Court Rulings

<p>Appeal, No. 340, Jan. T., 1892, by defendants, James M. Place and Rufus R. Wilson, from judgment of Q. S. Schuylkill Co., March T.; 1891, No. 175, on indictment for libel.</p> <p>Indictment for libel.</p> <p>The indictment set forth the following publication:</p> <p>“ ’Tis the talk of the town.” “ The racy sensation now exciting the Pottsville people. The woman is married, so is the ‘ man who has suddenly gone south for his health, accompanied by his spouse. What rumor has to say about it.”</p> <p>‘‘ Pottsville, Pa., January 24th. Never in Pottsville’s history has she been so excited over a scandal, as that which has been brought to light through the enterprise of the ‘ Pennsylvania Telegram; ’ imperfect as the details were, the people seemed to recognize at once that the town was becoming something of a city, so far as racy doings were concerned, than the most fastidious roué could have wished.</p> <p>“The Womelsdorf — Moyer story has not been half told. There have been all sorts of rumors afloat, but all efforts to get the interested parties to talk have failed. Though it certainly would not have come to the public gaze if they had not done too much talking in the first place. It now appears the lady is married. She was married in a home prepared for her and elegantly furnished by a lover, who thought he had been the sole participant in her secret love. At that wedding the o.) rriage of the girl’s employer played a prominent part. Horses, carriage, coachman and employer’s wife and son were at the wedding. The preacher was brought in another cab. Pretty high toned wedding for a young man, who only three months before was said to be on his uppers because he lost his last ten dollars at the Oresona races, when a man with a little black ball and the halves of an English walnut shell pulled in the multitude.</p> <p>“ Your reporter approached this unhappy young man. He refused to talk. He said that there was not a bit of truth in the stories. He said he did not inten

<p>Appeal from the Orphans’ Court of Philadelphia county.</p> <p>This was an appeal by Samuel Wagner, as trustee of his wife Emily and children, from the decree of the Orphans’ Court, distributing the estate of James S. Duval, deceased, in the hands of Samuel Wagner and Oeorge B. Rodney, who were surviving trustees under the will of said deceased. James S. Duval died in 1842, having first made his will, dated March 18th 1842, and a codicil thereto, dated March 22d 1842, which were proved at Philadelphia, April 19th 1842. By the codicil he devised the residue of his real estate to Lewis Duval, since deceased, and the accountants in fee, in trust, with power to sell, “ and the net proceeds” he directed “to be first applied in payment of any of my debts, to which the same may be subject, and is not otherwise provided for, and the surplus of such purchase-money to be distributed by the said trustees, to and among my several children who may be living, and to the issue of such as may have died, in shares according to the number of those living and those who have died leaving issue, equally, having reference to the sums of money which from time to time I have advanced to any of my said children, and which I direct shall be in the first place deducted from the shares of each child or his issue, before he, she, or they shall be entitled to any portion or distributive share of the proceeds of the sale of said real estate hereby directed to be madeadding, “ And it is further my will, that my wife, Catharine Duval, shall, in her lifetime, ascertain and settle the sums to be charged to my several children, or against the issue of those who may have' or shall die leaving issue, my said wife being for this purpose invested with absolute discretion, according to such evidence as she may have in my books and papers.”.</p> <p>The widow as executrix made a statement of the accounts of the several children, among which there was one against her daughter, Mrs. Emily Wagner, which conta

SLIP AND FALL - NEGLIGENCE - SUMMARY JUDGMENT - CIV.R. 56 - REASONABLE INFERENCES: Given the inconclusive evidence and factual ambiguity regarding how the liquid got onto the hospital's service hallway floor, nonmovant nursing student's deposition testimony about a hospital employee mopping nearby reasonably supported an inference that the liquid the injured student slipped on was from the mopping. The trial court erred in failing to construe this evidence in the light most favorable to the nonmovant nursing student and granting summary judgment in favor of the hospital because the nursing student failed to "prove" the hospital's employee created the hazard. At the summary judgment stage, the nonmoving party is not required to prove anything with certainty, but, instead, is required only to meet the evidence furnished by the moving party so as to show there remains a genuine issue of material fact. Judgment reversed; cause remanded.

Judgment affirmed. Although the appellant designated only the trial court's final judgment in his notice of appeal, this court could address the trial court's interlocutory rulings because interlocutory orders merge with a court's final judgment. The trial court did not err by denying the appellant's motion to compel, motion for sanctions, motion to strike, or motion in limine. The appellant failed to demonstrate that his employer either waived its ability to rely on, or was prevented from relying on, his criminal background as the grounds for terminating his at-will employment. The trial court did not err by denying appellant's motion for judicial notice or motion for summary judgment. The trial court properly granted appellees summary judgment on appellant's claims of race discrimination, disability discrimination, retaliation, wrongful termination in violation of public policy, unlawful aiding and abetting of discrimination, and defamation.

motion to dismiss – failure to state a claim – at-will employee – wrongful discharge in violation of public policy – extension – discovery

The plaintiff, a certified nursing assistant, sought to recover damages from the defendant for an alleged violation of the Connecticut Fair Employ- ment Practices Act (CFEPA) (§ 46a-60), for failing to hire the plaintiff, who is hard of hearing, on the basis of her disability. During the hiring interview with S, the owner and administrator of the defendant, the plaintiff asked S to speak up, as she had trouble hearing her. S subse- quently asked how the plaintiff would be able to hear her clients and the plaintiff responded that she had no problem communicating with her nonverbal autistic son. The interview continued with no further questions regarding the plaintiff's disability but, instead, focused on the plaintiff's sporadic work history. After the interview, S received a fax containing employment discrimination information from the plaintiff's mother, which S interpreted as a potential threat of litigation. Thereafter, the defendant did not hire the plaintiff. Subsequently, the plaintiff filed her discrimination action with the trial court, which determined that the plaintiff had not proven that the reason she was not hired by the defendant was because of her hearing disability, and that the reasons given by the defendant for not hiring the plaintiff, the gaps in her employ- ment history, her reliability, and the fax sent by her mother, were not due to intentional discrimination. On appeal to this court, the plaintiff claimed, inter alia, that the trial court applied the incorrect legal standard for determining the defendant's liability under CFEPA. Held: 1. The plaintiff could not prevail on her claim that the trial court erred in applying the but-for causation standard in reviewing her disability claim pursuant to CFEPA, as the trial court properly applied the motivating factor test as the causation standard, which required the plaintiff to prove only that the illegal discrimination was a cause of the adverse employment action: although the trial court's decis

The plaintiff general contractor sought to recover damages for, inter alia, an alleged violation of the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.), in connection with a breach of contract claim between the plaintiff and the defendants, a subcontractor, T Co., and its manager, P. Under the contract, T Co. was to perform certain work on a construc- tion project to build a condominium complex at a fixed sum. Although the contract called for payment upon delivery for furnished materials and equipment, the defendants convinced the plaintiff to pay a 30 percent deposit for all of the estimated costs of materials and equipment up front, claiming that the deposit would be used to buy materials ahead of time to avoid an anticipated price increase and to avoid delivery delays. Unknown to the plaintiff, the defendants did not intend to use these funds as promised but, instead, intended to use the funds to finance its payroll and work on other projects. When the invoices for supplies remained unpaid by the defendants, a mechanic's lien was placed on the property and, thereafter, the plaintiff terminated the contract. The trial court concluded that the defendants breached the contract, inter alia, in failing to perform the work and to pay for materials, equipment and labor used, and that the defendants were unjustly enriched. It also found the defendants' conduct was deceptive, unethical and unscrupu- lous and constituted an unfair and deceptive business practice in viola- tion of CUTPA. On the defendants' appeal to this court, held: 1. Contrary to the defendants' claims, there was sufficient evidence of inten- tional, reckless, unethical and unscrupulous conduct by both defendants to establish a violation of CUTPA: the record supported a finding that P, as the manager and controlling member of T Co., knowingly or recklessly engaged in the unscrupulous acts, because he personally represented to the plaintiff that the deposit would be used for materials, l

Appellant failed to file a brief which substantially complies with the rules governing practice and procedure before the court, including App.R.16. Accordingly, the appeal is sua sponte dismissed.

The defendant employer, R Co., and its owner, M, appealed to this court from the decisions of the Compensation Review Board affirming the finding of the Workers' Compensation Commissioner that the Workers' Compensation Commission had jurisdiction over the plaintiff's claim for workers' compensation benefits and that the plaintiff employee had sustained a compensable injury. The plaintiff sustained injuries when a car he was working on at R Co.'s junkyard fell on his shoulders and the back of his head. The plaintiff failed to file a notice of claim within one year of the date of his injury as required by statute (§ 31-294c), and R Co. and M argued that the commission lacked jurisdiction over the plaintiff's claim. The commissioner bifurcated the issues, deciding the jurisdictional question first before holding a hearing on the issue of compensability. After the first hearing, the commissioner found that the medical care exception in § 31-294c (c) applied. The commissioner further found that an employer-employee relationship existed between R Co. and/or M. Thus, the commissioner found that the commission had jurisdiction over the matter. R Co. and M filed a petition for review with the board, which affirmed the commissioner's finding of jurisdiction in a decision issued in 2017. In 2019, a hearing was held before the commissioner to address the issue of compensability. No additional evidence or testimony was presented and the parties agreed that record from the prior hearing would be incorporated by reference and constitute the record for purposes of the new hearing. The commissioner concluded that the plaintiff's injury was compensable and that R Co. and M, as alter egos, were jointly and severally liable. The board affirmed the decision of the commissioner in part, and R Co. and M appealed both decisions of the board to this court. Held: 1. Although the board erred in affirming the 2019 decision of the commis- sioner on the basis of collateral estoppel, it properly

workers' compensation retaliation, disability discrimination, public policy wrongful termination, employer intentional tort, loss of consortium

Judgment affirmed. The trial court did not err in granting defendants summary judgment on plaintiff's claims for race discrimination and retaliation. Plaintiff failed to present evidence indicating that one of the court director's stated reasons for upholding the suspension, plaintiff's failure to check in and out with his supervisor as required, was a pretext for discrimination. Plaintiff failed to establish a prima facie case of retaliation.

The plaintiff, who had been hired by the defendants to perform certain home construction site work, sought to recover damages for, inter alia, breach of contract, after the defendants failed to make an installment payment under the parties' contract. The contract set forth a schedule of six installment payments. Work was scheduled to begin on March 9, 2015, and was to be completed on May 11, 2015. As a result of delays, work did not begin until May, 2015. In October, 2015, the plaintiff ceased working for the defendants; the plaintiff maintained that he was termi- nated whereas the defendants claimed the plaintiff walked off the job. The plaintiff claimed he was entitled to the fourth installment payment. The defendants then hired V Co. to complete the work. The plaintiff thereafter brought the present action seeking damages for the defen- dants' failure to remit the fourth installment payment. The defendants filed a counterclaim. Following a trial to the court, the trial court ren- dered judgment for the defendants on the complaint and on their counter- claim, from which the plaintiff appealed to this court. Held: 1. The trial court properly determined that the contract violated the Home Improvement Act (§ 20-418 et seq.) and was unenforceable against the defendants; the plaintiff failed to follow the statutorily (§ 42-135a (1) and (2)) prescribed language and form for the cancellation notice in the contract and failed to furnish the defendants with a detachable notice of cancellation as required by § 42-135a (2) and (3), and these failures amounted to material noncompliance with the act. 2. The trial court's finding that the plaintiff caused the delay in the completion of the work was not clearly erroneous; the court had before it the testimony of the defendants' expert regarding the percentage of work completed by the plaintiff and how much work was left to complete, which the court was free to credit, and the court did not have to credit the plaintiff's testimon

A party appealing a hearing officer's decision must file "reasonably specific" specifications of error detailing which matters are at issue, so as to alert the agency, other parties, and the court of the particular errors claimed. A rehabilitation plan is appropriate if it meets the requirements of N.D.C.C. ch. 65-05.1 and gives the injured worker a reasonable opportunity to obtain substantial gainful employment. An ALJ's decision was supported by evidence from which a reasoning mind could have reasonalby concluded WSI's rehabilitation plan would return Beam to substantial gainful employment in light of his injuries.

The petitioner, who had been convicted of various crimes, including bribery of a witness, in connection with a traffic incident, sought a writ of habeas corpus, claiming that his trial counsel and appellate counsel rendered ineffective assistance. The petitioner claimed that counsel, inter alia, improperly failed to challenge the bribery statute (§ 53a-149) as unconstitutionally overbroad on its face because it arguably could encompass legal activity. The petitioner further claimed that his trial counsel failed to request a jury instruction on true threats with respect to the petitioner's conviction under the statute (§ 53a-181 (a) (3)) crimi- nalizing breach of the peace in the second degree and that his appellate counsel failed to challenge that decision on direct appeal. The petition- er's conviction stemmed from an incident in which he drove his truck into a vehicle driven by J that was stopped at a traffic signal, causing damage. When J rejected the petitioner's offer to pay him for the damage, the petitioner, who was intoxicated, became agitated and stated to J, ''Why don't we pull over to the side and settle it like men?'' J then observed the petitioner yelling and banging on J's car window while J was calling the police. When the police arrived, an officer found the petitioner lying face down in the boat attached to the rear of the truck. The petitioner's skin was cold and appeared blue or purple, his clothing was wet, and he yelled and cursed at the police and ambulance personnel who attempted to treat him. The police told the emergency medical technician who responded to the scene to take the petitioner to a hospi- tal, where the petitioner was admitted and his blood was drawn and tested. The state issued a subpoena after the petitioner was discharged from the hospital and obtained his blood test results, which were admit- ted into evidence. The habeas court rendered judgment denying the petition. Held: 1. The petitioner's claim that his trial counsel and

Civ.R. 12(B)(6), motion to dismiss for failure to state a claim, Title VII, 42 U.S.C. 2000e, Age Discrimination in Employment Act, 29 U.S.C. 623, and the Rehabilitation Act, 29 U.S.C. 794. The trial court properly granted defendants-appellees' motion to dismiss the federal discrimination claims pursuant to Civ.R. 12(B)(6). Appellant failed to advance a cause of action upon which relief may be granted.

The plaintiffs, K and her husband, sought to recover damages from the defendants, G, a physician, and G's medical practice, for personal injuries that K had suffered in connection with G's alleged negligence in, inter alia, failing to perform a proper and adequate episiotomy repair after the birth of the plaintiffs' son. G had performed an episiotomy to facilitate the delivery of the plaintiffs' son. After the delivery, G evaluated K and diagnosed her with a third degree episiotomy extension, which G repaired. After the repair was completed, G performed a digital examina- tion of K's rectum and determined that there were no breaks or defects in K's rectal mucosa. Although an exam of K's perineum the day after the delivery indicated no issues with the repair, K subsequently reported complications, including pain, an infection, and a rectovaginal fistula that required surgery. At trial, the plaintiffs' expert witness, Y, testified that the standard of care requires that a physician, after performing an episiotomy, correctly diagnose and repair the episiotomy and any extension thereof, which must involve a thorough rectal examination before the repair. Y also testified that G failed to satisfy the standard of care because, in failing to conduct a proper examination, G misdiag- nosed and repaired the episiotomy extension as a third degree rather than a fourth degree extension, and that this error led to the rectovaginal fistula. According to the defendants' expert, L, G complied with the standard of care, which required that the rectal exam be performed after rather than before the episiotomy repair. L also testified that G had correctly diagnosed and repaired a third degree episiotomy extension. Finally, another expert witness presented by the defendants testified that K's rectovaginal fistula was not caused by an unrepaired fourth degree episiotomy extension but, rather, an infection. The trial court instructed the jury that the plaintiffs had alleged that G breached

Motion for judgment on the pleadings Civ.R. 12(C) discrimination R.C. 4112.02(A) R.C. 4112.01(A)(2) R.C. 4112.02(J) individual liability aid and abet R.C. 2744.03(A)(6)(c) motion to amend complaint change name final appealable order. The trial court's order granting plaintiff-appellee's motion to amend her complaint where the plaintiff-appellee moved to change the name of the party defendant where plaintiff-appellee demonstrated she mistakenly omitted a portion of the party's name on the complaint is not a final appealable order. We therefore have no jurisdiction to review the second assignment of error. The trial court properly denied the supervisor's Civ.R. 12(C) motion for judgment on the pleadings. R.C. 4112.02(J) expressly imposes liability on a political subdivision employee so as to trigger the immunity exception outlined in R.C. 2744.03(A)(6)(c).

SPOLIATION OF EVIDENCE – EVID.R. 403(A) – EVIDENCE/WITNESS/TRIAL – HOME-OFFICE-OVERHEAD DAMAGES – PROCEDURE/RULES – INVOLUNTARY DISMISSAL – UNJUST ENRICHMENT – ABUSE OF PROCESS – MOOTNESS: The trial court erred in granting a motion in limine preventing a contractor from presenting evidence concerning differing site conditions at a construction site due to spoliation of the evidence on the basis that the contractor failed to collect and preserve soil samples at the job site where the contractor had no duty to collect and preserve them the doctrine of spoliation of the evidence was not implicated since no evidence existed to be destroyed. The trial court erred in granting a motion in limine precluding one of the contractor's employees from testifying about damages under Evid.R. 403(A) when that evidence would not have caused the defendant unfair prejudice and when any defects in the employee's testimony went to its weight and not its admissibility. The trial court did not err in granting partial summary judgment in favor of the city on the contractor's claim for home-office-overhead damages where the contractor was not put on standby and was not prevented from accepting other work during a period of delay. Directed verdicts are inapplicable in bench trials where no jury exists in a nonjury action, a defendant must move for an involuntary dismissal under Civ.R. 41(B)(2). The trial court erred in granting the city's motion for an involuntary dismissal where the trial court erred in excluding evidence and failing to consider that evidence, and therefore, its judgment on the motion to dismiss was erroneous as a matter of law. The trial court did not err in granting summary judgment in favor of the city on the city's claim for unjust enrichment where the city mistakenly paid the contractor twice and the contractor refused to return the payment made in error. The trial court did not err in granting summary judgment in favor of the city on the contractor's claim for abuse of

Workers' compensation—Temporary-total-disability compensation—Court of appeals correctly determined that some evidence in record supported Industrial Commission's finding that claimant was medically able to perform light-duty job that employer made available to him—Court of appeals erred in determining whether job was objectively offered in good faith and in issuing writ of mandamus on that basis ordering commission to grant claimant's request or hold new hearing—Court of appeals' judgment affirmed in part and reversed in part and limited writ issued ordering commission to determine whether employer offered light-duty job in good faith and to issue new order.