTES

Pennsylvania's Unfair Trade Practices and Consumer Protection Law⁽¹¹¹⁾ (the "UTPCPL") protects consumers from unfair methods of competition and deceptive acts or practices in any trade or commerce.⁽¹¹²⁾ The UTPCPL provides that Attorneys General or District Attorneys may impose penalties for any violations.⁽¹¹³⁾ Private actions may also be brought under the UTPCPL,⁽¹¹⁴⁾ in which case, the plaintiff must establish a causal connection between the unlawful practice and the plaintiff's loss.⁽¹¹⁵⁾

The "catch-all" section⁽¹¹⁶⁾ of the UTPCPL is designed to cover generally all unfair and deceptive acts or practices in the conduct of trade or commerce.⁽¹¹⁷⁾ Under the "catch-all" section, elements of common law fraud must be proved.⁽¹¹⁸⁾ As previously noted, actions under the UTPCPL have a six-year statute of limitations.⁽¹¹⁹⁾

The Unfair Insurance Practices Act ("UIPA") prohibits unfair methods of competition or unfair or deceptive act or practice in the business of insurance. ⁽¹²⁰⁾

Q. PUNITIVE DAMAGES

Pennsylvania follows the Restatement (Second) of Torts section 908 to determine if punitive damages should be awarded.⁽¹²¹⁾ Punitive damages are awarded in negligence actions when the defendant acts with an evil motive,⁽¹²²⁾ or in reckless disregard for the rights of others.⁽¹²³⁾ The purposes behind punitive damages are to deter and punish the defendant's conduct.⁽¹²⁴⁾

Compensatory and/or nominal damages are generally not a condition precedent to the award of punitive damages as long as the facts are sufficient to maintain the cause of action.⁽¹²⁵⁾ Punitive damages need not bear a reasonable relationship to the amount of compensatory or nominal damages awarded.⁽¹²⁶⁾ Courts consider several factors, including the defendant's wealth, the seriousness of the act, and the nature and extent of the harm.⁽¹²⁷⁾

Punitive damages are not awarded for misconduct constituting ordinary negligence⁽¹²⁸⁾ or for wrongful death.⁽¹²⁹⁾

R. WRONGFUL DEATH AND SURVIVORSHIP ACTIONS

Under common law, there is no recovery for wrongful death⁽¹³⁰⁾ or right of action for a decedent's personal injuries. However, recovery is allowed under the Pennsylvania Wrongful Death Statute⁽¹³¹⁾ and the Pennsylvania Survival Act,⁽¹³²⁾ two separate and distinct causes of action, whose remedies are cumulative and not alternative.⁽¹³³⁾

Recovery under the Wrongful Death Statute passes to a limited group of beneficiaries defined by statute⁽¹³⁴⁾ to compensate them for their loss.⁽¹³⁵⁾ Recovery under the Survival Act passes to the decedent's estate and is measured by the pecuniary loss to the decedent.⁽¹³⁶⁾ A survival action is not a new cause of action, but "'continues in the decedent's personal representatives the right of action which accrued to the deceased at common law because of the tort.'"⁽¹³⁷⁾

Morton F. Daller
Brendan P. Burke
DALLER GREENBERG & DIETRICH, LLP
Valley Green Corporate Center
7111 Valley Green Road
Fort Washington, Pennsylvania 19034
(215) 836-1100
(215) 836-2845 (facsimile)
Email: mdaller@dallergreenberg.com
Website: www.dallergreenberg.com

ENDNOTES - PENNSYLVANIA

^1. 42 Pa. Cons. Stat. Ann. § 5524 (1987 and Supp. 2000). Under section 5524 the following actions have a two-year statute of limitations: (1) assault, battery, false imprisonment, false arrest, malicious prosecution or malicious abuse of process; (2) to recover injuries to the person or death caused by another's wrongful acts; (3) taking, detaining or injuring personal property; (4) waste or trespass of real property; (5) upon a statute for a civil penalty or forfeiture; (6) against any governmental officer or unity for the nonpayment of money or nondelivery of property collected upon an execution or otherwise in his possession.

^2. Id. § 5502(a). (1981).

^3. Id. § 5502(b). (1981).

^4. Bohus v. Beloff, 950 F.2d 919 (3d Cir. 1991); Tuman v. Genesis Assoc., 935 F. Supp. 1375, 1381 (E.D. Pa. 1996); Dalrymple v. Brown, 549 Pa. 217, 701 A.2d 164 (1997); Hayward v. Medical Center of Beaver County, 530 Pa. 320, 608 A.2d 1040 (1992); Stauffer v. Ebersole, M.D., 385 Pa. Super. 306, 309, 560 A.2d 816, 817 (1989).

^5.42 Pa. Cons. Stat. Ann. § 5524(3) (1987 and Supp. 2000); Dellape v. Murray, 651 A.2d 638, 640 (Pa. Cmwlth. 1994).

^6. 42 Pa. Cons. Stat. Ann. § 5525 (1981 and Supp. 2000); Stransky v. American Isuzu Motors, Inc., 829 F. Supp. 788, 791 (E.D. Pa. 1993); Northampton County Area Community College v. Dow Chem., U.S.A., 389 Pa. Super 11, 27, 566 A.2d 591, 599 (1989).

^7. Brownstein v. Dow Corning Wright, 678 F. Supp. 1151, 1155 (E.D. Pa. 1988); Northampton County Area Community College v. Dow Chem., U.S.A., 389 Pa. Super. 11, 28, 566 A.2d 591, 599 (1989).

^8. 42 Pa. Cons. Stat. Ann. § 5523. (1981 and Supp. 2000).

^9. 73 Pa. Cons. Stat. Ann §§ 201-1-201-9.1. (1993 and Supp. 2000).

^10. Woody v. State Farm Fire and Cas. Co., 965 F. Supp. 691, 695 (E.D. Pa. 1997); Gabriel v. O'Hara, 368 Pa. Super. 383, 398, 534 A.2d 488, 496 (1987); see 42 Pa. Cons. Stat. Ann. § 5527. (1981 and Supp. 2000).

^11. 42 Pa. Cons. Stat. Ann. § 5527. (1981 and Supp. 2000).

^12. 42 Pa. Cons. Stat. Ann. § 5536 (1981); Vargo v. Koppers Co., Inc., Eng'g & Constr. Div., 552 Pa. 371, 374, 715 A.2d 423, 425 (1998); Noll by Noll v. Harrisburg Area YMCA, 537 Pa. 274, 280, 643 A.2d 81, 84 (1994); McCormick v. Columbus Conveyor Co., 522 Pa. 520, 524, 564 A.2d 907, 909 (1989).

^13. 42 Pa. Cons. Stat. Ann § 5522. (1981 and Supp. 2000).

^14. 75 Pa. Cons. Stat. Ann. §§ 1701 et seq. (1996).

^15. 75 Pa. Cons. Stat. Ann. § 1701 (1996); Huber v. Erie Ins. Exch., 402 Pa. Super. 433, 446, 587 A.2d 333, 334 (1991).

^16. 75 Pa. Cons. Stat. Ann. § 1705(d). (1996).

^17. The MVFRL defines "serious injury" as "a personal injury resulting in death, serious impairment of body function or permanent serious disfigurement." 75 Pa. Cons. Stat. Ann. § 1702. (1996)

^18. Id.

^19. Washington v. Baxter, 553 Pa. 434, 446-47, 719 A.2d 733, 740 (1998).

^20.75 Pa. Cons. Stat. Ann. § 1705(d). (1996).

^21. 75 Pa. Cons. Stat. Ann. § 1702 (1996). The MVFRL defines "noneconomic loss" as "pain and suffering and other nonmonetary detriment." Id.

^22. 75 Pa. Cons. Stat. Ann. § 1705(d). (1996).

^23. Ickes v. Burkes, 713 A.2d 653, 656-57 (Pa. Super. 1998); Panichelli v. Liberty Mut. Ins. Co., 435 Pa. Super. 290, 296, 645 A.2d 865, 868 (1994).

^24. Estate of Zimmerman v. Southeastern Pennsylvania Transp. Auth., 168 F.3d 680 (3d Cir. 1999); Martin v. Evans, 551 Pa. 496, 502, 711 A.2d 458, 461 (1998); Swift v. Northeastern Hosp. of Philadelphia, 456 Pa. Super. 330, 335, 690 A.2d 719, 722 (1997).

^25. See Martin, 551 Pa. at 502, 711 A.2d at 461 (1998).

^26. Giorno v. Temple Univ. Hosp., 875 F. Supp. 267, 269 (E.D. Pa. 1995); Wendy H. by and through Smith v. City of Philadelphia, 849 F. Supp. 367, 372 (E.D. Pa. 1994).

^27. Emerich v. Philadelphia Ctr. for Human Dev., Inc., 554 Pa. 209, 216, 720 A.2d 1032, 1040 (1998).

^28. See id.

^29. Kuhns v. Brugger, 390 Pa. 331, 340, 135 A.2d 395, 401 (1957); Smith v. Stribling, 168 Pa. Cmwlth. 188, 196; 649 A.2d 1003, 1006 (1994).

^30. Kuhns, 390 Pa. at 341, 135 A.2d at 401; City of Philadelphia v. Duda by Duda, 141 Pa. Cmwlth. 88, 97, 595 A.2d 206, 211 (1991).

^31. See id.

^32.See id.

^33. Marks v. Swayne, 549 Pa. 336, 342, 701 A.2d 224, 226 (1997) (overruling Waddle v. Nelkin, 511 Pa. 641, 515 A.2d 909 (1986)).

^34.Rice v. Shuman, 513 Pa. 204, 212, 519 A.2d 391, 396 (1986); Bressler v. Dannon Yogurt, 392 Pa. Super. 475, 487, 573 A.2d 562, 568 (1990).

^35. Skipworth by Williams v. Lead Industries Ass'n, Inc., 547 Pa. 224, 231, 690 A.2d 169, 172 (1997); Hamil v. Bashline, 481 Pa. 256, 265, 392 A.2d 1280, 1284 (1978); First v. Zem Zem Temple, 454 Pa. Super. 548, 553 n.2, 686 A.2d 18, 21 n.2 (1996); Reilly v. Tiergarten Inc., 430 Pa. Super. 10, 15, 633 A.2d 208, 210 (1993).

^36. Zem Zem Temple, 454 Pa. Super. at 553 n.2, 686 A.2d at 21 n.2; Reilly, 430 Pa. Super. at 15, 633 A.2d at 210; McDonald v. Marriott Corp., 388 Pa. Super 121, 125, 564 A.2d 1296, 1298 (1989).

^37. Bashline, 481 Pa. at 265, 392 A.2d at 1284; Jeter v. Owens-Corning Fiberglas Corp., 716 A.2d 633, 636 (Pa. Super. 1998).

^38. Johnson v. Garden State Brickface and Stucco Co., 833 F. Supp. 524 (E.D. Pa. 1993); Estate of Flickinger v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973).

^39. Powell v. Drumheller, 539 Pa. 484 , 653 A.2d 619 (1995); Huddleston v. Infertility Center of America, 700 A.2d 453 (Pa. Super. 1997).

^40. 42 Pa. Cons. Stat. Ann. § 7102. (1998).

^41. See id.

^42. Commonwealth Fed. Sav. & Loan Ass'n v. Pettit, 137 Pa. Commw. 523, 532, 586 A.2d 1021, 1026 (1991).

^43. Pascal v. Carter, 436 Pa. Super. 40, 43, 647 A.2d 231, 233 (1994); McCullough v. Monroeville Home Ass'n, Etc., 270 Pa. Super. 428, 431, 411 A.2d 794, 795 (1979).

^44. 42 Pa. Cons. Stat. Ann. § 7102. (1998).

^45. See id.

^46. See id.

^47. Summit Fasteners, Inc. v. Harleysville Nat'l Bank & Trust Co., Inc. 410 Pa. Super. 56, 63, 599 A.2d 203, 206 (1991); Krivijanski v. Union R. Co., 357 Pa. Super. 196, 205, 515 A.2d 933, 936 (1986).

^48. Howell v. Clyde, 533 Pa. 151, 162 n.10, 620 A.2d 1107, 1112-13 n.10 (1993).

^49. Barnes v. American Tobacco Co. Inc., 984 F. Supp. 842, 869 (E.D. Pa. 1997) (citing Howell, 533 Pa. at 162, 620 A.2d at 1112-13)).

^50. See id.; Barrett v. Fredavid Builders, Inc., 454 Pa. Super. 162, 166, 685 A.2d 129 130 (1996).

^51. Howell, 533 Pa. at 162 n.10, 620 A.2d at 1112-13 n.10.

^52. D'Ardenne by D'Ardenne v. Strawbridge & Clothier, Inc., 712 A.2d 318, 321 (Pa. Super. 1998) (citing Gilbert v. Korvette, Inc., 457 Pa. 602, 611-13, 327 A.2d 94, 100 (1974)). Note that Gilbert v. Korvette, Inc. abandoned the requirement that the defendant have "exclusive control" over the instrumentality of the injury. See Gilbert, 457 Pa. at 614, 327 A.2d at 101.

^53. D'Ardenne, 712 A.2d at 321.

^54. Id.

^55. Stewart v. Motts, 539 Pa. 596, 601, 654 A.2d 535, 537 (1995).

^56. Id.

^57. Alfred M. Lutheran Distrib., Inc. v. A.P. Weilersbacher, 437 Pa. Super. 391, 406-08, 650 A.2d 83, 91 (1994).

^58. J.E.J. v. Tri-County Big Brothers/Big Sisters, Inc., 692 A.2d 582, 585 (Pa. Super. 1997).

^59. Tri-County, 692 A.2d at 585; Wagner v. Anzon, Inc., 453 Pa. Super. 619, 627, 684 A.2d 570, 574 (1996).

^60. Id.

^61. Wagner, 453 Pa. Super. at 627, 684 A.2d at 574.

^62. Id.

^63. Reilly v. Tiergarten Inc., 430 Pa. Super. 10, 633 A.2d 208 (1993); Herr v. Booten, 398 Pa. Super. 166, 580 A.2d 1115 (1990).

^64. 42 Pa. Cons. Stat. Ann. § 8322. (1998).

^65. Smith v. Pulcinella, 440 Pa. Super. 525, 529, 656 A.2d 494, 497 (1995).

^66. Mattia v. Sears, Roebuck & Co., 366 Pa. Super. 504, 507, 531 A.2d 789, 791 (1987); Harka v. Nabati, 337 Pa. Super. 617, 622, 487 A.2d 432, 434 (1985).

^67.Harka, 337 Pa. Super. at 622, 487 A.2d at 434.

^68. Carrasquilla v. Mazda Motor Corp., 963 F. Supp. 455, 459-60 (M.D. Pa. 1997); Smith v. Pulcinella, 440 Pa. Super. at 529-30, 656 A.2d at 496; Harka, 337 Pa. Super. at 622, 487 A.2d at 434.

^69. 42 Pa. Cons. Stat. Ann. § 8326. (1998).

^70. Id.

^71. Id.

^72. Corbett v. Weisband, 380 Pa. Super. 292, 332-33, 551 A.2d 1059, 1079 (1988).

^73. Brown v. City of Pittsburgh, 409 Pa. 357, 363, 186 A.2d 399, 402 (1962); Franklin Decorators, Inc. v. Kalson, 330 Pa. Super. 140, 143, 479 A.2d 3, 4 (1984).

^74. Travelers Indem. Co. v. Stedman, 895 F. Supp. 742, 748-49 (E.D. Pa. 1995).

^75. Globe Indem. Co. v. Agway, Inc., 456 F.2d 472, 475 (3d Cir. 1972); Burbage v. Boiler Eng'g & Supply Co., 433 Pa. 319, 326, 249 A.2d 563, 567 (1969); Kemper Nat'l P & C Co. v. Smith, 419 Pa. Super. 295, 300, 615 A.2d 372, 375 (1992).

^76. Stedman, 895 F. Supp. at 749.

^77. 77 Pa. Cons. Stat. Ann. §§ 1-et seq. (1992 and Supp. 2000).

^78. 77 Pa. Cons. Stat. Ann. § 481 (1991); see also 77 Pa. Cons. Stat. Ann. § 22 (1992 and Supp. 2000) for the definition of "employe" and 77 Pa. Cons. Stat. Ann. § 21 (1992) for the definition of "employer."

^79. Ducjai v. Dennis, 540 Pa. 103, 109, 656 A.2d 102, 105 (1995); Alston v. St. Paul Ins. Co., 531 Pa. 261, 267, 612 A.2d 421, 424 (1992); Gertz v. Temple University-Commonwealth System of Higher Educ., 443 Pa. Super. 177, 181, 661 A.2d 13, 15 (1995); Snyder v. Pocono Med. Ctr., 440 Pa. Super. 606, 611, 656 A.2d 535, 536 (1995) aff'd 547 Pa. 415, 690 A.2d 1152 (1997).

^80. 77 Pa. Cons. Stat. Ann § 52 (1992) (an employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer's regular business entrusted to such employe or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employe); McDonald v. Levinson Steel Co., 302 Pa. 287, 294, 153 A. 424, 426 (1930); Emery v. Leavesly McCollum, 725 A.2d 807 (Pa. Super. 1999).

^81. Qualp v. James Stewart Co., 266 Pa. 502, 109 A. 780 (1920); Lascia v. Belcher Roofing Corp., 704 A.2d 644 (1997).

^82. 77 Pa. Cons. Stat. Ann. § 481(b). (1992).

^83. 77 Pa. Cons. Stat. Ann. § 671 (1992); see also PMA Ins. Group v. Workmen's Compensation Appeal Bd., 665 A.2d 538, 543 (Pa. Cmwlth. 1995); Reliance Ins. Co. v. Richmond Mach. Co., 309 Pa. Super. 430, 435, 455 A.2d 686, 689 (1983).

^84. Stalmaster v. W.C.A.B., 679 A.2d 293, 296 (Pa. Cmwlth. 1996); Allegheny Beverage Corp. v. W.C.A.B., 166 Pa. Commw. 646, 650, 646 A.2d 762, 764 (1994); Pendleton v. W.C.A.B., 155 Pa. Commw. 440, 445, 625 A.2d 187, 190 (1993).

^85. See Pa. R. Civ. Pro. § 2327(3) and (4).

^86. McDaniel v. Rexnord, Inc., 371 Pa. Super. 32, 35, 537 A.2d 365, 367 (1988); Maginley v. Robert J. Elliott, Inc., 345 Pa. Super. 582, 586, 498 A.2d 977, 980 (1985).

^87. 77 Pa. Cons. Stat. Ann § 72 (1992); Urban v. Dollar Bank, 725 A.2d 815 (Pa. Super. 1999).

^88. Holdampf v. Fidelity & Cas. Co. of New York, 793 F.Supp. 111(W.D.Pa.1992), aff'd, 16 F.3d 403 (3d Cir. 1992); Snyder v. Specialty Glass Products, Inc., 441 Pa. Super. 613, 658 A.2d 374 (1995).

^89. See Kohler v. McCrory Stores, 532 Pa. 130, 137, 615 A.2d 27, 32 (1992) (holding "spirit and intent of the [Worker's Compensation] Act not violated by permitting an employee injured by a co-worker for personal reasons to maintain a negligence action against his employer for any associated negligence in maintaining a safe workplace"); cf., Shaffer v. Procter & Gamble, 412 Pa. Super. 630, 637, 604 A.2d 289, 292-93 (1992) (finding Worker's Compensation Act's exclusivity provision applicable to employee's lawsuit against employer because grievance was job related).

^90. See Martin v. Lancaster Battery Co., Inc., 530 Pa. 11, 18, 606 A.2d 444, 447-48 (1992); Snyder v. Specialty Glass Prod., Inc., 441 Pa. Super. 613, 623, 658 A.2d 366, 371 (1995).

^91. See Urban v. Dollar Bank, 725 A.2d 815, 819 (Pa. Super. 1999) (held defamation action designed to redress harm to employee's reputation, thus, essence of action was not to compensate employee for "injury" as contemplated by Act).

^92. Id. at 821 (held malicious abuse of process action designed to redress harm to employee's reputation and financial injury sustained as result, thus, essence of action was not to compensate employee for "injury" as contemplated by Act).

^93. See Updyke v. BP Oil Co., 717 A.2d 546, 549 (Pa. Super. 1998); Swift v. Northeastern Hosp. of Philadelphia, 456 Pa. Super. 330, 335, 690 A.2d 719, 722 (1997); Palange v. Philadelphia Law Dept., 433 Pa. Super. 373, 375-77, 640 A.2d 1305, 1307 (1994). Pennsylvania follows the Restatement (Second) of Torts, defining trespasser as "'a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise. A licensee is a person who is privileged to enter or remain on the land only by virtue of the possessor's consent. An invitee is a person invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public, or for a purpose directly or indirectly connected with business dealings with the possessor of land.'" Restatement (Second) of Torts §§ 330-32; Updyke, 717 A.2d at 549 (citations omitted).

^94. See Zimmerman v. Southeastern Penn. Transp. Auth., 17 F. Supp. 2d 372, 380 (E.D. Pa. 1998); Rossino v. Kovacs, 553 Pa. 168, 718 A.2d 755, 756 (1998).

^95. See Wiegand by Wiegand v. Mars Nat. Bank, 308 Pa. Super. 218, 221, 454 A.2d 99, 101 (1982); see also Restatement (Second) of Torts §§ 341 and 342 (1965).

^96. See Swift, 456 Pa. Super. at 335, 690 A.2d at 722; Blackman v. Federal Realty Inv. Trust, 444 Pa. Super. 411, 415, 64 A.2d 139, 142 (1995); see also Restatement (Second) of Torts §§ 341A and 343 (1965).

^97. Feld v. Merriam, 506 Pa. 383, 485 A.2d 749 (1984); Moran v. Valley Forge Drive-In Theater, Inc., 431 Pa. 432, 246 A.2d 875 (1968); Kerns v. Methodist Hospital, 393 Pa. Super. 533, 574 A.2d 1068 (1990).

^98. 47 Pa. Cons. Stat. Ann. § 4-493. (1997).

^99. See Klein v. Raysinger, 504 Pa. 141, 148, 470 A.2d 507, 510 (1983).

^100. See Fandozzi v. Kelly Hotel, Inc., 511 A.2d 524, 525 (Pa. Super. 1998); Miller v. Brass Rail, 702 A.2d 1072, 1078 (Pa. Super. 1997); Holpp v. Fez, Inc., 440 Pa. Super. 512, 517, 656 A.2d 147, 149 (1995).

^101. Fandozzi, 711 A.2d at 525; Detwiler v. Brumbaugh, 441 Pa. Super. 110, 115, 656 A.2d 944, 946 (1995); Hiles v. Brandywine Club, 443 Pa. Super. 462, 469, 662 A.2d 16, 19 (1995).

^102. Fandozzi, 711 A.2d at 525; Brass Rail Tavern, 702 A.2d at 1078; Holpp, 440 Pa. Super. at 518, 656 A.2d at 150; Reilly v. Tiergarten, Inc., 430 Pa. Super. 10, 15, 633 A.2d 208, 210 (1993).

^103. See Lucker Mfg. V. Milwaukee Steel Foundry, a Div. of Grede Foundries, 777 F. Supp. 413, 415 (E.D. Pa. 1991); New York State Elec., & Gas Corp. v. Westinghouse Elec. Corp., 387 Pa. Super. 537, 549, 564 A.2d 919, 925 (1989).

^104. See 2-J Corp. v. Tice, 126 F.3d 539, 541 (3d Cir. 1997); Jones v. General Motors Corp., 428 Pa. Super. 544, 546, 631 A.2d 665, 666 (citing REM Coal Co., Inc. v. Clark Equipment Co. 386 Pa. Super. 401, 412-13, 562 A.2d 128, 134 (1989)); New York State Elec., & Gas Corp., 387 Pa. Super. at 539, 564 A.2d at 925; Lower Lake Dock Co. v. Messinger Bearing Corp. 395 Pa. Super. 456, 463, 577 A.2d 631, 635 (1990) (finding economic loss rule equally applicable to negligence actions sounding in tort as products liability action).

^105. See SHV Coal, Inc. v. Continental Grain Co., 376 Pa. Super. 241, 250, 545 A.2d 917, 921 (1988) (stating that an intentional interference with a current or prospective business relationship which results in economic loss is actionable); but see Aikens v. Baltimore and Ohio R. Co., 348 Pa. Super. 17, 20, 501 A.2d 277, 278 (1985) (finding recovery for purely economic loss occasioned by tortious interference with contract or economic advantage is not available under negligence theory); Valley Forge Convention & Visitors Bureau v. Visitor's Services, Inc., 28 F. Supp. 2d 947, 951 (E.D. Pa. 1998) (stating "[t]he economic loss doctrine precludes recovery in tort for economic losses arising from breach of contract").

^106. Pa. R. Civ. Pro. 1019(b).

^107. Gerfin v. Colonial Smelting & Ref. Co., Inc., 374 Pa. 66, 67, 97 A.2d 71, 72 (1953); Sewak v. Lockhart, 699 A.2d 755, 759 (Pa. Super. 1997); Pittsburgh Live, Inc. v. Servov, 419 Pa. Super. 423, 429, 615 A.2d 438, 441 (1992).

^108. Gibbs v. Ernst, 538 Pa. 193, 207, 647 A.2d 882, 889 (1994); Bortz v. Noon, 556 Pa. 487, 729 A.2d 555, 560 (1999) (adopting Restatement (Second) of Torts § 525 (1977); accord Sewak, 699 A.2d at 759; Servov, 410 Pa. Super. at 429-30, 615 A.2d at 441.

^109. Gibbs, 538 Pa. 210, 647 A.2d at 890; Bortz, 729 A.3d at 561) (following Restatement (Second) of Torts § 552).

^110. See id.

^111. 73 Pa. Cons. Stat. Ann §§ 201-1 to 201-9.1. (1993 and Supp. 2000).

^112. 73 Pa. Cons. Stat. Ann § 201-1. (1993).

^113. Id.

^114. 73 Pa. Cons. Stat. Ann § 201-9.2. (1993 and Supp. 2000).

^115. DiLucido v. Terminix Int'l, Inc., 450 Pa. Super. 393, 401, 676 A.2d 1237, 1240-41 (1996).

^116. "Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding." 73 Pa. Cons. Stat. Ann § 201-2(4)(xxi). (1993 and Supp. 2000).

^117. Pirozzi v. Penske Olds-Cadillac-GMC, 413 Pa. Super. 308, 313, 605 A.2d 373, 375 (1992) (citing Com., by Creamer v. Monumental Properties, Inc., 459 Pa. 450, 329 A.2d 812 (1974)); Hammer v. Nikol, 659 A.2d 617, 619 (Pa. Comwlth. 1995).

^118. Prime Meats, Inc. v. Yochim, 422 Pa. Super. 460, 469, 619 A.2d 769, 6773 (1993). See supra note 106 and accompanying text for the elements of common law fraud.

^119. Woody v. State Farm Fire and Cas. Co., 965 F. Supp. 691, 695 (E.D. Pa. 1997); Gabriel v. O'Hara, 368 Pa. Super. 383, 398, 534 A.2d 488, 496 (1987).

^120. 40 P.S. § 1171.1 et seq. (1999).

^121. Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97, 102, 555 A.2d 800, 803 (1989); Feld v. Merriam, 506 Pa. 383, 395, 485 A.2d 742, 747 (1984); Karpiak v. Russo, 450 Pa. Super. 471, 480-81, 676 A.2d 270, 275 (1996); Rhoads v. Heberling, 306 Pa. Super. 35, 39, 451 A.2d 1378, 1380 (1982); Focht v. Rabada, 217 Pa. Super. 35, 38, 268 A.2d 157, 169 (1970).

^122.Logue v. Logano Trucking Co., 921 F. Supp. 1425, 1427 (E.D. Pa. 1996).

^123. Feld, 506 Pa. at 395, 485 A.2d at 748; Martin v. Johns-Manville Corp., 508 Pa. 154, 170, 494 A.2d 1088, 1097, (1985), rev'd on other grounds by Martin v. Johns-Manville Corp., 551 Pa. 496, 711 A.2d 458 (1998); Taylor v. Albert Einstein Medical Ctr., 723 A.2d 1027, 1037(Pa. Super. 1998); Rhoads, 306 Pa. Super. at 46, 451 A.2d at 1384.

^124. G.J.D. by G.J.D. v. Johnson, 552 Pa. 169, 176, 713 A.2d 1127, 1131 (Pa. 1998) (citing Kirkbride, 521 Pa. at 104, 555 A.2d at 803)).

^125.See Kirkbride v Lisbon Contractors, Inc., 521 Pa. 97, 102, 551 A.2d 800, 803 (1989); Laniecki v. Polish Army Veterans Ass'n of Lucyan Chwalkowski, 331 Pa. Super. 413, 426, 480 A.2d 1101, 1108 (1984); Rhoads, 306 Pa. Super. at 40-41, 451 A.2d at 1381; but see Martin, 508 Pa. at 173, 494 A.2d at 1098 (Hutchison, J. with four justices concurring in result) (held plaintiff must prove actual compensatory damages before recovering punitive damages in a products liability case) (Smith v. Grab, 705 A.2d 894, 901 (Pa. Super. 1997) (citing Schecter v. Watkins, 395 Pa. Super. 363, 383, 577 A.2d 585, 595 (1990)).

^126. Kirkbride, 521 Pa. at 103-04, 551 A.2d at 803; but see Martin, 508 Pa. at 174, 494 A.2d at 1098.

^127. Kirkbride, 521 Pa. at 102, 551 A.2d at 803); Feld v. Merriam, 506 Pa. at 396, 485 A.2d at 748; Sprague v. Walter, 441 Pa. Super. 1, 61, 656 A.2d 890, 920 (1995).

^128. Logue, 921 F. Supp. at 1427; Martin, 508 Pa. at 170, 494 A.2d at 1097; McDaniel v. Merck, Sharp & Dohme, 367 Pa. Super. 600, 623, 533 A.2d 436, 447 (1987).

^129. Harvey v. Hassinger, 314 Pa. Super. 97, 100, 461 A.2d 814, 815 (1983).

^130. See Tulewicz v. Southeastern Pennsylvania Transp. Auth., 529 Pa. 588, 596, 606 A.2d 427, 431, (1992); Miller v. Preitz, 422 Pa. 383, 221 A.2d 320 (1966), overruled on other grounds, Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968).

^131. 42 Pa. Cons. Stat. Ann. § 8301. (1999).

^132. 42 Pa. Cons. Stat. Ann. § 8302. (1998).

^133.See Tulewicz, 529 Pa. at 597, 606 A.2d at 431; Pezzulli v. D'Ambrosia, 344 Pa. 643, 645, 26 A.2d 659, 661 (1942).

^134. 42 Pa. Cons. Stat. Ann. § 8301(b). (1999).

^135. Tulewicz, 529 Pa. at 596; 606 A.2d at 431; Fisher v. Dye, 386 Pa. 141, 145, 125 A.2d 472, 475 (1956).

^136. Id.

^137. Tulewicz, 529 Pa. at 597, 606 A.2d at 431 (citing Pezzulli v. D'Ambrosia, 344 Pa. at 647, 26 A.2d at 661)).

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